A personal injury case has two values. One, the most the insurance company will pay for the case. Two, the amount a jury will award for the case. When we settle a personal injury case we make sure our client receives the most the insurance company will pay for the case.

How the Insurance Company Decides Value. Most insurance companies evaluate case value like they set premiums-based on statistics and risk. They evaluate the injured person. The more solid and appealing the person the better the case. They evaluate the mechanism of the injury. The more clear cut and understandable the better the case. They evaluate past and future medical treatment. The more medical doctor treatment and clear future treatment the more they pay. They evaluate economic past and future loss looking for documentation that supports the loss.

They  also evaluate the lawyer who has the case. The more likely the lawyer is to try a case the more they fear the case. This is because a trial lawyer presents risk-the risk a jury will like the case and award more then the mean result.

Offering Mean Value. Based on their evaluation, the insurance company arrives at a bell curve value. This means they calculate the range within which the jury will award the majority of the time. Even then there is a low range and high range of value within the bell curve average. The insurance adjuster is given authority to settle within this range and this is where the final offer will be. The first offer will be low and the negotiation goes from there.

He Who Speaks First Loses. After the insurance adjuster has evaluated the claim and received his authority he contacts the plaintiff lawyer with the insurance company’s first offer. This is often low and it is  less then the insurance adjuster will ultimately pay. This is where the negotiation starts- the high of great day jury value against the low of  a minimal jury result. In negotiating with the adjuster we know the reasonable settlement value of the claim. Reasonable settlement value is the amount a jury will most often award for the case. The key is to get all of the adjuster’s authority (which is the most the insurance company will pay) and then determine if this is within the average jury range. In getting there remember the maxim-He Who Speaks First Loses. Put simply when negotiating always remain silent after presenting an offer or counter offer. Resist all temptation to keep talking after giving your number. Do not say anything until the adjuster gives his next number.

Decline the Low Ball. Some insurance companies, particularly in a difficult economic climate, will never get to a fair settlement proposal. Often these companies have a corporate policy of using an impersonal computer evaluation that dictates a low ball offer the adjuster is stuck with. Knowing fair settlement-the amount a jury will usually pay-allows for recognition of a low ball unacceptable offer. When this occurs we advise our client to decline the offer and try the case.

The next posts under the topic “How I Practice Law” discuss the settlement of a personal injury case.

Be Able to Try the Case. An insurance adjuster has little motivation to settle a personal injury case for fair value unless he knows the lawyer can and will take the case to trial. This is because an experienced personal injury lawyer who is prepared to try the case presents a risk to the insurance company. Settlement allows the insurance company to contain the case at a level it is willing to pay. This is why the injured party needs an experienced trial lawyer to get fair value for his case.

Minimum Policy Limits. In Washington State minimum liability policy limits are $25,000 single injury and $50,000 aggregate. This means no one injured person can collect more then $25,000 and the insurer is not obligated to pay more then $50,000 total for all occupants injured by the driver of the insured vehicle. In Washington, we know an insured driver has policy limits of at least $25,000/$50,000.

Determining Policy Limits. As soon as we know we have a case with a value of $25,000 or more we contact the adjuster and tell him we believe we have a case that exceeds his limits. Assuming we know our case has a value of $25,000 to $50,000 we can tell the adjuster if he has $50,000 or $25,000 we will send him a limits demand. We will wait only if he has $100,000 or more. Usually the adjuster will respond by showing his limits hand or enough of his hand for us to determine the range of the third party limits.

Prompt Settlement Demand. In a limits case we send the settlement demand  as soon as we have the medical records, reports and/or economic loss documentation to demonstrate case value. In a case where limits exceed case value we send the demand as soon as treatment is complete and we have the value documentation we would have at trial. In a limits case we notify our client’s automobile insurer and have it open an underinsured motorist claim. We send the insurer the settlement demand we send the third party carrier.

Content of Demand Package. The demand package begins with the demand letter. The letter has the following sections: Summary of Exhibits. This is the table of contents. Background. This is the section were our plaintiff is described. We cover education, family, employment and physical activities before injury. Facts of Injury. Here the mechanism of injury is set forth. Investigation. Discussion of police report accident investigation. Property Damage. For instance in an automobile collision case the amount of damage to vehicles. Injuries. A general outline of injuries without an ad nauseam blow by blow repeat of the records. Medical Specials Summary.  Amounts totaled by provider. Plaintiff Today. Impact of injuries on client’s life. Evaluation and Demand. Summary of why case has value and amount of demand. The exhibits follow which include police report, property damage statements, medical records, tax returns and pay information, and expert reports.

