It is a well known reality of our industry that very few personal injury claims make it to trial. However, my personal experience has been that when you prepare a file as if you are going to trial, you can obtain better leverage in your negotiations. With that in mind, here are some common areas that seem to lag behind in terms of file work-up, but that have an effect on settlement leverage.
A Picture is Worth A Thousand Words
Most people understand that jurors can be swayed by photographs and other demonstrative evidence, and plaintiff lawyers have lead the way in using this to their client's advantage. However, there are some areas where defendants can take advantage of this tactic too. For example, a picture showing very little damage can be a compelling piece of the puzzle, which can play upon a jury's skepticism of "whiplash" type complaints. In terms of leverage, while no one can guarantee what a jury will do, the general consensus is that jurors can be swayed by a lack of damage, particularly under two circumstances: a) When contrasted with large income loss reports and large future care cost reports tendered by the plaintiff; and b) When used as a building block for other evidence/arguments that will be discussed below.
However, relying on police photographs and/or garage shop photographs are not enough. Quite often, the pictures are grainy, they are in black and white (and the colour ones were not preserved), and/or they hone in on too small an area. Having a claims handler take appropriate, high quality photographs of the damage (or lack thereof) is a great investment.
When we think about internet research, usually the first words that usually come to mind are Facebook, twitter and Instagram – in the context of researching the activities of a claimant. However, the Internet can also be helpful when it comes to reviewing and building a case on liability and causation.
For example, research on the plaintiff's car may assist arguments about causation in soft tissue/chronic pain cases – that the accident could not have caused the damages. Earlier, I discussed photographs of the vehicles involved in the accident, and how those photographs can be a foundational piece of evidence to build on. And this is one of those building blocks.
For example, I recently had a case involving a plaintiff who hit my client when my client turned left in front of her, causing a fair bit of damage. While the pictures of the damage were not by themselves indicative of a low impact collision, we decided to proceed with a full investigation on liability and the forces involved in the collision. The plaintiff was driving a Honda, and some online research we did confirmed that the model she was driving employed Honda's energy absorbing technology, resulting in most of the forces involved in the collision being absorbed into a "crumple zone" in the car, and not the "occupant zone" Diagrams such as the one below, right from Honda's own website, were used in the mediation brief to help obtain leverage with respect to our view of the case – that the forces involved were not sufficient to cause the damages claimed.
Note that appropriate steps have to be taken to ensure that this evidence can be tendered at trial – either through a witness, a document, or an admission by the plaintiff.
The second source of assistance in this regard are industry publications. Again, having an appropriate process to ensure that the evidence is admissible at trial is important, however, step one is mining for the data. For example, the US Insurance Institute for Highway Safety publishes data about the safety of virtually any car available. If you go to http://www.iihs.org/iihs/topics/insurance-loss-information, then you can see the insurance loss information for many vehicles. The Institute also publishes its crash test data, including rear end crash data. By reviewing this website and mining this data, you may find that the claimant's car performs quite well in reducing the possibility of whiplash type injuries.
Another source of information is www.autoblog.com. This website aggregates safety information into one summary, shown below for an Infiniti G35:
While the website data alone is not "evidence" per se, it allows you to start to leverage certain aspects of the case during settlement negotiations. In the case of the Infiniti, the safety information suggests the chance of someone suffering whiplash is low due to their active head restraint system. The combination of a lack of any visible damage (or little damage), in conjunction with safety features, may persuade a juror that the accident was not capable of causing the injuries and damages asserted and this may be enough leverage to effect a reasonable settlement. At the very least, it may give you the foundation necessary to invest money in hiring an appropriate expert.
Spending vs. Investing
I pause here to go on a bit of a tangent. You will have noticed that throughout this article, I have used the word "invest" instead of "spend" when talking about file work up. This was deliberate. In too many cases, we are concerned about expenses – legal expenses and disbursements, while overlooking the bigger picture – the claim payout. Let me give you one example.
Late last fall, I successfully argued a summary judgment motion in a slip and fall case. At the discovery, I was able to obtain admissions from the plaintiff that he slipped and fell on a patch of ice that was only one square foot in area, but he did not recall the condition of the rest of the parking lot. He was a business owner as well, and yet refused to produce his own records as to whether or not he did any maintenance on his lot on the date of the loss. So, with those admissions in hand, we did two things to work up the file in response. First, we had someone go and measure the entire parking lot – it was 3800 square feet. That allowed me to make arguments based on the premise that occupiers are not insurers – that even if we accepted that the plaintiff was right, his best evidence was the presence of ice on 1/3800 of land area, and if 1/3800th was not a standard of perfection, what would be? Secondly, we retained a forensic climatologist to review the weather records and other data and opine on whether or not the conditions leading up to, and on the date of loss, were conducive to ice formation. He found that they were not. Secondly, he was asked to review the weather forecasts and determine if they had anything in them to alert a "reasonably prudent" person to take precautions for icy conditions. He found that there was nothing. So, to make a short story long J, we had to spend money on these tasks. However, when the decision came out, it was clear that the judge was in tune with both elements – the geography and the weather, and summary judgment was granted in favour of the insured. Claim dismissed, with costs. To paraphrase a familiar investing slogan, you have to spend money to save money.
That is not to say that money should be thrown at just any kind of work up. Staying with the investment theme, good investors do their homework. And in the case of claims, that homework is finding the nugget of information that opens a door for you, and taking all steps to make sure that door is opened as big as can be, and remains open as long as needed.
My goal from day one of receiving a file is to find what I call the "hook" of each case – most, if not all, cases have this. Sometimes they are more difficult to find, and in a few cases, it just doesn't exist. However, once found, the hook(s) is where resources should be focussed on as a primary means to leveraging a favourable settlement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.