CHAPTER 4
HOW LONG DOES A PERSONAL INJURY CASE TAKE TO SETTLE?
Your modest personal injury case can usually settle within 60 days of your being released from medical treatment. If you treat for two months from the time of your accident, you will probably have your case resolved in a total of four months. If you have massive damages that require litigation to resolve the matter, you are looking at one or two years.
The resolution options are straightforward. You file a claim and then follow up with documentation concerning medical bills, lost wages, photographs of the vehicles and injuries. You then engage in settlement discussions to try and come to an agreement. Most small cases settle here. Sometimes a large case will also settle here, but that is rare. This is many times the plaintiff’s best day because attorney fees are at a minimum and expenses are virtually nonexistent. Not to mention the client is immediately compensated and avoids the emotional stress from litigation and countless delays. If an agreement cannot be reached then suit is filed. Both sides go to war.
During the course of discovery sometimes things look much worse for one side or the other and a settlement may be agreed to early on. Absent some dramatic reveal, the case will be mediated as trial draws near. It will take 6 months to 2 years to get there. If mediation fails then at the third trial setting after waiting for as much as 2 years you go to trial and get a verdict. Once the verdict is entered you may get the case resolved. Otherwise one side or the other files an appeal and the case languishes in appellate hell for an additional one to 2 years. If the court affirms your verdict then you get paid the actual amount on the judgement. If the case is reversed then you are back at square one waiting for your second jury trial. So why do defendants settle if they can engage in this kind of delay? The process is not free. Defendants are paying $600 an hour for defense lawyers to try and or appeal the lawsuit. It makes better economic sense for them to settle if the plaintiff is reasonable.
Our longest civil case lasted five years. At the end of five years the defendants settled with us for one million dollars. The defense costs were one million dollars. They could have settled early on and saved a million dollars in defense costs. That is why it makes economic sense for the defense to settle early on in many situations.
Many clients ask, “Will I do better if I try my case?” That is one of the most difficult questions. There is no easy answer. I turned down $5,000 on one case and a jury awarded $500,000. In another case I was offered $250,000 and did everything possible to convince my client to accept the offer. Long story short, he refused the offer and eventually got nothing. Trial is a throw of the dice. No one can ever guarantee you will get a better result at trial. Any lawyer who would be reckless enough to guarantee a result from a jury trial is either inexperienced or not very bright.
One of the most powerful tools available to a victim is the Stowers’ Demand. A carrier owes their insured a duty of good faith. If a carrier has an opportunity to settle a case for their insurance limits, liability is clear, and the damages are well beyond their policy limits, they owe a duty to their insured to settle the case. If they refuse and the plaintiff gets a verdict above the insurance policy limits, then the defendant can sue his own insurance company for pushing him into bankruptcy for no good reason.
We send the Stowers Demand and give the carrier 30 days to tender their limits. We inform them, in writing, that this will be the only opportunity to settle for limits. If they refuse, we will try the case to verdict. In the event of an excess verdict, we will then sue them for the excess amount they unreasonably cost their insured. All the facts have to line up perfectly or there is no real threat. When the facts do line up, they will tender their limits in 30 days.
If the case requires a jury trial then it will take one to two years to get to trial in Texas. The US Justice Department shows the national average of civil cases tried to be 4%. The vast majority of cases will settle at mediation. I have published a book dealing exclusively with mediation titled “Mediation In A Personal Injury Case.” I invite you to obtain a free copy on our website at Hamptonandrawlings.com. It goes into great detail as to what mediation is and how to prepare.
CHAPTER 5
DAMAGES THAT YOU CAN RECOVER IN A PERSONAL INJURY CASE
For a personal injury case, you may recover medical expenses (past and future), lost wages (past and future), pain and suffering, mental anguish, disfigurement, and disability. Each case is determined by its own unique facts. For a wrongful death case, spouses, children, and parents can recover for loss of consortium, loss of inheritance, loss of support, and loss of household services. For survival actions, the deceased’s estate recovers funeral expenses, medical expenses, and conscious pain and suffering experienced by the deceased while dying.
It is important to note if the plaintiff suffers an immediate death then there is no recovery for conscious pain and suffering as there was none. Death was instant. The same result occurs if the plaintiff is knocked unconscious and then dies before regaining consciousness.
