The Court Of Public Opinion

Here’s What Happens When Pieces Of The Story Are Missing

Think about this: When I speak to a medical expert and send him a client’s medical records to review, it is extremely important that we have all of the necessary documents. If some crucial piece of information is missing, my expert may come to a conclusion about your case that is inaccurate because he doesn’t have everything he needs.

Image what happens if your case proceeds to trial and you don’t tell me everything in your history or background and we don’t learn it during the discovery part of your case. At trial you can be sure the defense will have learned it through their investigation and it’ll blow up on you at trial. I guarantee it.

The defense will take the missing information and ask our expert the following questions:

Q: Doctor, if you were aware that Mr. Jones was a drug addict, would that change your opinion of the case?

Q: Doctor, if you knew that the patient chose not to take his blood thinner medications to prevent stroke, and he had a stroke, would that change your opinion about the treatment rendered by these doctors?

Q: Did you know that Mr. Jones told the emergency room nurses that he wasn’t allergic to any medication?

Q: Assume the nurses asked him if he was allergic and he said no.

Q: Assume that the nurses gave him penicillin because he specifically told them he wasn’t allergic to any medications.

Q: Assuming those facts to be true, and by the way, you know that he didn’t tell the nurses he was allergic, right?

Q: If he didn’t tell the nurses he was allergic to penicillin, and they asked if he was allergic, are you still saying they are responsible for the reaction he suffered when he was given penicillin?

So what happened here?

The expert doctor was never told that the patient failed to inform the nurses that he was allergic. He came to conclusions about the treatment based on incomplete and inaccurate information. The physician had to concede the point on cross-examination that if he had not told the nurses about his allergy, then there was no way the hospital could be responsible for his allergic reaction.

Let’s look at it another way: Why would a client with injuries hide information from his lawyer?

The reasons are endless. Some clients feel that it’s none of the attorney’s business. Some don’t like others to know their intimate details of an illness or personal details about their finances. Whatever the reason, a client that withholds information may seriously hamper and jeopardize their case.

The key is to let the attorney determine what information is important and relevant. If I know about a problem in the case, let’s say someone was convicted of a crime in the past, I know how to deal with it properly and can advise you how to handle the questions that you will be asked. If you lie about your past history (Q: Have you ever been convicted of a crime?) that is literally the ‘kiss of death’ for your case.

Remember, your credibility is the most important part of your case. If you are found to have lied during your testimony, the Judge will instruct the jurors that they may disregard all or part of your testimony. In New York, this jury instruction is called Falsus in uno, which means that if you lied about one thing, there is the possibility that you have lied about other things as well. How can a jury believe you if you cannot even acknowledge your past problems?

When an injured client comes to a lawyer for help they must build a mutual trusting relationship. You must feel confident with your lawyer and his or her abilities. If you don’t, you should seriously consider getting another lawyer.

Attorney Oginski has been in practice for 17 years as a trial lawyer practicing exclusively in the State of New York. Having his own law firm, he is able to provide the utmost in personalized, individualized attention to each and every client. In our office, a client is not a file number. Client’s are always treated with the respect they deserve and expect from a professional. Mr. Oginski is always aware of every aspect of a client’s case from start to finish.

Gerry represents injured people in injury cases and medical malpractice matters in Brooklyn, Queens, New York City, the Bronx, Staten Island, Nassau and Suffolk Counties. You can reach him at http://www.oginski-law.com, or 516-487-8207. All inquiries are free and totally confidential.

Q: Do I even need an attorney to represent me in my claim with the insurance company?

A: No you don’t. Some claims, and some injuries don’t even warrant an attorney’s involvment. But…many do. How will you know the true value of your injuries? How will you know whether the insurance adjuster who makes you a first offer is doing the right thing? How do you know whether the insurance adjuster is simply trying to save his company money by low-balling you and giving you a take-it-or-leave-it offer? How will you know what your options are if you choose not to accept the insurance company’s offer? What can you do to maximize the amount the insurance company offers you for your injuries? Do you need further medical care for your injuries in the future? Have you considered who will pay for future medical expenses for injuries caused in this particular accident?

What happens if you have a recurrence of your injury weeks, months or years from now? Will the insurance company re-open this case and agree to pay me more later? Why is the insurance adjuster so willing to settle my case now? Why did they just send me a check for my injuries? Should I cash it? What will happen if I cash this check? Can I go back to them for more if needed, or is this it?

