Albany Injury Lawyers

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.