It is now June and we have reached the half way mark for 2014. I thought it would be of interest to provide a snap shot of the Law Office of Adam Sorrells year thus far.
For the office, it has been a really busy year. As the Chico personal injury lawyer of the firm, I have taken two cases to jury trial already. The last one was in April. Given that some lawyers have never been to trial or have only gone once or twice, two jury trials during the first four months of the year got the business off to a very busy start.
This brings up the first observation for 2014: More insurance companies are forcing cases to trial. In times past, there would often be an offer that could be accepted, but the lawyer and the client agreed to be aggressive, push forward, and take the case to trial (I typically enjoy this approach). With several of the large insurance carriers, and more following suit every day, this is no longer the case.
Many times the final offer made is simply unreasonable and extremely low. Offers are almost daring the plaintiff and his / her lawyer to take the case to trial. For lawyers who do not try cases (the insurance companies know who you are), they are virtually forced to take that final lowball offer or refer the case out to someone like me who is willing to try the case. This forcing of cases to trial can be both a blessing and a curse. From my point of view, there are cases that settle for amounts less than what I think the case is worth.
Hiring a Lawyer Who Will Take Your Case to Trial
I do advise my clients as to whether they should accept or reject offers, but ultimately it is their decision. When the insurance companies lowball cases, it gives me an opportunity to take more cases to trial. In many ways, I view this as an excellent opportunity. I am able to keep my trial skills fresh and cutting edge and I get a chance to try cases and obtain verdicts that are higher than the case may have settled for originally. On the other hand, trial work is exhausting, expensive, and very risky for all sides; especially for my clients.
If an injured victim (the plaintiff) goes to trial and loses, this includes any verdict less than the insurance companies' final offer, then the plaintiff can be on the hook to pay the insurance companies case costs (not their attorney fees). This includes, in the court's discretion, the insurance companies' expert witness costs. Expert witness costs tend to be higher in the case. In a small personal injury case, the cost from start to trial could be between $8,000 and $16,000. A mid-range case may go up to $50,000 and a large but less than severe case up to $100,000. Some complex litigation cases, such as product liability or vehicle roof collapse cases with paralysis, can cost up to one million dollars to take to trial.
For a losing plaintiff, the insurance companies' case costs are subtracted from the verdict, and if they exceed the amount of the verdict then the plaintiff can be personally responsible for those costs. This is an extreme risk and requires competent and experienced trial counsel to guide an injured person through the risky and troubled waters. With the assistance of a knowledgeable legal guide, the victim has a much better chance of emerging on the other side, safe, and with a satisfactory outcome.
Now more than ever, so-called settlement expert lawyers and lawyers who have never seen the inside of the courtroom cannot adequately protect your rights. The best way to get the top settlement is to meticulously prepare the case, with top notch medical documentation, a legitimate injury, and an experienced lawyer to guide you through. A strong offense will produce the best settlement results. In order to get there, you must be ready to go to trial. In most cases that I take to trial, the case usually settles or the verdict is much higher than the final offer from the insurance company.
Will your lawyer take the case to trial?
One way to find out if your lawyer takes cases to trial is to see if they are a member of the American Board of Trial Advocates (ABOTA). ABOTA is one of the few organizations wherein its members must be invited to join, must have been lead counsel in a significant number of jury trials, and be peer-reviewed by current ABOTA members. Many other lawyer organizations are open to any lawyer who pays the annual membership fee.
I am proud to say that I have been accepted as a member of ABOTA!
There are certain insurance companies that are not bothering to make a fair offer for settlement until a lawsuit is filed. Sometimes, right after suit is filed, a more legitimate offer is made and the case can resolve. It is critical to have a lawyer who knows which companies are employing this tactic, when to attempt to settle pre-lawsuit, when to simply file suit, and when to negotiate.
Some lawyers think they can practice personal injury litigation part time. They also handle family law cases, draft wills and trusts, etc. This area of the law is too difficult and too demanding to practice it properly (in my opinion) if you only do it part time. My practice is limited to the representation of injured victims.
My New Tactic for 2014
Another tactic I am employing this year, and have been for many years, is to try to open up the insurance company policy limits of the adverse party. Let me explain. When somebody purchases insurance, there are many options. For example, in CA, the minimum amount of car insurance that can be sold is $15,000. If you are hit by a careless driver who is carrying only $15,000 in insurance, that is the most his / her insurance company will pay on the claim regardless of how badly you are injured. For that reason, it is very important that you carry sufficient uninsured / under-insured motorist coverage to protect yourself. An exception to this is if the insurance company has been given the opportunity to settle the case within the policy limits. If they fail to do so, the policy limits are open.
Any verdict at trial that is higher than the limits will have to be paid by the insurance company. As a Chico injury lawyer who takes cases to trial, getting a verdict at trial in excess of the insurance company's policy limits is enjoyable. It can also be a large benefit if I have a client who was seriously injured by someone who was carrying an inadequate amount of insurance.
Sometimes, insurance companies play games and like to delay paying on cases that they should be paying on. If they play these games on the wrong case, they can do my client the favor of opening up the policy and allowing a deserving injured victim a shot at full and fair compensation. It is important to have a lawyer who knows how and when the policy is opened,
and how to take advantage of this possibility.
Liens Are a Challenge
Liens (outside entities that have the right to recover or take a part of your settlement money; see my prior blog "Lien on me") continue to be a real challenge to plaintiff's counsel in 2014 and on the ability of plaintiff's counsel to fully and fairly compensate an injured victim. I continue to stay current on the case law in this regard, as well as staying in contact with experts in the field so that when lien issues arise, I can advise my clients appropriately.
Often times, there is a very cyclical nature to the insurance company tactic of forcing more cases to trial versus settling. If it is costing more money to go to trial than to settle, then there can be a return to settling more cases. It is unclear if the "hardball trend" will continue or not. Either way, my plan is to stay current with case law changes, keep advocating for my clients to the best of my ability, and to remember, especially with trials, that it is not about my ego, but about my client who has been injured by some careless person. The principle I follow when going through the process of talking to and selecting a jury ("Voir Dire") is: The more I listen, the more I learn.