Tort Law: Maximizing Recovery Before Suit

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Anyone can settle cases. The challenge, however, is maximizing the recovery. Prepare as if you were going to trial. Only when you can convey that you are ready and able to try the case, can you negotiate effectively for settlement.

I. Introduction

Anyone can settle cases. The challenge, however, is maximizing the recovery. Every case, needs to be prepared as if it were going to trial. Only when you can convey that you are ready and able to try the case, can you negotiate effectively for settlement.

II. Initial Client Contact

Preparation starts at the client interview. At the first interview, you must get the client’s story and obtain all available information about the case. Both liability and damages must be fully explored and assessed separately at the outset. There is no point in accepting untriable cases. Cases with small damages and poor liability should be declined. You should communicate with your client at the outset. The initial interview is a critical time for you to establish common ground with the client and obtain their trust. Your client must believe in you and you in her. It can be difficult to inform your clients about pitfalls in the case while emphasizing your commitment, but this is an important part of effective preparation.

Forms and fee agreements should be signed. In addition to authorizations, a Notice of Claim should be signed, so that prejudgment interest can begin running upon service on defendant(s). Authorizations to collect medical, wage and tax information should be signed. The client should be instructed to keep track of lost economic opportunities.

The client should be encouraged to return to her treating doctor as often as is necessary to treat the injury, and should be instructed to be clear and candid about all her complaints. Referrals to appropriate specialists should be encouraged. This helps create a record from appropriate medical practitioners who will later be asked to testify about the ongoing problems resulting from the accident and the nature of the damages suffered.

Finally, the client should be instructed to keep a limited journal (or summary narrative) of how her life has been affected by her injuries. Pain and suffering can be overplayed and, in the abstract, undervalued. Both the attorney and the client should concentrate on the day-to-day impact of the accident, not only in terms of pain, but also on how work, hobbies, home life and personal relationships are affected. The client should be encouraged to use examples and anecdotes to illustrate these effects. Such a diary will educate the attorney as well as help focus the client and serve as an historical record to refresh recollections down the road as may be necessary.

III. Investigation and Preparation

Once you have obtained your client’s story, the factual investigation should begin. The adjuster and his minions will soon be at the scene collecting evidence, and you, too, should have resources ready for mobilization quickly. Become familiar with the scene.

Take photographs and measurements yourself. If there is physical evidence, it should be preserved. In a motor vehicle accident case, obtaining the police reports, police file, and 48-hour reports should be automatic.

If the injuries are significant, it is important that you or a trained investigator promptly meet and speak with the witnesses yourself and develop as much information, facts and evidence as you can. Be bold. Get out of the office and talk with people. If witnesses’ statements are favorable, get them in writing and signed, then and there. A subsequent investigator is less likely to affect or alter a witness’ recollection when that witness has committed his recollection to writing (and, of course, if he does, then there will be a statement from which to impeach him). If the witness’ account is not supportive, test the accuracy of some of his observations. How long did the witness actually observe the scene? From what vantage point? What was the weather and what other obstructions or distractions may be implicated? Don’t just accept the initial conclusions proffered.

If experts will be necessary, such as an accident reconstructionist or engineer, employ them early. Such experts can assist you with developing evidence to prove the case. If there are unusual items of damage, such as damage to character or reputation, you should consider how you will prove that harm and begin collecting evidence of it.

Obviously, no factual investigation is of any use without knowing your theories of liability. Know what elements you need to prove and how you intend to do so. Now is the time to identify all applicable statutes of limitations. Notice requirements, such as the mandatory provisions of the Maine Tort Claims Act, 14 M.R.S.A. Section 8107, the Federal Tort Claims, 28 U.S.C. Section 2675 (a), the Maine Liquor Liability Act, 28-A M.R.S.A. Section 2513, and the Maine Health Security Act, 24 M.R.S.A. Section 2853, may apply. You should consider any and all other potential claims and parties, such as furnishers of motor vehicles, employers, manufacturers and distributors (if defective products are involved), liquor liability and underinsured motorist claims. Defenses should be anticipated, and, especially, for example, in products liability cases where those defenses may be complicated, preemptive research should be done and experts consulted early.

