Mr. Gribow, Why Won’t You Accept My Accident Case?
For the first time in over 30 years I am being contacted by potential clients who are notably upset when I will not accept their accident case. I explain that any accident case places the Burden of Proof on the injured plaintiff to prove Liability (that someone else is at fault) and Damages (that they were injured). In addition, it is more expensive than ever to pursue a PI case for the lawyer and when the case settles those costs get passed on to the client. I do not want a client that will be unhappy in the end because most of the money went to costs and not them.
Unless you are rear ended the defendant often lies and claims you were at fault……..or partly at fault. They will argue they had the right of way……especially if there was no witness or police report. It becomes “liar’s poker”, and a lawyer must evaluate how likely it is that the jury will believe the plaintiff. California has Comparative Negligence and thus if the defendant can show the plaintiff was partly at fault, that degree of fault is deducted from the settlement. For instance, if the Plaintiff was 50 % at fault you would lose 50% of the value of the case.
As stated earlier an accident case is made up of Liability and Damages. First you have to show that someone else was at fault and that the treatment received was reasonable and necessary. If you are not taken by ambulance or go to the hospital or ER within 24 hours many of my contemporaries will not accept the case. This rejection is also true if you have talked to the insurance adjuster. It is not just what you said, but what the ADJUSTER THOUGHT THEY HEARD YOU SAY. Your lawyer will never know if you said something that could sink your case at trial, and the insurance adjuster will not share this information. He or she will sandbag and wait until trial to present the evidence that could potentially blow your case out of the water, if you will.
I explain to potential clients that things have changed dramatically in recent years. Today, insurance companies do not want to settle any soft tissue case where nothing is broken. Also, jury verdicts are lower today because the public has been brainwashed into thinking that a soft tissue injury will heal without treatment or that the plaintiff was milking the insurance company.
In addition, insurance companies carefully examine the medicals. They look to see if the treatment you received was clearly from this accident and not pre-existing. If you had a prior auto accident or slip and fall in the shower, or around the pool, 10 years ago, they will argue your treatment is from a preexisting condition and not accident related and thus refuse to pay. They may also make a LOW BALL offer. There is a big difference between $9,000 of medicals comprised of a $7500 medical bill from Eisenhower for a few hours of diagnostic and followed by a few doctors’ appointments and no physical therapy versus a bill that is mostly Physical Therapy. A bill of $7500 for 40 PT visits and $1500 of diagnostic and exams would be worth a lot more.
The cost of litigation is the major concern for an accident lawyer. If the insurance company forces you into litigation by offering $6000 on your bill of $9,000, your lawyer has to invest his/her money on your case. That just happened to me in the last few months. Unfortunately, these cases could cost a fortune as it take 3-5 years of litigation before you get to trial. There are also costly depositions to be ordered. If the judge rules incorrectly on an issue the lawyer has to sometimes hire an appellate attorney to make things right. Due to the fact that the plaintiff has the burden of proof when you get to trial your attorney has to pay YOUR DOCTORS to come to court to testify. Unfortunately this process is not a science. Because a case is set for trial on August 13th does not mean it will go out on that date. Meanwhile the doctor demands $5,000 to $15,000 per day, up front, to testify. The lawyer pays this when the doctor reserves that date and does not schedule patients. When the date is changed or the testimony of a witness runs over, the doctor will ask for the same amount for the second day.
We recently had a doctor who moved to NY to join the faculty at NYU but had treated my client locally. He demanded we fly him back first class and pay him $7500 a day for travel and his testimony in addition to paying for his hotel room at a 4-5 star hotel plus all his expenses. Absent a large case a lawyer cannot afford to lay out this amount of money. It is not fair to a client who would wind up with nothing after the legal fees and costs are deducted.
I have been representing plaintiffs injured by drunk drivers, as well as, representing those charged with driving under the influence for about 40 years and there has never been a more challenging time to handle an accident case. This includes auto accidents, slip and falls and dog bites. The insurance companies recognize that lawyers cannot afford to fund these cases and thus low ball an offer or make no offer.