Years after our case with Nationwide was settle it was brought to my attention again the reasoning behind some of Nationwide’s tactics. Namely the very aggressive attempts to settle the case in mediation and NOT going to trail. So the reasoning for this is because when this happens with an OUT OF COURT settlement, it is OFF the books. And it’s like nothing happened. The insurance company gets off the hook and they don’t have to admit their mistake on public record. So next time you are pressured by both lawyers (meaning yours as well) to settle with a mediator and you feel something is not right, trust you gut instinct. If you are not being treated right, take the extra steps and go to trail if needed. This is your right to have your day in court. The outcome of the case may not be much different, but their is a justice in knowing you have done the right thing and brought the accountable ones into the light.
Client Rights after You Have Retained a Lawyer
Even after you have retained a personal injury lawyer, you are still the boss. After all, you are paying for their services one way or the other. Knowing your rights will keep you ahead of the game and will potentially allow for your case to bring a greater settlement. Most of the times, lawyers do not need to work for a greater settlement, because they are guaranteed a payment regardless of the settlement amount and the less time they invest and the less work they have to put into the case, the better for them.
If you see that your lawyer is attempting to use forceful tactics to make you settle this is unethical. They have sworn an oath to fight for their client and intimidation is not ethical. If you are a younger person you can be assured that your lawyer will entice you with a small quick amount hoping you will settle. But be aware that this is just another tactic and you have the right to not accept the first dollar figure that is presented to you.
You have the right to a second opinion.
You have the right to determine if you want to sign a document.
You have the right for a time of mediation.
You have the right to your day in court.
You have the right to fire your lawyer.
Therefore, if you let your lawyer know up front that you are not afraid to take your case to court they will see you are serious and perhaps fight hard to get you a larger out of court settlement. Remember that lawyers much prefer out of court settlements because this goes as a win on their record as opposed to a possible loss in court.
The truth is that your lawyer cannot tell you, but only advise you to do something.
Don’t be bullied into anything you don’t want to do, even if this includes signing a document that you are against. You have rights. If you think something is fishy about your lawyer’s conduct, then don’t hesitate to get a second opinion.
Will I Get a Larger Settlement If I Go To Court?
The answer to this is of course unknown. There are so many variables and unknowns to consider. If you have a trial by your peers, the case is worth whatever they say it is worth and if you have a crummy lawyer whom does not present properly your case you could go backwards in your settlement amount. Yet, you do get the satisfaction of your day in court.
Regardless, for us, personally being faced with no other option, we did receive more by going to court. But what your lawyer is not going to specifically point out is that when you go to court whatever medical bills the insurance company has paid this amount will come out of your final settlement and this is not before he/she gets there percentage.
So basically it will look like:
Court awards $30,000
Minus – Lawyer fee of $10,000
Minus – Medical covered by insurance of $5,000
Minus – Court fees and expenses of $5,000
AND YOUR TOTAL = $10,000
So consider if you are willing to take a chance with the court system. Do you have a winnable case? Do you have a good lawyer? Is the insurance company leaving you with no choice?
4 Things You Can’t Claim on the Witness Stand
1. You were not allowed to say how your insurance unfairly treated you even if this was the reason you did not seek treatment for your injuries in the first place.
2. You can’t say that the insurance adjuster was unfair in dealing with your case and was not even offering a settlement that would cover only your medical bills and not to mention any pain an suffering or loss of wages.
3. Unless presented to the court prior to a certain date, you are not allowed to say the exact total of your recently incurred medical expenses. You were only allowed to claim what had been presented to the court by your lawyer and if they are not advising you correctly this is the reason for a lower settlement amount. The jury can only reward you money for the recovered damages that they are aware of. In my personal experienced over $20,000 worth of medical expenses were not properly presented before trail.
4. You are not allowed to account for what any doctors told you. The opposing counsel will object stating that you are not an expert witness. To get around this, just re-word your testimony by instead of saying “the doctor said” to “after the wreck I had …”.
What You Should Know About Loss of Consortium and Intimacy Claims
Well, did you know that if you are suing for a personal injury loss then your spouse can also file a claim due to their loss because of your loss. This is what a Loss of Consortium and Services Claim is and is that the opposing counsel doesn’t want you to know about. So let’s say your husband is in a wreck and he is not able to mow the yard or repair the car for you, then you are able to say that I have a loss of life because you now have to mow the yard and repair the car on your own.
You can even make a claim for the intimate loss in your relationship as well if you are willing to go into details which can be very uncomfortable when you are deposed or on the witness stand. If you make this claim be aware that all details will be open for exploration and you have to make a decision if you are able to go under such pressure on the witness stand.
5 Main Reason for Avoiding Suing Your Own Insurance Company
1. They are giant and will crush you like a bug. They have unlimited resources and can take as many expert witness depositions as needed to build their case against you. You on the other hand with limited about of money to pay for these witnesses will have pay a lot of out of pocket expenses to build a strong case. This is how the court works. If you do not have a deposition of the testimony then the facts don’t make it to court and your case is weak.
2. The outcome of your lawsuit will be public record. Your settlement about will be for all to see. This $100,000 that you were awarded will appear as so and not “after expenses”. Meaning after your lawyer gets his 40% fee and you have paid off the doctors bills and in some cases you have even paid for the lawyer expenses of the opposing side. So anyone that googles your name will think you just came into big money and not the fact that after all was said and done you end up with nothing.