Amount of Demand. We demand the same amount we will ask the jury for at trial. This is the maximum case value. No addition to the maximum case value. This is a credibility matter. The plaintiff graveyard is littered with plaintiff lawyers who ask too much for a case. If it’s too much to ask a jury it’s too much to ask the adjuster. We base case value on our experience (my partners and I have more then 100 years collective experience), on jury and settlement results and on the unique aspects of the case. This is discussed with client and we have client authority for demand.

In the next post we discuss negotiation and settlement.

Below are sites I regularly use in my law practice.

Plaintiff Trial Lawyer Tips. This is the blog of Paul Luvera. Paul is one of the best plaintiff lawyers in the United States. He has tried hundreds of cases to verdict with many being multimillion dollar results. His site is a great resource for all trial lawyers. I often consult his site.

James Publishing Company. This is a good internet legal resource. Go to left column at 103 Free Articles with Forms. There you will find down loads including Deposing Defendant Driver, Deposing Expert Witness, Cross Exam of Defense Orthopedic Expert, Voir Dire Questions, and more. I use this site for deposition and cross examination.

Law Office of Howard Nations (Publications). Howard Nations is one of the best trial lawyers in Texas. His office site includes his “Publications.” Three must reads are “Cross Examination,” “Overcoming Jury Bias,” and “Powerful Persuasion.” I read all three once a year and refer to “Overcoming Jury Bias” several times a year.

The Jury Expert. This website presents as a legal magazine covering issues concerning jury trials. There are many articles worth reading that have added to my trial lawyer ability.

Harry Plotkin (Jury Tip of the Month). Jury consultant Harry Plotkin has a jury tip of the month which I always read. Subscribe to it and you receive a jury tip once a month.

Pub Med. This is a good starting point for abstracts of medical peer review studies. Use a common language search to get abstracts. I often use the abstracts for depositions of defense experts as well as for cross examination.

Wheeless’ Text Book of Orthopedics. This is a fine orthopedic website. Click the skeleton at the area of the body you are researching and the site displays orthopedic information about that part of the body.

Human Anatomy. Decent online Human Anatomy site.

Strunk and White, The Elements of Style. OK so this has nothing to do with either a legal or medical resource, but it has everything to do with what we need to do. That is speak and write in a powerful and articulate way. Professors Strunk and White wrote the book and here it is online. I read it once a year.

Gonzaga Law Review. I am biased since I went to  Gonzaga Law School and was EIC of volume 15. Current  EIC  Mark Melter and his staff as well as prior editorial boards publish a practical and cutting edge law review that is now online.

In this post we discuss the deposition from the perspective of the party witness and lawyer, and then how the deposition is used at trial.

The Deposition. Evidence at trial is in two forms testimony and documents. The deposition allows the lawyer to discover what the witness will say at trial. Generally the most important witness in a personal injury case is the party plaintiff. The injured plaintiff is almost always deposed prior to trial.

Deposition of Plaintiff. Often the defense lawyer will send written questions (interrogatories) before taking plaintiff’s deposition. Time and thought need to go into the answers to interrogatories as the answers are plaintiff’s lines for the deposition. The key to a deposition is to tell the truth in a power language direct way. Answer the interrogatories in this way to set up the deposition testimony. Eliminate modifiers and speak with nouns and verbs which translates strength.

The key to trial testimony is to be able to describe: how the injury occurred, where the injury is, what has been done to address the injury (follow doctor’s advice and do her own recovery program), strength and range of motion limitations, impact on employment and activities, and pain without whining. Never show anger at defendant. As a rule not much concern about personal property. Stick with the injuries and belief they will be overcome through dedication to recovery.

Defending Deposition. Let the defense lawyer ask his questions unless objectionable at trial, if so, register objection before answer. Never let defense lawyer bully plaintiff or any witness. If this occurs ask court reporter to read back offensive line of questioning. Ask witness if questioning intimidated them. Ask court report to separately mark. Tell reporter you are ordering this section of deposition. Inform offensive lawyer this will be presented to trial judge at proper time.

Deposition at Trial. Plaintiff needs to read her deposition before trial. A plastic lawyer will have most if not all of his questions pre-written from the deposition. There will rarely be a question not taken from the deposition so the answer stays the same.

On the use of a deposition to impeach, impeach on big issues and misstatements.  Pass on the small stuff. Although “plastic” it is important to have major testimony outlined before cross examination. When you have an impeachable statement do the following:

1.  Set the stage by asking the question that leads to the impeachable answer. After getting the answer, examine the witness on fact of deposition.  Occurred on,  occurred at, under oath, knew it could come back at trial.

