By: Gary A. Newland
This is the first of a series of articles I am preparing on litigating personal injury claims. As stated above this article will be on litigating catastrophic personal injury claims and then I will follow up in future additions entitled Litigating Claims Involving Substandard Insurers and then The Ups and Downs On Slip and Fall Claims and then The Art of Representing Those Injured By Food Poisoning. The perspective and content will be from my personal experience and training. After reading this article feel free to call me and ask questions as there is no way I can provide an all-encompassing article in such a small space.
Litigating a case with catastrophic injuries is different than litigating a typical injury claim and yet similar in ways. I will go over distinctions with you in this article. First of all what is a catastrophic claim? A catastrophic claim is defined as a serious injury that resulted in disability, lost wages, long term medical problems, loss or normal life, pain and suffering and potentially reduced life expectancy.
DRAFTING THE COMPLAINT
In terms of evaluating a catastrophic claim and drafting the complaint it is always important to name all the parties. You may need to name in the complaint a party respondent known as Respondent in Discovery under 735 ILCS 5/2-402 to help figure out who all the parties are.
I have found it necessary to add a Respondent in Discovery to a complaint to get information from an injured employees’ employer that could not be sued as a third party. A few times I have named municipality where the one year statute of limitation had run so as to get the names of additional party defendants within the statute of limitation through court process.
I do recommend that you review the jury instructions to make sure you take into account all issues of proof in drafting the complaint. Furthermore in drafting the complaint reference any statutes, ordinance violations and violations of company policy.
At times I recommend putting many facts and many more paragraphs than most lawyers would have in a complaint because the complaint requires an answer. Defense lawyers have led motions to dismiss my complaints for being too specific and they have been denied. Keep in mind Defense lawyers often times deny facts that should not be denied in a complaint. When the defense denies a true fact in a complaint the plaintiff at trial can use the denials to polarize the case by showing that the defense has been either less than honest or obstructionist. Always try and polarize the case to show how absurd the defense lawyers’ position is and make the jury want to take a side. I could do a separate article just on polarizing a case and may prepare one. For now I suggest every lawyer read the book Polarizing the Case by Richard H. Friedman. Reading Friedman’s book can and will have an impact on the career of any litigator.
LITIGATING THE CATASTROPHIC CLAIM
Early in the article I note that litigating a catastrophic claim is different than litigating a typical claim. In fact litigating catastrophic claim is the equivalent of litigating a typical claim on steroids because everything is a bigger deal including the costs of litigation, the motion practice, the odds of appeal and the time needed to spend to show your client deserves the outcome you are seeking. In a situation where so much is at stake for the client an attorney should not get involved unless the attorney is willing and able to go all in financially and emotionally. Being all in means being supportive emotionally to the client and the client’s family. Remember every part of the client’s life is upside down and many catastrophically injured clients are losing their homes, facing marital issues, employment issues, loss of retirement, depression, loss of friends and sense of self. Everything in a catastrophically injured person’s life is at risk of loss, so being accessible to someone with such challenges is key. This means being accessible while on vacation or off hours as best you can and being accessible generally at work is important and is the minimum a plaintiff’s attorney can do for someone and their family. Sometimes the client, spouse, or adult children just need to talk with you so they can feel better and perhaps get some sleep or anxiety relief!
The type of relationship you develop with your seriously injured clients will change your life and theirs for the better. You must know your client so that you can effectively communicate suffering to a jury. To understand and feel true empathy you will need to go to the clients home, meet the clients family, understand how the clients relationship with family, friends and even the dog have changed and then you can share the story of who the client is and what has happened in the client’s life. I actually keep the picture of a deceased client Billy near my desk on my wall. Billy ended up overdosing because of pain related issues. He suffered from CRPS which is a horribly debilitating illness caused by an injury. Billy and I became so close I had actually been granted the honor of giving the eulogy at his funeral.
Unfortunately when you represent those that are catastrophically injured some will pass away and many endure to struggle another day. Keep in mind generally your client will have more damages when alive because of future treatment, lost wages, future pain and suffering, future loss of normal life and emotional distress. Consequently, make sure your clients are treating with the best doctors for their best interests and yours. Since many of my clients have chronic pain and disability I have acquired a great deal of tolerance in dealing with calls helping folks cope with their entire life falling apart around them as a result of their injuries. Sometimes in dealing with a catastrophically injured person you will have to put up with a great deal of emotional trauma and suffering expressed as their frustration with you personally and the process. Remember most have lost almost everything and have great pain. At times the challenges are so great it is important to take a moment and be thankful and thoughtful. When I need a moment to help cope professionally with the stresses of suffering clients I look at the picture of Billy to remind me of his strength, dignity and suffering. Billy helps mend an extra edge to rise to the challenge of dealing with clients and their families that have catastrophic injuries.
