Settling a personal injury case requires understanding how an insurance company views a personal injury risk. This is what I have learned in dealing with insurance companies

Two Values. A personal injury case has two values. One, the most the insurance company will pay for the case. Two, the amount a jury will award for the case. When we settle a personal injury case we make sure our client receives the most the insurance company will pay for the case short of a jury verdict.

How the Insurance Company Decides Value. Most insurance companies evaluate case value like they set premiums-based on statistics and risk. They evaluate the injured person. The more solid and appealing the person the better the case. They evaluate the mechanism of the injury. The more clear cut and understandable the better the case. They evaluate past and future medical treatment. The more medical doctor treatment and clear future treatment the better the case. They evaluate economic past and future loss looking for documentation that supports the loss. Most insurance companies have a more difficult time with general damages such as pain and suffering, disability, loss of enjoyment and disfigurement. This is why the lawyer is important.

The Lawyer. The insurance company evaluates the lawyer who has the case. The more likely the lawyer is to try a case the more risk the insurance company sees. A trial lawyer presents risk-the risk a jury will like the case with a verdict more than the mean result.

Offering Mean Value. Based on their evaluation, the insurance company arrives at a bell curve value. The bell curve is the result of insurance calculations on the range within which the jury will award the majority of the time. There is low range and high range value within this bell curve. The insurance adjuster is given authority to settle within this range and this is where the final offer will be. The first offer will be low and the negotiation goes from there.

He Who Speaks First Loses. After the insurance adjuster has evaluated the claim and received his authority he contacts the plaintiff lawyer with the insurance company’s first offer. This is often low and it is  less than the insurance company will ultimately pay. This is where the negotiation starts- the high of great day jury value against the low of  a minimal jury result. In negotiating with the adjuster we know the reasonable settlement value of the claim. Reasonable settlement value is the amount a jury will most often award for the case. The key is to get all of the adjuster’s authority (which is the most the insurance company will pay) and then determine if this is within the average jury range.

In getting there remember the maxim-He Who Speaks First Loses. Put simply when negotiating always remain silent after presenting an offer or counter offer. Resist all temptation to keep talking after giving your number. Do not say anything until the adjuster gives his next number.

Decline the Low Ball. Some insurance companies, particularly in a difficult economic climate, will never get to a fair settlement proposal. Often these companies have a corporate policy of using an impersonal computer evaluation that dictates a low ball offer the adjuster is stuck with. Knowing fair settlement-the amount a jury will usually pay-allows for recognition of a low ball unacceptable offer. When this occurs we advise our client to decline the offer and try the case.

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The next posts under the topic “How I Practice Law” discuss the settlement of a personal injury case.

Be Able to Try the Case. An insurance adjuster has little motivation to settle a personal injury case for fair value unless he knows the lawyer can and will take the case to trial. This is because an experienced personal injury lawyer who is prepared to try the case presents a risk to the insurance company. Settlement allows the insurance company to contain the case at a level it is willing to pay. This is why the injured party needs an experienced trial lawyer to get fair value for his case.

Minimum Policy Limits. In Washington State minimum liability policy limits are $25,000 single injury and $50,000 aggregate. This means no one injured person can collect more then $25,000 and the insurer is not obligated to pay more then $50,000 total for all occupants injured by the driver of the insured vehicle. In Washington, we know an insured driver has policy limits of at least $25,000/$50,000.

Determining Policy Limits. As soon as we know we have a case with a value of $25,000 or more we contact the adjuster and tell him we believe we have a case that exceeds his limits. Assuming we know our case has a value of $25,000 to $50,000 we can tell the adjuster if he has $50,000 or $25,000 we will send him a limits demand. We will wait only if he has $100,000 or more. Usually the adjuster will respond by showing his limits hand or enough of his hand for us to determine the range of the third party limits.

Prompt Settlement Demand. In a limits case we send the settlement demand  as soon as we have the medical records, reports and/or economic loss documentation to demonstrate case value. In a case where limits exceed case value we send the demand as soon as treatment is complete and we have the value documentation we would have at trial. In a limits case we notify our client’s automobile insurer and have it open an under-insured motorist claim. We send the insurer the settlement demand we send the third party carrier.

