Why You Should Prepare for Trial Even if You Want a Settlement
If you have just been injured due to the negligence of another person, you may feel like your experience has already been quite an ordeal before you even hire an attorney. Perhaps you are simply looking to accept a settlement from the insurance company and move on with your life, rather than engage in a lengthy litigation.
Ultimately, accepting a settlement might be the best course of action—but part of an effective strategy to reach a fair agreement is not to let the insurance company know you intend to settle.
If the case is litigated, the goal of each party in settlement negotiations is to build a case that presents a greater risk for the other side at trial. For the injured party, the decision to settle a claim may be based on monetary interests and personal concerns—but an insurance company’s motivation for settling a claim or moving forward to trial is based purely on money.
The best way to settle a case is to have a lawyer who is willing to take the case to trial. Here’s why.
Insurance companies only settle claims to limit their potential payout at trial.
As cynical as it may sound, insurance companies do not pay out settlements because they feel a moral obligation or a genuine desire to compensate you for your pain and trouble. The insurance company’s main goal is to pay the least amount of money possible. A trial involves financial risk for both parties. The more effectively you can convince an insurance company that they will have a higher chance of losing at trial, the better your settlement will be.
Furthermore, insurance companies are equally engaged in this game of posturing. If they are not concerned about their potential payout at trial (because they have no reason to believe there might be a trial), then they may not make any settlement offer or offer only a very minimal amount.
Cross-examination of the insurance company’s medical experts in a deposition weakens the strength of their case at trial.
The medical experts hired by the insurance company almost always come from the same group of experts that the insurance company hires over and over again. These doctors testify over and over again for insurance companies, often suggesting that the injured person wasn’t hurt that badly. Their opinions usually minimize the extent of your injury, attribute the cause of your injury to a past medical condition, or testify that the injured person is faking their symptoms (i.e., “malingering”).
During a deposition conducted prior to a trial, your attorney can attempt to minimize the strength of these arguments or call into question the credibility of the expert witness by asking carefully crafted questions. Most of these inquiries will require a “yes” or “no” answer and do not provide an opportunity for the expert witness to give open-ended replies or narrative statements. A line of questioning on cross-examination will be designed to solicit responses that demonstrate:
- The expert witness is frequently retained by this insurance company in personal injury lawsuits.
- The expert witness disproportionately testifies for defendants rather than plaintiffs.
- A significant portion of the expert’s medical practice is made up of independent medical examinations or medical record reviews conducted at the request of defense counsel in preparation of litigation.
- The expert witness did not review all relevant medical records when forming their conclusions about the cause and extent of the plaintiff’s injuries.
- The expert witness’s testimony during the deposition (either on direct examination or cross-examination) contradicts their written report.
These are just some examples of beneficial information that can be revealed on cross-examination during a deposition.
The medical experts hired by insurance companies are often not just experts in their field of medicine but also have become experts at personal injury litigation. Insurance companies do not retain the same experts over and over again if those experts are not skilled at avoiding compromising testimony. Although the facts of each case may change, the routine of how each case is handled can be very similar. Therefore, it is imperative to hire a skilled attorney who can think a few steps ahead of the other players in the game and ask questions on cross-examination that the expert either does not anticipate or cannot answer in a light favorable to the insurance company.
Obtaining a medical causation opinion, prepared in anticipation of litigation, allows your medical expert to review the opinions rendered by the insurance company’s experts and refute their conclusions.
Even if you do not wish to go to trial and plan to settle your claim, it is often vital to obtain your own expert opinion as to the extent and cause of your injuries. If the insurance company is the only party with a medical expert, they are in a superior position, as it is the plaintiff’s burden to prove their case at a trial.
As mentioned above, the insurance company’s only reason to settle a claim is to limit their risk of a greater potential payout if they are not successful at trial. If they have evidence in support of their defense, but you do not have substantial evidence in the form of an expert opinion, the insurance company will be confident that you will be unable to prove your burden at trial and they may not offer a settlement at all. Alternatively, they may offer a minimal amount, far below what your claim is reasonably worth.
Obtaining a report from a medical expert can not only put you on equal footing with the insurance company but also minimize the credibility and strength of their evidence. A common defense for insurance companies in personal injury cases is that your injury was not caused by the accident at issue but from some past medical condition. A strong expert witness will be able to explain clearly to a non-medical professional, like a judge or jury member, that the characteristics of your injury and details of your symptoms (including the timing of the onset of your symptoms) could not have been caused by any event other than the accident at issue.
Take for example an injury to the lower back:
The insurance company might argue that your lower back injury was not the result of the accident at issue, but rather is the result of years of “wear and tear,” citing a brief history of your complaints of minor back pain in your past medical records. Your argument is, of course, that your symptoms were nothing like how they were immediately after the accident and that during the accident you heard a loud “pop” and immediately felt extreme pain. You are certain that the accident caused injury to your back but concede that every once in a while you experienced tension in your lower back in the past.
You then obtain a medical expert who examines you and reviews all of your medical records, including imaging reports of your lower back. In their written report, which is sent to defense counsel, and again during their deposition, your medical expert makes the clear and compelling point that injuries caused over the course of time compared to injuries caused by an “acute” event or a one-time injury can be distinguished in imaging reports. They analogize that a smashed bumper does not happen over time and rust does not appear after a one-car accident.
An opinion such as this, one that only a medical expert could effectively and credibly communicate, could make your case. It would also certainly motivate the insurance company to offer a more generous settlement.
Preparing for a trial lets your opponent know that you have the fortitude to litigate the case (even if you do not plan to) and will not be intimidated by them.
Perhaps most importantly, taking certain steps to prepare for the possibility of a trial sends a message to the insurance company—you are not a weak or unsavvy plaintiff. You understand that your claim is worth more than what they are offering (which could be nothing) and you are ready to begin litigation of a claim that they may lose, potentially costing the insurance company a significant amount of money.
If you want peace, prepare for war—and the other guy will leave you alone. If you want to settle the case, then hire a lawyer who will prepare for trial—and the insurance company is much more likely to put money on the table.