Slow-Dancing With The Devil

(Apologies in advance to the ever-beleagured insurance industry for that allusion.)

Over at Evan Schaeffer's Illinois Trial Practice Weblog (which is a good read for litigators from any state) a lawyer complains of the difficulties faced by defense firms in automobile negligence cases:

"Lets face it: we are battling big firms with unlimited budgets who have access to millions of forms and prior research."

Perhaps you are thinking of a different practice area. Or making excuses for yourself in advance. But that certainly isn't true of auto torts. It would be foolish to have an "unlimited budget" for a low-impact soft-tissue injury case. Insurance companies make money by being stingy, not by being foolish. And their stingingess extends to the hired help (i.e. defense attorneys), not just claimants. Why do we put up with it? Volume. And stability. (Perhaps David should ask some insurance companies to share their fee negotiating tips).

Now I know that insurance companies are good at negotiating down legal fees and hourly rates, then again negotiating down any bills submitted which they deem excessive. But it is also fair to say that when a defense firm signs on to defend a typical automobile negligence case, the firm knows the following:

• The case is likely to settle;

• The facts are usually not so complicated that the ultimate settlement figure cannot be estimated with a very high degree of accuracy before litigation is filed, or shortly after its commencement;

• If the case has sufficient merit to survive summary disposition, little that the defense firm does will affect its pre-trial settlement value.

So in the average case the defense firm steps in, engaged in the obligatory shuffle of papers, exchange of discovery, depositions, mediation, etc., and at the end of the day adds little to the insurance company's bottom line beyond increasing the cost of the plaintiff's case and delaying the ultimate settlement of the case. (Occasionally a plaintiff's lawyer will make a fatal mistake resulting in the dismissal of an otherwise meritorious lawsuit, but that's more serendipitous for the defense firm than a product of its hard work. Occasionally, also, the delay may inspire a plaintiff to accept an inadequate offer in order to resolve post-accident economic hardships; again, unless delay is of itself considered to be a mark of quality defense work, not something that is attributable to the quality of the defense.)

"This will help prevent the large gaps in treatment, missed appointments, no-shows and the failure to be properly discharged. If you, or a staff member, is monitoring their physical therapy appointments, MRI appointments, etc., you are less likely to be faced with large gaps in treatment and no-shows on doctors' visits."

Yes, heaven forbid the mild nature of your client's injuries be revealed by the failure to get treatment. Treatment. Treatment. Treatment. Whether you need it or not. Everybody loves a trip to the chiropractor! While you're there, have him run some of those $500 tests that don't seem to effect the treatment but sure help the value of your case.

Certainly some plaintiffs in personal injury litigation end up getting medical care that they don't really need, in the name of building and maintaining a case. Heaven forbid that the failure to seek treatment for bona fide, serious, chronic injuries might inspire a defense argument that the injuries are minimal or that recovery is complete. Many can't get the treatment they need due to insurance issues, without so much as a crocodile tear from the defense. And let's not forget to send the most severely injured plaintiff to an IME doctor or three. Or five. Maybe to doctors who have a tacit understanding that they will downplay the plaintiff's symptoms, or fail to find any medical basis for the symptoms, or fail to find any connection between symptoms and injuries suffered in the accident, whatever the medical reality.

I don't mean to be overly snide, but there are a few elements of that site that are more excellent tips for creating the appearance of a valid claim than tips for actually dealing with a valid claim. I'm not suggesting that the plaintiff's bar is solely responsible for this state of affairs (settlement offers being determined by multiples of specials). I'm just slightly amused by the somewhat shameless fashion in which it was presented.

Right back at you. This goes for lawyers on both sides: if you think the other side is compensated at an unreasonably high rate, or has work that is so much easier than yours, switch sides.

Personally, I don't think any significant progress will be made in improving and streamlining the system to avoid unnecessary litigation and reduce delay until insurance companies decide that such reforms are in their best interest. Which, speaking of the devil, will apparently happen when hell freezes over.