As a personal injury attorney representing persons injured throughout the Tampa Bay area, if someone were to ask me the single most important tool in achieving a good outcome for my clients I would respond, “Litigation.” “File a lawsuit the second your client is treated unfairly.” To understand why litigation (which basically means to file a lawsuit) is so important, it would be helpful to understand how a claim typically proceeds.
The Pre-Litigation Stage
In my firm, once I undertake representation my staff and I track treatment notes, medical records, and itemize medical bills and healthcare liens. I gather witness statements, if any, and check in with clients. It is important that this information remain current so that when the treating physicians render a final narrative on the client’s injuries I can get out a settlement demand package without a long delay.
In my firm, more than half of all cases will settle without litigation. That may seem to contradict my statement that litigation makes for the best results, but there are reasons that filing a lawsuit is not necessary or advisable. These include:
- The settlement offered during negotiations is fair or at least close enough to fair that it makes little sense to incur the risks of filing a lawsuit.
- There are underlying reasons in the client’s case that make litigation especially risky.
- The client’s medical condition has improved a great deal and we are primarily just trying to recover medical bills.
I want to make it clear that sometimes the best advice a lawyer can give his or her client is this: “Do not file suit and go into litigation on your case.” Litigation is serious business and should not be taken lightly. There are risks.
The Litigation Phase
The litigation phase in a claim occurs when the top settlement offer made by the insurer is insufficient to fairly compensate a client. I am a sole practitioner, and within the last 2 weeks alone I have filed 6 new lawsuits. This is a matter of public record, and it’s A LOT of new litigation cases for a small firm given the number of lawsuits I have filed already. I don’t have a young associate that I can send off to hearings, depositions, pretrial conferences, mediations, etc. When I file suit, for better or worse you’re stuck with me.
I look at a lawsuit the same way I look at protecting yourself with a firearm: Don’t do it unless you’re willing to pull the trigger and see it through to the end (a jury trial). Insurers will sniff weakness and they’ve spent tens of millions of dollars on software and statisticians to determine those that only do it to “bluff.” And that’s assuming you’ve hired a firm even willing to file a lawsuit! There are some personal injury law firms that do not ever file a lawsuit on behalf of a client. I am not sure what these firms do when their client receives an unfair settlement offer.
Litigation is a whole new ballgame. It is time consuming, expensive, and will expose the client to what feels like a privacy invasion. The insurer will take the deposition of the client and ask questions in interrogatories. They will also send the client against their will to their own physician for an examination. Legally, it’s fair game. The plaintiff has brought the case, and the defendant has the right to an examination.
When I file a lawsuit, my “Notice for Trial” comes as quickly as possible. By the time I get to mediation, I typically want a trial date on the calendar. Within the last two months I’ve had mediations just a few weeks before the trial date. Within the last year I’ve settled cases just before walking into the courthouse.
Objective Proof of Why Litigation is So Important
I track every case that goes into litigation, and below is a sample of some of the cases within the past year. This demonstrates the “top offer” of the insurer before filing suit, and the result after spending months in litigation, going to depositions (sometimes nearly a dozen), court hearings, motion practice, prepping for trial, and mediations. Since Attorney-Client privilege is sacred, I obviously cannot go into details on each case, but the before and after numbers are below.
|Top “Pre-Litigation” Offer||End Result After Litigation|
|$13,500.00||$25,000.00 (policy limits)|
|$2,000.00 (not a top offer but such an absurd “opening offer” that suit was filed immediately)||$200,000.00 (policy limits)|
|$1,500.00||$10,000.00 (settled immediately after filing suit)|
|0||$25,000.00 (policy limits)|
I do not claim to be the only attorney in New Port Richey or the Tampa Bay area to file lawsuits when a client is treated unfairly. There are many good firms that will do this for a client. The purpose of this post is to stress that many times litigation is needed to procure a fair personal injury settlement.
If a fair settlement offer is still not made during litigation, then at the end of the day a jury will render a verdict on the case and decide the amount awarded.