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DO I HAVE A CASE?

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Good Clients!

When I first started practicing law, an old defense attorney grinned at me and said, “When the law is on your side, argue the law. When the facts are on your side, argue the facts. When neither the law nor the facts are on your side, then you just pound the table”.

The longer I practice, the more that I see defense lawyers and insurance companies attacking my client.  I just heard an adjuster attack a client on a dog bite case.

A neighbor’s  Rottweiler mix dog snarled and barked whenever someone was near the yard. Witnesses will say that they were scared to go near the yard and would walk far around it. The facts of the case started with the client taking her little dog out to her own backyard and putting it on a leash while she was hanging up clothes. The neighbor dog broke through the fence that separated their two yards.

The neighbor dog went right for the client’s little dog and began attacking it. The client reactively ran to protect her dog and pull it out of the grasp and jaws of the Rottweiler mix. While doing that, the neighbor dog bit her in the face and caused significant tearing and ultimate facial scarring that cannot be repaired.

The insurance adjuster blamed the client for breaking up the dog attack. The adjuster felt that the client contributed to her own injuries. Thankfully, her dog was saved after some veterinary treatment.

Secondly, the adjuster argued in settlement discussions that the client would not present well because she had some facial hair and was overweight. “She already didn’t take care of herself and the jury won’t like it”.

The client doesn’t have any anger toward her neighbor, despite expressing concerns about the dog growling across the fence, before this attack.  She is mainly worried about how she will get her medical bills paid.

Another client called today to check on the status of his case. During the conversation, he told about just coming back after a week in Kentucky. He had gone down there with his church to help in a project of gift giving for kids that would otherwise receive nothing at Christmas. His thoughts were more on them than his own issues from his crash.

In both cases, I still hold out hope that the cases will settle without the necessity of trial. I also know that both clients would present well to a jury, just because they both have a good heart . They  make me proud to represent them. In both cases, all the other side can do is “pound on the table”.

With a bad dog story, I thought that pic o’ day should be of some fun Holiday Dogs!

The Power of Kind Words

     In 2007, The Commission of the Arts and Humanities asked 16 artists to create public exhibits, to be placed in a six block radius of Washington, D.C.  Artist Tom Greaves designed a bright red and white striped box that he called “The Compliment Machine”.

     Greaves’ box contained a speaker, a car battery for power, and an MP3 player. He recorded more that 150 compliments that he and his wife “came up with”. The compliments included “you never take the easy way out”; and,  “People are drawn to your positive energy”. 

     When Greaves came up with the idea, he admitted that he was a bit cynical about it. As he put it together, and saw people walk by the box, he noticed that many stopped and smiled.

     The box was the hit of the arts project and garnered national attention. The article I attached above, was from his appearance on The Today Show.  Even though it was just a box, it was a reminder that people like to hear words of encouragement.

     When I begin my representation of a new client, I initially contact the defendant’s insurance company to see if they have taken a recorded statement of my client, pre-representation.  If so, Virginia law requires that they send that statement to me. Not surprisingly, they usually do not initially offer that to the individual.

     When I read the statement, it normally reads very business-like. The interviewing adjuster is just asking questions about the accident and whether my client was hurt or getting treatment. Sometimes, these statements can be as long as 3 or 4 pages.

     I cannot recall a time that an adjuster said something like, “I’m sorry this happened to you”;  or, “I hope that you get better”. Many times, I have initially been called because that adjuster contact was such a bad experience for my client. I’m sure that the adjusters would say that they were just doing their job.

     For business purposes, I hope that they don’t change their methods. They might be surprised by the result, if they just showed a little kindness.

     When I read about that “Compliment Box”, it was a reminder to me that just as I like to be complimented, so does everyone else. A kind word doesn’t cost anything.  It’s  important to not get so busy, and just take time to be an encouragement.

     Here’s pic o’ day. Hope you had a great Labor Day that might have included a picnic. Just not this guest!

 

Don’t Hire a Lawyer!

     Sometimes when I am negotiating with an adjuster, I can hear a “rumpling” sound. It sounds like turning pages. Then, the adjuster might come out with some response to  my question about why the offer is so low.  The adjuster then says something like,  “our medical review panel determined that the amount of necessary medical treatment should only have lasted 6 weeks”.

     Every now and then, I throw them a curve ball. The adjuster might start out with the argument that, “you do realize that there was little damage to the car?”  I quickly assure the adjuster that “I don’t want you to worry about the car, I don’t represent the car”.  There usually is a pause. I don’t think that the claims manual has “car representation” in the categories for response.

