Washington Legal News
In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.
In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.
General preparation for cross-examination of a defense expert involves four stages:
1) Learn the expert’s subject;
2) Scout the expert;
3) Use your own expert;
4) Establish realistic goals.
Learn the expert’s subject
With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.
Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.
It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.
Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.
If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.
If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.
Scout the Expert
If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:
(a) for contradictory statements for use in impeachment,
(b) for general principles supportive of your theory, and
(c) for embarrassing quotations about the limits of the expert’s knowledge.
It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.
Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.
Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.
Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.
The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.
Use Your Own Expert
Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.
Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.
If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.
Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.
Establish Realistic Goals
From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.
Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.
Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”
The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.
The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.
In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.
Motorcycles are a lot of fun to ride, and the rate of motorcycle ownership in the U.S. has risen dramatically recently, with a 75% increase in registrations between 1997 and 2006. The average age of riders has increased as well, from 27.1 years in 1985 to 41.0 years in 2003.
However, the sad reality is that the lack of protection around the rider also means that motorcyclists are at a higher risk for serious injury or death than people riding in vehicles where metal, seat belts, and airbags provide protection. The larger size of cars and trucks makes them more visible to other drivers, unlike motorcycles that are significantly less visible to other drivers.
I myself love motorcycles, and I understand why so many people are enthusiasts. I very much prefer to see motorcyclists out on the roads having a good time. I don’t want to see them (or their heirs) sitting in my office following a motorcycle accident.
Motorcycles are fun to ride but deadly in a crash
The statistics regarding motorcycle accidents are truly alarming. According to data from the Centers for Disease Control and Prevention (CDC), while in 2008 motor vehicle crash-related deaths involving cars and light trucks reached an all-time low in the US, motorcyclist deaths reached an all-time high, more than doubling between 1999 and 2008.
Many motorcycle accidents happen because motorcycles are less visible than other vehicles on the road, and so other drivers simply don’t see the motorcycle before hitting it. Thus, in order to make motorcycle riding safer (and thus more enjoyable for everyone), it is important for riders to first; be aware of this problem and second; to do something about it. This concept of increasing motorcycle visibility is called “conspicuity.”
Conspicuity – a funny word for an important motorcycle safety concept
The first time I heard the word “conspicuity” was at a deposition of a state trooper for a motorcycle fatality claim I was handling. It essentially means the art of being conspicuous. Although it is a funny looking and sounding word, it’s also a crucial one for any motorcyclist. The Washington State Motorcycle Operator’s Manual has a complete section devoted to “Conspicuity”, further indicating how critically important the concept is. To see the section on Conspicuity, click the above link and go to page 32.
Increasing conspicuity means increasing safety
The section has many excellent suggestions for staying visible, or “conspicuous” to other drivers. It discusses things like:
- wearing bright colored clothing;
- always using the headlight;
- always signaling turns and lane changes;
- adjusting driving techniques;
- increasing following distances;
- never riding in the blind spot of another vehicle;
- tapping brake lights when being followed to closely.
Motorcycle riders need to do everything they can to improve their conspicuity to help give other motorists the opportunity to see and avoid colliding with the motorcyclist. All of the suggestions in the Operator’s Manual combine to make motorcyclists more visible to other drivers, and hence more likely to avoid being injured or killed.
I wish I could go back in time to review these safety tips with my motorcycle fatality clients. While accidents are often unavoidable in a world where most vehicles outweigh and outsize motorcycles, extra caution and attention to conspicuity may well have made a difference.
If you have been injured in a motorcycle accident and need information about your rights and options, contact Brett Murphy today. To learn how we have helped our motorcycle crash clients, please go to this link.
In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.
Against the expert witness defending his home territory, the trial lawyer has four main advantages.
1) The trial lawyer can choose not to ask any questions at all, or more likely, can choose not to ask certain questions. He can avoid certain battlefields. The task of preparing to cross-examine an expert witness is largely one of determining which questions NOT to ask.
