Why Does Insurance Industry Experience Matter in a Personal Injury Case?
Personal injury lawyers continue to populate the state of California. They are everywhere and bombard the public with billboards, radio ads, and television commercials. When a car crash victim needs a good lawyer, who and how do they choose? What background, training, and experience matters? Making the right choice can be complicated, and the wrong choice can have dire consequences, including under-compensation or, worse, losing the case altogether.
Selecting an attorney becomes more manageable when the ultimate goal of any injury case is defined. In all personal injury cases, the goal is fair and just financial compensation for the victim’s harms and losses. How is that achieved? Maximizing the financial outcome for the injured victim is accomplished by establishing credibility with the insurance company, by presenting a compelling story justifying a fair settlement amount, overcoming the common defense arguments used by companies to minimize case value, and being prepared to go to trial in the absence of a fair settlement offer.
A claims department involves a hierarchy of people whose responsibility is determining the amount of money or other compensation an injured victim should receive. For example, most companies have adjusters whose role is to “adjust” or settle claims. These adjusters are called“line” adjusters because they work on the “front-line” and are the first to contact the injured victim or their lawyer. They answer to a claims supervisor and or branch manager who typically has more experience and settlement authority. Often, in severe injury cases, the decision-maker is a vice president, or the like, located at a corporate headquarters.
Each individual in the claims process has specific challenges. For example, the front-line adjuster is responsible for gathering all the facts of a claim. They are sometimes overworked and overly taxed to keep up with their files. They have limited decision-making authority. They are held accountable to a claims supervisor or branch manager, who typically has more experience and decision-making authority. The branch manager has limitations because he lacks “first-hand” knowledge of the facts, and his decisions generally are made after a file review only. In more significant cases, the people at the local level answer to management at the corporate headquarters, whose responsibility is to make the decision. As the branch manager, corporate decision-makers are handicapped because they make decisions on second-hand information. Typically, the corporate decision-maker will “roundtable” the file with the adjuster, manager, and perhaps a defense attorney assigned to the file.
A lawyer who has worked in the industry has credibility with these claims people. The first-line adjuster generally better receives the lawyer because the lawyer was once on “their” side and better understand the claim process. There is an instant connection, which is invaluable to establish credibility and trust. Establishing a rapport with the adjuster makes it more likely the adjuster will make favorable recommendations in the file regarding settlement value before other decision-makers review it.
Also, insurance adjusters only pay on claims supported by competent and credible information. Adjusters are careful to document their files to justify a settlement because they know somebody may audit the file. A lawyer who has worked in the industry understands the adjuster’s needs so that the claim can get paid quickly.
Also, most, if not all, injury claims are viewed skeptically by the claims department. There is an inherent distrust of each claim. There are many reasons for the skepticism, with the main reason being the company’s desire to minimize payouts. The fundamental goal of the insurance company is to reduce payouts to maximize profit. The challenge for every personal injury lawyer is overcoming the presumption that the presented injury claim is frivolous. The reputation of a lawyer who has worked in the industry is beneficial in overcoming distrust because the adjuster sees the lawyer as “one of them” and is, therefore, less apt to present a frivolous claim. An insurance industry background helps build trust to resolve a case.
An injury claim is essentially a story. The story involves who was at fault and the injuries and damages suffered by the victim. A lawyer’s job is to tell a compelling story that makes sense to an adjuster. The lawyer must thoroughly understand the law, including the essential elements needed to prove liability and damages. The lawyer must know what evidence is required to prove each element, including evidence an adjuster will find compelling. If there is a dispute over fault, a lawyer must find competent and credible evidence to establish liability. Often, there are no witnesses to a car crash, in which case a lawyer must look to other sources to prove the case. A lawyer with industry experience knows where to look. One potential source includes a cell phone record to see if the wrongdoer was texting at the time of the collision. Another source may be vehicle and scene photographs. The crush damage to the vehicles often explains how a crash occurred, including vehicle direction and speed.
A lawyer must also prove the harms and losses suffered by the victim. A lawyer who has worked in the industry knows the evidence that persuades the adjuster the victim was severely harmed and compels the insurance company to make a fair settlement offer. For example, it is not enough to present the medical records and bills to the adjuster. The documents tell only part of the story. An industry lawyer knows what evidence is needed to convince the adjuster that the crash diminished the victim’s quality of life.
A trained adjuster looks for inconsistencies in a story and seeks to exploit inconsistencies to diminish the victim’s credibility and value of a case. An ex-industry lawyer knows how to eliminate the discrepancies in a story to maintain the victim’s credibility, which means a better settlement outcome.
Common Defense Arguments
A lawyer who has worked in the insurance industry has valuable insight into claims evaluation and the defense arguments used to minimize settlements. More importantly, a lawyer with industry experience knows how to overcome defense arguments. The industry uses a “playbook” to reduce or defeat injury claims. The playbook includes defense strategies or tactics developed by the claims department and or their defense attorneys. The adjusters use these strategies to persuade personal injury lawyers to accept lower settlements, and the defense attorney uses them at trial to defeat claims. A lawyer with industry experience has insight into these tactics and can anticipate and refute them.
For example, many car crash victims choose not to call the police. A common defense strategy is to argue that the absence of a traffic collision report means no injury. Otherwise, somebody would have called the police. Of course, such an argument is wrong. Car collisions are traumatic and stressful, and often a victim is not in the correct state of mind that it dawns on them to call the police. Also, injuries often do not surface or become apparent until the next day or days later. It is not uncommon for someone to suffer a neck injury and not feel symptoms until later in the evening or even the next day. Often, symptoms get progressively worse. Sometimes, what appears to be a neck sprain can be damage to an intervertebral disc, requiring invasive treatment such as epidural injections or even surgery.