     Many insurance companies also have manuals that include written scripts; when calling an unrepresented person, right after a  car crash. In a lawsuit a few years ago, below is the script that was produced to one lawyer, that was  the form to be read, when contacting someone that had not hired a lawyer:

Quite often our customers ask if an attorney is necessary to settle a claim. Some people choose to hire an attorney, but we would really like the opportunity to work directly with you to settle the claim. Attorneys commonly take between 25-40% of the total settlement you receive from an insurance company plus the expenses incurred. If you settle directly with Allstate, however, the total amount of the settlement is yours. At any time in the process you may choose to hire an attorney. I would, however, like to make an offer to you first. This way, should you go to an attorney, you would be able to negotiate with the attorney so his/her fees would only apply to amounts over my offer to you.”

Now, why would Allstate worry about whether a person hires a lawyer, when that person isn’t even their insured. Well, in Allstate’s “Unrepresented Segment Training Manual” (p 15-30) they tell their adjusters that when an injured person retains a lawyer, it more than doubles the recovery.

I don’t want to overload information on studies and statistics, so just one more. In 2003, the insurance industry’s chief research organization (IRC) outlined that the vast majority of insurance dollars that are paid out on bodily injury claims, are paid to people who retain lawyers for those claims. (79% of all payouts).

Insurance companies are in business to make money. That’s why Cigna denied a liver transplant for a dying teenager because they deemed the procedure “experimental”. Progressive sent investigators to pose as potential member at a church Bible study, to secretly tape a claimant’s conversation.   

It’s a jungle out there!

And now, a newspaper correction as our pic 0’day

How Bout A Little Help

 

     This video from YouTube reminded me of insurance adjusters. Recently, I have been told by some new clients, that they received a phone call from adjusters, the day of the accident, or the day after; to let my clients know that they wanted to resolve their case. The adjuster said that they would be willing to come right out and pay them $500, if they would just sign a release.

     Many times, I will hear that adjusters say that they will pay their medical bills and that there is no need for that person to call a lawyer. To date, I have never heard of an adjuster who was willing to put in writing that “You’re not at fault and we will pay all your medical bills that are related to this crash.

     It reminds me of the claim I handled, a few years ago. The adjuster said that they were at fault and were willing to settle the case. As soon as I sent the settlement package with medical bills that exceeded 20K, the adjuster advised that they were no longer accepting liability.

      Like this “help” on the soccer field, sometimes it’s just better to not receive the help.  A good Friday reminder!

Just A Multiplier

     Some of my negotiations with adjusters get a bit annoying. OK, “many” get annoying. I will submit a settlement package and then wait a couple of weeks. Soon, the old “I need more information” call comes back. Then, the information requested appears only to be a delay tactic.

     I understand the potential of delay in the world of negotiation. I am told that the Japanese are some of the greatest negotiators on earth. Part of their success is simply waiting out the other side. I have heard it called “Negotiating the terms of negotiation”.

     Dealing with insurance companies does not always mean that there is a real purpose to the evaluation and negotiation. When I finally receive the initial offer, many times it will be just a little bit above the medical bills. Once again, I accept the concept of getting “the ball rolling”.

      Whenever I get an offer that is within range or even if it appears a bit insulting, I ask the adjuster how they arrived at that number. Sometimes, I do get some good answers that cause me to try to get more information to that adjuster to consider.

      Many insurance companies are strictly based on numbers and computer programs. In this way, they are able to hire college graduates who have little training in claims and evaluations. Then, when the settlement packages are sent to them, they simply fill in the numbers and the computer tells them what to offer. Based on their silence to “why did you offer that?”, I’m guessing that there is little training on the “Why”.

      The real purpose of this blog is to post the following presentation called “Numbers at Work”. It comes from the website Ted.com. You might be surprised by all the presentations that you find there, if you have never been to the site.

      This blog posted presentation is dubbed “Mathemagic”, because of the amazing mathematical feats that are performed. It is a reminder of how numbers can really have a purpose. Well, I hope you will click on it and watch. It’s about 10 minutes long.

      Maybe, the adjusters that read this blog will incorporate some of the multiplication on my client’s settlement packages! Well, I can dream, can’t I?

Recycled Insurance Offers

     Hollywood has its quirks that makes us “outsiders” to tinsel town. For instance, you might see the name of “Alan Smithee” listed as a director of several movies. Yet, Mr Smithee never shows up for an award. This is the old Hollywood director rebellion. If someone is unsatisfied with the finished product or simply does not want their name on the movie as a director, then the union allows them to use the fake “Smithee” name to indicate “I want no credit for this”.

