Somewhere between 90 and 95 percent of all personal injury cases ultimately settle prior to verdict. This sounds efficient, but getting to that point is a long and arduous process that can take many years and cost a significant amount of money.
Unlike when I began practicing personal injury law in the early 1990s, insurance companies no longer settle easily; instead, they have recognized that they can save money by hiring relative new attorneys who need trial experience, and going to trial on seemingly “open and shut” cases. Time delay works to the advantage of the insurer. Their invested money continues to grow in value the longer it takes to resolve a case. Time delay is also advantageous to them because plaintiffs can have faulty memories, become ill, die, and their attorneys, who are paid only upon resolution of the case and who advance all costs of litigation, often can be “starved” into submission by protracted litigation.
Originally, I began writing about my own automobile collision case over two years ago, in the Spring of 2012, right after it occurred. I brought my first-hand sensation of the frightening and painful experience of being involved in a serious car crash and discussed my injuries and how they affected my life. Later, I delved into my medical treatment, and walked through the initial claims process. In the most recent post, in Fall 2013, I brought you, the reader, right up to the dénouement. Yet there was more story to be written.
Past is Prologue—Bring Yourself Up-To-Date
(If you are looking to refresh your memory, here are the links to the series of posts: There's Been an Accident, (https://www.hofflawyer.com/general/theres-been-an-accident), Aftermath of the Accident, (https://www.hofflawyer.com/general/crash-aftermath), and What's Taking So Long ( https://www.hofflawyer.com/general/whats-taking-so-longcontinued), and Still So Long, Still So Long...Continued... » Law Office of Stephen L. Hoffman LLC).
Yet here I am blogging in May of 2014 about a car crash that happened March 1, 2012. What DID take so long and what finally HAPPENED?
Submit All Materials…And Get Ignored
Once I completed my medical treatment and obtained all medical records and bills, I submitted this “demand package” to the claims adjuster in late August of 2013. I called the adjuster or he called me to discuss the claim regularly. This particular insurance carrier tries to lull claimants to sleep. Essentially, they dare you to fail to file a lawsuit within the statute of limitations, the failure of which is fatal to the case. In my situation, I anticipated this and filed suit well before the two year limit that applied.
Often, the initiation of a lawsuit gets things moving toward settlement. Not here, however. Even though I did everything I could to cajole him to talk to me, once the suit was filed, I was ignored. That’s right, I was ignored just like every other claimant who does not retain a lawyer.
Once a lawsuit is commenced, a summons is placed with the Sheriff of the county where the defendant resides. The Sheriff served the lady who hit me, and eventually the staff attorneys for her insurance carrier filed an appearance to represent her in court.
I have referred to the insurance company throughout this, but the lawsuit names the person who hit me as defendant. For injuries in Illinois, you sue the person, not the insurance company.
That means she may have gone through the last few years hearing nothing from her insurer, only to have the Sheriff knock on her door to serve a lawsuit. Once she was served, these papers were submitted to her insurer, who assigned lawyers to represent her. But there still is a personal shock value to being insured, thinking everything will be taken care of, and then getting served.
The Long Slog of Discovery
The next step of litigation is what is known as the discovery process. Discovery (Interrogatories, Requests For Production) begins in written form. Each sides asks questions of the other and both sides answer questions and produce documents. This prepares both parties for the next step, which is oral discovery, known as depositions. Written discovery is time-consuming, tedious, and requires exacting detail.
Deposition dates were scheduled in May for both mine to be taken by the other lawyer, and for me to take the defendant driver’s deposition.
Even on a simple case, discovery can take months, and complex cases can take years just in this stage of the case.
Mediation-The Beginning of the End
Amidst all this, I received a call in late March from an alternative dispute agency. The defendant’s carrier had identified a number of cases that could settle. Mediation often utilizes a retired judge to help the parties reach agreement.
Normally, this is an expensive process, as I have had good luck with this particular service, using binding arbitration hearings, non-binding mediations, or other methods, resolving cases, but it is costly. Both parties pay the costs for the retired judge, as well as administrative time, and the like. Costs can easily exceed $1,000.00 per party for a few hours of meeting and review.
In my case, I was informed that the insurer was willing to pay all costs for a non-binding mediation, meaning if we did not reach a settlement, the case would continue toward a trial. A neutral mediator evaluates the case and tries to convince both parties to arrive at a settlement that is fair to all.
It was a good chance to resolve the matter. I knew the judge to whom it was assigned, having appeared before him dozens of times prior to his retirement. He was fair, intelligent, and unflappable as a judge, meaning he would be perfect to conduct a mediation.
Each party could submit a brief packet of materials for the judge to review. I submitted photographs of my injuries, highly condensed, but detailed medical reports, and an itemized list of medical bills. The other driver had plead guilty to the offense of failing to yield while turning left. A guilty plea acts as an admission in civil court, meaning the sole focus of the mediation was the value of the case.
It’s Over, It’s Over, It’s All Over
The mediation session only lasted about 45 minutes, with the participants communicating through the mediator their demands, offers, counter-offers, and counter-demands, a card game with an unseen opponent.
In the end, we began far apart, yet inched closer and closer, neither side blinking. Once they passed a threshold I had aimed for as a fair settlement, we kept at it, me trying to squeeze a bit more money, them trying to hold on to it. Ultimately, we reached what I felt was a fair figure. It had taken dozens of hours of work, hundreds of dollars in costs, and two years and two months, but we settled the case.
Next in the process will be for me to sign the Release, wait for the settlement check, and pay off balances due for any medical providers who were not paid in full. Since medical payments coverage from my auto carrier paid much of my medical expenses, I must negotiate with them to reduce the amount I am obligated to repay.
As in most cases involving serious injuries, I am not the same and never will be. My neck simply does not turn to the left easily, making cycling and driving challenging. The pain simply has never gone away completely, nor has the range of motion returned to normal. My right hand is back to normal, but my low back goes out more frequently than before, and that is with ridiculous amounts of stretching, core exercises, and even occasional medication.
However, I go on with my life, not an invalid, not unable to enjoy life. In the end, while it took far longer than it should have, I was compensated fairly for my pain and life continues. While I do not wish to go through that again, my personal experience has surely made me more attuned to the stress, confusion, anger, frustration, and pain my clients experience. Perhaps it has even made me a better lawyer.