2) The trial lawyer can choose to ask only questions which require either a “yes” or a “no” answer. He can take away the expert’s most potent weapon – the monologue.
3) The trial lawyer can learn the specific narrow aspect of the expert’s subject matter that is relevant to the specific issue being tried. He can learn that part of the territory on which the battle will be fought.
4) And finally, the trial lawyer can analyze and criticize the expert’s answers in the home territory of final argument, on his own turf, where the expert is speechless.
Effective use of these four advantages minimizes the expert’s strength, his expertise in the subject matter, and maximizes the trial lawyer’s strength, the ability to question narrowly then comment on the answer without reply.
Put it in perspective, right at the start. The average expert witness knows as much about his or her field as you know about law.
“That means a lot of different things. It means, for example, that the knowledge and ability of nearly any expert is uneven. It means that the typical doctor knows no more about hepatitis, pyloric stenosis or coronary arrhythmia than the average lawyer knows about promissory estoppels, renvoi, or the doctrine of worthier title. It means that a lawyer can learn enough about the flash point of waxes to cross-examine an electrical engineer who specified wax paper condensers in a color television set designed to operate at just 5 degrees lower than the burning point of wax. It also means that the witness – unless he has had previous courtroom experience – is going to be scared.” McElhaney, Trial Notebook, page 167. *
In the remaining parts of this article series, I will discuss:
- The three conceptual categories of potential lines of questioning;
- Final preparation for the cross-examination;
- The Ten Commandments of cross-examination, plus four more.
- An example cross-examination of a defense economist.
- Dean Brett
* McElhaney, James W., Trial Notebook, The American Bar Association, 1981
I recently read an article by Sarah Mui regarding whether judges should allow questions from jurors during a jury trial. The article brings up some interesting points.
In the original Boston Globe article that Ms. Mui references, a probation trial jury submitted 281 questions to the judge, many of which he posed to witnesses, some of which he did not address. There has been mixed reaction to allowing these questions from the jury.
Both articles quote from “one defense lawyer” Rosemary Scapicchio, who characterized juror questions as a “dangerous step” and who does not believe juror questions should be allowed, because it requires a juror to advocate for one side or the other without having heard all of the evidence.
I respectfully disagree with Ms. Scapicchio’s opinion, at least as far as civil trials go.
In Washington State, courts allow jurors to submit written questions, following the testimony of each witness, to the bailiff who in turn hands them to the judge. The juror submitting such questions is not identified in the question (although the attorneys can see who hands up a question to the bailiff, especially if there are only one or two questions).
After reviewing those questions and discussing them with counsel, the judge asks the attorneys whether they object or agree to allow each juror question submitted. Depending upon the nature of the questions and any objections or comments from counsel, the judge may read juror questions as written, may paraphrase them or may simply ignore objectionable questions.
Some juror questions are directed to the testifying witness and some to the judge. Some juror questions directed to the witness are good questions and show that the juror is giving good thought to the issues in the case. Sometimes, they sound like they are from a plaintiff or defendant, and those can often cut both ways for or against either party.
But to the extent the judge allows questions for the witness (which the judge asks the witness on behalf of a juror) they help the court (and the parties) ferret out the issues. This “pressure” from jurors should inspire attorneys to make sure they are very prepared on the issues before going to trial. There are always surprises at trial, but thorough preparation will minimize them.
I find juror questions to be a valuable tool during trial. Ultimately, the jury will be deciding the case, and if they have questions or concerns I’d like to know about them during the trial so I can try to address them during trial. Without direct feedback from the jury, it can sometimes be difficult knowing how the jury is absorbing or receiving the information the attorneys are trying to communicate to them with witnesses and exhibits.
