The majority of my clients are first time litigants:
- It’s their first time retaining a personal injury lawyer; or retaining a lawyer at all
- It’s their first time suing
- It’s their first experience with the legal system
- It’s their first time getting really hurt and needing to do something about it from a legal perspective
- It’s their first time getting denied by an insurance company
- It’s their first time feeling gaslit by an insurance company
- It’s their first time participating in sworn statements, an examination for discovery, medico-legal assessments, mediation, having surveillance conducted on them, Pre-Trial, Trial and all of the other things which go hand in hand with personal injury cases
The parties which my clients sue or seek benefits from are large and sophisticated insurance companies. This is not their first rodeo. They are well versed in the dark arts of litigation. Strategically defending lawsuits is what they do well.
Insurance companies know what they are up against. They are facing off against for the most part, unsophisticated accident victims who are hurt or injured. The Plaintiffs are new to litigation and all of the ups and downs which it presents. Insurance companies know how to say the right things because they have experience. Having their lawyers say “healing words” to appease a Plaintiff; or say all the right things to gloss over a terrible sequence of events is less expensive than paying out an award for damages.
An apology costs n0thing. Stating condolences for the loss of a loved one costs nothing as well.
But paying out of a claim costs the price of said claim.
There is a quantifiable economic difference between the two which insurance companies and their lawyers know all too well. Why pay out on a claim when you don’t have to? Why pay more on a case when you don’t have to? It makes financial sense. If an insurance company either liked your claim, or wanted to get you the compensation you deserve; you would have received that compensation by now.
Most personal injury claimants go into the process naïve. They think that an insurance company will treat them fairly. In particular, they believe that if they are fighting against their own insurance company which is the case with accident benefit claims and with uninsured motorist claims; that their own insurer will treat them well. And if they don’t then they will have their “day in Court” in a reasonable period of time with an engaged Judge and an attentive jury. The case will all play out in a matter of hours or a day or two just like we see on television (Law & Order or Judge Judy).
This is far from reality.
It can take years from when a Statement of Claim is issued until the case hits an actual trial. How many years? It’s hard to estimate these days given that the civil justice system was already backlogged pre-COVID, and those backlogs have been further exacerbated due to court closures caused by COVID. Any estimates on length of time needed to get a case to trial needs to be increased due to these backlogs.
What I have found is that the majority of Plaintiffs are scared and intimidated by the litigation process. This is completely normal in the circumstances and given their lack of experience with the legal system and how these cases work. I have also seen that the overwhelming majority of Plaintiffs are kind and polite with their insurer and with the lawyer who represents the Defendant/insurer. I have always wondered why that was the case.
Certainly a Plaintiff wants to come off as credible and likeable. These two traits, credibility and likeability go a long way with insurers, Judges and Juries. All three do not want to award money to someone who they deem to lack credibility and who are unlikeable.
Yet at the same time as the Plaintiff is playing nice, the insurer across the table is trying to defeat that same nice Plaintiff’s claim every step of the way. They are trying to create a narrative by omitting certain facts which minimize their risk and drawing conclusions which aren’t necessarily reality or truthful. To do this an insurer will hire medico-legal experts who prepare one sided and skewed reports. They will hire private investigators to follow around a Plaintiff for days. Every movement that the Plaintiff makes will be held against him/her. The amount of times I’ve seen surveillance reports of a Plaintiff going grocery shopping for everyday goods is astounding. The conclusions drawn by insurers that simply because a Plaintiff has gone grocery shopping that they are no longer injured or disabled is remarkable. It’s as if a Plaintiff is criticized for simply breathing.
On the topic of simply breathing there is another common defense tactic. Once the Plaintiff dies, the case dies with him/her. While this is not entirely true, there are strategic benefits for the Defense in the event of an untimely death to a Plaintiff. The damages are limited from the date of loss to the date of death. There are no more future care claims, no more future attendant care or housekeeping/home maintenance claims, no more future income loss claims. Damages for pain and suffering are assessed from the date of loss until the date of death. They would be assessed at a lower amount for a dead Plaintiff as opposed to a living one. An untimely death to a Plaintiff, even if related to the accident itself presents an advantage to a Defendant by minimizing their potential exposure.
Have an elderly Plaintiff on a case? Drag out the case long enough and maybe something bad will happen. A medical condition unrelated to the accident? A bad old person slip and fall resulting in a broken hip? Or perhaps an untimely death. All present strategic advantages to Defendants which Plaintiffs don’t think about or understand until properly explained to them.
Does that mean of this is fair? Who said that litigation was fair? Plaintiffs need to appreciate that litigation while civil, isn’t nice. Nor can they assume that the party will play nice either. They will do what’s best for them to the detriment of a Plaintiff’s claim.