     The above  newspaper picture represents another trick of the Hollywood trade. This newspaper is a prop from a small newspaper prop company called Earl Hays Press of  California. To avoid copyright issues in TV and movies, this paper prop was first printed in the 1960’s. This same paper has been seen in such shows as “Desperate Housewives” and “Married With Children”. In the movie “No Country for Old Men”, Tommy Lee Jones is reportedly reading this paper at a diner. To make the paper look thicker, there is another copy of it sitting on the table.

     If you are interested in more prop news, click on that attachment. It tells you that in this paper, if you look real close, you can see some interesting articles. Above the photo of the young girl with the dark hair, it is captioned, “She’s 3rd Brightest But Hard  ‘Gal’ to See.” On the opposite page from that photo is a story about the “Compromised Housing Bill Sent to President for OK”.

     In years past, I used to develop relationships with insurance adjusters. In fact, it was not uncommon for some carriers to assign one adjuster to handle claims with specific attorneys to “develop working relationships”.  Then, insurance company supervisors decided that their adjuster should not develop relationships and they went out of their way to make sure that an adjuster was not repeatedly assigned to my cases.

     In the past few years, more experienced adjusters have been offered severance packages or have simply retired. In their place, companies hire inexperienced college graduates. Then, they give them software packages and computers and tell them to just offer what the computer says that the case is worth.

     Here is why I call these settlement offers recycled. Most of the time, when we get one of these new or young adjusters on the phone, we ask them why they have extended such a low offer on our settlement packages. Their canned response is usually, “that’s how we have it evaluated”. They don’t even know why, because they are just reading some computer number.

     A recent negotiation brought a special smile. The adjuster extended her offer of some amount, close to the medical bills. Then, when she was asked to explain why the offer was almost exactly the medical bills, there was a discernible sound of paper rattling as she read off what was probably  from her “Adjuster’s response” paper. It was the same recycled answer that we hear from so many.

     Fortunately, when we file suit, these claims are reassigned to “litigation adjusters”.  Such conduct has caused more lawsuits to be filed and given more work for the Clerks of Court where these lawsuits are filed. I suspect that some of these same responses such as “not enough treatment” or “too much treatment” will still be in vogue  for many years to come. 

     Unfortunately, the Hollywood world of the insurance industry is just filled with bad actors and bad scripts. Maybe in the future, they will let us see them on web-cams.  A little adjuster reality series might be good entertainment.

Bottled Water or Just Tap

I was just reading an article on "100 things that Restaurant Staff Should Never Do" and I found myself nodding in agreement on many things. It also made me thankful that I don't own a restaurant. In addition, I found the one "No No" that I listed as the blog title, as an analogy to some of the negotiations that have been taking place, on some of my cases.

I misplaced it to attach but I read an article last week, that gave a bunch of suggestions on how to be more effective. One included calling insurance adjusters on a Friday afternoon, when they are in a good weekend mood, to get more money put on claims. It made me think of the good old days of negotiation.

When I first began practicing law, I thought that building personal relationships with insurance adjusters would be a good idea. Plus, even though we were on opposite sides of the column, in my mind, adversity didn't mean that I had to be adversarial. When I would settle a claim, I would usually go to the insurance company office and pick the check up and introduce myself to the adjuster. In fact, I even regularly played basketball with adjusters from Allstate and State Farm.

I distinctly remembered when it all started to change. A supervisor at Allstate told me that I no longer could come pick up checks. Then, the adjusters that played basketball were told that they had received a memo that they could no longer "associate" with me. Apparently, friendship had no place in negotiation.

On Friday, I was in a mediation. My client had a very reasonable outlook on the worth of his case and suit has not yet been filed. At Nationwide's request, we were mediating. An adjuster and an attorney were here for Nationwide. With that insurance company, they pay their attorneys a salary rather than sending out the defense and pay by the hour. Apparently, they have done a cost analysis. I'm not sure that such analysis includes a consideration of the value of legal work that they are receiving. It seems that these "employee attorneys" never want to call early or late. I have my suspicions on that.

We were far apart on what we would accept and what was being offered. The mediator had said that he was going back to their room to get more money. We waited and waited. Then, the mediator came in and had something in his hand. It was a check made payable to my client. The negotiation had now taken a "here's a check, bet you can't turn it down". Well, we did turn it down. Now, we'll file suit and I bet that we'll get a call in the next couple of weeks with more money being offered. 

I miss the days of good old fashioned negotiation. All the books I read on negotiation have great ideas. Unfortunately, they don't seem applicable to my practice. I guess it has become like selling bottled water or shaming you into "just tap water". Then, again, maybe we should also take to ordering water in a clean glass!

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