2.  Move to publish deposition handing original to clerk.

3.  Hand original deposition to witness, and tell him to turn to page where answer is.

4. Position yourself so witness is facing jury. Tell witness line you are reading which is line presenting fatal question. Instruct witness to read his answer.

5. Go to counsel table without saying anything as witness is facing jury. Buy 30 seconds to a minute. Come back to witness with different line of questioning.

You have correctly used a deposition to do major damage.

In a personal injury case one of the most important witnesses is our client’s treating doctor. The best course is to call the doctor live. Unfortunately, often the doctor will resist leaving her practice to testify because of the significant time commitment. When this is the situation the next best course is to DVD the doctor at her office. In this post we discuss direct examination of the treating doctor by way of DVD.

Know the Doctor. Meet the treating doctor before the DVD direct examination. This should be done before the defense deposition. Before meeting thorougly review her medical records including all records that predate client’s injuries. Review all other medical records as well. Go into the meeting with a complete knowledge of the medical history of client. In the meeting cover any similar injury so the doctor is prepared to address it in the deposition and later during direct and cross examination. Of  course, cover the injury at issue.

Conference Before Direct. Meet with the doctor again before direct examination. As with direct examination of any witness tell her what will be covered so she has a road map. Preparation is important but not at the expense of spontaneity. Direct examination should be conversational rather then rehearsed. Remind doctor camera is the jury.

Outline for Direct Examination

When in doubt stick to who, what, when, where, why & how questions. Rarely will you go wrong with this formula on direct. Make sure doctor is testifying on a more probable then not basis on opinions concerning nature and extent of injuries as well as conditions caused by event at  issue.

Backround. Name, address, medical education, association memberships, board certification (include teaching positions if applicable).

Nature of Medical Practice. Have doctor discuss type of patients she treats. Here you introduce the jury to the fact she treats traumatically injured patients, including patients with similar injuries to client’s. Also include questions about other areas of her medical practice. If doctor’s practice is limited to treating with no forensic examination component elicit this testimony. If there is a forensic component have her discuss the nature of this practice, and how it differs from a treating practice.

Treating Client. When did she begin treating client. If before injury what type of treatment. Cover pre- injury treatment or lack of treatment so jury hears pre-injury condition from you rather then defense during cross examination.

Treatment for Injury. Initial subjective presentation, examination (making sure you cover objective findings), diagnosis (making sure more probable then not caused by injury mechanism), and treatment plan.

Subsequent Follow up Appointments. Illicit testimony about all significant subsequent appointments. Make sure you cover subjective presentation and examination findings  (which is your objective evidence of injury). Cover referrals such as physical therapy and diagnostic studies. Elicit testimony on any significant medical record outside of your doctor. Also have doctor explain to  jury significant diagnostic findings and how they were caused by the injury.

Necessity and Reasonableness of Treatment. Have doctor testify that all treatment she gave and referred has been necessary to address client’s injuries. Then get testimony that bills for necessary treatment are reasonable. Cover future medical care necessary to adress continuing conditions as well as reasonable estimate of future medical costs.

Client Today. Disability or impairment (5th Edition AMA Guidelines), impact on activities, impact on employment, pain and suffering (past, present, & future).

Conclusion. On a more probable then not basis is condition a result of the injuries sustained in our case (causation). Is client/patient an exaggerating faker or legitimately injured person dedicated to recovery.

Unfair trial tactics can prejudice the jury against your client. I recently witnessed a defense lawyer engage in improper tactics at trial. This post under “How I Practice Law” discusses pre-trial motions that address unfair tactics. The focus is on on a car collision case, but most apply to any jury trial.

Failure to Call a Witness. There should be no comment concerning individuals who have knowledge of facts in the case but have not been called as witnesses. Both lawyers have subpoena power giving them the ability to call any witness they chose to testify at trial. To express, imply, or raise questions to or in front of the jury about individuals that have knowledge but have not been heard from has no purpose but to prejudice a party in the eyes of the jury. (This motion, which should be granted, puts the torch in advance to a lawyer who engages in this underhanded tactic).

Commenting on Documents that could have been Introduced into Evidence. There should be no mention of documents that could have been introduced but have not. Both lawyers have the ability to Request Production or Subpoena documents. As with commenting on absent  witnesses commenting on absent documents  has no legitimate purpose and is only done to poison the jury. (The document version of  failure to call a witness).

