How to negotiate while litigating damages in a personal injury case such as as a slip and fall aboard a cruise ship is one complex issue that many personal injury plaintiffs and their lawyers face everyday. I have found that without a filed lawsuit and trial date, most insurance companies, cruise lines and their lawyers will offer just pennies on the dollar for a claim.
Of course, I realize it is not always practical or advisable to file a lawsuit on every case, especially a case with weak liability and damages. In those cases, one is usually at the mercy of the adjuster to make an offer in hopes of resolving a case. I hate being in that situation, but unfortunately many small PI cases simply do not justify the expense, time, and stress of litigation. I have learned that lesson the hard way, as I used to just file suits and often tried many small PI cases. I can say that judges and juries do not like them, and therefore they are nearly impossible to win.
One thing that I have found to be helpful is providing the adjuster with every possible document, letter, statement, medical record, and bill that support your client’s claim. I do not believe in keeping things “close to the vest” so that you can surprise an adjuster or defense lawyer once a case is in suit. Often that “ace up the sleeve of a lawyer” was just what an adjuster would have needed to get a case settled.
I also immediately document in writing each call and message left with an adjuster. If I leave a message, I send an email and fax stating that I have tried to reach the adjuster and was unsuccessful. I pepper the adjuster’s file with professional and courteous documentation of everything.
Lay witnesses are commonly called “Before-and-After” witnesses. These are people who have no interest in the outcome–for instance, a client’s rabbi or priest, teacher, supervisor, or a fellow member of a charitable organization. I have had dozens of clients who simply cannot come up with a single lay witness to testify on their behalf. Others have dozens of acquaintances and associates who are credible and believable witnesses as to how the accident has diminished the quality of life of the plaintiff.
You can get affidavits or short videos that can be shown to the adjuster, detailing in an informal style how the accident has affected the claimant. They can be quite powerful tools, and I use this technique often when an injury and its effects are not obvious.
Expert Reports and Testimony
Most cases involve an orthopedic surgeon, neurologist, or. . . gasp . . . a chiropractor. Insurance adjusters are not easily persuaded by these typical experts when evaluating a claim. Think outside the box and consider enlisting the testimony of pain management doctors, traumatologists, physiatrists, and neurosurgeons.
Either get reports from them, or simply snap a 30-second video with your Iphone at your next conference and have them explain why and how they believe your client has sustained a permanent injury.
It pays to get a copy of the latest AMA Guidelines: “Guides to the Evaluation of Permanent Impairment, Sixth Edition, Clarifications and Corrections.” This resource provides the criteria that most physicians rely upon in formulating whether a patient has sustained a permanent injury as well as the extent or percentage of their impairment.
Use of Demonstrative Evidence
“I hear and I forget. I see and I remember. I do and I understand.”
I love demonstrative evidence, and so do juries. In fact, I believe in this day of the CSI Effect that they demand it. In other words, modern juries get their information online, on their phones, and by watching shows like CSI and Elementary. In these shows, graphic animation is often used to explain how a crime occurred or a victim died. Jurors today want to see this, and while it can be somewhat expensive, I recommend that it not be a static image but a moving image.
Earlier in my career it was nearly cost-prohibitive to create an animated exhibit illustrating how an accident may have occurred or the development of an image. With today’s technology, it is very affordable. There are dozens of companies that produce animated visuals for lawyers, and prices are very competitive.
Bear in mind each jurisdiction has specific evidentiary requirements for use of graphics, whether as demonstrative aids or to be admitted into evidence. But for simply trying to settle a claim, there are no rules. Just be sure that the exhibit is professionally created and accurately depicts the relevant subject matter.
Key Pleadings and Motions
I think one of the best pleadings to encourage settlement is a Proposal for Settlement (PFS). This simply provides the prevailing plaintiff an opportunity to collect attorney’s fees on top of a judgment. There are specific rules that apply to the timing and language of these documents. A similar document that is available to the defense to add extra pressure on the plaintiff to settle is called an Offer of Settlement.
The rules and laws pertaining to these pleadings change frequently and are hotly contested virtually every week in Florida’s appellate courts. I recommend that, before submitting a PFS, you consult with competent appellate counsel or trial support rather than utilizing someone else’s form, or even mine.