Recently in the Seattle Times there was an editorial titled Making Seattle roads safe for all. The editorial states about 26 people die each year in Seattle from traffic injuries. Thousands more are injured each year in automobile collisions.

The editorial reasons a combination of factors are involved in collisions that result in injury: impairment, speed, distraction, inattention, following too closely, and failure to yield to name a few. As pointed out in the editorial “these are not accidents.”  These are injury collisions that could have and should have been prevented.

The editorial says what is needed to make our roads safer is to adhere to the “E’s of traffic safety-education, enforcement, environment, and empathy-because it will take a multifaceted approach to fix our roads… .”  When we apply these “E’s” to the civil justice system we see juries have a role in making our roads safer.

Education. When a collision is caused by the negligence of another driver our civil justice system provides for damages to the injured driver. When fair damages are awarded by the  jury the negligent driver is educated on the reality his negligence will result in paying compensation to the injured party. This also has the effect of educating society beyond the parties in the lawsuit. When a jury speaks society listens, and the message when compensation is awarded to the injured driver is negligence has a consequence.

Enforcement. When a negligent driver causes injury to another he generally receives a traffic citation. Usually a relatively small fine is paid- small in relation  to what has been done to the injured driver. When the negligent driver fails to account for his negligence he often ends up in a civil trial. When a jury provides fair compensation for the injured driver we have a higher level of enforcement. We have enforcement where the amount of damages paid by the negligent driver directly relates to the damage he caused.

Environment. In some cases the injury is caused by unsafe road conditions that the city, county, or state could have and should have made safe. When negligence is proved against the government, and fair damages are awarded, the government is held accountable for negligently allowing an unsafe environment. This in turn causes the government to be more diligent in ensuring a safe environment, because to not do so will result in a financial consequence.

Empathy. In our civil justice system this means caring for the parties in the case. When the plaintiff has been left with injuries through no fault of his own the caring thing to do is provide him with fair compensation. This is what the law provides, and in this way the law has empathy. Jurors are the caring arm of the law in a negligence case.

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In the movie Social Network Sean Parker says: ” When you go fishing you can catch a lot of fish, or you can catch a big fish. You ever walk into a guy’s den and see a picture of him standing next to fourteen trout?”

The movie is a fictional version of how Facebook  was started. Today it is a rare client who does not have a Facebook page or some type of internet presence.

Defense lawyers and insurance companies know this. Defense lawyers and insurance companies may use your client’s Facebook and/or internet postings to hurt your case. The harm can turn the case from a big fish to a little trout. This is why it is necessary to discuss the internet with our client.

Clients need to know that once a thought is posted on line regardless of whether it’s Facebook, a website, or an e-mail the post is available to the internet world. The rules of discovery allow the defense lawyer to request postings on the internet. Defense lawyers often seek production of internet social network postings, e-mails, and website postings.

Clients need to know there is nothing private on the internet. Clients need to refrain from posting any thought they do not want the world to know. On internet postings including e-mails follow these rules:

1. Never post content you do not want the whole world to see.

2. Never post when angry.

3. Think before the post is submitted.

4. Never post about your case (before trial/settlement, during, or after).

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To be effective a personal injury lawyer must be prepared to try the case. This post discusses the mentality of insurance companies and why filing the case is usually the only way to get a fair resolution for our client.

The Insurance Company. In a personal injury case the defendant is an individual or corporation in name but in reality we are pitted against an insurance company. Insurance companies deal in predictability. Insurance companies appreciate personal injury cases that present risk. A personal injury case  presents risk when it is going to trial.

The Traditional Model. Under the traditional model, the lawyer sends the insurance company a settlement demand before filing the case. This model evolved years ago when insurance companies were doing well on Wall Street from investment of their premiums beyond reserves. In recent years this has not been the case, so insurance companies are no longer willing to pay fair value for a non filed case that is presented for settlement.

Today’s Model.  The way to get fair value for the case today is try the case. Cases that must be moved to trial are cases where the client has permanent injuries and the insurance company fails to offer policy limits or an amount equal to a fair trial result. Limits will not be offered unless it is clear to the insurance company the case has a value in excess of limits. Even then the insurance company may not offer limits unless it knows the lawyer is a lawyer known to try cases. Under today’s model often the best course is to forget trying to settle the case and file it without discussion with the insurance company.

Settlement. After the case is filed and prepared for trial then it may be ready to settle. The mind set must be “I am going to try this case, and I am ready to try this case.” At this point we deal from a position of strength and the insurance company knows this. This is the point that settlement for fair value is possible. Fair value is the amount we believe the jury will pay minus the additional cost that will be incurred if the case proceeds to trial. When the insurance company fails to appreciate the case, proceed to trial.

Trial. Try the case at the highest level. In opening tell the jury the story with a straight forward factual narrative beginning with the defendant’s conduct. For plaintiff’s case have lay witness testimony from witnesses with significant knowledge of plaintiff and the liability facts. For the injuries present expert medical testimony from the treating physician whenever possible. In cross examination stick to major points remembering short is better then long. Rarely object, show professionalism and spontaneity. In closing introduce appropriate emotion and passion. Propose a verdict that is reasonable and show how it will make life better for all.

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