One criticism of allowing juror questions involves the risk that a question could prejudice or adversely affect other jurors on the case. That is not a valid criticism because during deliberations any juror can ask whatever questions he or she may have about the case or the trial evidence, and the attorneys will never know what questions are asked or what responses are given. Thus, the risk of such a question is not lessened by eliminating juror questions. On the other hand, if such a question is asked during trial, the attorneys and judge have an opportunity to address it.
For anyone seeking information about your rights and options after being injured in an accident, contact the Brett Murphy attorneys today by calling 1-800-925-1875 or by completing our simple contact form.
Throughout my years as a trial attorney, I have found that one of the most challenging aspects of trial is cross-examining an expert witness. I’ve written an article series describing my experience and the methods I’ve used that have allowed me to gain real advantages through cross-examination of an expert witness. These methods have proven highly successful for me for 40+ years. I will be publishing the article series over the next several days, so keep an eye out for the next installment.
Part 1 - Why cross-examine an expert witness?
The cross-examination of an expert witness is one of the trial lawyer’s most difficult tasks. The expert must be assumed to be an intelligent person who has focused his intelligence on the particular scientific, technical, or specialized field of inquiry. The rules of evidence allow the expert witness certain unique advantages, including:
- the chance to state his opinion (ER 702);
- to include conclusions on the ultimate fact to be decided by the jury (ER 704);
- to be buttressed by facts or data not in evidence (if of a type reasonably relied upon by other experts in the particular subject matter) (ER 703);
- to include facts even if those facts or data would not otherwise be admissible in evidence (ER 703);
- to include facts or data which the expert need not disclose in direct examination (ER 705);
- allowing the jury to be told the expert was appointed not by your opponent, but by the court (ER 706).
To make matters even more challenging, frequently the expert witness has more courtroom experience and savvy than the cross examiner.
“As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examination along lines of the expert’s theory is easily disastrous and should rarely be attempted.” Francis Wellman, The Art of Cross-Examination, 1903.
Why then ever cross-examine an expert witness? Only because you have no alternative.
If you bring a claim of professional negligence or products liability, you are claiming that the defendant made an error in his own field of expertise, and you thereby incur an obligation to your client to prove the standard of conduct in that field of expertise and to cross-examine expert witnesses called to defend on the basis that the standard is not as you allege, or if it is, that it was met.
To fail to cross-examine is to concede the heart of the claim. Even if you try only “simple” negligence claims, you must be prepared to meet witnesses with expertise in engineering, accident reconstruction, medicine, psychology, vocational rehabilitation, and economics, to name a few.
Precisely because they are so difficult to examine, your opponent will insist on presenting the testimony of experts on the critical issues of the case. Those experts, because they are looked up to by the jury and because they are often hired for the specific purpose of destroying a necessary element of your proof, often cause more damage than lay witnesses and thus compel cross-examination. Failure to examine expert witnesses may be viewed by the jury as a surrender on the critical issues they support.
The next installments of this article series will be:
- The four main advantages the trial lawyer has against the expert witness defending his home territory;
- The four stages of general preparation for cross-examination of a defense expert;
- The three conceptual categories of potential lines of questioning;
- Final preparation for the cross-examination;
- The Ten Commandments of cross-examination, plus four more.
- An example cross-examination of a defense economist.
- Dean Brett Personal injury attorney Dean Brett has been practicing injury and wrongful death law for 40+ years. Learn more about Dean, his practice, and his cases at his biography page. To contact the Brett Murphy attorneys with questions about a potential claim, please call 1-800-925-1875 or complete our simple contact form.
A man keeps multiple loaded guns unsecured throughout his house which he shares with a girlfriend, who has periodic visits from her nine year old son. For two days the man does not notice that one of the loaded guns is missing. The nine year old boy has put one of the loaded guns into his backpack, and taken it to school. The gun discharges from the backpack and critically injures a classmate. Should the man be held to have “caused” the personal injury to the classmate?
The breakdown of judicial opinions throughout the case history demonstrates this is a divisive issue.