Content of Demand Package. The demand package begins with the demand letter. The letter has the following sections: Summary of Exhibits. This is the table of contents. Background. This is the section were our plaintiff is described. We cover education, family, employment and physical activities before injury. Facts of Injury. Here the mechanism of injury is set forth. Investigation. Discussion of police report accident investigation. Property Damage. For instance in an automobile collision case the amount of damage to vehicles. Injuries. A general outline of injuries without an ad nauseam blow by blow repeat of the records. Medical Specials Summary.  Amounts totaled by provider. Plaintiff Today. Impact of injuries on client’s life. Evaluation and Demand. Summary of why case has value and amount of demand. The exhibits follow which include police report, property damage statements, medical records, tax returns and pay information, and expert reports.

Amount of Demand. We demand the same amount we will ask the jury for at trial. This is the maximum case value. No addition to the maximum case value. This is a credibility matter. The plaintiff graveyard is littered with plaintiff lawyers who ask too much for a case. If it’s too much to ask a jury it’s too much to ask the adjuster. We base case value on our experience (my partners and I have more then 100 years collective experience), on jury and settlement results and on the unique aspects of the case. This is discussed with client and we have client authority for demand.

In the next post we discuss negotiation and settlement.

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Unfair trial tactics can prejudice the jury against your client. I recently witnessed a defense lawyer engage in improper tactics at trial. This post under “How I Practice Law” discusses pre-trial motions that address unfair tactics. The focus is on on a car collision case, but apply to any jury trial.

Failure to Call a Witness. There should be no comment concerning individuals who have knowledge of facts in the case but have not been called as witnesses. Both lawyers have subpoena power giving them the ability to call any witness they chose to testify at trial. To express, imply, or raise questions to or in front of the jury about individuals that have knowledge but have not been heard from has no purpose but to prejudice a party in the eyes of the jury. (This motion, which should be granted, puts the torch in advance to a lawyer who engages in this underhanded tactic).

Commenting on Documents that could have been Introduced into Evidence. There should be no mention of documents that could have been introduced but have not. Both lawyers have the ability to Request Production or Subpoena documents. As with commenting on absent  witnesses commenting on absent documents  has no legitimate purpose and is only done to poison the jury. (This is the document version of  failure to call a witness).

Commenting on Plaintiff’s Absence from Trial. Because of [plaintiff’s employment] she is unable to attend trial beyond the first day and at the time of her direct and cross examination. The jury should be informed of this reality. Thereafter any comment on plaintiff being absent has no relevance to our case. Any comment on absence can only prejudice plaintiff. (This motion is included when plaintiff is unable to attend the full trial).

Introduction of Photographs of only one Car. Counsel should be precluded from showing a witness and/or offering photographs of (party’s car). Although a picture can be worth a thousand words, an incomplete  picture is worth prejudice to the jury. Despite Request for Production opposition has failed to produce photographs of  the car of (its party). Opposition had the ability to photograph the car before it was repaired. Failure to photograph the damage should now preclude opposition from offering photograph’s of plaintiff’s car. (Note this may be spoliation of evidence. A letter should be sent to the insurance company as soon as case is initiated demanding either photographs of defendant’s car or making car available before any repair. If the car has yet to be repaired and is repaired after the demand there is a spoliation issue).

Not A Complete List. There are many improper trial tactics. The above highlights a few. Talk with experienced lawyers and search the internet for quality law firm sites.  Include searches  in the context of improper tactics in criminal cases.  Recognizing improper tactics and moving pre-trial to eliminate them increases your chances of getting fairness for your injured client.

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Often I see inquiries from lawyers asking how to deal with a particular  judge. Having been a United States Federal District Court Law Clerk for my first two years as a lawyer, and having appeared before judges hundreds of times, I am amazed when a lawyer asks about dealing with a particular judge. This post discusses my maxims as far as dealing with any and all judges.

Be Prepared. Never appear before a judge unless you have reviewed the entire pleading file, know all relevant facts, briefed all relevant law, know what you want to accomplish, and how you are going to accomplish it.

Be Organized. Have a neat, organized file. An organized lawyer often beats a disorganized lawyer on organization alone.

