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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