The bottom line is that you may not need an attorney at all. If you have experience with insurance adjusters, and you know the true value and extent of your injuries, then you just might be better off negotiating directly with the adjuster. BUT, if you don’t…then I’d strongly recommend speaking with an injury attorney who has many years of experience dealing with these exact types of cases.

For example, if you needed eye surgery, you wouldn’t go see your family doctor for treatment. If you need brain surgery, you don’t rely on a skin doctor to treat your condition. Many attorneys have focused and limited their practice to just a few areas of the law. Lawyers in New York are not permitted to say they are specialists in any particular field of law. However, we are permitted to tell you how extensive our experience is in the areas of law that we do practice. We can also tell you how we have helped other similar clients, even though their experiences may not reflect what we can do for you. Again, beware of attorneys who claim they practice many different areas of law. It’s very difficult to be good at everything.

The best thing you can do when faced with an injury caused by someone’s carelessness is to become informed. Find out as much as possible about the attorney, the law firm, the facts of your case, your medical condition, the procedures you need to go through to process your claim, and what your legal options are. Only by becoming fully informed about your options will you be able to make an informed decision about which legal road you will take. Beware of the legal minefields when handling your own case. In case you need it, find an attorney who can guide you through those legal minefields and avoid the traps that experienced attorneys commonly see.

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Evaluating personal injury claims is a tricky business. In the past six years my firm, CapTran, has underwritten 10,000 requests for pre-settlement advances by plaintiffs. We have never had anyone tell us that their case was not a slam dunk or that they were not going to get a substantial settlement. We are always told the insurance company is going to settle quickly because their case and/or attorney are so good.

Our experience tells us baloney!

Unrealistic expectations in personal injury law are a recipe for certain disappointment. Rarely do even slam-dunk cases get settled quickly for large amounts. Quite the opposite, slam-dunk cases usually involve serious injuries that require a long time to treat. Settlements are rarely reached prior to the victim achieving maximum medical improvement.

Hubris aside, everyone wants to know the real value of their case. Unfortunately, accident victims are often beset with self-appointed experts replete with stories and anecdotal evidence of huge jury awards. They know someone who knows someone who got a huge settlement for a back strain or whiplash. These influences do nothing but confuse the issue and most of the time has nothing to do with reality.

The truth is that, with the exception of the horrific paralyzing or disfiguring injury, most accident damage awards fall within a very predictable range. The National Transportation Safety Board reports that 3 million people are injured in motor vehicle accidents each year and insurance companies pay out nearly $20 Billion in bodily injury claims annually. The Insurance Research Council conducts a survey of auto claims every five years. The surveys participants account for about two out of every three claims paid in the United States. In short, there is an enormous amount of data available to insurance companies regarding every conceivable type of injury and the amount paid to settle the claim.

Facts to consider

1.The average amount paid for a bodily injury claim is less than $10,000.

2.The amount paid varies widely by state.

3.Insurance companies are very wary of chiropractic treatment, especially if it is the only treatment.

4.Insurance companies are very wary of excessive physical therapy treatment.

If your attorney is experienced in personal injury cases he or she will know the range of values and the claiming behavior of insurance adjusters in your area. Our experience is that attorneys are prone to overestimate the value of your case rather than underestimate it. We urge you to listen to your attorneys advice regarding claim value because it is unlikely that they will overestimate its worth. If you attorney is not experienced in PI cases well, get another attorney.

That having been said, we offer the following thoughts that come from our experience. We have limited our comments to the most common type of case – motor vehicle accidents.

Factors to Consider

There are a great many factors that impact on the potential value of you claim. In order to determine whether (and how much) to invest in your case, CapTran uses these factors or case attributes, to calculate the value of a case. In general we look at the following case attributes:

1.The event

2.Liability

3.Ability to pay

4.Damages

5.Quality of the Defendant

6.Quality of the Plaintiff you!

1.The Event

What actually happened? Not what you think happened, or even what you know happened but rather, what can be verified or proven.

If the police did not arrive at the scene it will be more difficult for you to prove anything.

If you received a ticket you will have a difficult time collecting full value for your case (in contributory negligence states you may collect nothing!)

If the defendant received a ticket, his or her insurance carrier is more likely to readily admit liability.

If the accident happened in a manner that is unquestionably not your fault and/or demonstrates recklessness on the part of the defendant, the insurance carrier is more likely to attempt to settle.

Where there witnesses unrelated to you and not in your vehicle present? If so, defendants insurance carrier is more likely to readily admit liability.

