Personal injury clients are usually curious about how much money an attorney can get for them. While there are no firm answers to that pesky question, there are generally two principles that determine a case’s value:
1. How much are the insurance company’s adjusters are willing to pay an aggressive attorney who knows how to negotiate prior to filing a lawsuit?
2. How much money will a jury award you after hearing a skillful attorney present your case to it?
First, let’s discuss pre-lawsuit negotiations.
Insurance adjusters control the checkbook, and they speak a different language than most attorneys. An attorney who doesn’t speak their language is often of less use to you than one that does.
Unsophisticated attorneys often discuss the law with adjusters while sending mountains of medical records—some germane; others, meaningless (my favorite example was a combination STD/pregnancy test result). Yet adjusters speak the language of risk and causation, not law.
Does the law factor into their payment decisions?
Yes, to a degree, but legalese can only get an attorney so far in getting you the best possible settlement. (No amount of legalese can tie the causation of a pregnancy or STD to an automobile crash except in the most unusual of cases.)
The attorney must be able to convincingly argue that the crash caused (or aggravated) your injuries and that the risk to the insured parties warrants giving you a certain amount of money.
Let’s look at two male claimants who are the same age—25—and both of whom are in roughly the same physical condition (no degenerative issues). Let’s also stipulate both were involved in exactly the same type of crash—a moderate rear-end collision—in exactly the same car with the same amount of damage, and both have the same type of lumbar herniation.
If the same adjuster evaluates those claims, why would one claimant get only $3500, and the other, $10,000?
The key here is the insurance company’s bodily injury policy limits and the attorney’s skill and aggressiveness.
If an insurance company only has $10,000, then that’s all it has to defend a case; therefore, an astute attorney can often get the entire $10K. It simply isn’t worth the RISK to an insurance company that a jury will award the claimant a verdict in excess of $10K.
Yet if the insurance company has a $25K bodily injury liability policy, it becomes harder to get more than $3500 for that lumbar herniation because the insurer has more money with which to defend its insured parties. The insurer is willing to gamble a little more, so the attorney has to be more skillful in his presenting his arguments. The more coverage an insurer has in its “war chest,” the more confident its adjusters and attorneys will feel.
The attorney must understand more than risk, though, to get more money; he has to understand how adjusters think about causation. Rear-end collisions and lumbar herniations are particularly fertile ground for an adjuster to make a causation argument.
What’s the big deal with this crash being a rear-end collision?
In rear-end collisions, the lumbar spine is the most protected area of the spine. Think of sitting in a rolling chair when someone pushes it suddenly from behind: The chair goes forward, and your body goes backward—at least initially—and your lumbar spine (the lower portion) doesn’t move much at all. That’s the same thing that occurs in a rear-end collision. In a rear-end collision, your lumbar spine is the most protected part of your spine. Conversely, in a rear-end collision, it’s the cervical spine is the most likely area to be injured. Cervical herniations are very common in rear-end collisions due to the “whiplash” effect.
In order for you to sustain a herniation, your spine must experience significant flex or compression forces that most experienced adjusters will argue cannot occur in minor to moderate rear-end collision.
There are many counter-arguments about risk coupled with causation that a good—not I said “good,” not “experienced” (there is a difference!)—attorney can make about any type of crash that can persuade an adjuster to pay more on a claim. A good attorney who knows how to politely negotiate and argue your case with an adjuster will almost always get you the best possible settlement.
What a trial attorney wants, though, is for an insurance company to refuse to pay its policy limits when the claimant has a serious injury that is clearly worth more than the policy limits. That way, the attorney can file a lawsuit, get a jury to award an excess verdict, and then the attorney can sue the insurance company for punitive damages for its failure to protect its insured. That tactic can turn a $10K case into one worth millions. (I’ve not yet been fortunate enough to get an adjuster silly enough to make that stupid a decision, but those are the cases that cost adjusters their careers and make insurance companies shudder. Those are the “Bad Faith” cases, and they deserve an article of their own.)
Let’s discuss, though, the language of jurors, because juries speak another language altogether.
Surprisingly, many attorneys don’t trust juries and hate the courtroom. The language juries speak concerns damages and liability. In other words, juries want to know who to blame for the plaintiff’s damages, if anyone, and how much money the jury should award for those damages.