Commenting on Plaintiff’s Absence from Trial. Because of [plaintiff's employment] she is unable to attend trial beyond the first day and at the time of her direct and cross examination. The jury should be informed of this reality. Thereafter any comment on plaintiff being absent has no relevance to our case. Any comment on absence can only prejudice plaintiff. (This motion is included when plaintiff is unable to attend the full trial).

Introduction of Photographs of only one Car. Counsel should be precluded from showing a witness and/or offering photographs of (party’s car). Although a picture can be worth a thousand words, an incomplete  picture is worth prejudice to the jury. Despite Request for Production opposition has failed to produce photographs of  the car of (its party). Opposition had the ability to photograph the car before it was repaired. Failure to photograph the damage should now preclude opposition from offering photograph’s of plaintiff’s car. (Note this may be spoliation of evidence. A letter should be sent to the insurance company as soon as case is initiated demanding either photographs of defendant’s car or making car available before any repair. If the car has yet to be repaired and is repaired after the demand there is a spoliation issue).

Not A Complete List. There are many improper trial tactics. The above highlights a few. Talk with experienced lawyers and search the internet for quality law firm sites.  Include searches  in the context of improper tactics in criminal cases.  Recognizing improper tactics and moving pre-trial to eliminate them increases your chances of getting fairness for your injured client.

Often I see inquiries from lawyers asking how to deal with a particular  judge. Having been a United States Federal District Court Law Clerk for my first two years as a lawyer, and having appeared before judges hundreds of times, I am amazed when a lawyer asks about dealing with a particular judge. This post discusses my maxims as far as dealing with any and all judges.

Be Prepared. Never appear before a judge unless you have reviewed the entire pleading file, know all relevant facts, briefed all relevant law, know what you want to accomplish, and how you are going to accomplish it.

Be Organized. Have a neat and organized file. An organized lawyer usually beats a disorganized one on organization alone.

Be On Time. Never enter a courtroom late. Be early enough to introduce yourself to the lower bench and set  your presentation.

Look Professional. Always wear a suit or sport coat, shirt pressed, with tie, and decent shoes. Stand tall and carry yourself with confidence.

Meet Lower Bench. On entering courtroom introduce yourself to the baliff, clerk, and court reporter. Remember their names. Establish a professional repore with them. Never underestimate the importance of the lower bench.

Follow Local Rules. Know the court’s local rules, and follow them. If the judge says ten minutes for argument stay within ten minutes.

Go through the Paces.  Never assume the judge has read the briefs.  Cover all significant facts and the relevant law. In a bench trial make an opening statement.

The Judge is a Juror.  Treat the judge like a sophisticated juror which she is (especially in a bench trial). She has emotions and is moved by a compelling story just like a juror. Look her in the eyes and stay away from reading.

Show Respect. Accept a bad result with professionalism and dignity. Never display  disrespectful distaste for the judge or the process.

Rarely Affidavit a Judge. Never affidavit a judge unless you draw the worst judge in the courthouse and stand little chance of success. The problem with an affidavit otherwise is twofold: 1) you may then draw a worse judge; 2) the next judge sees you have affidavited his fellow judge. Judges usually like one another.They do not look fondly on the lawyer who has exercised an affidavit.

Build Your Reputation. Every court appearance win or lose adds or subtracts to your courthouse reputation. Follow the above maxims and win or lose you add to your reputation as a solid lawyer.

I do opening statement without notes. I follow the David Ball model from David Ball on Damages The Essential Update (Second Edition, NITA 2005) which I simplify to fit my style. I speak in the present tense so the story is unfolding now. My body language  stays in the zone of truth meaning my hands stay waist high slightly moving in and out and side to side. (See photo of Tyler Johnston opening in Muldoon murder trial). I stand mostly in one place unless I move to set an anchor for a fact or point that will be repeated throughout the trial (with the jesture where the anchor is set). My version of the Ball opening follows:

Theme. I go with Ball here and begin by discussing the rule and its consequence. Jurors know they are judges in the case and they want to know the rule right away. They also what to know the consequence for breaking the rule. As Ball teaches I stay simple. “A driver has to watch the road and see what’s there to be seen. When he does not, and as a result hurts another driver, he is responsible for the harm.” I continue to follow Ball-”Now let me tell you the story of what happened in our case.”

Facts. I stick to the facts no conclusions, no speculation. I stay with nouns and verbs avoiding adjectives and adverbs. As professors Strunk and White say there  has not been an adjective or adverb made that can pull a weak noun or verb out of a tight place. I stay calm and collected staying in the zone of truth with my hands. Passion when the hands move up to the chest area is saved for closing. The facts are told from the conduct of defendant first up to his negligence when plaintiff is introduced to the story. After introducing plaintiff as the victim of the negligence I introduce the adversity which we have learned is the injury.