Be On Time. Never enter a courtroom late. Be early enough to introduce yourself to the lower bench and set  your presentation.

Look Professional. Always wear a suit or sport coat, shirt pressed, with tie, and decent shoes. Stand tall and carry yourself with confidence.

Meet Lower Bench. On entering courtroom introduce yourself to the bailiff, clerk, and court reporter. Remember their names. Establish a professional repore with them. Never underestimate the importance of the lower bench.

Follow Local Rules. Know the court’s local rules, and follow them. If the judge says ten minutes for argument stay within ten minutes.

Go through the Paces.  Never assume the judge has read the briefs.  Unless the judge directs otherwise, cover all significant facts and the relevant law. In a bench trial make an opening statement.

The Judge is a Juror.  Treat the judge like a sophisticated juror which she is (especially in a bench trial). She has emotions and is moved by a compelling story just like a juror. Look her in the eyes and stay away from reading.

Show Respect. Accept a bad result with professionalism and dignity. Never display  disrespectful distaste for the judge or the process.

Rarely Affidavit a Judge. Never affidavit a judge unless you draw the worst judge in the courthouse and stand little chance of success. The problem with an affidavit is twofold: 1) you may then draw a worse judge; 2) the next judge sees you have affidavited his fellow judge. Judges usually like one another. They do not look fondly on the lawyer who has exercised an affidavit.

Build Your Reputation. Every court appearance win or lose adds or subtracts to your courthouse reputation. Follow the above maxims and win or lose you add to your reputation as a solid lawyer.

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The full commandment is Thou Shalt Not Dwell on the Trees Rather than the Forest. Sadly this is a disease  many lawyers catch. It is often seen in young lawyers, and in lawyers billing on an hourly basis, but it is not confined to these lawyers. The disease continues throughout the career of abusive lawyers who use incessant  dwelling within the trees to wear down an opponent.

The problem with dwelling on the trees is it wastes time, is usually of plot, and judges hate it.  This is because little is gained when the lawyer overly focuses on procedural and discovery issues that have little or no relevance to the merits of the case. Dwelling in the trees rather then the forest is seen in:

Nonsense Affirmative Defenses. These include “Failure to State a Claim” in a solid lawsuit where the merit of the pleading is certain; “Insufficiency of Service” where service has been obtained; “Failure to Mitigate” despite plaintiff diligently attacking injuries;  and,”Failure to Join a Party” in a simple two party case. The list goes on-the tree dweller throws out affirmative defenses despite the fact they will never be argued.

Abusive or Meaningless Discovery. This is seen in the interrogatories of the tree dweller. Typical abusive/meaningless questions include: Questions on specifics of medical treatment when the answers are in the medical records that are being produced; slightly changed “repeat questions” that call for same information already given;  and, questions about past medical conditions or problems that have nothing to do with the area of the body injured in the case.

Discovery Games. Refusing to provide discovery answers or documents by standing on a technical language or  a drafting mistake when the discovery sought is still clear to the non producing party; Ignoring discovery deadlines on purpose forcing the issue up to the brink of a motion to compel;  and, making technical discovery objections thereby forcing a discovery motion.

Trial Games. Refusal to cooperate with opponent during trial on matters that have nothing to do with the merits of the case but do have a lot to do on efficiently moving the case through trial.

All of the above dwelling in the trees issues are non existent when the lawyers live in the forest. This means they have a handle on the substantive facts and law of the case, they cooperate on producing documents opposition is entitled to, and they cooperate on timing issues in the trial so it moves efficiently.

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As a trial lawyer representing injured people I must file cases more often than not to get fairness. In today’s economic climate many insurance companies are giving low ball settlement offers which a weak lawyer who cannot try a case will convince his client to accept or a client in economic hard times will take. Since I have an obligation to get fairness for my client I proceed to trial rather then take the low ball offer.

This means I regularly work against lawyers for the insurance companies. I play hard, I play fair, and I play to the end. Although I play to win, I treat my opponent with respect and decency. This means I have meaningful conversations with the other lawyer. I listen to the other lawyer. I cooperate  with scheduling with the other lawyer. And when I do well I never act like I beat the other lawyer.