Finally, you must understand the medicine. Obtain all of the medical and hospital records and review them carefully. Nurses’ notes and medication records, for example, may tell a compelling story of real pain and suffering. This is an expense well worth bearing. Of course, you must learn the medicine. Do the necessary research. Treating physicians can be a good resource. Consult with them early.

Follow up with the client’s continuing treatment. Maintain an ongoing dialogue with the client and get all updated records. Take an active role in your client’s medical course. You need to manage – without controlling – your client’s medical case. All possibilities of undiagnosed injuries, such as head injuries, neurologic injuries and psychologic injuries, should be explored and referrals, if necessary, should be encouraged to accomplish this. At the same time, excessive and, ultimately, counterproductive treatment, should be discouraged.

Although it is important to continue to collect all updated medical notes, it is not helpful to obtain the treating doctor’s report until a medical end point is reached. It is simply premature to attempt to settle a client’s case before the full extent of the damage suffered is clear and the client’s doctors can, with reasonable certainty, anticipate the client’s future medical course and needs. When that time comes, and it may take up to a year or more, you must meet with the doctor yourself before asking for his report. Make sure the doctor has a complete understanding of all pertinent medical history and treatment. Provide him with all relevant documentation. This is an important opportunity to reconcile, or put into perspective, troublesome medical facts before they come back to haunt you.

It also may be necessary to first educate the doctor concerning some of the legal concepts underlying his medical assessment. For example, legal causation and medical causation are not one and the same thing. The doctor must understand that his opinion needs to be based on medical probability and not scientific certainty. As to causation, the accident trauma need not be the sole cause of injury but only a substantial factor. The concept of the ‘eggshell’ plaintiff may need to be explained. You should encourage the doctor to assess the impact of injury on the whole person, including the effects of living with pain and limitations, and not to discuss the client as if she were merely an affected organ.

In most cases, you should discourage discussion of permanent damage in terms of percentages of impairment. The classification of permanent damage by “percentage” is a vestige of workers” compensation adjustment processes and is of less practical value, and no legal significance, in assessing damage in a civil suit.

Also, before reaching a case valuation, consider whether other damage experts should be consulted. For example, a vocational rehabilitation expert or forensic economist can help support a lost earning claim.

Finally, even though the insurer may request an ‘independent’ examination as soon as it determines that a serious injury is involved, you should generally not agree to one before suit is filed, unless your client has reached a medical end result, or unless there is clear, objective evidence of injury. Why give up your treating physician’s exclusive access and allow the defense to be able to challenge your claims from an earlier point of reference, particularly when not all the damage may even be apparent yet? Once you do agree to an exam, make sure the independent physician has been advised of the treating physician’s opinions before the examination takes place and that your client is properly instructed about the process.

IV. Evaluation, Negotiation, Settlement

When insurance is involved, you will probably hear from the adjuster early and often. Do not be afraid to tell him you will get back to him with a demand when the client has reached a medical end point. Do not try to evaluate your case until you are fully prepared. Finish your factual, legal and damage workup first. This is the only way you will be able to negotiate from strength. As a general rule, you should not let yourself be pushed into discussing any numbers until you are ready to send all of the medical and damage documentation together with your demand, because without supportive medical reports and effective advocacy to put the medicals in context, the insurance reserves are likely to be set low.

There are situations, however, particularly in cases involving more objective injuries, when earlier communications with the adjuster will be useful. Claim reserves are set on the basis of information received by the carrier. If the adjuster receives no information to help assess the claim, the reserve may be insufficient for a positive settlement later.

The psychology of setting reserves could be the subject of another entire article, but, suffice to say, it is always important to “assist” the adjuster, in one fashion or another, in setting an adequate reserve before demand is made.

The intricacies of negotiation are also somewhat beyond the scope of this article. Nevertheless, it should be stressed that it is important to approach negotiations with a clear sense of the value of your case and a bottom line position. Solicit the opinions of other attorneys in Maine in valuing your case. Experienced personal injury lawyers constantly discuss the value of cases and their expertise is a resource that should be tapped. Before negotiating, find out the extent of available coverage as that must be factored into your analysis as well. Finally, when negotiating, keep your word. Your reputation will be your most important tool in your future practice.

V. Conclusion

Of course, in any case where you are unable to make headway with the adjusters or the other defendants’ representatives after reasonable effort, SUE IT! If you’ve done your homework, you are now ready for trial.