Six judges who faced this question in State v Bauer said “Yes”: the trial court judge, two judges from the Court of Appeals, and three from the Supreme Court.
Seven judges said “No”: One from the Court of Appeals, and six from the Supreme Court.
In State v Bauer, decided July 17, 2014, the Washington State Supreme Court held 6-3 that, based on “…mixed consideration of logic, common sense, justice, policy, and precedent…” there is no causation in the criminal context here because causation in the civil negligence context is broader than in the criminal, and civil causation would not be found here under existing civil precedent. The court’s reliance on civil precedent to reach a decision in a criminal case may make this case problematic for lawyers representing plaintiffs on causation issues in personal injury cases.
The following precedents were considered in the ruling:
- Sailor v. Ohlde, 71 Wn. 2d 646, 430 P.2d 579 (1967) - The court answered “No” to the question of whether “…the owner of an automobile who leaves the key in the ignition switch (can be civilly) liable for injury or damage caused by a stranger who enters upon private property and steals the automobile.”
- Pratt v. Thomas 80 Wn. 2d 117, 491 P.2d 1285 (1971) - The court reached the same conclusion regarding an accident involving a car stolen from a public parking lot.
- Kim v. Budget Rent-A-Car Systems, Inc., 143 Wn. 2d 190, 15 P.3d 1283 (2001) - The court found no causation when a rental car company left an unlocked car in its parking lot with the keys in the ignition, the car was stolen and involved in an accident.
The majority accepted the analogy that an unsecured loaded handgun should be treated like a car with the keys left in the ignition.
On the other hand, the six judges who would have allowed the issue to go to the jury undoubtedly would have found causation in the civil context as well. Indeed, even the majority cites civil cases which seem to imply causation.
- A vendor who sells alcohol to a minor may be the legal cause of injuries to a second minor who obtained the alcohol purchased by the first minor. Schooley v. Pinch’s Deli Market, Inc., 134 Wn. 2d 468, 951 P.2d 749 (1998).
- A defendant is liable when he leaves an operational tractor unguarded on his property, which is then stolen by children and used to injure plaintiff’s property. Bronk v. Davenny, 25 Wn. 2d 443, 171 P.2d 237 (1946).
According to the Supreme Court, a loaded handgun is more like a car with the keys left in it than a bottle of booze illegally sold to a minor or an operational tractor left accessible to children. Close question.
Plaintiff lawyers, who regularly represent victims of negligence, can take some solace in the court’s distinction between “causation” in the civil and criminal contexts. The court repeatedly emphasizes (even dedicating a section of the opinion to the proposition) that “Causation in Criminal Law is Different from Causation in Tort.” The majority repeatedly points to the lesser causation standard in the civil negligence context:
- “…criminal law and tort law serve different purposes and therefore have different principles of legal causation…”
- “… causation in tort may be much broader than causation in criminal law…”
- “… legal causation is defined more narrowly in criminal law than it is in tort law…”
- “… the tort liability concept of proximate cause is generally too broad and comprehensive to be appropriate in a criminal proceeding…”
- “… liability tends to extend further in tort cases…”
Although the court took pains to distinguish causation in the criminal and civil contexts, the court ends the opinion with the comment:”…even our civil cases do not extend liability as far as the State seeks to do in this case… ” This comment will undoubtedly be cited by insurance defense attorneys in civil cases in support of using State v Bauer to limit causation in civil situations as well as in criminal.
In the criminal context, a conviction for assault in the third degree requires criminal negligence which “… causes bodily harm to another person…” Noting that keeping loaded weapons around the house is not in itself a crime, and that the nine year old boy’s theft of the loaded weapon was an “intervening cause”, the majority held legal causation (i.e. considerations of “…logic, common sense, justice, policy and precedent…”) meant that the causation requirement had not been met and therefore that a criminal charge of assault in the 3rd degree had to be dismissed.
