Personal injury cases today

I’m sitting in a conference room preparing a client for his upcoming deposition. On the table in front of me is the entirety of his case in paper form: an expandable file bursting at its seams, disgorging a manila folder (barely) containing a thick stack of medical records, another folder filled with discovery, one stuffed with correspondence, and many more. My client, after glancing at the file several times, finally points to it and asks “is that all for my case?” “Yes.” “That seems like an awful lot of stuff for such a simple case.”

Indeed it is. Like most of my clients, this particular client was hurt when one of his fellow motorists drove carelessly and caused a crash. My client was injured, but as with most of my clients, no bones were broken and no organs were damaged. He suffered injuries to muscles and ligaments – “soft tissue injuries.” Like many of us, my client had experienced pain in his back at times before this crash, but the pain he felt afterwards was of a different intensity and severity, and it interfered with his life. He tried to shake it off. When that didn’t work, when his injured muscles hurt throughout the workday, he sought treatment. Like most of my clients, he did physical therapy for a few months and he got better. Like most of my clients, when I first met him he said “I’m not sue-happy, but this crash has screwed me up and that’s not right.”

This sounds like the kind of case that you could settle with minimal effort, right? Order the medical records, make a few phone calls to the adjuster, and wrap it up, right? You may not handle P.I. cases very often, but if one like this comes through your door, it should be easy to get it settled and pocket a nice fee, right? Wrong.

The truth is, these cases are very difficult to settle for anything close to a fair value. Car insurance companies learned long ago that the general public can be very skeptical of people who claim they were hurt in a car crash. Insurers fight these cases on damages, and they fight very hard. The presumption with most claims adjusters is, “you weren’t hurt as badly as you claim.” You’ve got to do a lot of work to overcome that presumption.

Adjusters can often twist some aspect of the client’s medical records to suit their needs. Let’s say the client complains that work is a struggle because he has to lift large crates all day at work and every time he does his back hurts. And let’s say the doctor, who is hustling to see as many patients as he can, just writes down “motor vehicle collision – back pain” without additional detail. When I start negotiating the claim with the adjuster, the adjuster will tell me “you say he has pain all day at work, but that’s nowhere in the records.” The adjuster enters injury data into a computer program that generates settlement ranges, and he can’t make an entry for duties performed under duress if the doctor doesn’t mention it in the records, unless that adjuster wants to get creamed on performance reviews.

Your client is now in a position where, through absolutely no fault of his own, the insurance company will not make an offer that takes into account the agony he suffered while working through his injuries on a daily basis. A guy who is working through the pain instead of sitting at home on the couch and milking it gets penalized for doing the right thing.

Car insurance companies have learned that they can maximize profits by taking a hard line on these relatively low value cases, which causes a lot of crash victims to simply drop their case or not hire a lawyer in the first place. The result is that those who’ve been hurt in a crash through no fault of their own get victimized again by a dehumanizing claim process that is oriented toward protecting insurer profits rather than compensating injured people. The only way to defeat these tactics is to file suit. And that’s why, when I clerked in Baltimore City Circuit Court, I routinely saw several motor tort trials every week.

This, despite that reasonable people can agree on what a fair settlement would be in most of these cases. Court-appointed mediators and judges conducting settlement conferences try very hard to get these cases settled before trial, but very often the insurers just won’t budge on cases where the injuries and damages are modest. This can be an exasperating process for the courts, the clients, and sometimes even the defendants and defense lawyers. The insurance companies are calling the shots. Meanwhile, the client who was hurt through no fault of his own, and just wants to get compensated for what he’s gone through, will now have to go through a full trial. So the file grows.

Typically, personal injury lawyers get painted in a bad light for filing meritless cases over trivial or nonexistent injuries. Perhaps there was some truth to that decades ago. I don’t really know. Yes, sometimes plaintiff lawyers have unreasonable demands, and sometimes we have an uncontrollable client who is allergic to settlement. But today, it is insurance companies, not plaintiff lawyers, who provoke needless personal injury litigation in cases where the injuries are modest. Trials are the only weapons that plaintiff lawyers have that can right these wrongs.

My goal as a less experienced lawyer is to learn how to wield that weapon more effectively so that I can level the playing field for my clients. The one good thing about the tactics these insurers use is that there are plenty of cases out there for us younger lawyers to try, if for no other reason than no one else wants to do it. Take advantage of it.