3. You feel really bad about suiting someone. This may be against your religious beliefs and you may perhaps be shunned by those close to you.
4. When going to trail as opposed to mediation their is a risk of never knowing the outcome. You get a group of jurors that may or may not like you, believe you or think you have a case. So you could potentially walk away with the outcome ruling against you.
5. It takes a lot of nerves and time. You will have to put a lot of time into the preparation of making a strong case. Then the actually time in trail could be stretchered over a large period of time. It could be days sitting in a courtroom listening to testimonies. You, your friends and perhaps family will have to testify. This is the most stressful part and some feel that it is not work going to court. Some cannot take this pressure.
So before you turn down the option of mediation, be aware of this disadvantages, but do keep in mind that you do have the right to go to court and have a jury of your peers determine your outcome instead of some lawyers that more than likely don’t have your best interest at heart.
What is An Eggshell Defense?
The concept of the eggshell defense is where the victim has a preexisting medical condition which is aggravated by minor trauma, which would not otherwise injure a heathy individual, but the causation is still present.
If you have no history of previous trauma in anyway – you are the victor. There is no need to hide or be scared of the insurance company and they know that. If you were perfectly healthy before a said accident then you deserve justice because this trauma is something you will have to live with for the rest of your life. You loss of life is greater the younger you are. Do not let a big name agency attempt to scare you with tactics – stand you ground and the honest person will prevail.
HOWEVER, if you are NOT honest and are trying to hide a preexisting medical condition the insurance companies lawyers will find this in the discovery part of the trial proceedings.
Top 10 Tactics Lawyers Use to Get You to Settle OUT OF COURT
They may scare you will possible future fees of court, depositions, mediation, travel expenses and so forth, so that you will take the settlement. This is true especially if your lawyer knows your financial situation.
If your lawyer is aware of financial struggles, they may attempt to use a settlement offer as an incentive for you to be able to pay your expensive and incurred medical bills so that you are not turned over to collectors and therefore having much greater expenses.
Your lawyer may try to tell you that your case is not worth more than the settlement amount and you should quickly take the first offer. Remember, the quicker you take the offer, the quicker the lawyer gets paid and can move to their next victim.
Time is money for a lawyer and they will most definitely attempt to convince you that if you do not take an out-of-court settlement then your case could possible draw out for years.
After further review of your case and closer examination of your doctors’ reports it is their opinion that the opposing counseling has a better argument for a jury, so you should take the settlement offer.
If your lawyer tells you they will go pro bono just to get you to settle, this is a big red flag that something is not right. Lawyers just don’t give up the opportunity to get paid.
And if your lawyer says they are going to quite on you if you don’t settle this is an even bigger red flag and grounds for disbarment.
Again your lawyer may use another type of scare tactic that there is a Statue of Limitations coming up and we will need to settle. Of course this is not true, but if you are not aware of the law, then you are overly trusting of your lawyer.
They pay play the trust card in which they say I’m doing what’s in your best interest and just trust me because I have done this for “x” amount of years. So I’m telling you to settle.
Or they may use their excessive knowledge and experience to point out that you don’t know what you are talking about and should take their advice. In a polite way, they are calling you an idiot.
Remember that lawyers prefer out of court settlements because this goes as a win on their record as opposed to rolling the dice and possibly having a loss in court.
If you feel that your lawyer is working against you and constantly trying to get you to settle, there is probably a reason. Maybe they are incompetent and need to be fired, or they may be in a type of dual relationship with the apposing counseling. But regardless of the excuse, don’t be blinding by these overly used tactics. Only settle if you feel that it is in your best interest.
What is a Loss of Consortium and Services Claim?
Well, did you know that if you are suing for a personal injury loss then your spouse can also file a claim due to their loss because of your loss. This is what a Loss of Consortium and Services Claim is. So lets say your husband is in a wreck and he is not able to mow the yard or repair the car for you, then you are able to say that I have a loss of life because now you have to mow the yard and repair the car. Or basically you have to pick up all the slack.
You can even make a claim for the intimate loss in your relationship as well if you are willing to go into details which can be very uncomfortable when you are deposed or on the witness stand.
What is An Uninsured Motorist Claim?
If you caused an accident and didn’t have insurance the other driver will be able to file an uninsured motorist claim (UMC). Their insurance company will pay for all the things yours would have. Then the other driver’s insurance company will turn the matter over to their subrogation department. The Subrogation department will contact you about paying them back. Do not ignore them because they can have your drivers license suspended, sue you or turn you over to collections.
However, this department will be willing to set up an interest free payment plan for you to repay them for all they paid their driver. Most likely they will want at least around $ 100 per month until the debt is paid in full. If you miss payments they suspend your license, sue you or turn you over to collections. The other thing you can do is see if the subro dept will accept a lesser lump sum. For example: you owe them lets say $ 10,000 they may be willing to take 7,000 if you pay it as a lump sum. They would rather get a little less all at once than collect the full $ 10,000 100 dollars at a time. Can you dispute the amount they want? No not really. They paid it you owe it. ** This is not legal advice ***