- Dean Brett
The latest investigative piece published in the News Tribune this week, entitled “MultiCare sues estate of boy killed in Tacoma Dome accident”, outlines a struggle that lawyers representing injured people in Washington State have been dealing with for years. And this struggle highlights the hypocrisy and greed frequently demonstrated by Big Insurance.
The story in the News Tribune, dated August 3, details the sad story of Sebastian Hizey, a young boy who was grievously hurt and eventually died as a result of injuries sustained at a monster truck show at the Tacoma Dome. The healthcare provider, MultiCare, chose to sue the little boy’s estate to recoup the cost of his medical care, rather than to bill his insurance company.
In its statement to The News Tribune, the MultiCare representative stood by the practice of filing medical liens, using the excuse that the Washington State Legislature wrote the laws allowing such liens.
However, attorney Darrell Cochran, who represents a group of people suing MultiCare over the issue of these medical liens, has his own take on the situation:
“MultiCare intentionally used the tragic circumstances of this young boy’s death — latching onto the boy’s grieving family and their efforts to hold the monster truck organizers responsible for causing the death of their son — to pursue greater profit than the payments offered by Medicaid…”
I completely agree with Mr. Cochran’s assessment, and it points out the hypocrisy of MultiCare’s position.
The same big insurance companies that lobby Olympia and Washington DC to enact laws that prevent injured people from holding wrongdoers accountable, have absolutely no trouble reaching into those same people’s pockets to grab whatever money they can get their hands on, even if the money is acquired from those same lawsuits for injuries that Big Insurance is seeking to outlaw.
In this article we are introduced to a medical facility which in 2012 took in $1.7 billion in revenue, making the decision to sue the family of a dead little boy to recover $48,000 in medical expenses, for treatments they claim were provided to him before he died. While MultiCare claims that their reasoning for suing the boy’s estate is to maximize the organization’s ability to do good works, and that the Washington State legislature wrote the laws allowing this practice, the article also points out that the organization rewards top executives with bonuses and pay raises for finding ways to increase MultiCare’s revenue. Good works indeed…
Unfortunately, this is a common tactic used by hospitals and big insurance companies. In almost every case where someone is injured and recovers money, before the ink is dry on the check, insurance companies are lining up to get their share. This is true whether it’s a hospital, a health insurance company, or someone’s short term disability policy. All of these insurance companies seek reimbursement from their own customers, often customers who have been religiously paying high premiums for years for just those benefits.
Often, lawyers helping injured people can successfully fend off insurance companies attempting to take money an injured person has recovered. This is called subrogation, and there are several Washington laws which provide protection for folks who recover money for injuries. However, this article describes one loophole in Washington law that greedy hospitals use to profit from injured people.
The lawyers on the case did everything they could to stop this hospital’s unscrupulous action, but in the end were unsuccessful. In October 2011, arbitrator Kenneth Scearce found for MultiCare, saying its charges were reasonable and that it had the legal right to try to collect. In his decision, Scearce wrote:
“The law clearly provides that the provider can and in fact must seek recovery from the settlement funds paid by the third party payor since Medicaid is only a last resort.”
The only way we can prevent Big Insurance from engaging in this hypocritical and greedy practice is to enact changes in the law regarding medical liens and medical insurance for folks who have been hurt by someone else.
I recently read an article by Steven Gursten regarding the potential risks that people may expose themselves to when they choose to represent themselves, rather than hire an experienced personal injury attorney.
In his article, Mr. Gursten describes a common scenario he sees in his daily practice, where an insurance adjuster will essentially stalk a personal injury victim to bully them into accepting a settlement without hiring an attorney. As Gursten states:
“The insurance industry estimates that when an attorney becomes involved, the settlement value of any car accident claim increases fourfold. That’s why so many insurance companies essentially stalk accident victims – to prevent them from hiring an experienced personal injury attorney.”
