Here Are The Most Important Points to Remember During the Initial Work Up of a Case

You just signed a fee agreement with a new client who was in an accident. Now what?

As soon as you get a new case, you should take the following steps:

#1. Make an accurate assessment of your client’s injuries?

The driving force behind any personal injury case is the client’s injury.

If the client has a minor injury, then you should avoid retaining and paying any experts unless absolutely necessary. If your client has a major injury and liability is questionable, you may want to go ahead and retain an accident re-constructionist as soon as possible and have your client evaluated by a medical expert. If your client has a major injury and liability appears very clear, go for it.

Retain your experts early. You cannot, however, make any decisions about how to proceed with your case until you have made an accurate assessment of your client’s injuries.

#2. Do not try to create damages that just aren’t there.?

Gone are the days when insurance adjusters would pay three times the medical bills. Many cases cannot be settled because the medical liens are more than the value of the case.

Do not assume that you are increasing the value of the case simply by having the client’s medical specials increase.

“Over-liening” the case makes it very hard to settle or try.

#3. Determine the liability issues?

Do not over-rely on the traffic collision report when evaluating the liability of the defendant.

I have settled and prevailed at trial on many cases where the TCR put all fault on the plaintiff! Even if the plaintiff is at fault, consider the issue of comparative fault. Assess the defendant’s actions and determine if you think there is a realistic chance of a jury finding negligence in addition to the plaintiff (in which case your client’s damages will be reduced by their comparative fault.

If your client was injured due to a fall, you should very carefully analyze your chance of success. It is not enough that your client slipped; you must know the substance on which your client slipped, how long it had been there, and whether the defendant should have noticed the hazard. If you determine that the accident was likely your client’s fault or there is little likelihood of proving the defendant was negligent, then you should decline to further represent the plaintiff.

You do not need to invest time and money in a case where you will likely not prevail, and you need to provide the client the opportunity to find other representation.

#4. Find out the amount of insurance available for the claim

Every potential claim should be evaluated by the insurance policy available to the defendant.

It is usually very difficult (if not impossible) to collect a judgment against a defendant personally, so the goal is to find out how much insurance is available and improve your chances to get the policy limits or at least the full value of the claim.

You do not have to wait until after the lawsuit is filed to find out how much insurance the defendant has. For an auto accident claim, there are services available which, for a small fee, you can determine the applicable insurance policies and the policy limits.

For a premises case, most defendants will likely have a policy with coverage of at least $500,000.00. For a commercial truck, most defendants will have a $1,000,000 policy.

Oftentimes, the insurance company won’t disclose the limits of insurance. In that case, file immediately and send the defendant form interrogatories as soon as possible.

#5. Analyze your client’s injuries together with liability issues.

Once you know the liability issues with the case and have an understanding of your client’s true injuries, you can determine how to proceed.

If you have a client with a serious injury and the case against the defendant appears to be strong, then you know it is a case in which you can invest your time and money.

Work with your client to make sure they are getting all the medical treatment they need. If this means recommending a physician to examine and/or treat the client on a lien, then you must do it.

Once again, treatment on a lien should be treatment that is necessary, not treatment just to increase the medical specials. You should go ahead and retain a liability expert, such as an accident re-constructionist or safety engineer. At this point, do not have the expert generate a report, as many factors could change before you designate expert witnesses. Instead, talk to the expert and let him tell you his preliminary opinions.

If you have a client with a serious injury but the case against the defendant is weak, then you have to realize that your recovery for the client may not be significant.

You must be very careful with the costs you spend for experts and also with the liens you have the client incur for medical treatment. You should have a very serious discussion with your client and explain that you have concerns about prevailing against the defendant.

These cases can be very difficult to evaluate because you have a client with a serious injury, but if you do not properly evaluate your chance of success early on, you could end up losing a significant amount of money on the case.

If you have a client with a minor injury but the case against the defendant is strong, then there is a very good chance you can settle the case. Again, do not make it more difficult to settle and/or limit your client’s net recovery by having them treated on alien unless it is absolutely necessary. With a minor injury and strong liability, you probably do not need to incur the expense of retaining experts until absolutely necessary.?

#6. Try to settle the case before filing the complaint but do not delay the filing suit.?

My firm’s policy is not to engage in extended pre-litigation settlement discussions.

If you think your client’s case may be settled without the need for litigation, then send a very good settlement demand package to the insurance company that includes all of your client’s medical records and all of your client’s medical specials. This is a collaborative process with the insurance company. An insurer cannot be expected to pay a demand without any documentation from you about your client’s injuries.?

In almost every case, even with a very detailed and well-supported demand letter, the insurer will decline to pay your demand and will instead ask for additional information. Unless special circumstances exist, I do not engage in settlement discussions any further and go ahead and file the complaint. I would much prefer to deal with an experienced defense attorney who knows my track record as opposed to an out-of-state adjuster whose job depends on keeping settlement numbers low.

---

Thanks for reading! This is an excerpt from my book, "Trial Lawyer's Bible" — message me on LinkedIn if you're curious about the full version.