I came across an article on LinkedIn recently by a former partner of mine. Rob Hickey is an outstanding litigator here in Louisville. While Rob is a defense trial lawyer, his article details some tips for plaintiffs’ lawyers based on his years of experience trying cases and litigating. The article also has some good tips for all of us practice lawyers as well. While there isn’t much about technology here, I applaud Rob for being innovative and courageous to offer helpful advice to the other side of the aisle.
The advice was so good, I reached out to Rob and asked him if I could post his article on my block to which he graciously agreed. I would like to thank Rob. Rob is in the Louisville office of Kopka Pinkus Dolin law firm and concentrates his practice on trucking liability defense, motor vehicle liability defense and general liability defense.
Here is his guest post.
Ten Tips for Plaintiff Personal Injuries From a Defense Lawyer
1. Don’t hide the ball.
Claims adjusters will not make a decision in favor of your client based on missing or incomplete information. If your client is injured, give the defense every scrap of information that might say so. If you have evidence to support your position on liability, make enough copies for everyone. Don’t make the mistake of assuming anything. The defense won’t. If anything, omitted information will reduce the perceived value of your claim. Instead of hoping the defense won’t find out about the minor weaknesses in your case, take control and minimize their effect. Explain how you have faced up to them and have taken them into consideration. If your client was intoxicated at the time of the crash, has an old felony conviction or a pre-existing medical condition, steal the defendant’s thunder and explain those issues in your demand letter. Not only will you take away the arguments that are bound to accompany the counteroffer, the points you will gain in credibility are worth money to your client.
2. Do negotiate.
You and your client can do no better than to get the most possible money at the earliest possible time. As soon as you have evaluated your client’s case, make a reasonable settlement demand and support it with provable facts and applicable law. Make a demand early and respond to counteroffers promptly. By accurately evaluating your case and making an earnest attempt to reach a reasonable settlement, you will put yourself in a position to say “I told you so” after a settlement is reached or a verdict is announced. You won’t get anything unless you ask for it. It is too easy, and too often counterproductive, to wait until someone suggests mediation or the court orders a settlement conference. Take control of your client’s fortunes by initiating settlement discussions. The idea that being the first to suggest a negotiated settlement is somehow a sign of weakness is as outmoded as it was false to begin with. With such a high percentage of personal injury lawsuits being settled through negotiation, no one should be ashamed to recognize and acknowledge that reality; especially when it is the best interests of his client to do so. Contrary to popular belief, professional claims adjusters usually do not get cold feet and increase their settlement evaluation on the eve of trial. In fact, by the time they have spent the money necessary to prepare a case for trial, they understandably want some return on that investment. Posturing and avoiding or delaying settlement discussions merely for the sake of intimidation or delay rarely, if ever, results in an increased settlement amount.
3. Don’t make pie-in-the-sky settlement demands or overstate your case.
A sprained ankle case does not become an amputation-level case simply because you make a six-figure demand. It is safe to say that, in the history of personal injury liability claims, no competent adjuster or defense attorney has ever increased their evaluation or made a higher settlement offer simply because they received an unreasonably high settlement demand. Defense lawyers and adjusters can see through the fluff and will question all of your assertions after you make one exaggerated or untrue statement. While you should not begin negotiations with your best and final settlement demand, you should have some credible basis for your numbers. Your ultimate goal in negotiation is, of course, to convince the defense to accept your demand. If you want to be effective in negotiating the best possible settlement for your client, focus on forcing the defense to make a difficult decision by asking for something they must seriously consider. You can accomplish that by working toward a settlement demand that presents the defense with its best alternative. If you make it too easy for the defense to reject a settlement demand, it will certainly be rejected. If your initial demand sends the unintended message that your settlement position is unreasonable and out of reach, it will have a poisonous effect on the entire process. If you make an unreasonably high demand, is it realistic to expect the defense to counter with an unreasonably high offer? Isn’t the opposite result more likely? Is it in your client’s best interests to encourage unreasonably low offers? Have you had enough rhetorical questions, already?
4. Don’t run silly television commercials or print ads.
Respectable, professionally produced spots credibly informing your target audience of your skills can be a valuable part of your marketing strategy. However, if your ads have frightening pictures, cartoons, sound effects or exaggerated special effects, defense counsel may not give you the credibility you and your client deserve (and need) in negotiations and may infer that you will be reluctant to risk the scorn of the jurors by taking the case to trial. Whether or not the inference is justified, it certainly can’t help your bargaining position. For defense attorneys, a very pleasant moment in the litigation of a personal injury case comes during jury selection when the prospective jurors recognize the plaintiff’s lawyer from TV ads, smile knowingly, nod and fold their arms. At that early point in the trial, it is apparent that the jurors have already categorized the case. The resulting verdict often reflects the fact that lawyers who don’t take their own public persona seriously will not be taken seriously in court. Your ability to effectively represent your client is directly related to your professional image. If the bench, bar and/or public perceive you as a cartoon figure, your clients will necessarily suffer as a result.
