As a trial attorney, you often have to make tough decisions. On the eve of trial or right after you present your case to the jury, the defendant makes a settlement offer. Usually these last minute settlement offers are well below what you think is fair to your client. And then, your client asks you for advice – should he accept the settlement or risk everything to take his chances with a jury verdict?
It’s a bit like being a contestant on the Price is Right or another game show where you have to make a quick choice between a less than thrilling prize (such as Disney cruise) and an unknown prize behind the curtain. The difference is that, as an experienced trial lawyer, you ought to be able to make a more informed decision than a game show contestant. A trial lawyer should be able to assess the facts and circumstances of the case at hand in order to give the client beneficial guidance about the best course of action.
This is exact circumstance in which I found myself recently with one of my clients. For the purposes of this blog post we will call him Robert. One day, a few years ago, Robert (a married father of 4) was on his way to work, driving across the Verrazano Bridge. Without any warning, he was rear ended and forced into the car directly in front of his. As a result of the 2 impacts, Robert sustained a lower back injury, specifically a herniated disc at the L5/S1 level. Of note: In 2003, Robert sustained a similar injury to his lower back that was asymptomatic. After the accident, Robert required many months of physical therapy and pain management; and eventually he underwent a percutaneous discectomy, performed last year. This procedure relieved some of his lower back pain but due to permanent damage to his disc, he continued to experience shooting pain and numbness in his left leg.
At the time of the accident, Robert was self-employed. Following the accident, he was unable to work for 4 months. When he returned to work, he was no longer able to perform heavy labor to the same level of ability that he had prior to the accident and was forced to subcontract such work.
After years of litigation, the case was marked final for trial on July 21, 2015. Allstate Insurance Company was the insurance carrier for the defendant. They made a pretrial offer of $35,000.00 to settle the case. Respectfully, I rejected this offer and began jury selection. The jury pool assigned to this case was comprised of Brooklyn residents who didn’t seem too happy to be spending their summer days in the courthouse. Nevertheless, each and every one of them promised me that they would be fair and impartial to both sides, and would award Robert money if the evidence was credible and in his favor.
One major concern I had with this group of jurors was their age. Their average age was 23 years old and, generally speaking, younger jurors do not have the life experiences necessary to understand how devastating an injury can be to one’s life. In addition, younger jurors, in my experience, see the value of money differently than do older jurors who have had a lifetime of bills, rent and expenses. That said, the 8 jurors I selected for the trial promised they would do their best to evaluate Robert’s case with the mindset that the value of $100.00 to a 23 year old is different from that of a 52 year old.
The trial commenced. During my case I put Robert and his wife on the witness stand along with 2 of Robert’s physicians to testify about his medical condition, course of treatment and prognosis for the future. These doctors were not only credible, they acted as teachers to the Brooklyn jury who, prior to this trial, were unfamiliar with the nature of back injuries. As is my custom and practice, I brought many demonstrative exhibits, including photographs of the vehicles, medical illustrations and projected images from Robert’s MRI. Starting with my first trial many years ago, I made a remark during my opening arguments suggesting that as an attorney I am not only an advocate for my client but a “tour guide” through the evidence. As such, I try to put myself in the jurors’ shoes to determine what I would want and/or need to evaluate a case that I would otherwise know nothing about.
After I rested my case, the defendants produced their witnesses to try to convince the jury that Robert’s injuries were minor and otherwise preexisting. During cross examination I made it a point to show the jury that these doctors, a radiologist and a neurologist, were “hired guns” who time and time again are hired by insurance companies to come to court to give their medical opinions that the plaintiff’s claims are false. I was able to prove that over the years these doctors have made millions of dollars giving such testimony and accordingly, their testimony is merely a well-rehearsed act which they bring each and every time they set foot in a courtroom.
During summations I reminded the jurors that this trial represented the only time Robert would be able to obtain the justice he deserved. There is no “second bite at the apple” in any litigation; and once the case is over – it is over forever. Therefore, it was important that they “get it right the first time” and award Robert monies that would not only compensate him for past pain and suffering but also future pain and suffering. During the course of a trial I am able to observe jurors in the same way they are able to observe me. I felt strongly that his jury understood this concept prior to their deliberations.
Allstate then offered $100,000.00 to settle the case. I immediately presented this offer to Robert and he, as did hundreds of my prior clients, told me that he had full confidence in my ability to counsel him into making the right decision. Risking the prospect of not earning a legal fee if we were to lose, I told Robert that I believed in his case and was proud of the time, energy and work I had put into the trial. Together, we decided to reject what many other attorneys would see as a fair offer and let the jury decide.
After 30 minutes of deliberation (which seemed like an eternity), the jury rendered a unanimous verdict for Robert and awarded him damages as follows:
$50,000 past medical cost
$250,000 future medical cost
$500,000 past pain and suffering
$700,000 future pain and suffering
$1,500,000 total award
There are many lawyers who would advise a client to take a settlement offer once their attorneys’ fees can be covered. I, on the other hand, believe that my clients’ interests come first, and that going to trial sometimes represents the best route for a client to receive adequate compensation for their costs, pain and suffering. This is why it’s important to select the right attorney to represent you in a personal injury lawsuit. When it’s time to choose between a settlement offer and whatever is behind the curtain, you want to make sure you get advice from a lawyer who has your best interests, not their own, in mind.