Okay, Fine—Prove It!

The general public often gathers a skewed view of how injury cases are resolved. The cases that make the news always involve the extreme verdict or settlement; the famous (and wrongly reported as “excessive”) McDonald’s hot coffee case, and a multitude of criminal cases where seemingly overwhelming evidence does not lead to the verdict the press has led people to expect.

Some of this is simply because boring cases are boring to read about. The extremes, the oddball facts, the cases involving huge amounts of money, or sex, or drugs tend to occupy most of the press’s and public’s attention.

What gets lost is that many cases are not extreme at all. Most of the civil, personal injury cases I handle involve ordinary people with ordinary (though not necessarily minor) injuries. Additionally, because they involve real people and real life, they are “messy,” from a lawyer’s perspective.

Real Life is Messy

In a perfect world, my injured clients would never have experienced any injuries or medical treatment prior to that incident. They would be blameless and the other party would be 100% at fault.

However, reality is almost never so simple or neat.

Liability is not cut and dried in many cases, or, insurance companies and defense lawyers spin “plausible” reasons that the plaintiff is partially responsible (which reduces damage awards if that partial responsibility is over 50%).

Nearly every adult has been to a doctor, chiropractor, or other health practitioner for some reason at some time prior to their car crash, slip and fall, or other injury. Defense lawyers and insurance companies feast on this history in attempts to deny that their insureds are fully responsible for what happened.

Minor Impact

Yet another way to distract or deny responsibility is to claim the car crash was a “minor impact.” It doesn’t necessarily follow that minimal damage to a vehicle means that there was minimal injury to its occupant. Ideally, a biomechanical expert for the defense would be able to demonstrate that a lack of vehicle damage means a lack of physical injury. However, that is almost impossible to do with any recognized scientific method. Still, many defendants seize on this tactic to further confuse matters in a vehicle injury case. Doing so forces the plaintiff to either take short money in settlement, spend big money on their own expert, and/or risk it all at trial.

That All Happened in K’s Case

My client, K, was rear ended in May of 2018. While she had been seeing a chiropractor for back problems before this, and also had a minor history of some migraines, she was able to work full-time as a dental assistant without incident. Following the crash, she spiraled into headaches, neck pain, back pain, and other issues. She saw multiple doctors and no one could quite diagnose her accurately. She began missing days of work. She sought many different treatments, including injections into her neck and shoulders. While this brought some relief, she never completely got rid of pain or headaches.

Attempts to settle her case went nowhere (we did not even get a response to our demand), so I filed a lawsuit in 2019.

Three long years went by as we ground through the legal system. One of my prior blog posts walked through the legal process of these types of cases. It is a long process that begins with filing the lawsuit. Next comes serving the defendant. Then, the defendant gets a chance to respond. Once the parties are “at issue,” written discovery (written questions answered under oath) begins, which gives rise to oral discovery (depositions) of parties, then doctors, and finally, expert witnesses. This process can take several years even on relatively straightforward cases. Anyone who thinks people file personal injury lawsuits to make “easy money” has never been through the process.

The pandemic has slowed things more, with courts not hearing cases in person and a backlog of trials. In short, anything less than a “written in stone” trial date is unlikely to force an insurance carrier to offer decent money on a case; the longer they can “delay, deny, and don’t pay,” to quote the motto of a long-time Chicago defense firm, the better it is for them, their insured, and their client.

In K’s case, she had the confluence of prior medical history, a relatively light impact, and less-than-straightforward diagnoses and treatment—a field day for the defense.

Trial Preparation Forces Settlement

Once we finally were assigned a trial date in July, 2022 (it was assigned in November 2021), we began negotiating. But no realistic offer was extended.

I began preparing for trial. I sent a notice of a video evidence deposition of K’s “main” treating physician. This would be used as if that doctor testified live in court. The other side sent a notice of the video evidence deposition of its medical expert (who opined in his discovery deposition that none of K’s injuries were caused by the crash). I prepared jury instructions and emailed them to my opposing counsel. I prepared motions in limine (literally, “on the threshold:” motions to allow or disallow certain evidence or arguments at trial) and shared them with my opponent.

This led to my phone and email blowing up shortly thereafter. Finally, the offers being made were realistic. I continued to inform K of each development, while simultaneously negotiating with her medical providers to reduce their liens and unpaid bills. My aim was to put as much money into K’s pocket as possible.

Finally, we received an offer that made settlement the best option. At this writing, we only have to finalize the paperwork, dismiss the case, and all will be done.

No case is perfect, no client is perfect, and there is no perfect way to “get to yes.” Knowing the strengths and weaknesses of a case is one major way to do that. I’m glad it worked out in K’s case.

Takeaways

• Lawsuits involve real people with real injuries, real life medical histories, and real roadblocks to success
• Understanding the potential shortcomings of a case at the onset helps keep expectations realistic
• Settlement often only comes with the pressure of a trial date and significant preparation

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury and potential liability, if you have been hit by a vehicle, immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front; and he only gets paid if you do. Don’t wait another day; contact Stephen now.