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Telling the Truth at Trial….Well, Sort of …

Preparing for trial is always the lead in to what it is all trial lawyers crave: the high emotions, the low emotions, the insane and crazy strategic gamesmanship that can be found in no other game. Litigation is like chess – only, the players are real people.

Plaintiffs are real people. Defendants, they are, well…. sort of, real people. Let me explain.

Given that it takes nearly two, three, sometimes four to five years to get the case to trial generally gives you an idea of how hard fought the case has been. In a personal injury trial situation, someone has been harmed, suffered losses and is seeking compensation for those losses, those major setbacks in their life, from the party that harmed them.

The reality is, the person that caused the harm is typically represented by an insurance defense attorney. The attorney for the insurance company and the claims representative are calling the shots. They are deciding if the case will settle, if the case will go to trial. They are playing a numbers game. Plaintiff is living his or her life. Defendants are trying to maintain their insurance policy and have to do what the insurance company tells them to do. It is a risk/reward numbers game for the defense. There is a cost benefit analysis. A rolling of the business dice. An effort to maintain a bottom line.

That is a significant fact a truth that never gets told. We have selective justice in our civil jurisprudence. Insurance lobbies are powerful and prevent jurors from hearing that there is insurance involved… though we all suspect it, it is never spoken about in a courtroom. The theory is that if jurors know there is insurance they will be more likely to apply a verdict that will make whole the plaintiff for the harms caused. If the jurors think it is coming from the pocket of the defendant, then the verdict will reflect sympathy for their fellow man and his or her bank account.

In a nationwide effort to further reduce the cost to insurance companies, medical bills – often used to evaluate how “harmed” a plaintiff was, or is – are not fully allowed to be seen by a jury. Let me explain how this has come to work in the past two years. In both CA and TX, companion cases decided near the same time, 2011, held that only the amount of medical bills actually paid by an insurance company would be presented to a jury. In other words, we all know how astronomical the cost of medical care is in the US. If jurors hear that a person claiming to be seriously injured only suffered FIVE THOUSAND ($5,000.00) DOLLARS in medical care costs, you would not assume that was very serious. What you may not hear, depending on the judge’s ruling pre-trial, is that the billed amount for medical services to the injured person was actually FIFTY THOUSAND ($50,000.00) DOLLARS. Blue Cross, Blue Shield, Aetna, Travelers, Healthnet, etc., all have agreements with the medical providers to pay set rates for various services/procedures. That reduction by contract between the insurance company and the healthcare provider/hospital, a separate agreement having nothing to do with the crash, the harms, the surgery, the pain, is the only information that will get before some juries. When that happens, the juries won’t know the actual amount billed, and more likely than not, the verdict will be anchored to the amount of bills to determine the extent of harm when deciding non-economic (pain and suffering) damages.

As I prepare for trial, I think of all the ways in which I have to word my opening, my direct examinations, my cross-examinations, my closing argument, and every other piece of evidence with insurance information on it, has to be redacted. I think about how truth in this “truth-telling” forum can only partially be told. I think about how one day, hopefully I will be preparing for a trial where I will be able to present to that jury, the WHOLE truth.

Until then, I am left to work around, strategically present my case so that the burden on the plaintiff is not so burdensomely felt. My goal: fix what can be fixed, help what can be helped, make up for what cannot be fixed or helped. I do this for the little guy, the underdog, the one fighting to make sure the bills s/he owes due to someone harming him/her don’t cost him/her his or her apartment or throw him/her out on the street, cause him/her to miss a child support payment or go so deep into debt that there is no coming out. It is a fight involving human lives. It is not about numbers and cost benefit analysis. For the plaintiff, it is about winning justice in a system that only allows the telling of half-truths. For the defendant, it is only about protecting a swollen and deeply weighted bottom line.

Depositions-Don’t Go In Unprepared

A deposition occurs in litigation. Witnesses, named parties (plaintiffs and defendants), experts (doctors, engineers, people with special knowledge) are all likely to have their depositions taken prior to a mediation, arbitration or trial in a lawsuit. The deposition is in effect an interrogation. That is frightening. The opposing party’s attorney will have a chance to ask you anything that is reasonably calculated to lead to admissible evidence. That is a vast possibility of questions for the non-lawyer, anything “reasonably calculated”.