How Is the Worth Of A Personal Injury Case Determined?
The evaluation of the worth of a personal injury claim is very subjective. The first thing to compute is what are called hard damage, the economic loss that is able to be calculated. Other damages are called soft damages, because they cannot easily be reduced to a hard number.
There are companies that have stored all the jury verdicts going back for years. In order to find a value, you search the database for all verdicts with facts similar to your case. After acquiring 20 verdicts from the past few years, you throw out the lowest and the highest awards. You then average the remaining 18 verdicts and you now have a rough idea how your case will play out in front of a Texas jury.
My experience says case value is determined by the law and the facts surrounding each individual case. If you are demanding a ridiculous amount of money for a case, threatening litigation will not move the needle at all. They will invite you to file so they can crush you in front of a jury of your peers.
How Will A Carrier Try To Get Out Of Paying?
An insurance adjuster will use every trick in the book to avoid paying. They will insist that the plaintiff was at fault, or is not truly injured. They will drag out ancient injuries or criminal records to cast doubt on the injured party’s credibility. They will hire corrupt doctors who will say the Plaintiff is not really hurt or the incident did not cause the injuries claimed. They will truly do anything it takes to avoid payment. When all else fails they try to interpret events in such a way that they can deny coverage and refuse to pay anything regardless of the facts and injuries.
A few real case examples should let the reader understand what is at stake. We had a case where a young lady was thrown from a golf cart and struck her head on the pavement causing permanent brain damage. Her medical ran over $100,000. The homeowners insurance carriers all denied coverage claiming homeowners insurance is exempt from an auto accident. Yes, a golf cart does have a motor, but under the definitions in the insurance contracts, it is a recreational vehicle and the exemption does not apply. Their auto policies supplied a total of $90,000 in coverage but the homeowners policies totaled $1,500,000 in coverage. We were able to defeat their denial of coverage and settled north of one million dollars.
An 18-wheeler struck and killed our client on a freeway at night. Our client’s rear emergency lights were flashing red the entire time up to the moment of impact. He left a wife and nine children all under the age of 18. The insurance carrier hired an expert accident reconstruction team to fashion a defense. They drove the freeway at night while filming red tail lights on the freeway. The film that we were provided was very dark and the lights were hard to see. They claimed their driver could not see tail lights under these conditions.
Through discovery, we obtained several hours of video from the defense that included all footage from their reconstruction team. I sat through six hours of video and found the original footage where the lights appeared bright and easily seen. After filming this, the so-called experts pulled off the road, put a dark filter on the camera to obscure everything and then redid the filming. I heard one of them, off camera, exclaim, “that’s much better!” I then heard several of them actually chuckle. We were originally provided only the altered footage. They tried to do this to a widow with nine minor children. We obtained enough funds to put mom in a six bedroom home and all nine children received college funds. Do you see how important evidence is when millions are at stake?
We represented a man who had his foot crushed when it got caught under the augur of a post hole digger. The employer denied knowing who the man was and the carrier offered zero claiming our client was a fraud. I hired the chief of police from a nearby small town to investigate the case (not wanting to be involved in a fraud). He went to the employer in his police uniform carrying a clipboard and demanded to know the whereabouts of Mr. Garcia (not his real name). The officer was wired the entire time.
We heard the employer ask if Mr. Garcia was wanted for a crime. The officer said he could not give out that information but he was looking for him. The employer retrieved Mr. Garcia’s employee file and gave the officer his address. He also volunteered that the guy had faked an injury so they hoped he would be deported so they would not have to pay. At the mediation I let defense counsel go first. He lectured us about honesty and excoriated us for trying to perpetuate a fraud. “The employer had never even heard of Mr. Garcia,” insisted defense counsel.
I winked at the mediator and said, “I am going to waive my opening argument and just play this tape of the employer.” The defense lawyer came apart like a cheap suit. Seeing definitively that the employer was a lying fraud trying to cheat an honest man, they instantly tendered their policy limits. In private the mediator confided that was one of the best times he ever had at a mediation. I do not want to give the impression that all adjusters and defense lawyers are a bunch of liars. Most are ethical and play by the rules. After 39 years in litigation, I unfortunately have way too many anecdotes like this.