Albany Injury Lawyers

Personal Injury Verdict in Albany - $3.85 Million

As mentioned on my other blog, we had a huge personal injury verdict on Friday (4/27/2007) in Albany. The verdict was $3.85 million. I'm supposed to say something like: "Prior results do not guarantee a similar outcome" or "Your mileage will vary." I'll be more clear than that. You better hope you never get hurt bad enough to have any kind of shot at all at getting a verdict like this, and even if you do, the odds of doing this well are pretty darn small. Many outstanding personal injury lawyers go their entire career without getting a verdict this large. If you do hire us, I can almost guarantee that you will not get that much money. Even this client will likely get less than that.

Anyway, I will describe the case in detail over the course of the next few weeks. I'll start with an intro here.

Our client was driving his motorcycle through the village of Waterford. Traffic had stopped and he was waiting behind another vehicle. All of a sudden, an SUV coming the other way crossed over the centerline, striking the client and his motorcycle, and driving them into another SUV (operated by a Troy police officer who testified at trial).

The accident itself caused a partial amputation of my client's left foot (somewhere between the toes and the middle of the foot). In other words, a chunk of his foot was found on the ground at the scene. He had multiple fractures in his left leg, including at the hip, mid-shaft of the femur, and in his lower leg as well.

Client was taken to Albany Medical Center. Within hours he went into surgery, where they attempted to fix the various fractures and did a further amputation of his foot in an attempt to save the ankle. About 12 days later he had another surgery, amputating his leg below the knee. He spent roughly 46 days in the hospital.

At trial, the big question was about who crossed the centerline. An eyewitness said the defendant crossed over. The defendant himself said he didn't know. A sheriff's reconstruction concluded that my client had crossed the line. Both sides hired experts and the jury heard quite a bit of testimony about this issue. In the end they found that the defendant crossed over and was 100% responsible. It was a unanimous verdict.

At least a few people seem to think I'm a millionaire now. Not true. I'm still five figures in the hole on this case. The trial was only Round One. Round Two is a battle with the defendant's insurance company in what's known as a bad faith claim, plus there's another insurance policy which we should be able to tap into.

In the next few weeks I'll post some photos and other documents related to the case, and I'll try to explain and analyze all of what went on with this $3.85 million dollar verdict.

When to go after someone's personal assets

It's pretty rare, but once in a while personal injury lawyers come across cases where we're tempted to go after someone's personal assets.

Typical scenario is where your client suffers substantial injuries, where the value of the case is potentially in excess of $100,000. And the person who injured your client has limited insurance (say $25,000) but appears to be wealthy.

I have a case pending like this. Client was a passenger and was pretty badly hurt (fortunately he's recovering well). The person who caused the accident was driving at a high rate of speed in a $30,000+ luxury performance car with additional performance modifications, and had only $25K insurance.

Personal injury lawyers have a general sense that poor people driving old, cheap cars are likely to have low insurance, while the middle class driving newer cars of decent quality will typically have a $100/300 policy ($100K per person, $300K per occurrence), and wealthy people driving cars worth $30K plus will typically have more insurance.

So in the case I just mentioned, where a snot-nosed punk (I'm just being colorful here) is racing on city streets in a hot-rodded high-end car, we get a little out of joint about there not being enough insurance.

This brings us to the question -- do we try to get more than the insurance coverage by going after the tortfeasor (oops, used a lawyer word) personally? We really don't like doing that. In this case I discussed it with the client, explained my concerns, and we decided not to go after the guy.

There are a few reasons not to do this. First, it's much more difficult. Usually in a case like this we can settle with the insurance company without even having to sue. The case gets resolved quickly with little or no expenses (meaning both client and attorney get more money). If we want to get personal assets, we would usually have to go through a trial which would take a lot of time, cost a lot of money, and there's always the danger of getting a bad result from a jury.

The second reason stands out to me more. Personal injury lawyers have a bad enough name as things stand now. If it becomes commonplace for us to go after personal assets, we will fall into much wider disrepute. From a long-term economic perspective, we would risk creating a backlash that could cut off or damage our gravy train. While I personally support and advocate tort reform, that is not a popular view in the trial bar.

Sometimes you just scratch your head

I've got this case that I started handling a couple years ago. I won't get into the details because it's still pending.

Client was injured and had gone to a lawyer. That lawyer sat on the case for two years, and did very little on it. I think he may have thought the case was worth nothing.