Keeping your client under control by being accessible and empathetic is just as important as preparation. No personal injury claim should ever be led unless the lawyer will be prepared to go to trial. The only way you can show you are prepared to go to trial is to show the defense counsel you are ready for trial. How do you convince the defendant’s insurance company and attorney you are seriously ready for trial? I will list for you what must be done to prepare a catastrophic claim for trial if you want to be considered a respected trial lawyer:
- You must show that you have properly and timely answered discovery.
- 213 (f)2 and (f)3 disclosures must be thoroughly prepared. So often done improperly!
- Requests to admit almost always should be done.
- At depositions of treaters do your best to meet with all treaters in advance of their deposition and see if you can get the doctor to provide opinions as to causal connection, whether the treatment was necessary and whether the charges were reasonable and customary.
- Have your (f)3 experts prepped well for their depositions and confirm the expert has all relevant information.
- You will likely need a (f)3 vocational expert for lost wages, economist for present day value of lost wages and future medical costs, life career planner, billing expert and likely at least one rebuttal medical expert.
- In catastrophic claims often times it is important to have a consulting expert as well to help with deposition questions and to anticipate defenses.
- You should be prepared to spend $75,000.00 to $250,000.00 in costs and expenses to get your claim to trial.
- Often you will also need an accident reconstruction expert, architect, flooring expert, engineer or some other controlled expert to prove negligence.
- Order all deposition transcripts because your controlled experts will need to review all de positions.
- Make sure your experts will be ready to be present at trial or video tape depositions if your doctor makes a good presentation. If the doctor or expert does not make a good presentation then just do an evidence deposition.
- Cases are won and lost on motions in limine. I have led motions in limine sometimes well before trial because a ruling can take issues off the table. In one case I led the motion in limine about 60 days before trial on the issue of the admissibility of blood alcohol of the Plaintiff and the court ruled the blood alcohol of .375 was not admissible. The motion in limine changed the complexion of the entire case. No money was offered at mediation by the defense and the media- tor suggested I would not be successful on a motion in limine. The claim still proceeded to trial despite that reasonable minds would have settled once the blood alcohol was excluded. We obtained hundreds of thousands more at trial then we would have accepted at mediation prior to the motion in limine being granted. Because we took the time to file the motion in limine, the client had an optimal outcome.
- Always evaluate your claim for bad faith and send an Olympia Fields policy demand letter when there is an issue of bad faith.
Next we will discuss what I call litigation strategy. Strategy is very important and changes from case to case and may depend on the defense lawyer and policy amount. Keep in mind generally it is important to cooperate with your opponent(s) because you will need cooperation in return. But it is just as important to know when to say to defense counsel “you need to get permission from the court” or “I will be objecting.” Defense lawyers will likely cut you zero slack when it comes to rule compliance. There is a great deal at stake in a catastrophic claim and the insurance company does not authorize the defense attorney cutting plaintiff any break aside from general agreements for extensions.
You must know the insurance coverage. You must be aware that the disclosures of coverage are many times not accurate. Recently I was told for 4 years the coverage was $500,000.00 and months before trial was advised by the defense attorney a mistake was made and the coverage was $4,000,000.00. So always do your best to check for other coverage. When we found out how much coverage there was we could invest more money in experts than would have been reasonable to invest with the smaller policy. The reality is you cannot eat up the compensation in litigation costs so you must strategically find a balance.
Apply the approach that you are always willing to talk with the defense but the defense must be made to act in good faith. Generally never go to mediation or settlement conference without an offer on the table. Also always prepare your client to leave mediation with nothing. If your claim is well prepared for trial and you have a client that will make a good witness then mediation may not be the best environment to resolve a claim. Keep in mind defense strategy could be merely to use mediation or a settlement conference to try and get you to reduce your demand without offering you anything in return.
When you prepare a case for trial you should actually want to go to trial. Make sure the defense understands you are looking forward to presenting your case and you can “polarize the case”. The sincerity of your desire to go to trial is best exhibited by your preparation and attitude and your client will respect your advice when it is presented with confidence. Most importantly your goal is to give your client choices so the client can make a business decision with respect to either going to trial or settlement.
In conclusion if you take seriously what is stated above you will manage your client as best you can, solidify your reputation as a formidable trial attorney and maximize settlement value and jury value.
Gary A. Newland is a partner in Newland & Newland LLP. Gary has recovered well over $30,000,000.00 for clients. He practices in all areas of injury law and is a member of the Illinois Trial Lawyers and Co-Chair of the NWSBA Civil Litigation Committee. Website: www.newlandlaw.com