For the first time in over 30 years I am being contacted by potential clients who are notably upset when I will not accept their accident case. I explain that any accident case places the Burden of Proof on the injured plaintiff to prove Liability (that someone else is at fault) and Damages (that they were injured). In addition, it is more expensive than ever during the Age of Covid, to pursue a PI case for the lawyer. When the case settles some of those costs get passed on to the client. I do not want a client that will be unhappy in the end because most of the money went to costs and not them.
All this is especially true during our Covid restrictions. It is hard to find doctors in their office to examine and treat the injured client. If you can see a doctor how difficult is it to go to the pharmacy to get prescriptions filled? Who wants to wait in line with people that are picking up drugs because they are sick?
Unless you are rear ended the defendant often lies and claims you were at fault……..or partly at fault. They will argue they had the right of way……especially if there was no witness or police report. It becomes “liar’s poker”, and a lawyer must evaluate how likely it is that the jury will believe the plaintiff. During Covid and the arguments to lessen funding for the police, good luck in getting a police report prepared.
California has Comparative Negligence and thus if the defendant can show the plaintiff was partly at fault, that degree of fault is deducted from the settlement. For instance, if the Plaintiff client was 50 % at fault, s/he would lose 50% of the value of their case.
As stated earlier, an accident case is made up of Liability and Damages. First you have to show that someone else was at fault and that the treatment received was reasonable and necessary. If you are not taken by ambulance or go to the hospital or ER within 24 hours, many of my contemporaries will not accept the case. But who wants to go to a hospital or ER where there are so many sick people…who may have Covid?
This case rejection is also true, if you have talked to the insurance adjuster. It is not just what you said, but what the ADJUSTER THOUGHT THEY HEARD YOU SAY. Your lawyer will never know if you said something that could sink your case at trial, and the insurance adjuster will not share this information. S/he will sandbag you and the defense adjuster or lawyer, will wait until trial to present the evidence that could potentially blow your case out of the water.
I explain to potential clients that things have changed dramatically in recent years..and more so with Covid 19. Today, insurance companies do not want to settle any soft tissue case where nothing is broken. Also, jury verdicts are lower today because the public has been brainwashed into thinking that a soft tissue injury will heal without treatment or that the plaintiff was milking the insurance company.
In addition, insurance companies carefully examine the medicals. They look to see if the treatment you received was clearly from this accident and not pre-existing. If you had a prior auto accident or slip and fall in the shower, or around the pool, 10 years ago, they will argue your treatment is from a preexisting condition and not accident related. Thus they refuse to pay…or they may just make a LOW BALL offer.
There is a big difference between $9,000 of medicals comprised of a $7,500 medical bill from Eisenhower for a few hours of diagnostic. This might be followed by a few doctors’ appointments and no physical therapy. Compare that with a bill of the same amount that is mostly Physical Therapy. A bill of $7,500 for 40 PT visits and $1,500 of diagnostic and exams would be worth a lot more.
In 2021 the cost of litigation will be a major concern for an accident lawyer. If the insurance company forces you into litigation by offering $6,000 on your bill of $9,000, your lawyer has to invest his/her money into your case. That just happened to me in the last few months. Unfortunately, these cases could cost a fortune as with Covid it could easily take 5 years of litigation before you get to trial. Now, with Covid, all cases are being continued for long periods of time. No cases are going out to trial. This plays into the hands of the insurance company. Why would they want to settle if they can do so with 2026 dollars and not 2021?
There are also costly depositions to be ordered. If the judge rules incorrectly on an issue the lawyer sometimes must hire an appellate attorney to make things right. Because the plaintiff has the burden of proof, when you get to trial your attorney has to pay YOUR DOCTORS to come to court to testify.
Unfortunately this process is not a science. Because a case is set for trial on January 15, 2021 does not mean it will go out on that date. With Covid, I can assure you it will be continued for over a year.
Meanwhile the doctor demands $5,000 to $15,000 per day, up front, to testify. The lawyer pays this when the doctor reserves that date and does not schedule patients. When the date is changed or the testimony of a witness runs over, the doctor will ask for the same amount for the second day.
We recently had a doctor who moved to NY to join the faculty at NYU but had treated my client locally. He demanded we fly him back first class and pay him $7,500 a day for travel and his testimony, in addition to paying for his hotel room at a 4-5 star hotel …plus all his expenses. Absent a large case, a lawyer cannot afford to lay out this amount of money. It is not fair to a client who would wind up with nothing after the legal fees and costs are deducted from the settlement. As a matter of fact, all the money could conceivably go to costs, and not legal fees or money to the client.
I have been representing plaintiffs injured by drunk drivers, as well as, representing those charged with driving under the influence for over 30 years and there has never been a more challenging time to handle an accident case. This includes auto accidents, slip and falls and dog bites. The insurance companies recognize that lawyers in 2021 cannot afford to fund these cases and thus low ball an offer or make no offer. This was true before Covid and doubly true now.
If you have any questions or suggestions for future columns contact Dale Gribow 760-837-7500 or firstname.lastname@example.org.
DON’T DRINK AND DRIVE, CALL A TAXI OR UBER………IT IS A LOT CHEAPER THAN HAVING AN ARREST OR ACCIDENT AND CALLING ME ………SO DRIVE SOBER OR GET PULLED OVER
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