5. Don’t be difficult during litigation just for the sake of being difficult.
You have a product to sell: your client’s claim. You have customers to sell it to: the adjuster, defense counsel or the jury. Your sales technique is totally up to you. You can be upfront, credible and persuasive or you can be shifty, unpleasant and difficult. A used car salesman would probably not be successful if he was unnecessarily hostile to his customers, and neither will you. Overreaching discovery, personal attacks, failing to return calls and other unprofessional behaviors do not help your client or increase the value of the case. The adjuster and defense attorney have been there before. Their evaluation of the case will not change in your favor just because you are hard to get along with. Human nature being what it is, the opposite effect is more likely. Instead, a display of professional courtesy will go a long way toward convincing the defense to accept, or at least understand and acknowledge, your position.
6. Don’t wait to bring the claim.
The value of your case does not increase with the passage of time. Many statutes of limitation allow you to wait years before bringing your claim, but the only advantage to waiting is that the medical bills may continue to accrue. As the date of injury recedes into the past, so does a lot of the power of the story you have to tell. You have the burden of proving your client’s case, so why would you want to risk the loss of evidence and witnesses by unnecessarily delaying the claim?
7. Don’t assume that the cost of litigation necessarily motivates defendants to settle a meritless claim.
Some corporations may be shortsighted enough to blindly pay small meritless claims regardless of the effect it may have on their overall claims outcomes. A few insurance companies would rather pay meritless claims than go to the expense of litigation. However, most defendants respond to meritless “cost-of defense” value claims by reasoning that they would rather pay a defense lawyer than a plaintiff’s lawyer. If a plaintiff’s counsel engages in unnecessarily burdensome discovery in an effort to put pressure on a defendant, the defense is likely to respond by reasoning: “If she is trying to increase the defense costs, she must be desperate or hiding something,” or “Well, we’ve invested this much in defense costs, we might as well spend a little more and roll the dice.” Most companies and insurers recognize that capitulating to what can be considered a mild form of blackmail will result in more, not fewer, meritless claims being brought against them and their insureds. (We are aware that the plaintiff bar has a very active and efficient communication network). In addition, funding for the cost of defense often comes from a totally different source than for liability indemnity. If you are unwilling to incur the expenses of developing and litigating your client’s claim, don’t make the mistake of accepting a bad case and betting your resources and/or credibility on it. Save your skills for the cases that deserve you.
8. Don’t threaten or include bad faith or punitive damage claims unless they are warranted by the circumstances of your client’s case.
Baseless extraneous claims should not be used as a bargaining chip in negotiations, not only for the obvious ethical and moral reasons, but also because they never have the desired effect. In reality, such claims considerably reduce the chances of settlement and increase the likelihood that resolution of the entire claim will be delayed while the extraneous issues are investigated and litigated. Businesses, insurance companies and the defense bar take bad faith and punitive damages claims very seriously, and are not likely to roll over. The defense knows as well as you, or better, whether it is at risk for that type of claim in a particular case. If such a claim is threatened or asserted in a case where it is not warranted by the facts and law, the defense will be more motivated to exonerate itself and less inclined to work toward a compromise settlement.
9. Do evaluate your client’s case individually, honestly, and objectively.
The best measure of the value of a claim is the likely outcome of a trial. You cannot accurately measure the value of a claim by any prefabricated formula or by comparing it to the settlement amounts of other claims. You and the defense may disagree about the objective value of a particular claim, but it is folly to fail to consider the projected trial result. While it is relatively easy and somewhat useful to add up the medical expenses and multiply them by an arbitrary “pain and suffering” factor and append some paycheck stubs and an economist’s report, that exercise does not yield a legitimate evaluation of your client’s claim. The substantive factors that both sides should consider in determining the value of a personal injury claim are as follows:
• Facts of the accident/incident;
• Nature and extent of the injury;
• Provable special damages;
• Characteristics of your client;
• Characteristics of the opposing party;
• The venue; and
• Availability of technical defenses.
If you have not considered each of these factors, your evaluation may be way off. If you are relying on other factors to evaluate your case, you should seriously consider whether they may be illusory and leading you down a false path. An evaluation that is based on invalid factors is seldom accurate. You may be fooling yourself and misleading your client by relying on an evaluation that can be accurate only by pure chance. Of course, you may get away with such miscalculations in some cases, but the potential for disaster is too great to ignore.
10. Don’t underestimate the opposing party’s attorney.
Large corporations, insurance companies and third-party administrators with years of experience make it their business to retain the best lawyers they can afford. They have hired both good and bad defense lawyers in the past. The bad lawyers are not hired again. The adjusters have learned who the good lawyers are and gravitate toward them. There is a good chance that the defendant, or its insurance company, has been involved in more claims than your client. (If not, you have some serious issues to talk about with your client). Many defense lawyers specialize to a far greater degree than is possible on the plaintiff side of the bar, so you should never assume you know more about the legal and factual issues than does your opposition. Many defense lawyers are paid by the hour and are therefore able to devote more time and effort to the case than is practical when you are working on a number of disparate claims on a contingency basis.
Thanks Rob. Good insights as always.