A personal injury lawyer is often called upon to arbitrate his client’s case. This post written while I prepare for an arbitration discusses personal injury arbitration.

Why Arbitrate. Generally personal injury arbitration is done because a contract between the parties requires arbitration of disputes arising under the contract. In a personal injury case the contract is an insurance contract. In an automobile injury case the insurance contract is the automobile insurance policy. Often the policy comes into play when the insured party brings a claim under his uninsured/under-insured motorist coverage. At times both sides may agree to arbitrate rather then go the jury trial route. Arbitration has the advantage of  being faster, the parties pick the arbitrator, the arbitrator will be knowledgeable about personal injury cases, and the arbitrator will usually award an amount somewhere between a great result and a bad result. This gives the parties predictability that neither will get killed.

Arbitration Rules. If the contract is silent on rules, prior to arbitration agree on the rules. In Washington where we have mandatory superior court arbitration on damage cases valued at $50,000 or less we have Mandatory Arbitration Rules. Typically Washington lawyers agree to follow these rules in a private arbitration case.

Submissions. Our submissions which include our arbitration brief are submitted fourteen days before the arbitration. The arbitration brief is similar to a trial brief. Background on client. Facts causing injury. Injuries sustained. Impact to client. Past medical bills summarized. Future medical costs. Lost wages. Future economic loss. Relevant Washington law. For exhibits we submit damage photos, repair estimates, significant medical records organized by provider, and jury instructions on damages and life expectancy. (When medical records are voluminous we will include a medical record chronology summarizing the records from date of injury to last record).

Preparation. Prior to the arbitration we review all the exhibits. We highlight and mark the exhibits we will refer to in the arbitration. We read all the depositions. This allows for the internalization of the facts. The opening statement is outlined. It will be without notes but an initial outline allows for internalization. Cross examination of experts is written in chapters or subjects that will be covered. This means the expert is wired. Stated another way we will testify for the expert knowing what he will say based on his deposition or report. If he does not fall into place the wire is pulled and he is impeached with his prior statement. Closing is outlined by writing in the damage amounts on the damage jury instruction. This will be used to get to the amount of the request for damages at closing.

Arbitration Hearing. We arbitrate the case in a similar way to a jury trial. We never waive opening statement. Direct examination is like a conversation with the witness without notes. We sit between our witness and the arbitrator so the witness looks at the arbitrator during her testimony. On cross examination we use the prepared chapters but go beyond. This means we take from the direct to add to our prepared cross so we have spontaneity with the ability to incorporate blind cross examination. Closing argument recognizes we have a sophisticated audience so we keep it short.The theme is repeated like a classical symphony. The damage request draws from the jury instruction.

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Today’s legal climate is largely the result of a concerted tort reform propaganda campaign. A lawyer  representing injured people must recognize how a personal injury case is likely to be defended to create jury skepticism. Insurance defense lawyers will launch innuendo to appeal to prejudices resulting from tort reform propaganda.

The Trial Lawyer. Sadly lawyers who represent the little people of society against insurance companies on a contingent fee basis have been demonized by tort reform campaigns. Now that this has been done, the first defense step is the introduction the Greedy Trial Lawyer myth. This tactic attempts to get jurors to focus on the plaintiff lawyer rather then the injured person as in the lawyer is bringing this case to make money. Always remember the case is about an injured person not the person representing the injured person.

The Impact. The second step is to down play or ignore the injury mechanism. For example it has been known for years the occupant of the rear ended car may have injuries despite the car not  being significantly damaged. This is because modern car bumpers are built to withstand rear end collisions of over 5 MPH without noticeable damage. Insurance companies know low impact crashes can and do cause injuries but they know in trial what matters is the perception of the event causing the injury.

The Injury. The third step is to attack the injury. Whenever possible this begins with the first medical record following the injury event. Often this is a cursory ER record with not much detail. Another favorite attack on the injury is “the preexisting condition argument.”  In reality a rear end collision whiplash predisposes a younger injured plaintiff to future neck conditions including surgery. Thus the younger plaintiff is left with a more significant preexisting condition when he is hit again later. More significant an older person who has advanced neck and back degeneration is more likely to sustain neck and back injuries from trauma. Insurance companies know this but this does not stop them from arguing the condition itself (not the trauma visited to the collision) is the cause of plaintiff’s problems. Honest doctors know the more advanced the spine degeneration the more likely there will be injury from trauma.

Treatment for Injury. The fourth step is to argue there is something wrong with the treatment. These arguments include lack of treatment, over treatment, diagnostic treatment, treatment noncompliance and gap[s] in treatment. Any argument to call into question the treatment or lack there of will do.

Damage Request. The final toy in the tort reform nursery is the “now you know why we are here” statement in response to plaintiff’s damage request. This is a disguised frivolous lawsuit statement made to prejudice against the McDonalds case. Here it is important to stay grounded on the injuries in our case and how these injuries impact our plaintiff. Even with the tort reform propaganda arguments of the defense, when we stay with the truth and reality of our legitimately injured plaintiff the jury will likely respond with fair compensation.

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A quality lawyer is a balanced lawyer. Balance means balance in our life in the law and in our life outside the law.

In the Law. The balanced lawyer  practices time management. He arrives to work in a timely way on a regular basis. The balanced lawyer is well rested and ready to go for the day. The balanced lawyer has a solid relationship with his staff, and with other lawyers in the firm/ office. The balanced lawyer is organized and thorough. The balanced lawyer returns phone calls on a timely basis and meets deadlines. The balanced lawyer is prepared for the task at hand and completes the project in a timely way.

Social. The balanced lawyer has a social life outside the office. This may be a family and/or non family intimate relationships. This may be friends. Either way or both the balanced lawyer has meaningful relationships outside the office.

Intellectual. The balanced lawyer thinks in the law and outside the law. This means the balanced lawyer has an intellectual life outside the office. This may mean taking classes, reading, writing or discourse. The key is he is pushing his mind to continue to grow intellectually which keeps the mind sharp.

Physical. The balanced lawyer has a physical life. This usually means working out on a frequent basis or regular physical activity.  Running, walking, yoga, hiking, climbing, tennis, golf (w/o cart), basketball, squash, hiking, martial arts, regular exercise they all work. The key is physical activity that keeps the balanced lawyer in decent physical condition.

Spiritual. The balanced lawyer has a spiritual life. This may or may not mean a religious life. This does mean being mentally a tuned to something beyond what we cannot see. This may mean being a tuned to the inner working of the balanced lawyer’s body. This does mean the ability to appreciate feelings that come with the beauty of nature and the beauty of the inner person.

What Does Balance Accomplish? Balance accomplishes well roundedness. The balanced lawyer feels good about himself because he has a social life, an intellectual life, a physical life and a spiritual life. This makes him healthy and able to practice law at the highest level. This allows him to put events into perspective. This allows him to appreciate the ups and to accept the downs.

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