Experienced personal injury attorneys consider many factors in judging how to manage their cases. While common elements are present from case to case, no two cases are ever completely alike. Both subjective and objective considerations must be taken into account to reach decisions most beneficial to client and attorney alike. The decisions are always consequential. The best personal injury attorneys are the best decision makers.
The elements influence everything from: whether the law firm accepts a case; whether a lawsuit will be filed versus simply trying to resolve the case pre-suit; settlement amount; whether to go to trial; whether the case is declined after it has been accepted by the law firm. Since every case has many moving parts, these and other case management decisions are adjusted frequently.
Insurance coverage. There are many different types of liability insurance to cover for losses caused by negligence. The more common are homeowners, premises liability, bodily injury (BI), and medical malpractice. Most individuals and businesses with sizable unprotected assets have strong liability insurance coverage. A fair percentage with weaker financial positions have coverage, although usually with lower policy limits. Some have no coverage at all. The state of Florida has few requirements for maintaining liability insurance. (One exception is for tractor trailers/18-wheelers. The owner is required to maintain $750,000 in coverage. Unfortunately, laws are often violated, including as to maintaining insurance. Surprisingly, doctors are not required to maintain malpractice insurance.) It is mostly left as a personal choice. No matter how significant the damages, no financial means plus no insurance usually means no recovery. Few lawyers will accept a case under these circumstances. Coverage that is available but limited under the circumstances can influence a lawyer’s decision to take the case, or how hard and far to push it.
Negligence. Florida operates a fault-based civil liability system. (The workers’ compensation system, covered in Chapter 440 of the Florida Statutes, is not fault-based. Benefits, rather than damages, are recoverable under Chapter 440. These benefits are much different than the damages recoverable under the civil liability system.) Only conduct which falls below a reasonable standard is punished. Fault can be shared by various individuals and entities, including the aggrieved party. This is the concept of comparative fault. Fault can be clear, it can be gross, it can be illusive. These fault considerations (and more) influence the course and outcome of every negligence case. Fault must be proved by the aggrieved party to recover damages (e.g., medical bills, lost wages, pain and suffering).
Injuries. Other factors aside, the worth of any personal injury case is always capped by the extent of the injuries. Put another way, an accident without injuries is an accident without value. Individuals can be compensated for the aggravation of pre-existing injuries. See Florida Standard Jury Instruction 501.5(a). This is a frequent battleground issue. Our firm is in suit for a woman involved in a slip and fall accident. Within months of the accident, she underwent a 3-level spine fusion surgery. Because of a relatively minor back surgery 7 years before and some evidence of normal preexisting degeneration, the Defendant is trying to avoid blame for her injuries. It has even hired a notorious insurance company “whore” doctor to support its position. (Mediation is scheduled.)
Medical Treatment. Medical conditions must be documented to be proven. Receiving consistent care from reputable doctors is an important component. Insurance companies know the players, juries are good at recognizing the good and the bad. Delaying the receipt of care or gaps in care make a difference. While there are reasonable explanations for inconsistent care — the most common being the inability to pay — a good personal injury attorney can help make arrangements for timely, steady, and quality care to be provided.
Property Damage. Not every personal injury case involves property damage. For example, our slip and fall case mentioned in the previous section does not involve property damage. Motor vehicle accidents almost always involve property damage. While expert testimony can be offered to explain how a serious personal injury can be caused by a minor impact resulting in little property damage, it’s a fight against human nature. Insurance adjusters, defense attorneys, judges and juries have a hard time wrapping their brains around the concept.
The Players. Every case involves a variety of interested parties. Plaintiffs and defendants, insurance companies and adjusters, attorneys and judges. Each influences the course and outcome of the case. For example, in a recent mediation, the three defendants, who flew in from Atlanta, did not wish to settle. Their insurance company and adjuster — same insurance policy for all three — and lawyers (2), felt otherwise. Because of this disagreement, the case did not settle at mediation. (It did settle a month later.) While judges are supposed to be fair and impartial, as human beings they naturally bring their personal views into the courtroom. From court rulings to simply knowing in advance a particular judge’s predisposition, a judge’s influence cannot be understated. Some adjusters and lawyers are disagreeable, some are not. Personalities as well as policies — some insurance companies have a hard and fast policy against settling certain types of cases — dictate the direction of cases. Last but not least is the credibility of the principals. Nothing will sink a case faster than a lack of credibility. Jurors will disregard evidence to punish a liar. Understanding the dynamics of the human element is always important.
Venue. Venue, being the county in which a lawsuit must be filed, determines the pool from which jurors are chosen. Florida is a large state with diverse points of view held by its many residents. This explains why Mitt Romney carried some counties, President Obama others in the 2012 election. While sizable pro-Plaintiff jury verdicts have been rendered in every county in Florida, generally, jurors in the Romney counties tend to be less accepting of lawsuits brought by individuals seeking compensation for personal injuries, than are jurors residing in the Obama counties. It’s a known truth among seasoned trial lawyers, one that must be considered.
The Law. In an ideal world, fairness and equity would be the driving force behind the creation of laws. Sadly, greed and influence trump fairness and equity in Florida’s legislative system, leading to the creation of arbitrary and capricious laws favoring the rich and powerful. Explaining this to our clients is always a difficult job. Lawyers do not make the laws. Their role is to guide and counsel, not sugar coat matters. This often leads to difficult discussions about cold realities. Read these blogs for examples of greed defeating fairness:
- Florida’s Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases
- Florida Workers’ Compensation a Long Way From Its Roots
- Florida Subjects Medicaid Recipients to Arbitrary Medical Malpractice Limits
The Evidence. Florida’s civil justice system is evidence-based. Judges instruct jurors to decide for the party which has presented the greater weight of the evidence. Evidence comes in many forms, from eyewitness testimony, to expert opinion, to complicated forensics. Gathering evidence is painstaking and expensive. Lack of cooperation from witnesses and defendants is not uncommon.
While the considerations outlined here may be helpful, lay people should not believe them to be enough to handle serious claims without the assistance of an experienced personal injury attorney. Doing so is no different than self-treating a serious medical condition from information learned from the Internet. It’s not a good idea.
The practice of personal injury law is demanding. Only the strong survive.
Contact us toll free at 866-785-GALE or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.