This I believe is the mark of a true professional. And you know when I am decent to the other lawyer she is decent to me. We both will argue our case but this can be and should be done without getting personal, petty, or nasty. I find treating the other lawyer with professionalism and courtesy makes me feel better and I do just as well if not better for my client.

So when when you do not have much to say, and the going is tough, as your opponent is making hay, just remember at times it can be rough.  Accept these times and remember your time will come. Continue to  prepare, believe in yourself, accept bad things can happen,  give your best effort, and never, never lose your professionalism.

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Recently I heard a former Blue Angel, Rear Admiral William Newman, speak. In 1978/79 Admiral Newman was the Commanding Officer/Flight Leader of the Blue Angels. The leader is called “The Boss.” He is responsible for calling by radio the flight moves. This is done as the planes are flying next to each other at over 450 mph.

I took some notes and below apply them to the practice of law. I think they also apply to other professions or endeavors:

Have a Set Method. When flying next to each other at over 450 mph and changing the formation without changing the space between planes the Blue Angels must have a set method. To not is to risk a fatal accident.

Working a legal case involves legal life or death to the client. Years of experience has taught me to have a set method. This means all cases are taken in the same way. All discovery is done by a set method  with client involvement in the same way in every case. Trial preparation is done the same way. I have found by applying a set method without deviation mistakes rarely happen. We are thoroughly prepared and ready to fly into trial in an organized formation.

Concentration. This is essential for the Blue Angels. Without concentration mistakes happen. The same is true in law. When I go to work I am well rested and focused on the task at hand. When I am dealing with a client  the client is first and foremost in my mind. I listen. This allows me to internalize key facts and  the nature and extent of my client’s injuries. This results in legal representation at the highest level.

Trust. With the Blue Angels there is trust between the pilots. They trust the other pilots are performing at their highest level. This gives them confidence in relying on one another as they travel at high speeds a few feet from each another.

With my staff and me there is trust. They take their jobs seriously. They come to work focused and prepared. They work at their highest level. They know I am doing the same. There is also trust between our client, and my staff and me. We know our client takes her case seriously. She keeps appointments and deadlines. She is honest and forthright. She knows we are dedicated to her case and trusts us. Trust allows us to work together with confidence.

Keep the Team Together. When flying next to each other at 450 mph there can be no dissension. There must be team spirit. It is the job of the Blue Angel “Boss” to keep the team together.

This is my job as “The Boss” in my law practice. Keeping the team together is done through example, praise, and professional camaraderie. All staff are treated equally. Although I am the boss, my staff knows I respect them, value them, and listen to them. They know we are a team. We work together to give the highest level of leg

Continue to Develop. Although the Blue Angel shows have similarities to past years, and there is an established tradition, they continue to develop. Planes change with technology. Nothing remains stagnant.

This is true in my law practice. My staff and I continually up date our technology. We continually review our systems and make improvements to stay with technology and  new developments.  By continuing to develop we continue to fly at our highest level.

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In my last three “How I Practice Law” posts I used commandment titles. These titles reflect my personal maxims or commandments to myself. I am not trying to come off as being judgmental-as in if you do not follow the maxims you are doing something wrong. My maxims are personal to how I practice law. They may or may not be helpful to you. With that said the maxim below addresses what I believe is an important attorney client consideration.

The great Wall Street lawyer Simon Rifkind says there are two types of lawyers. The first type listens to the client, and takes case direction from the client. This lawyer is an order taker who lets the client fly the plane. The second type listens to the client, and then directs the case. This lawyer is a professional who believes in himself and flies the plane. I practice law the second way.

My client and I establish this understanding at the first meeting.  We communicate on a regular basis. My client knows where we are going, but my client also knows I am leading the way.

This is especially important at the time of trial. Although my client is at counsel table, he is not allowed to get over involved in trial tactics.  Giving input during  jury selection is fine, but this is done in a way it is clear the client is not calling the shots. During trial, passing an occasional note is ok, but not more then that.

When the the jury sees a client trying to direct the case, he comes off as too involved in the mechanics of the case.  Recall, the plaintiff/hero is dedicated to recovery for his injuries. This is his focus.  To be too involved in case tactics is off plot. A client who appears too involved at trial will focus the jury on this off plot dimension of the client. The over involved client will lose his case.

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