phillips, hunt, walker & hanna Top Tips
I was recently asked to give tips on advanced personal injury trial law techniques. I spent my first 8-plus years as an insurance defense lawyer and have spent the last 8-plus years exclusively representing the injured. These seminars are attended by both sides. So, my goal here is to provide information which helps both the prosecution of these claims and assists the defense to the extent you can learn some of what my firm has learned litigating from both sides.
Maximizing Traumatic Injury Compensation
In our practice, we discuss the difference between building up a case from the ground-up versus the top-town building up of a case. When we refer to top down, we mean how cases are usually built- by doctor’s visits and medical specials. It’s the only way adjusters seem to evaluate claims. They look at the obvious and most mathematically accountable first. Sometimes, it is simply the only way for anyone to pair money damages and injury.
More frequently and particularly in complex cases, we often waive or diminish the weight placed on medical bills. We essentially tell the jury they can assume those should be paid. Why wouldn’t they be paid in full absent some serious prior issue? We empower the jury, if you find a bill that shouldn’t be in there, strike it. If you find an overbill, lower it, but we assume you all can do math and put these items on a verdict form. We have even waived substantial portions of economic damages when the injuries were truly traumatic. Given that these numbers also have collateral reductions tied to them, it is a battle we often fight because we feel like we have to, although it rarely leads to monetary recovery if it causes loss of focus on future medical bills or non-economic damages.
We try to start day one with a client and help them understand how documenting loss of passions and productivity are so important. On traumatic cases (and even some not so traumatic cases)- we want to keep a list of things which made a struggling life good or things which made a good life great. What makes you tick? What makes you smile? What your best day? Now disassemble that. Why is that not possible? Why is that less enjoyable?
In the skateboarding case noted above, we spent almost a full day explaining how this client used skateboarding to positively impact our community and the country. He owned the world’s longest running privately owned skatepark. If he can’t run it anymore, not only does his family lose it, but we all lose it (which was said in a not-so-golden-rule way). Certainly we explained RSD/CRPS, but it was the personal impact which often makes a difference to jurors. They will put themselves in that situation even without being told to do so if they like someone and believe them.
You must watch out for overreaching. In one of my last cases as a defense lawyer, I literally asked every question I could to an injured nurse during her deposition. Good defense lawyers are the ultimate skeptic (which can be used against them). I had her where she couldn’t and wouldn’t lift 8 pounds straight up, and would never even consider doing so bi-laterally (with both arms). It would be impossible. In a fairly typical aggressive act for insurance companies, they sent out surveillance on a holiday weekend. Not only had she lifted 8 pounds in each arm, but she also lifted her child in the ocean. A gallon of milk weighs just over 8 pounds. People do it regularly, but human nature doesn’t often calculate weights and everyday items. Yet, as I watched the video footage of a mother playing with her child through the hired spy’s position (behind some sea-oats), I felt a little shame. We had what we wanted, but so did this child. And as it would be explained to me over and over again in subsequent years, a parent does whatever they can to make sure the injury isn’t going to injure their child, too. It was one of my last cases as a defense lawyer.
The point is- there is a fine line. Our lawyers do every sign up. Before trial, we try to eat dinner at our client’s home. We look at their overgrown gardens and take photos of it. We explore their garage where a motorcycle with a dead battery sits idle. These are the relics of a past life and extraordinary non-economic damage claim lie.