A client without legal representation may not have a David v. Goliath outcome
At a recent New Lawyer’s Roundtable CAALA event I attended, I was pleased to see several young plaintiffs’ attorneys who recently took the bold step of opening their own practice. I made the same decision just over one year ago. Attending the New Lawyer’s Roundtable discussion and being in the company of peers just beginning the journey of achieving justice for clients brought a sense of perspective and collegiality.
For the benefit of my colleagues who are just joining this pursuit or considering it, I share five important lessons I learned in my first year as a personal injury lawyer.
Insurance companies do not treat unrepresented people fairly
As a law student, I recall how many of the cases we studied in torts class had similar fact patterns: Corporate interests concerned with their own bottom line were taking advantage of the little guy every day. I didn’t really believe this kind of malfeasance actually happened in real life. Then I got my first case.
A friend of mine seated next to me at a Bar Mitzvah told me how a few months prior, he had been stopped in traffic, when a distracted driver rear-ended him at 55 miles per hour. He had been in excruciating pain, his car was totaled, he missed several weeks of work, and the insurance company offered him $600. You read that right – $600.
I took my friend’s case. The insurance company tried low-balling me like they did to him. The adjuster told me he couldn’t increase his offer. No problem I said. We’d let a jury do that for him. Just prior to filing suit, the adjuster more than doubled his “last best and final” offer to me. The client was thrilled when I called him to tell him he’d be walking away with many thousands of dollars more than the adjuster previously offered him.
The takeaway here is that insurance companies do not treat people fairly – especially if they are unrepresented. Some of my clients over the past year approached my office after receiving inadequate offers or no offers at all from the adverse insurance companies. In each of these cases, it was apparent that the insurance carrier would try and take advantage of unrepresented parties by pressuring them to accept ridiculous settlement offers. The carriers will do it in every case if they can, and it’s our job to stop them.
Keep this in mind the next time you accept a new case. Do not be afraid to “go to the mat” when you’re faced with an unreasonable adjuster. You can and should research jury verdicts for similar facts and injuries. Present this evidence during negotiations, and make the adjuster believe that you’re offering real settlement value to the carrier. If the adjuster still won’t budge, you can try what I did – make one final offer with the resolute commitment to file suit promptly if your demands are not met. You might be pleasantly surprised when the adjuster increases his last offer, as I was in my case.
Remember that the adjuster is just one cog in the insurance company machine. Be firm and tenacious, advocate on behalf of your client – and always treat the adjuster with respect. He or she may deride your case or your client, but never stoop to his or her level if the name-calling begins. Be a professional and reach out to a mentor if you’re at a standstill. The client hired you to resolve the claim, not exacerbate it by fighting with the adjuster.
I always tell my clients and friends that they should not expect to be treated fairly by insurance companies. Sadly, not everybody learns this message in time, which leads me to Lesson #2.
Some clients think lesson number one doesn’t apply to them
With Lesson #1 in mind, it’s hard to understand why so many people negotiate with insurance companies on their own, and then are surprised when they get ridiculous settlement offers or no offers at all. I’ve learned that many people just don’t understand how insurance companies operate. Some of our clients may be unsophisticated – others may think they’re being smart by handling their cases solo so they won’t have to share their settlement with a “greedy” lawyer. Whatever the case, some people certainly never learned or internalized Lesson #1.
Several times over the past year, clients have contacted my office after attempting to settle their cases on their own. Adjusters can be very persuasive – they’ll ask clients how badly they were injured and will express genuine “concern” for their health after an accident. The act can be very convincing, and unfortunately too many people fall for it. I tell as many people as possible to keep Lesson #1 in mind – but sometimes it’s too late.
I can’t say that I’ve seen it all, but I can say that I’ve seen enough to know that unrepresented clients often do significant damage to their cases. One client set up a Starbucks meeting with an adjuster so they could meet in person for the adjuster to “evaluate” his injuries. This client contacted me after the adjuster denied his claim. I gently explained to the furious client that had he contacted my office before the coffee date, his case might have yielded a more favorable result.
Some people just don’t understand that it’s the adjuster’s job to minimize or reduce their claim. Part of my job as a plaintiff’s lawyer is to educate clients on how the insurance system works. To do this, I’ve made it a point to tell everyone I can that if they are hurt, they should contact a lawyer before talking to the insurance adjuster. Nevertheless, this goal is not always successful because many people damage their cases beyond repair by negotiating with insurance companies on their own.
You will definitely be faced with this scenario at some point in your career, if you haven’t already. During the initial consultation, be sure that you collect as much information from the client – including whether or not he or she already made contact with the adverse carrier.
One of my early cases involved a client who tripped and fell in her neighbor’s backyard, breaking her shoulder in the process. After accepting the case, I learned that the casualty insurer had already taken my client’s recorded statement, during which my client admitted that she had visited the property many times in the past, and always tried to avoid the dangerous condition on which she tripped. Although I was eventually able to resolve the claim to the client’s satisfaction, there’s no question that the client’s recorded statement to the carrier triggered comparative-fault issues and decreased the overall case value.
Should you accept a case in which it appears the client may have already done significant damage? It may be difficult as a new attorney to turn away business, but ask yourself if you will be able to overcome the problems inherent in this situation. Does the client seem like an easy person to deal with? Does he or she comprehend the damage that may have been caused to the case?
