TAKING A CASE TO STATE DISTRICT COURT
THE SMALL PERSONAL INJURY CASE
By Will O. (Trip) Walton, III
Although it may be true that bigger is better, the fact remains that most of us deal with small to medium personal injury cases. There are some lawyers and law firms who simply refuse to consider taking small personal injury cases and because of that, there is an abundance of these type cases for you to build a client base and pay your overhead. Even though the automobile insurance industry has taken a tough stand regarding small personal injury cases over the past several years, you can still maximize your damages and keep your clients happy with the right approach. Of course, the right approach includes the right client, strong liability and more than minimum impact. Yes, the days of settling whiplash cases when there is little or no physical damage to the vehicle are gone. Therefore, you must be choosy when determining whether or not to get involved with a small personal injury case.
TO ACCEPT OR REJECT - When determining whether or not to take a small personal injury case, there are certain things I always look for so that I can quickly determine whether or not to accept the case. In fact, when the prospective client initially contacts my office, I have a form which a staff member completes for my review prior to the initial appointment. For your information and use, I have attached such a form marked as Exhibit "A." Interestingly enough, every time I slow down enough to look at the form, I add something to it or delete something from it; therefore, it is an ever changing document. At any rate, I am hopeful it will assist you in your practice.
THE CLIENT - The first thing I look at is the client. Is he or she unappealing? Is the client credible? Is he or she a whiner? Is there a criminal history? Are there prior personal injury claims or workers' compensation claims or disability claims? Does the client appear to be sincere when describing the accident and injuries? Finally, would a Judge or jury like the client?
GET CLIENT BACK TO WORK - I also get the client's work history and work record. Have they gone back to work since the accident? If they have not, are they out of work pursuant to doctor's orders? If they have not gone back to work, when do they plan on going back to work and how are the injuries going to affect their ability to work? It has been my experience that the client should go back to work as quickly as possible unless the injuries are permanent and/or catastrophic. As previously stated, the credibility of the plaintiff is paramount and nobody likes a free loader who will not work! (Remember, this is a small personal injury case).
MEDICAL/INJURY HISTORY - Explore the possibility of pre-existing conditions that may water down or wash out the client's claims. If pre-existing conditions exist, did they prevent the plaintiff from working or doing their daily activities prior to the accident? One also needs to be concerned about prior injuries to the same location of the plaintiff's body. If there were prior injuries, had they completely healed? If the client is solid and the impact is better than minimum, pre-existing conditions and/or prior injuries to the same location of the body can be overcome by the use of lay witnesses and/or work records. However, everything else about the case must be perfect!
SUCCESSIVE INJURIES - A situation which may completely destroy a small personal injury case is successive injuries. That is, subsequent injuries in an additional or new accident. For some reason, certain people have a black cloud that follows them around, and they cannot recover from one accident before they are involved in a second or third accident. This typically spells disaster for the plaintiff due to the fact that it allows the insurance industry to point the finger at each other and the case simply gets too complicated and thus too expensive to pursue. Hence, be careful about a client who you have signed regarding one accident who comes in days, weeks or months later and has been involved in an additional accident.
EXCESSIVE CHIROPRACTIC TREATMENT AND BILLS - Although we have all treated with chiropractors, it has become clear that excessive chiropractic treatment and bills will hurt -- not help -- a small personal injury claim. For this reason, it is wise to stay in touch with your client to discuss the need for them to move on to a medical doctor if their chiropractor cannot get them back to work and on the path to recovery within two (2) to three (3) months. Furthermore, if the client comes to see you after he or she has already treated with a chiropractor for more than three (3) months and has run up expenses in excess of $2,500, you may need to take a long, hard look at the case before signing it; particularly if the other aspects of the case are not perfect.
ARE YOU THE FIRST LAWYER - Another subject I typically go into at the first meeting is whether or not I am the first lawyer. If the client has previously retained other lawyers regarding the same claim and they are no longer involved, your antenna should go up! If I know the other lawyer, I will typically call him or her to inquire as to what happened. If I do not know the lawyer or I do not feel comfortable contacting the lawyer, I take a long, hard look at the case including the client, impact and injuries before signing it.
BETTER THAN MINIMUM IMPACT - Because the automobile insurance industry has discovered that minimum impact, more often than not, equates to a defendant's verdict, I strongly recommend that you view the vehicles involved in the collision and secure photographs of said collision damage as quickly as possible. Even with the perfect client and good medical documentation of a small injury, the case needs more than minimum impact (i.e., a crunch) in order to be successful. Therefore, it is extremely important that you view your client's vehicle and the defendant's vehicle as early as possible in the evaluation process.
WHAT'S NEXT - After you determine that the client is appealing, that the collision impact is visible, and that the injuries are real, the issue becomes how do you resolve the claim efficiently, expeditiously and cost effectively?
VALUE/EXPECTATIONS - I typically discuss value, or the lack thereof, with the client during the first meeting if it isobvious that the case is a small personal injury case and/or merely involves soft tissue type injuries. The last thing you want to do is over estimate the value of a small case and end up with an unhappy client and a small fee. Furthermore, if you find during your initial meeting that the prospective client has unrealistic expectations, I strongly suggest that you reject the case and let someone else deal with said unrealistic expectations.