I got to know the client's wife from our previous office space. She was complaining about the other lawyer (who I know, like and respect), and I told her I'd take the case, but only if they paid the expenses up front.

So they hire me. This occurs about 2 years after the injury. We filed suit against the party we felt was responsible. It's not the easiest kind of claim, but there was something there and the client was motivated.

There were a number of delays along the way, mainly due to the defense (the defendant didn't respond initially when sued, but eventually his insurance company stepped up).

We just made a deal, right before trial, to arbitrate this case with a low of $20K and a high of $200K. I think the case is worth close to the $200K.

Even if I'm wrong it's worth $20K and that means a fee of over $5K (there have been signficant expenses). So we're talking about a fee of somewhere between $5K and $65K.

I'm scratching my head wondering why the other lawyer sat on the case. He's a good lawyer, well respected in the community (among both lawyers and non-lawyers). Maybe he's so successful that this kind of fee isn't enough to make him jump?

Or maybe he just made a bad call.

Car accident cases

A couple cases resolved themselves in the past couple days. A car accident case involving a forehead scar settled for $25K, though there is still a claim against another vehicle on that one. An old car accident case is settling for another $15K (had settled with the other car in that case for $100K).

Got a new car accident case recently. Client was a passenger and badly fractured his leg. Both cars are clearly liable but have minimum insurance ($25,000 each for my client). With one car it's tempting to go after the driver personally - someone driving a $30K car should have more insurance. But both client and I feel we should resolve the case and move on. With the other car, we're dealing with an insurance company that has some bad practices and this may lead to another bad faith claim against that company. But I suspect they've learned their lesson and will pay quickly on this one.

Follow up on underinsured motorist case

Previously I posted on a car accident case involving an underinsured motorist claim. We've made progress on the case. The other car's insurance offered their 50K policy. The underinsurance carrier (my client's insurance company) refused to consent to the settlement. They have now advanced the $50K that would have been paid by the other carrier. Next we will see if they'll pay the other $50K that comes from the underinsurance. They will also have the right to control the litigation against the other car.

They refused to consent because they believe the other driver has significant assets. I expect they will sue the other driver, collect the $50K they advanced from his carrier, and try to collect the $50K they'll pay us from the other driver himself. That's a good reason to have a lot of insurance.

Medical Malpractice

I got a kick out of this. We were in Florida, and I had a somewhat embarrassing medical problem that I won't explain. Anyway, I went to a walk-in clinic. The picture shows the sign when you check in. Let's just say this did not inspire confidence. When I went in to see the doctor, the physical examination was not thorough. Also, he said a few things about this condition that struck me as incorrect. I had done a lot of reading on the web, and his suggestions were consistent with the way this condition used to be treated 10 years ago, but research in the last 5 years suggested more effective methods.
I probably should have gone to see another doctor, but the condition got better on its own (as this condition will tend to do).

Winning personal injury cases

Did a personal injury trial this week on a car accident case. We had agreed to a high-low -- the insurance company guaranteed a floor of $20K and we guaranteed a ceiling of $80K. Client suffered a dislocated big toe in the accident, and has continued treating for two years, with surgery about 6 months ago. She has permanent loss of range of motion in her big toe. The offer was $40K. Our demand was $50K.

The jury awarded $30K, so that's what client gets. Is that a win? Doesn't feel like it, but it's better than $20K, and a lot better than if we had gotten zero without the high-low.

All the evidence went in well. Client and our doctor testified very well I thought. Defense doctor conceded some, and I hammered him pretty hard on his status as a professional witness.

One thing about me as a personal injury lawyer. I don't push my clients to settle unless the offer is really good. I like to give them the choice. They get 2/3 of the money after all, and it's their case. Part of the problem is that I like trials and I like rolling the dice.

It's funny playing poker with friends where you might lose $20 or $50 in a night. I lost about $3000 on that trial by not taking the $40K. I had another trial where we rejected $150K, the verdict was $100K, and the judge then dismissed the case (appeal is in process). I lost about $33K on that one (after referral fee). Not yet. I still think we'll win the appeal and get $400K the next trial.

But how am I supposed to get nervous about losing $2-5 on a hand when I blew $33K on that trial?

My wife thinks I should push clients harder to settle. Maybe she's right??

The other issue is time. If you settle cases, you don't spend three days on trial. I try not to think that way. My time is not a consideration as far as the client's interests are concerned.