Another common defense tactic is to argue that minor property damage means no injury. One of the first things an adjuster looks at in evaluating a case is the photographs of the property damage and repair estimate. If there is minor damage, such as a dented bumper, the adjuster starts with the presumption the collision did not cause injury. The premise is flawed for two reasons. First, even minor damage can create unexpected and sudden forces moving the spine beyond its standard capability. This truism is the reason adults do not think it is funny when pushed from behind. Second, the presumption does not consider that the injured victim may have pre-existing degenerative changes in the spine, making the person more susceptible to injury.
Adjusters and defense attorneys will comb the urgent care or emergency room records, looking for omissions. A common tactic is to argue that the absence of reported injury complaints means no injury. The argument is flawed for several reasons. First, many injuries do not appear until the next day or days after a crash, and a victim may not have pain in a specific body part at the emergency department. Second, injured victims are running on adrenaline, which can mask an injury at the urgent care. Third, it is not uncommon for a victim to focus on the primary injury and ignore and not report other injuries. For example, if the crash causes a broken arm with severe pain, the victim may not be concerned about a neck or backache and, therefore, not report it to emergency personnel.
Another common tactic is to argue delay in seeking treatment. The premise is that a delay means no or minor injury. The premise is flawed because not every person runs to the emergency room after a car crash. Many will wait to see how their body responds after a collision. Even those who start to experience pain will wait to see if the pain goes away. It is not uncommon for victims to manage their complaints on their own, using over-the-counter medication for days or weeks after a crash. Also, many people don’t have health insurance. Emergency care can be expensive. There is also the inconvenience of waiting to be seen, significantly if a triage nurse determines the victim is not a priority. It is understandable why someone would not want to wait hours and hours to be seen and opt to go home to rest.
Many crash victims need treatment after a collision. Initial treatment typically includes a course of physical therapy that includes massage, heat, ice, electrical stimulation, or ultrasound, to name a few. Most injuries respond well to this kind of treatment. However, some injuries, especially damage to an intervertebral disc, do not resolve after conservative treatment. It is not uncommon for spinal damage victims to require epidural injections to reduce inflammation and pain caused by a damaged disc. When injections fail, surgery may be warranted.
Another defense tactic is to argue that not having surgery means no injury or the procedure is not required. Of course, the argument is flawed because most surgical procedures are elective and are not needed immediately. Most victims do not rush into neck or back surgery and will reasonably choose to manage the pain until their quality of life becomes significantly diminished by pain and limitation. The refusal to have surgery in no way means a victim does not have a permanent injury or requires surgery.
An overall defense strategy is to exploit a victim’s pre-existing condition. Most, if not every adult, has some degree of degenerative changes in the spine. The spine consists of vertebrae or blocks. In between each block is a disc that is analogous to a jelly donut. As the spine ages, the inside of the disc drys out. The outside “donut” part begins to show cracks, like an old tire.
The defense will typically argue that any complaints are due to the degenerative condition. There are two problems with this assertion. First, many people with degenerative changes do not experience any symptoms. They lead active lifestyles until a crash happens. Then, everything changes for the worse.
Second, California law recognizes that people with pre-existing conditions are entitled to justice. A person with a pre-existing condition is entitled to compensation for any aggravation of that condition. The law recognizes that people who have a pre-existing condition, such as degenerative disc disease, are susceptible to being injured, even in a modest collision, and are therefore entitled to compensation for aggravation of that condition.
A lawyer who has worked in the industry knows the playbook and can present counter-arguments to defeat the defense strategies. In contrast, a lawyer who does understand the playbook is often blindsided, caught off-guard, and not prepared to counter the defense arguments, resulting in lower settlements.
A “trial” lawyer who has worked in the defense industry is even more valuable. Many personal injury lawyers do not try cases to a jury. They do not want to go to trial or have the proper background, experience, and training for trial work. Why does trial experience matter? One of the first things an insurance company does after receiving a new claim is to check the lawyer’s trial experience. The insurance company has access to databases that reveal trial experience.
Lawyers with little to no trial experience are treated differently by the claims department. Settlement offers to these lawyers are generally lower because the adjuster knows the lawyer will accept a low-ball offer to avoid going to trial. A victim should always ask a lawyer about the trial experience before retaining that lawyer.
The settlement value increases even more if a lawyer has extensive jury trial experience. The top-tier trial lawyers belong to the American Board of Trial Advocates (“ABOTA”). Those who belong have extensive jury trial experience and are considered the best trial lawyers. Lawyers accepted into the organization have tried many cases, are battle-tested in the courtroom, and know the evidence and strategies needed to win. In California, less than one percent of the practicing personal injury lawyers belong to this prestigious organization. Insurance companies know the ABOTA lawyers and understand that these lawyers are not afraid to go to trial. As a consequence, the company is more inclined to take these lawyers and their claims seriously.
Trial lawyers also present a critical perspective to a case. The settlement value of any case depends on the available evidence. The evidence needs to be assessed, not only for its persuasive value but also for its admissibility. Every lawyer evaluating the value of a case looks at the evidence and makes two determinations. First, how will a jury view the evidence. Second, is the evidence admissible so a jury will see the evidence. A lawyer with little or no trial experience may not appreciate or understand how a jury will view the evidence. Moreover, the same lawyer may base his conclusion that he has a great case on a piece of evidence that has no chance of being admitted. He may turn down a reasonable settlement based on his erroneous belief to the detriment of the client.