Mr. Gursten’s article highlights the important question that most injured people ask themselves after being hurt in an accident - should they represent themselves or hire an attorney? Most people wisely decide to hire an attorney. The old expression, “A person who represents him or herself on a legal matter has a fool for a client” is apropos to my discussion here.
At issue is not whether an injured person is educated or smart enough to handle a personal injury claim themselves. Most people have enough intelligence to understand the issues that typically arise in a car accident case. The problem is that they don’t have the training and experience to recognize the significance of most of the issues that could arise.
The Release of All Claims – There’s no going back!
For example, when an insurance adjuster offers to make a settlement in exchange for a signed release of all claims, many people mistakenly think that if they develop future medical issues from injuries caused by the accident, that their claim can be re-opened. Unfortunately, this is not true in Washington State. Settlement releases (including the “hold harmless” language nearly always included in releases) are virtually iron clad and cannot be broken later, even if the person made a mistake and should not have agreed to the settlement. Thus, an experienced personal injury lawyer knows not to have the client accept a settlement offer until the client’s doctors have cleared them from further medical treatment. Further, the “hold harmless” language makes the injured person a guarantor that all accident related bills have been or will be paid, and if the insurance company has to make any further payments related to the accident, they can go after the injured person and not only make them pay those outstanding bills but also pay for the insurance company’s attorney fees incurred in getting those bills paid. Talk about rubbing salt in the wound.
Subrogation – the devil is in the details
Other surprises can await the unwary person who signs a release in early settlement with an adjuster. For example, many people don’t realize that from the settlement funds, they need to re-pay any insurance companies that have paid for accident-related medical treatment. This is called subrogation; see my video on the topic at this link. Further, the injured person also must pay any outstanding bills from doctors who have provided treatment for accident related injuries, which are called medical liens. A settlement amount, which may have seemed reasonable from the adjuster, quickly disappears as subrogation claims are paid or deducted.
Further, an experienced personal injury lawyer is often able to get significant reductions, and in some cases complete waivers, of the obligation to pay subrogation claims. Thus, an unrepresented person who settles with an adjuster may lose a significant portion of their settlement after paying subrogation to insurance companies and paying outstanding bills owed to treating doctors.
On the other hand, an experienced attorney will advise the client about all the costs of settling prior to signing any settlement release, and the attorney will also negotiate with lien holders to try to obtain reductions on behalf of their client, all of which leads to a higher net settlement and no unpleasant surprises for the client.
Your attorney usually gets a settlement that covers legal fees – plus some!
Unfortunately, insurance companies know that most people don’t have the legal experience in personal injury matters to know what damages they are entitled to, and what the value of those damages is. As a result, adjusters commonly make lower offers to unrepresented people than they do to people who have attorneys. Most people with an experienced attorney will be able to get a settlement offer which is sufficiently higher to cover and exceed the attorney fees. This, combined with the benefit of avoiding these risks and loopholes of the settlement process, ensures that hiring an attorney is the safest, easiest way to proceed with a personal injury claim.
Are there ever cases where a person might wish to represent themselves in negotiating a settlement with an adjuster? Of course. But without the knowledge or experience of a personal injury attorney, accepting such a settlement offer carries significant risks and may expose a person to claims for reimbursement by healthcare providers and/or insurance companies, which could reduce or even wipe out a settlement amount.
- Steve Knapp
If you have been seriously injured in an accident and need information about your rights and options, contact Brett Murphy today by calling 1-800-925-1875 or by completing our simple contact form.
The Brett Murphy Law Firm is very pleased to announce the recipient of the Brett Murphy Future Leaders Scholarship for the 2014-2015 academic year. Congratulations Joshua H. Ontell!
We received scholarship applications from deserving candidates from across the country. We were truly impressed with the academic breadth of experience and interests displayed by our diverse group of applicants. We sincerely wish we could award all applicants with a scholarship!