In speaking this language, an attorney has to catch the jury’s attention and even entertain its jurors. Jurors typically don’t want to be in court, and if an attorney doesn’t explain things in a simple but interesting manner, then a jury probably won’t award the highest amount of money to a plaintiff .
Jurors often don’t understand damages, so an attorney must explain why a plaintiff needs the jury to award money and get jurors to see past their biases. Jurors, contrary to popular belief, don’t write big checks very easily. Defense attorneys and the insurance companies for whom they work have been very successful in convincing the public that everyone is out for free money.
In many ways, the attorneys are directing a play, and a boring play doesn’t capture a juror’s attention. Jurors need to feel right about giving a plaintiff large sums of money, so the plaintiff attorney’s job is to persuade and entertain. If you want to tell a trial attorney from a paper-pusher, choose three objects at random and ask your prospective attorney to tell you a story about them on the spot. If he cannot, then I think you should walk away and get a different attorney. I practice this trick every day to stay sharp.
The other thing that is difficult for attorneys is making the case about the client and not the attorney. Attorneys are generally intelligent people, and egos run high in my profession. Getting an attorney to subtract himself from any trial is something some attorneys simply cannot do, and that makes for a bad trial attorney. A jury doesn’t give a damn about the attorneys. If the jury is focused on the attorney, then they aren’t listening to the evidence. The attorney’s job is to present information to the jury in a compelling manner. Yes, there is showmanship involved, but that alone doesn’t bring home the bacon.
There are other issues that an attorney needs to address such as getting rid of bad jurors (although most attorneys think their job is to select “good jurors,” I don’t believe that’s true) and choosing credible expert witnesses who actually testify well.
There are also the in-between cases: Those are the cases in which an attorney may file a lawsuit, but the case will never go to court. That’s because if an attorney gets a bad adjuster who refuses to negotiate reasonably, the attorney can file a lawsuit to “punt” the claim to an insurer’s Litigation Unit. Once a claim is in litigation, a litigation adjuster must confer with the insurance company’s attorney to determine the cost of defense as well as the probable outcomes at trial. Some attorneys seemingly don’t realize that litigation adjusters often pay much more on claims because the risk matrix is far different. The focus becomes more about risk and potential cost than other factors. I have seen insurance company litigation adjusters pay 5X more than I would have paid as a casualty adjuster.
Some attorneys also attempt to scare adjusters by sending what are called “courtesy copies” of lawsuits and proclaim it is the adjuster’s “last chance to tender the policy limits.”
I see this tactic as a weak move. If the attorney hasn’t filed the lawsuit, then it is meaningless; moreover, if the attorney EVER settles a claim for less than the policy limits after sending the adjuster an unfiled lawsuit, then, in my opinion, he has proven himself to be a paper-pusher, not a trial attorney. Do some adjusters fall for that tactic? Of course they do. My response was always, “Call me when you have filed it.”
That’s because in order to file a lawsuit, an attorney must pay a filing fee (a few hundred dollars) and these days, file the complaint electronically. Interestingly, I know of attorneys who don’t have access to Florida’s E-filing Portal. If your attorney doesn’t have access to that portal, then he cannot file a lawsuit. What does that lack of access tell you?
I once had an attorney who sent me a courtesy copy of a lawsuit he claimed he was going to file if I did not tender our $25K policy limits on a claim. I declined to do so. He then called my supervisor and complained about me. My supervisor was on vacation at the time and didn’t get the attorney’s voice-mail for a week. In that time, the attorney sent me an angry letter calling me a miserable human being and stating I was what was wrong with the insurance industry. In that very angry letter, he also accepted my very first settlement offer. By the time my supervisor got that angry voice mail, the claim was settled, and that attorney was laughed at every time he blustered afterward.
The funny thing is, though, that attorney could have gotten the policy limits if he had (1) been a gentleman, (2) made the proper arguments (he didn’t negotiate, he threatened), and (3) actually filed the lawsuit. But based on that attorney’s conduct, I judged him to be a paper-pusher who didn’t pose much risk. His acceptance of the lowest end of my range (I still had lots more money I could have given him) confirmed my suspicions. I also hung his letter at my desk.
How much is your injury worth?
The answer depends on how knowledgeable your attorney is in the way insurance companies calculate risk. Does he know how to argue and negotiate with adjusters? Can he tell a compelling story about your case to a jury? Can he make the process about YOU and why you should get top dollar for your injury? These aren’t things attorneys learn in law school.
How much is your injury worth?
It depends.
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