As an attorney, I have an obligation to provide my client the tools necessary to understand and succeed in deposition against a seasoned law expert, opposing counsel. We call this preparing the witness.
An attorney’s client should never go into a deposition with fears they don’t know how to handle. Client’s should clearly understand how to answer the types of questions lawyers will ask. Depositions are not customary environments where typical conversation occurs. Attorneys talk funny, and they may ask you questions in a way you are unfamiliar. An attorney that properly prepares their client may have a client that is still afraid of being deposed but the client will also have enough tools and knowledge to understand the issues, questions, language, and dialogue and how to ask clarifying questions of the attorney interrogating them.
When an attorney fails to properly prepare their client (a process that in our practice can take no less than five hours and sometimes days) is an attorney who is failing their client and ultimately the merits of the case may suffer. The preparation for deposition should begin days in advance of the client’s deposition to allow the client to ask questions about the process and their participation. The days between meeting with the client and the actual deposition taking place give the client time to digest and develop questions that their attorney can then help them with prior to the day of the deposition.
The more difficult the case, the severity of injuries involved, the complexity of the law and or the facts, will often require more preparation time with the client and never less than 3-5 hours. In bike and motorcycle crash cases the facts can often be difficult and are often highly disputed. Anytime serious injuries are involved and the client has been hurt physically and especially emotionally, be prepared to spend hours preparing with your attorney for your upcoming deposition.
Don’t go in unprepared. Don’t survive the crash to get killed in deposition or at trial. Preparation is key.

Regulate the Car and Truck Manufacturing Industry to Reduce Motorcycle and Bicycle Crashes?

If you have driven a car in the last few months you have probably noticed the alarming number of crashes involving motor vehicles, motorcycles and bicycles. This past weekend there was a Smart Car that hit and ran over a motorcyclist on Mopac in Friday traffic. In the 4900 block of 2222 on Saturday July 13, 2013 around 8:30 pm another serious motorcycle crash. Crash statistics on motorcycle accidents in Austin seem relentlessly on the rise yet last year’s studies indicated motorcycle crash statistics in Austin, Texas were slowing down. The constant and agonizing question is how to reduce these incidents. Is Google car the answer? Can Google glass alert drivers of impending doom at a lesser price than buying the car? Can we force auto manufacturers through legislation to address this issue with sensors? Wait? What? More regulation?

Yes, I said it. More regulation. Cars and trucks can be equipped with sensors very inexpensively. The cost of lives, lawsuits and healthcare for serious and catastrophic injuries would slow to such a grinding halt I am nearly certain plaintiff and defense lawyers alike would move to halt such legislation and for once democrats and republicans might find themselves in the same bed with the same auto makers, a tryst to be remembered. But, why not? Most high end cars have sensors that tell the driver if they are about to hit the trash cans at the end of the driveway. Why not insert them around the perimeter of newly manufactured vehicles that would in effect alert the driver. The only time the system would fail is if the driver were truly asleep at the wheel. What do you think? Is this sort of forward thinking about saving lives good or no good?

Insurance Demand Letters

A demand letter, as the title suggests, is a letter written to the insurance adjuster of the defendant who caused your harms prior to filing a lawsuit.

I often hear plaintiff attorneys talk about getting “low balled” in their settlement negotiations by insurance adjusters following the submission of the demand letter by the plaintiff’s attorney.

Why the settlement offers are lower than you thought? You think you did everything right and wrote a great demand letter to the insurance company, but did you?

A great demand letter begins with a great evaluation of your client and the case when they walk through the door. Absolutely everything that follows after that client signs the retainer agreement should be tightly managed and under the control of the attorney who manages that client’s file.

Your evaluation the day the client walked through the door to the time you write the demand letter to the insurance company should only be reshaped by unexpected medical treatment or new facts unknown by you or the client on the day of the intake.

When writing a demand letter knowing why the defendant(s) are liable is key and every statute or municipal code that is affected and every remedy available for the harm caused to your client. A very detailed explanation of all treatment demonstrating the client’s subjective and objective complaints, treatment, if the client followed orders and protocols, the assessment by physicians and therapists, and ongoing plans for treatment must be listed in chronological order. The more you demonstrate your own understanding of the medicine involved in your client’s claim and the better you are able to explain that to an adjuster in writing the more you will satisfy the question, “Can the attorney get this across to a jury?”

Detail every cost, back up every cost you listed with why you are entitled to it. Embed as much into that demand letter as you can, attachments are difficult and clumsy. Keeping a demand letter detailed yet simple is a gift and if done right will reap better results for your client. Print your demands in color and make sure you can show pictures of before and after and why your client will do well before a jury.

Don’t cut corners when putting together a demand letter. There may have been blood everywhere at the scene of your client’s crash or incident but don’t spill new blood and reduce the integrity of your client’s claim by being lazy with putting together the demand letter. Doing this to a client’s claim is an entirely different but equally valid bloodshed.

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