Joshua H. Ontell was selected, based upon his impressive academic record and strong personal connection to the area of personal injury law. Joshua will be attending the Benjamin N. Cardozo Law School while continuing his work for a leading human rights and international development non-profit organization.
A hearty thank you to all applicants for this scholarship. The Brett Murphy Law Firm plans on offering this scholarship again for the 2015-2016 academic school year, and we encourage eligible applicants to watch for that announcement through their university scholarship/financial aid departments.
I just returned from the annual WSAJ convention in Skamania, Washington. Amongst a vast number of interesting talks, the issue of “making the ask” for money from a jury came up several times. In a discussion with a colleague during a break, we chatted about another instance where you have to make an ask – when you discuss claim value with your client for the first time.
This is a crucial aspect of handling a claim, since client expectations of a claim’s value can be wildly overestimated, sometimes leading to difficulty negotiating a fair settlement, and a dissatisfied client.
To resolve this issue early, it is important for the client to understand the real claim value, but approaching this topic in an effective way is challenging, because you are essentially asking them to value their own claim in a way very similar to what a jury does.
So, when do you make “The Ask”?
You should discuss this topic the first time you meet with a client, before they have even retained you.
This serves several important purposes. The first and probably most important is that this is information you client wants to know, perhaps more than any other aspect of a potential claim. They have no idea what their claim is worth, and do not know whether following through with their claim will be worth the effort.
So tell them immediately - it’s a valuable service to provide, even to people you later determine are not folks you can help.
Secondly, having this money conversation immediately gives you critical information about what your client’s expectations are. There is an old saying - the case you didn’t take is the best money you ever saved. Oftentimes, unrealistic expectations form the foundation of a difficult attorney-client relationship.
When you discuss money with your client from the beginning, you have an early preview of how they will evaluate their claim. If your client’s expectations do not match up with your evaluation of the claim, it is better to know that immediately and think twice about taking on a particular case.
Finally, it allows you to frame your client’s expectations from the very beginning. It can be a real hurdle to deal with a client who, several weeks after retaining you, says, “I looked at how much cases like mine are worth on the internet and…” There are so many ways for clients to search for claim value information on the internet that if you don’t guide them, some website of unknown accuracy will, and this inaccurate valuation of a claim will cause problems down the road.
So, we know we need to discuss money with the client right away – but how?
I discovered some time ago that the most effective way to bring up the discussion of claim value with a client is to use the common insurance policy amounts to help gently frame the claim value. In Washington State, the minimum for liability coverage is $25,000 per person and $50,000 per accident, 25/50. The other insurance amounts you will see on Washington policies are 50/100, 100/300, and 250/500. So depending on the nature of the case, I can talk about the different outcomes depending on what coverage the defendant may have.
For instance, I might say “Well, we know that unless something changes dramatically in your medical condition, if the other driver has a $50K we should be ok, but if its only $25K we should talk about possibly making a UIM claim.” Here I just told my client that their claim is worth between $25K-$50K without having to hammer them over the head with it, or suggest that their injuries are not highly valued.
And I make sure to include in my answer that a change in their medical condition could change the value of the claim. I feel that this does a good job of calming the normal fears that the client will left financially exposed if their injuries require additional treatment or result in permanent disability.
I also use this opportunity to warn clients about the risks of overtreatment. Many things affect claim value, but for many types of soft tissue injuries the value of the claim does not change, even if the client underwent $4,000 in massage or $15,000 in chiropractic treatments. When they know how much a claim is worth, it helps put perspective on how much money they want to spend on so-called “soft treatment” knowing that much of that may ultimately be unreimbursed and come out of their own recovery.
People come to me after a collision seeking answers to the many questions that come up after they are hurt. One of the determinative questions is the value of their claim. I hope this quick piece has given you some tips on how to talk to your client about the true value of their case, and to empower them to make good decisions about how to handle their claim.
- David Brown
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