CONTRACT/MEDICAL AUTHORIZATIONS, ETC. - After getting a contract signed (and you must), I would suggest sending a follow-up letter to the client with information that will help him or her better understand the process. For your information and use, I have attached such a form marked Exhibit "B." I did not invent the form; however, I have tailored it to specifically meet the needs of my practice and it has served us well. Particularly, paragraph 5 which requests that the client contact a staff member in my office after each major medical appointment giving us an update on the status of medical treatment with the date of the client's next major medical appointment. This helps us continually evaluate the case, and it allows us to more quickly resolve the claim due to the fact that it helps us stay in contact with the client and the status of their medical treatment. It also helps build a rapport with the client and lets the client know that you and your staff are interested in their well being.
THE SETTLEMENT BROCHURE - Once the client reaches maximum medical improvement (MMI), I typically order all certified medical records and expenses and determine if there are any subrogation interests or other liens against my client's potential recovery. A settlement brochure is then prepared using the accident report, witnesses' statements, photographs of the vehicles, photographs of the scene, and copies of medical records and expenses including, but not limited to the following records: EMT/ambulance, emergency room, treating physician, x-ray and/or MRI, chiropractor, physical therapy, and treating physician narrative. Remember, when ordering medical records in the State of Alabama, not to let the healthcare provider gouge you. The cost of medical records in the State of Alabama is regulated by Ala. Code, §12-21-6.1 (1975). The reasonable cost of reproducing copies of written or typed documents, or reports shall not be more than One Dollar ($1.00) for each page of the first 25 pages, not more than Fifty Cents ($.50)) for each page in excess of 25 pages, and a search fee of Five Dollars ($5.00). If the medical records are mailed to the person making the request, reason- able costs shall include the actual cost of mailing the medical records.
NEGOTIATING THE SMALL CASE - After sending your settlement brochure which clearly summarizes the strengths of your client's claim along with a monetary demand, you will typically receive a call from an adjuster who will more than likely belittle your case. They will either make you a low ball offer or tell you why your case is not worthy of consideration. If you are fortunate enough to get an adjuster from out of State, you should politely remind him or her that you practice in the State of Alabama (i.e., read between the lines) and never concede that your county is a bad venue! I also find that it is helpful not to get in a hurry to resolve the claim. The insurance adjuster likes to get you in their time frame due to the fact that they have guidelines, etc., which requires them to diary the claim every thirty (30) days or so. Therefore, when I get a low ball offer, I typically do not respond for sixty (60) to ninety (90) days or sometimes I will actually wait on them to call back. Remember, the insurance adjuster must resolve a certain number of cases within a certain time period; therefore, let time work for you.
FILING SUIT IN STATE DISTRICT COURT - If settlement negotiations fail and you are unable to get a legitimate settlement offer, I would recommend filing suit in State District Court if your specials are $3,500 or less. This assumes a small personal injury or soft tissue injury without permanent injury or scarring and no wanton conduct on behalf of the defendant (e.g., no alcohol or drugs). I generally file a Complaint for the maximum amount allowed in District Court plus costs. With the Complaint, I file a Motion for Discovery. See: Rule 26(d)(c) Alabama Rules of Civil Procedure. Along with the Complaint and the Motion for Discovery, I file a short set of Request for Admissions, Interrogatories, and Request for Production. [Note: Typically, I get the District Court Judge to execute an Order allowing discovery prior to filing suit so that said Order can also be served with the Complaint.]
THE COST FACTOR - It has been my experience that most automobile liability insurance companies want to cost us out of the market when it comes to small personal injury claims and/or soft tissue claims. However, it is also been my experience that they like to get these same cases resolved without incurring litigation costs of their own. Therefore, I file the Complaint along with several sets of discovery which they know will cost them money immediately when their attorneys get the suit papers along with discovery and begin to respond. The defense attorney typically begins reviewing the documents and begins billing his client (i.e., the insurance company). Of course, defense counsel must contact the defendant to discuss the facts and circumstances surrounding the claim. The defense cost is growing. The defense attorney will naturally object to certain Request for Admissions and/or other written discovery whereby you will need to file a Motion to Compel which may cause the Judge to set a hearing. This may cause defense counsel to bill for time to prepare for the Motion, time for driving to hearing, mileage and lunch. The defense cost continues to rise. As you can imagine, the insurance adjuster who caused the case to get filed is probably meeting with his or her supervisor regarding litigation cost, and someone will more than likely call you to discuss an equitable settlement. I cannot count the number of times an adjuster has called me and settled a case without first contacting the defense attorney simply to shut down defense cost. [Remember, they would rather pay the claimant than their own attorneys].
KEEP YOUR COSTS DOWN - In order to hold down your costs, always ask defense counsel to admit or stipulate to medical expenses and medical treatment records (i.e., in writing). If they refuse, I typically send a letter regarding good faith and attach a Motion for Costs which is ready for filing. If this does not get you an agreement regarding the admission of medical expenses and treatment records and you simply cannot afford to take medical depositions due to the costs involved, simply attempt to admit certified medical records and expenses or forget about such trivial matters and have your client and other lay witnesses testify to your client's injury, pain & suffering, mental anguish, inconvenience, etc. Photographs that show trauma and/or bruising to the plaintiff, along with photographs of visible (i.e., crunch) damage to plaintiff's vehicle, are also useful and inexpensive tools in proving your client's claim.
SUMMARY - The majority of the members of the Alabama Trial Lawyers Association handle small personal injury cases. Handling these type cases is an excellent way to build your client base and pay your overhead. However, if you do not have a plan/method of pursuing these type cases, you will spend too much time and too much money to make it worthwhile. Therefore, I am hopeful that the suggestions in this paper will assist you in pursuing the small personal injury case so that you and your client will be satisfied with the results |