Did the other driver admit liability at the scene? If so, defendants insurance carrier is more likely to readily admit liability.

Did you take pictures of the car at the scene or later?

Was your vehicle moving or stopped? If lawfully stopped it is highly unlikely that you will be deemed to have contributed to the accident and the defendants insurance carrier is more likely to admit liability.

2.Liability

The certainty of liability or the availability of a defense will impact the level of enthusiasm the insurance carrier has to settle your case. If there appears to be a valid defense available, even if not perfect, the value of a settlement offer will suffer. If the injuries are minor, the only thing the insurance company has to lose is the expense of trying the case.

3.Ability to Pay

Regardless of your damages, someone has to have the ability to pay in order for you to collect. The availability of insurance or a financially strong defendant is critical to the ability to achieve financial redress for your injuries.

Amount of insurance coverage. Insurance policies have limits on the amount they will pay per accident victim as well as per accident. If you are one of several people injured in an accident you will have to share the coverage with the other claimants. For example, if a policy has a per accident cap of $100,000 and five people are injured each with a claim worth of $50,000 (for a total of $250,000) there will not be enough to cover all claims.

Self Insurance. Many large companies self-insure meaning that instead of paying premises to an insurance company, they set aside certain monies each year to establish an insurance reserve to handle future claims. Many times the company will actually have its own so-called captive insurance company.

4.Damages

Severity of impact. This is common sense. If your vehicle has a sustained little damage the insurance adjuster will know that a jury is likely to conclude that no one could have been seriously injured in such a fender bender. On the other hand, they will not want to go up against an attorney that can hold up a picture of your severely demolished vehicle telling the jury why, my client is lucky to be alive!

When you received treatment. If you went to the emergency in an ambulance that is better than if you went to the emergency room two days later (especially if you went to your attorney first).

Soft tissue injuries versus broken bones. Most minor accidents involve what used to be called whiplash but are now referred to as cervical strain or sprain. A broken bone is easy to prove and easy for juries to understand. With soft tissue injuries, it is difficult for juries to separate good claims from fraudulent ones. Insurance adjusters know that juries will not award large amounts for soft tissue injuries.

If you have a broken bone, especially if it is a weight-bearing bone, you have an injury that can be verified by indisputable evidence such as x-rays.

Amount of your medical bills. While meds are a very significant (often the most significant) factor in determining case value, there is no simple formula to use in determining case value. Forget the junk about 3 times meds or 3 times specials. Insurance Research Council survey data reveals that bodily injury claims cannot be estimated in such a simple fashion. Values vary widely from state to state and the type of meds is very important. Some rules of thumb are:

1.Treating expenses carry more weight with insurance adjusters than diagnostic expenses. It matters little that you decided to have an expensive MRI or CAT Scan.

2.Chiropractic expenses are severely discounted by insurance adjusters (and ignored by us).

3.Excessive visits to the physical therapist are not only discounted by adjusters but along with chiropractic bills also raise a red flag for what is called build-up.

Medical providers that treated you. Insurance adjusters look for treatment by medical specialists that indicate clear-cut injuries associated with vehicular impact. If you are only treated by the ER physician and perhaps your family doctor it will not carry as much weight as if you were treated by an Orthopedic Surgeon or a Neurologist.

Documentation of your injury. Failure to go for medical treatment, or large gaps of time between treatments, are red flags for insurance adjusters. Inadequate documentation will not pass muster with insurance adjusters.

5. Quality of the Defendant

Appearance matters in court. Every adjuster knows that a sympathetic defendant is less likely to suffer large verdicts. The inverse is, of course, true as well. The kind of evidence, especially prior acts that can be presented in court varies from state to state but defendants must be wary that adverse evidence regarding the plaintiff will see its way into the jury room.

6. Quality of Plaintiff YOU!

We have had several good cases lost because the jury simply didnt like the plaintiff. If you appear too strident or are overly aggressive, combatant or belligerent, a jury will find a way to punish you for your behavior.

If you have had several minor accidents a jury may conclude that you are a scam artist.

Above all else, try to be realistic in your evaluation of your claim. The object of the tort system is to compensate you for your damages not to unreasonably enrich you. Be sensible and reasonable and you will enhance your chances for a successful outcome. Good luck!

This article is intended for information only and should not be construed as legal advice. You should consult your own attorney for legal advice.

Copyright Capital Transaction Group Inc

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