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In this installment of “How and Why to Change a Personal Injury Lawyer in Mid Case,” we address dissatisfaction with the settlement offer. After representing people injured in car accidents, slip and falls, medical malpractice, and during cruises, I have found that when and if an offer to resolve the case is made by the defendant or insurance company, clients often believe their own lawyers are at fault if settlement offers fall below what they had expected. It is actually common for clients to express their anger and to become hostile with their own lawyers.

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I have seen clients fire their lawyers, me included, when they are unable to get the amount of money they want or they believe they need. In this post we will examine both how and why this happens and suggest some solutions.

How an Offer is Made in a Personal Injury Case in Florida:

These variables can be grouped into categories, but within those categories, every case is different. Let’s use the grouping of restaurants as an analogy. There are fast food restaurants like Subway and McDonald’s; there are high-end chain restaurants like Bennigans, Friday’s or Houston’s; there are local family-owned restaurants where the chef in the kitchen is the spouse of the one serving the food, and the one cleaning the table is their child, like Khoury’s or Sakura; and then there are super fancy gourmet places whose names I can’t pronounce or spell, but we know they exist out there, with wine lists and tuxedoed waiters who taste the wine for you before they serve it. In those expensive restaurants, the meal can take hours to consume, and the bill will be equivalent to a mortgage payment.

Within each of those categories are dozens of different menu items. And while all McDonald’s franchises try to be the same, we all know some are better, cleaner, and just serve better-tasting food than others. By now you see the point as it relates to personal injury cases; there are slip and falls and car accidents. Some are going to be inexpensive and fast, some may take a few months to resolve, and some can be long drawn out with significant payoffs at the end.

As we discussed in the first installment of “How and Why to Change a Personal Injury Lawyer in Mid Case,” I believe it is up to the lawyer to manage the client’s expectations from the very first encounter. I commonly will ask my clients to express what they are looking for in the case and see what they imagine the case is worth and how long it will take. Most frequently they tell me that they have no idea, have never had an accident nor hired a lawyer. Most will tell me that they will leave that up to me and will follow my advice. But not all. Occasionally, a client will tell me the case is worth millions and won’t settle for anything less. And I might agree, depending on the case, but more frequently, I won’t because for more than one reason their case may not be worth what they think or hope it is.

Why is my case not worth a million dollars? The most common reasons:

1. There is not enough insurance. This sadly is the primary reason that many clients are angry and dissatisfied with the settlement offer. For the same reason, I am not a billionaire by now. At least once or twice a day for the last two decades, I have had to tell someone who has been hurt–whether mildly or profoundly–that those who caused the injury have insufficient insurance (or none) to cover the full value of the claim.

This is true of medical malpractice (as Florida’s law allows our doctors to practice medicine without insurance), car accidents (as Florida’s law does not require car owners or drivers to maintain bodily injury insurance), and injuries at people’s homes and businesses (as Florida’s law does not mandate that homeowners or business owners carry liability coverage).

As an aside, as I write this I wonder whether Florida’s pro-insurance and -business legislature and Governor have considered just how much the insurance industry would benefit from selling more insurance if Florida’s vehicle owners were required to purchase bodily injury coverage in addition to the already mandatory personal injury and property damage protection. Do our legislators believe that if bodily injury coverage were truly required, then the insurance companies would have to pay out so much more for the pain and suffering of traffic accident victims that they would lose money? Governor Scott, I would appreciate reading your thoughts in the comment section provided below.

Back to the initial client conference. It is vital that we lawyers explain to clients at the onset that regardless of how much pain–physical, emotional, and financial–any kind of accident or malpractice has caused them or their families, the amount (if any) of insurance will most likely govern how much can be recovered. And it also needs to be made crystal clear that even if the little bodega on 8th Street has a million dollars in liability coverage for their aunt’s slip and fall on a banana peel, it does not mean that they are going to get the full policy limits. I confess that this misconception has long haunted me and is currently haunting me on a pending case.

The minute the clients learn how much coverage is available (which is rarely known at the inception of a case), they become fixated on the amount of the full policy limits. Rarely if ever is a case worth the full policy limits on a slip and fall unless the person was severely incapacitated or killed, and the rarity is because of the legal defenses known as liability and causation and damages.

2. Liability–Most personal injury cases are defensible. That means that the conduct of the claimant can be raised as a reason for the accident. This is true in car accidents and especially in slip and fall cases. Insurance companies and their lawyers will examine how and why the accident occurred and try to find some action that the claimant took or should have taken as a reason for why the accident occurred. Often these defense can be used to lower or even obliterate the value of a claim. To learn more about slip and fall defense please read, “How to Win a Slip and Fall Claim in Florida,” May 14, 2013.

3. Causation and Damages–Broken bones, amputations, lacerations, and abrasions are what we lawyers like to call objective injuries that juries can see and understand as caused by the accident in question. Mild traumatic brain injuries, emotional trauma, aggravations of pre-existing conditions, back and neck pain, or strains are difficult to see, diagnose, and treat, and most importantly it is hard to convince a jury of their existence. For these reasons, cases that involve these kinds of injuries are less valuable because they are simply more difficult to prove– not only that the injuries existent but also that they were caused by the accident.

In conclusion, while clients may want to change their lawyer in the middle of a personal injury case because of their dissatisfaction with the offer of settlement, the low offer may very well stem from issues such as insurance coverage limits that are beyond the control of their lawyer. I believe it is important for lawyers to have this conversation with the client at the very beginning and repeatedly throughout the case to remind their clients that a low settlement offer is not something they can foresee or control. In our next post we will examine situations in which the lawyer’s conduct may indeed be responsible for the inadequate offer.