Bar News - August 20, 2014
Workers Comp & Personal Injury: How and Why to Avoid Filing Suit in a Personal Injury Case
By: Peter Hutchins
Filing suit may be necessary in your personal injury case for a variety of legitimate reasons. These can include denial of liability by the insurer, impending statute of limitations, a need for formal or expansive discovery, a plaintiff’s lengthy treatment, an adjuster or carrier that is known to rarely offer reasonable pre-suit settlements, or a case with multiple defendants that makes litigation and discovery necessary for relative fault to be properly evaluated and apportioned.
However, in the vast majority of straightforward injury claims, suit is not necessary, and often is counterproductive from a cost, time or client-service standpoint.
Court rules have become more complex and onerous. Discovery requests from defense counsel are terribly time-consuming and burdensome. Continuances or extensions can be denied. Deadlines, time pressures, and formal discovery and production requirements can add unnecessary cost, delay, and stress and, most importantly, they can distract you from achieving your client’s goals. Busy work and paper work instead of productive work.
The filing of suit also necessarily involves ceding control of the prosecution of your client’s case to defense counsel, judges and ultimately juries – none of whom necessarily share the goals of your client.
As a plaintiff, you have the initial advantage of time, information and control – advantages that are lost as soon as suit is filed.
The objective in handling a plaintiff’s case is to maximize your client’s recovery in the shortest possible time while minimizing the delay, expense, stress and risk that come with a lawsuit. In certain cases, filing suit can help maximize your client’s recovery, but in most, it should not be necessary.
It is important to realize that the vast majority of insurance adjusters are knowledgeable professionals with a job to do and appropriate due diligence to perform. It is unrealistic to expect an insurance adjuster to pay a large settlement just because you and your client want it. You need to help the adjuster perform his due diligence so that he can comfortably make a favorable case evaluation while remaining true to the guidelines and criteria adopted in the industry and by the particular carrier. Here are a few practice tips that I use in trying to achieve a prompt and fair result for my client while avoiding unnecessary litigation:
Provide the adjuster with a thorough early description of your client’s injuries, potential future treatment, lost wage claim, and any other information that will add to ultimate case value. That way, early reserves will be set sufficiently high.
Provide the adjuster with favorable evidence early; property damage photos, high initial medical bills (perhaps from an ER visit), injury photos if applicable, and favorable police or liability reports.
In cases where you are going to retain a liability expert, do so early, have the expert prepare a preliminary report, preferably with photos and other timely physical evidence, and provide that report to the adjuster at the first opportunity. This shows you have prepared your case, that you have invested in your case, and that you are well ahead of the curve if suit becomes necessary.
Prepare chronological medical record and bills summaries in every case. Periodically provide these summaries directly to the adjuster. This keeps the adjuster abreast of your client’s treatment and the fact that case value is growing. It also allows the adjuster to request follow-up information early in the process rather than after you have already sent a demand, which leads to unnecessary delays.
If your client has prior or pre-existing conditions, disclose these upfront and explain in a factual and supportable manner why those prior conditions or injuries should not impact your client’s case value.
If your client has a permanent impairment, or if the client’s medical history and course of treatment is complicated and likely to be challenged (i.e., pre-existing conditions), consider having your own forensic independent medical examination and records review, and provide that report immediately to the adjuster. Again, this shows you have prepared your case and have a medical expert ready to counter defense arguments against value.
If you have a strong case, if your client will make a good appearance, or if there are specific liability questions that must be answered before an offer can be made, allow the adjuster to take your client’s statement. This allows the adjuster to complete due diligence and further shows the adjuster that you are confident in your case.
In cases where the observations of witnesses are important to a determination of liability, obtain favorable witness statements early and provide those to the adjuster.
Keep your demand letters short, concise, and focused on facts, relevant law or accepted standards of conduct or care and quantifiable damage information that go directly to case evaluation and relative risk. Let your exhibits, medical summaries, photos and expert reports do the talking. Long, flowery advocacy pieces from lawyers make good poetry, but can actually be a negative to reasonable and prompt case resolution.
Provide your client with a reasonable and well justified case evaluation so that you will be on the same page throughout the negotiation process with respect to expectations – sometimes I do this in writing; other times, I have the client come in the office for an evaluation conference.
Keep your demand reasonable – high enough to provide sufficient negotiating room, yet low enough to convey you are serious about settlement.
In some cases, propose pre-suit private mediation. Invite the adjuster to retain defense counsel for the limited purposes of conducting very brief and focused paper discovery and possibly a pre-suit deposition or statement under oath of your client – with a private mediation scheduled very shortly thereafter.
Work on having your lien information developed and compromises reached before settlement negotiations begin. This way, you can react quickly when negotiations start and your client will be fully informed every step of the way about what their “net recovery” will be under all “gross settlement” scenarios.
If your case is well prepared and documented, and if it is presented in such a manner that provides the adjuster with all the necessary information to fully evaluate the case, you should have a very high success rate for pre-suit settlements. Be thorough and don’t be afraid to be creative in your approach and suggestions. Treat the adjuster with professional respect, and try to develop a good working relationship that can lead to mutual trust and cooperation. I can tell you, with rare exception, your clients prefer not going to court, and most are looking only to be treated fairly and be promptly compensated for their losses – not to get rich.
Peter Hutchins of the Law Offices of Peter E. Hutchins in Manchester is secretary of the NH Bar Association and a past president of the NH Bar Association.