Keep the client’s expectations reasonable – it is not unheard of for clients to regret hiring lawyers after it becomes apparent that the lawyer cannot elicit a more reasonable offer from the carrier. Always trust your gut in this situation, and do not hesitate to reach out to a mentor to evaluate your options in this scenario.
I’ve learned to take a deep breath and move on when determining that the client has damaged a potential case beyond repair. Negligence will not magically disappear from the face of the earth. When I first started my practice, one of my mentors told me that there will always be another case – and there will be for you, too.
Most clients just want to be treated fairly
Our culture has maligned personal injury lawyers and their clients as greedy liars who try and milk insurance companies for more money than they deserve. Consider all the misinformation about the McDonald’s hot coffee case.
As a personal-injury lawyer, I am leveling the playing field for accident victims trying to receive compensation from multinational insurance conglomerates, and I make no apologies for this noble undertaking. My clients are teachers, nurses, stay-at-home moms, United States Army veterans, elderly widows, and retired business owners. Each one was injured and just wants to be treated fairly. Their lives were fine before some idiot driver who was probably texting decided to take a turn too fast or run a stop sign. Keep this in mind, and disregard the adjuster’s snide comments about your client or “you lawyers” during the negotiations.
I tell my clients at the initial meeting that multi-million-dollar recoveries are rare. I try and hammer the point that my job is to try and get them a fair recovery. Most are content with this. Reasonable people understand that back pain which lasted for two or three months isn’t worth $5 million. Most people just want to be treated fairly and have their rights vindicated, not get rich. One wise client told me he hired me to help him get fair compensation. If he wanted to get rich, he told me, he’d buy a Powerball ticket. That’s when Lesson #3 became clear to me.
Keep this in mind if you get an offer from the insurance company and are afraid to present it to your client because you think it’s inadequate. What matters is what the client thinks – and you might be surprised by your client’s reactions. Twenty thousand dollars might not be a lot for you, but it could be a fortune for your client.
Some people just won’t pursue it
A few times in the past year, people have called my office after being rear-ended. They knew I handled personal injury cases, and initially expressed interest in pursuing their case. Nevertheless, I’ve learned that some people just won’t follow up or pursue their case.
Many people do not understand the concept of damages. Damages must be proven. One can be in a terrible car accident, but if there is no medical treatment or injuries, there are no damages. No damages mean no money.
I have had clients ask me to try and solicit settlement offers from insurance companies where there were no injuries. I have also had clients ask me to do the same where there were injuries, but no medical treatment. In each case, I politely explained to these clients that no damages mean no money.
No matter how hard I try, some clients just don’t get it. They won’t pursue their cases because they convince themselves the work is not worth the “reward.” I try and explain that we are not undertaking a gratuitous “reward”, we are trying to obtain fair compensation for their injuries, pain, and suffering. They can be in pain, and the insurance company is on the hook, but these people are content with leaving money on the table – or worse yet – in the insurance company’s bank account. These clients just won’t make time to go to the doctor or do physical therapy. They won’t pursue their case when they are legally entitled to financial recovery.
Sooner or later, you will encounter this situation. Try explaining all of the above to the potential client. If presented in terms of “letting them get away with it” you may succeed in convincing a reluctant client to sign up. But be prepared for those clients who just won’t pursue their case. It happens every day, but as my mentor told me, there will always be another case.
You can do this just as well as anyone else
I remember the day I got my first client phone call. I was shopping at Costco when a friend’s relative called to say he’d been hit by a car. “You handle injury claims, don’t you?” he asked. I responded, “I sure do!” ignoring that deep pit in my stomach called inexperience. After overcoming that initial panic and getting sound advice from my mentor on how to handle this case, I knew I could resolve it successfully. Six months later, the client was thrilled when I delivered him a settlement check.
This early case taught me that I can do this just as well as anyone else can. A successful attorney told me that, in the beginning, you have to start small in order to learn the ropes. “Start small, but think big” is what he told me. That’s what I’ve tried to do over the past year, and it’s a lesson I keep in mind as I begin my second year as a solo lawyer. Sure, some lawyers we read about on the CAALA listserves routinely win huge verdicts. Yes, they can run circles around us. But they weren’t making millions when they first started. Remember that a journey of one thousand miles begins with a single step.
Everybody has different reasons for why they chose to become a plaintiff’s lawyer. Some attorneys may have had a personal experience in this field, as I did before I opened my doors and my daughter was attacked by a dog. Others may find the noble goal of fighting for the underdog against multinational insurance companies to be too tempting to resist. Whatever the case may be, know that you can do this just as well as anyone else can! Always reach out to more experienced lawyers for advice – and offer your own when someone you know needs it.
And make sure you’re having fun. Before he passed away at the age of 95, I asked my grandfather what he believed was the secret to a fulfilling and successful life. He had survived the Auschwitz concentration camp, immigrated to the United States penniless, and became a successful businessman and industry leader in his field. “Do what you love, and it’s not work.” I love what I do, and I’m having fun every day representing plaintiffs and fighting for justice. You should be too.
Michael Rubinstein founded the Law Office of Michael E. Rubinstein, a solo personal injury practice in Los Angeles, in 2014. After graduating from Loyola Law School in 2011, Michael worked as a prosecutor for the Los Angeles City Attorney’s Office, where he tried eight cases in six months. Prior to attending law school, Michael was ordained as a rabbi by the Chief Rabbi of Israel. www.rabbilawyer.com.
Copyright © 2021 by the author.
For reprint permission, contact the publisher: Advocate Magazine