Settlement Value of Personal Injury Cases.
June 23, 2010
Often people ask me about the value of their personal injury case. They would ask ”How much can I expect to get?” or “How much are we going to be asking for?” I give them all the same response: “No lawyer can predict the settlement value of a case, and if he does, run (don’t walk) out of his office.” The most important thing to remember is that no legitimate lawyer should try to predict the value of a case before it is ripe for settlement, and the client should question the true intentions of any attorney who attempts to make such an evaluation.
There are just too many factors to consider in evaluating an injury case. The most obvious factors, of course, are the seriousness of the accident, the seriousness of the injury, and the level of fault on the liable party. But it is the less obvious factors that can really affect the value of the case. For instance, the jurisdiction where the case is pending is an important factor. An injury case in Dallas, Texas, may not have the same value as if the same case occurred in East Texas or South Texas. Why? Because the potential jurors in Dallas tend to be far more conservative in their verdicts than potential jurors in other less conservative regions. Another less obvious, but very important factor, is the quality of the client. The fact remains that jurors tend to side with the party that appears more credible. After all, the Plaintiff is the primary witness when it comes to testifying about the injuries. If the Plaintiff is not credible, then the jury will be less likely to rule in favor of the Plaintiff, and the adjuster and defense attorney will be less sympathetic toward the Plaintiff when it comes time to consider settlement of the case. Other factors include the medical history of the client, the legitimacy of the medical treatment, the amount of the medical expenses, whether the Plaintiff’s complaints appear exaggerated, and the policy limits applicable to your claim.
Another misconception is that a case normally settles for three times the amount of the medical expenses. The theory is that 1/3 goes toward the medical expenses, 1/3 goes to the attorney, and 1/3 goes into the client’s pocket. Those days are long gone! And if there is a jurisdiction that follows this formula, please let me know because I will move there. The vast majority of cases settle for far less than three times the medical expenses. Likewise, lawyers have become very creative in settling cases in these days of “Tort Reform.” There are, however, cases that settle for even more than three times the medical expenses, especially when the injury is very serious. This goes to show that the value of every case is determined on its own merits, and don’t expect your case to follow some impersonal formula. The ulitimate question facing the client on whether to settle a case is simply this: If you go to trial and get less than the amount being offered, will you regret not taking the settlement offer? If the answer is “Yes,” then you should seriously consider settling. If the answer is “No,” then maintain your position and reject the offer. However, these decisions are best made after a thorough consultation with your lawyer.
The Myths of Automobile Liability Insurance – Part III of III
June 2, 2010
In the past two sections, I discussed how your car accident claim is handled prior to any lawsuit being filed. In this final section, I will discuss how your case is handled when a lawsuit is filed. Once you and your lawyer decide that a lawsuit is necessary, your lawyer will explain to you that the lawsuit must be filed against the other driver personally and not against the insurance company. In Texas, a plaintiff is not permitted to file a “direct action” against the liability insurance company even though the entire claim has been handled completely and exclusively by the insurance company. The theory is that your claim is really against the person who caused the accident and not against that person’s insurance company. This is just the beginning of the bad news.
Once your case gets to trial, you are not allowed to mention any of your dealings with the insurance company. The law deems these matters irrelevant to how the accident occurred and whether you were injured. In fact, if you even mention that the other driver is covered by liability insurance, the court may declare a mistrial. The theory is that a jury is more likely to find against the defendant merely because the defendant is covered by insurance. The reality, however, is much different. As far as the jury is concerned, you have hauled a fellow motorist into court over a car accident. Because the jury never hears anything about the other driver having insurance, the jury may assume that the defendant was not covered by insurance. Likewise, the jury has sympathy for the defendant and that sympathy may be reflected in the verdict. The jurors never even hear that the defendant’s lawyer is hired, and paid for, by the insurance company. However, the jurors may be permitted to hear about any previous relationship between you, your lawyer, and your doctors. To add insult to injury, the insurance adjuster may even be sitting in the court gallery watching your trial knowing that the insurance company’s handling of your claim will never come to light.
What’s the answer? Very simple: Permit direct actions against liability insurance companies in Texas. A direct action would permit the injured plaintiff to sue the insurance company directly. Some states have already recognized direct actions such as Georgia, Iowa, Kansas, Louisiana, Nebraska, and Wisconsin.
This leads me to the myth about automobile liability insurance. In Texas, you are required to carry automobile liability insurance presumably to provide protection to those damaged or injured in a car accident. Likewise, it would seem logical that the insurance companies answer to the very people the law was designed to protect. However, the reality is that the insurance industry enjoys huge profits from selling insurance policies that Texas motorists are required to purchase, while also enjoying virtual anonymity and immunity from its handling of the claims. It’s time for the law in Texas to change.