Who We Are Suing and Why. Here I stay with Ball. As he teaches the jury is educated with the facts. Now it is time to tell them who defendant is and why we have brought our case to court.

Defendant’s Arguments. Staying with the Ball model I cover the arguments of defendant. The jury will here these soon during defendant’s opening. I cover them in general and point out we will produce evidence (witnesses and/or documents) that will demonstrate we know the arguments and will prove them wrong.

Harm to Plaintiff. Here I discuss the facts of injuries to plaintiff-the adversity dealt to our hero- and what he is doing to overcome. We know in tragedy the hero will not be able to overcome the adversity. Here I discuss the facts on economic loss, disability, loss of enjoyment of life, and pain and suffering and how they exist today.  In doing this I stick to facts-no conclusions, no opinions.

My Job, Your Job. I leave Ball here and flow into explaining my job is to prove a proper personal injury case. I explain how this will happen giving the jury a preview of how the trial will unfold.   This is when I give the amount we will demonstrate the case is worth in cases where I have decided to give the jury the amount before closing. Either way I then cover the jury’s job which is to listen to the evidence so they can provide fairness in their verdict at the end of the trial. I end by telling them the next time we talk we apply the facts to the law to arrive at fairness.  I thank the jurors and sit down.

The full commandment is Thou Shalt Not Dwell on the Trees Rather than the Forest. Sadly this is a disease  many lawyers catch. It is often seen in young lawyers, and in lawyers billing on an hourly basis, but it is not confined to these lawyers. The disease continues throughout the career of abuse lawyers who use incessant  dwelling within the trees to wear down an opponent while practicing what they believe is tough guy law.

The problem with dwelling on the trees is it wastes time, is usually of plot, and judges hate it.  This is because little is gained when the lawyer overly focuses on procedural and discovery issues that have little or no relevance to the merits of the case. Dwelling in the trees rather then the forest is seen in:

Nonsense Affirmative Defenses. These include “Failure to State a Claim” in a solid lawsuit where the merit of the pleading is certain; “Insufficiency of Service” where service has been obtained; “Failure to Mitigate” despite plaintiff diligently attacking injuries;  and,”Failure to Join a Party” in a simple two party case. The list goes on-the tree dweller throws out affirmative defenses despite the fact they will never be argued.

Abusive or Meaningless Discovery. This is seen in the interrogatories of the tree dweller. Typical abusive/meaningless questions include: Questions on specifics of medical treatment when the answers are in the medical records that are being produced; slightly changed “repeat questions” that call for same information already given;  and, questions about past medical conditions or problems that have nothing to do with the area of the body injured in the case.

Discovery Games. Refusing to provide discovery answers or documents by standing on a technical language or  a drafting mistake when the discovery sought is still clear to the non producing party; Ignoring discovery deadlines on purpose forcing the issue up to the brink of a motion to compel;  and, making technical discovery objections thereby forcing a discovery motion.

Trial Games. Refusal to cooperate with opponent during trial on matters that have nothing to do with the merits of the case but do have a lot to do on efficiently moving the case through trial.

All of the above dwelling in the trees issues are non existent when the lawyers live in the forest. This means they have a handle on the substantive facts and law of the case, they cooperate on producing documents opposition is entitled to, and they cooperate on timing issues in the trial so it moves efficiently.

As a trial lawyer representing injured people I must file cases more often then not to get fairness. In today’s economic climate many insurance companies are giving low ball settlement offers which a weak lawyer who cannot try a case will convince his client to accept or a client in economic hard times will take. Since I have an obligation to get fairness for my client I proceed to trial rather then take the low ball offer.

This means I regularly work against lawyers for the insurance companies. I play hard, I play fair, and I play to the end. Although I play to win, I treat my opponent with respect and decency. This means I have meaningful conversations with the other lawyer. I listen to the other lawyer. I cooperate  with scheduling with the other lawyer. And when I do well I never act like I beat the other lawyer.

This I believe is the mark of a true professional. And you know when I am decent to the other lawyer she is decent to me. We both will argue our case but this can be and should be done without getting personal, petty, or nasty. I find treating the other lawyer with professionalism and courtesy makes me feel better and I do just as well if not better for my client.

So when when you do not have much to say, and the going is tough, as your opponent is making hay, just remember at times it can be rough.  Accept these times and remember your time will come. Continue to  prepare, believe in yourself, accept bad things can happen,  give your best effort, and never, never lose your professionalism.