Explaining pain & suffering damages to juries in personal injury cases

In personal injury trials, the jury has to decide how much money to award for pain and suffering. This is something jurors may not be sure how to do, and can be an opportunity for a good lawyer to explain and persuade jurors in a way that helps the client.

In my dark past, I was an insurance defense lawyer for Allstate. I had a case where the judge had ruled the accident was my client's fault, so that issue was out. Both plaintiffs had fractures from the head-on collision. I made a pitch to the jury about how to award damages. I pointed out that this money is intended to compensate for the suffering, by allowing the plaintiffs to buy things that might bring them happiness.

For a lot of people, food can bring happiness. It might be eating out at a nice restaurant, where dinner might be $25 per person. It might be sitting on your deck at home eating a nice steak from your grill. Or maybe it's a trip to visit family, and that might cost a few hundred.

I suggested to this jury that $10,000 was a good number (we had offered about $40K to each plaintiff), because whatever it is that might bring the plaintiffs happiness, $10,000 would buy a lot of it. If you think about it in that way, $10,000 will buy 400 fancy dinners, 1000 really nice steaks, a bunch of round-trip flights to LA, or even 5 or so very nice weeks at DisneyWorld.

Along with other things I had done at this trial, it seemed to be very effective, as they actually awarded one plaintiff $7500 -- less than the number I had suggested. If figured if they went with me on the theory, they'd award double my number, not less.

Of course, I tried this at another trial and the jury awarded $400K. A juror told me afterwards that she thought a nice dinner was a $500 dinner at a place in Italy. I restrained myself from telling her that $400K would buy 800 such dinners. The good news in that case is that we had agreed to a cap on damages at $100K.

On the plaintiff's side, I use a different approach to this. During jury selection I ask prospective jurors about whether there's an amount they would not go over. There'll always be someone who says they can't award more than $1 million. So I discuss that in detail with that juror, mentioning the $1 million number frequently. Before I'm done I reassure the jury that we're not looking for $1 million (unless we are) in this case. Now they've heard the $1 million number a bunch of times, and it tends to have an anchoring effect (as does the $10K number I used as a defense lawyer).

Another approach that works well in plaintiff cases, and one I think makes sense in general, is to think about what a reasonable person would have to be paid to go through what the plaintiff went through. Imagine there's a job ad in the paper, and it says the job is to be in an accident, and suffer a broken X-bone (X being whatever bone you prefer), undergo Y treatment (surgery, a cast, etc), and endure pain in your Z (body part) every day for the rest of your life. Now, how much would that job have to offer for a reasonable person to decide they want the job? With most personal injury cases, that would be a lot of money.

Of course the reality of being a personal injury lawyer in New York is that most of the time the jury will do the right thing regardless of what we do as lawyers (as long as we don't screw the case up). But we try our best anyway.

Settling a million dollar injury for $25,000

This is one of the classic problems faced by personal injury lawyers.

My client was on a motorcycle. An SUV came across the centerline, hit my client, and drove him into another SUV. He was badly injured. The worst injury was losing his leg below the knee. He was in the hospital for almost two months. This is a million dollar injury.

But a million dollar injury is not necessarily a million dollar case. The SUV that hit him was 17 years old (the vehicle, not the driver). This suggested what turned out to be reality. The driver only has a $25,000 insurance policy. I investigated further and, as expected, he has no assets worth mentioning (other than a wrecked 17-year-old SUV).

I tried to set up a bad faith claim (as discussed in a previous post). I sent a letter demanding the $25K within 30 days or else. I spoke with the claim rep about the case. Then I hoped, beyond hope, that the insurance company would be stupid enough not to offer the $25K within 30 days. If they failed to do so, that would give me a shot at a bad faith claim.

Two days after I mailed the letter, the claim rep called and offered the $25K. They weren't that dumb. If you think about the numbers, a jury would only have to find their driver 3% at fault for the verdict to exceed the $25,000 policy (3% of a million dollars is $30,000).

So I'm settling a million dollar case for $25,000. It's not over. We may have a case against the other SUV, but he's only got a $50K policy.

The other side of this coin is that we often get calls on cases where there's a million dollar policy, but the case has no value. I hear stories about cases where there are million dollar injuries and million dollar policies. But I don't believe in myths. :-)

And of course, there is still hope for this case. The rep said something about me having to send her copies of the hospital records. I told her that was her responsibility to get them. So maybe the offer wasn't really made, and we'll still have a bad faith claim. ??