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Bar News - August 17, 2016

Workers’ Comp & Personal Injury: Maximizing the Settlement Value of Personal Injury Cases


A client hires a personal injury lawyer to maximize rightful compensation for the injuries and damages she suffered as the result of someone else’s negligence of legal fault. As an attorney practicing in this area for 33 years, first as a defense lawyer and for the last 20 years exclusively as a plaintiff’s lawyer, I have learned a few tried and true tips for increasing your chances of achieving a fair and satisfactory result for your client. Like most techniques and skills we develop as lawyers, these ideas and suggestions are not things that I invented, but rather, have adopted (stolen) from working with and observing not only other plaintiff’s lawyers, but defense lawyers and experienced insurance claims adjusters as well. I hope some of these are helpful to you in your practice:

1. Avoid giving clients a premature value of their case. Clients will often ask you at your first meeting “what do you think their case is worth?” Avoid giving an answer. You cannot possibly provide the client with a competent professional opinion until you have received and reviewed all pertinent material on liability, damages and insurance coverage. Clients’ expectations will become unreasonable, and they will never be happy with the result.

2. Determine all available insurance coverages, including Med Pay insurance, liability and/or uninsured motorist coverage, and immediately place all carriers on notice of claims or potential claims.

3. Order important liability and damage information immediately. Don’t delay. You want to be in a position to provide the insurance adjuster with this information as soon as possible so that reserves can be set properly, which makes settlement easier down the road.

4. Prepare chronological summaries for both medical records and bills, and provide these to the insurance adjuster. Not only does this allow you to remain organized and on top of your client’s medical case at all times, but adjusters really appreciate the organization, which makes their job easier, and at settlement time, moves your demand up to the top of their “to do” lists.

5.Hire liability experts early, and share preliminary reports with the insurance adjuster. This impresses on the carrier that your case is strong, and that you are prepared and ahead of the curve. This is especially important in premises liability, malpractice or products liability type cases.

6. Don’t hide prior medical conditions from the insurance adjuster. This is not only dishonest and destroys your credibility, but the carrier will simply request these records later which will delay the settlement process.

7. Hire medical experts where necessary. If the client has been treated by multiple providers and/or if the primary treating doctor is reluctant to provide a helpful narrative report summarizing injuries, treatment, causation, permanency and prognosis, consider using a competent and reputable forensic medical expert of your own choosing. This will not only package up your medical case and cover all the bases, but will also impress on the insurance adjuster that if the case is litigated and tried, you have a medical expert ready and willing to sustain your burden of proof on all significant medical issues impacting case value and ultimately verdict exposure.

8. Use injury and property damage (vehicle) photos whenever possible. These not only allow the adjuster to visualize the potential jury impact of your damages case, but can also serve to help establish causation of specific injuries you are claiming.

9. In wrongful death cases, get an economist on board early so that you can quantify your economic loss claims to the adjuster early in the case.

10. Obtain and share witness state ments not only on liability, but also damages. When preparing a demand, I will ask the client to prepare his own narrative of the impact of his injuries on his life and activities of daily living. I include this statement, usually verbatim, in the demand letter. I also include statements from family members describing their observations of the client’s injuries and life impact. The adjuster will see this as actual evidence rather than posturing by a lawyer.

11. Keep demand letters concise and fact-based. Argument by lawyers is not persuasive. Quantify, document and concisely present the primary drivers of value, i.e., medical bills, length of treatment, lost wages, permanency, and future losses. Provide independent investigative reports (i.e., police reports, OSHA reports, business incident reports), photographs and your own expert reports. Include any relevant photos, and if legal issues are important to case valuation, include specific case or statutory citations. A well done, organized and presented demand letter is not only effective, but can easily serve as your mediation summary down the road if litigation becomes necessary.

12. If the case is a policy-limit case, include the appropriate Dumas language to exert the most settlement pressure possible.

13. Demand a reasonable figure – high enough to leave negotiating room, yet low enough that the adjuster will not immediately push your demand package off to the side of their desk as “patently unreasonable” and unlikely to result in case resolution.

14. Keep the client involved in all phases of the case, particularly when putting together a demand and negotiating with the adjuster.

15. If the case is in suit but likely to be successfully mediated down the road, be very thorough and complete in your automatic disclosures and interrogatory responses, and push the case through the deposition stage so that a mediation can be scheduled sooner rather than later.

16. Cooperate with all reasonable discovery requests by either the adjuster or, if in litigation, defense counsel. Being obstinate will result only in delay and impart the perception that you and your client are either unreasonable or hiding something.

17. Stay on top of medical and other liens from the outset. Don’t wait until settlement time to begin contacting lienholders. Get ahead of the curve. Delay here will not only prolong the settlement process, but will prevent you from being able to accurately provide your client with their “net” recovery figure during negotiations.

18. Carefully document your client’s authorization with respect to demands, counter proposals and the acceptance or rejection of final settlement offers. This is not only good lawyering, but also ensures that you and your client are on the same page.

These are just a few tips that I employ in virtually every personal injury case I handle. There are certainly many more that may apply to specific situations or types of cases. However you choose to present and attempt resolution of your personal injury cases, just remember – the ultimate goal is to reach a settlement in which your client is satisfied with the result, feels that they have been treated fairly, and in which you have minimized risks associated with unpredictable jury verdicts.

Peter Hutchins

Peter E. Hutchins, of the Law Offices of Peter E. Hutchins in Manchester, serves as treasurer of the NH Bar Association Board of Governors and frequently presents on personal injury practice.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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