How To Win Your Personal Injury Lawsuit
As an Orlando personal injury lawyer, clients often call me after one of my former clients recommended me because my team is known for fighting hard for every last penny.
So you might be wondering: HOW do we win personal injury lawsuits?
The first thing to know is how we define “winning.” 99% of personal injury lawsuits settle for SOMETHING. So most people “win” in the sense that they get some money. The question often is: how do we ensure a GREAT outcome? Winning, in my mind, means getting the absolute MOST money for each client, based on the unique facts of their case.
And FACTS really are key. To get the most money, we need to dig deeply into all affected areas of our clients’ lives, the accident itself, the injuries, the medical treatment, and any impact on our client’s hobbies, lifestyle, or wages.
If you were involved in a serious accident, and suffered serious injuries, then that’s automatically going to be a much higher value case than a fender bender with minimal injuries (we generally do not handle cases unless there is a certain amount of vehicle damage, anyway, because the amount recovered often isn’t enough to pay the costs needed to handle the case).
Here is the really, really critical point:
If your chosen lawyer handles a high volume of accident cases (something we lawyers call “settlement mill” law firms), regardless of how good they sound during your initial consultation, they simply will not have the time needed to dig for facts and evidence needed to maximize your case value. As a result, when the day comes to settle your case, they will usually recommend that you settle for far less than you should be receiving. This is the nature of high volume practice — those lawyers do the best they can with what they can easily uncover (we call this the “low hanging fruit” style of practicing law, which plagues MOST small and large personal injury law firms, but NOT ours).
Winning The Highest Value Florida Personal Injury Cases
Let’s start with the highest value personal injury cases. We usually consider the facts of those cases to be:
- clear fault on the part of the defendant driver (rear-end collisions are often clear fault; intersection collisions are often shared fault, which might mean a lower recovery value);
- Significant vehicle damage, evidenced by photographs or repair bills (ideally, both). This usually means the vehicle will look BAD in photos. A minor scratch or dent will often lower the value, although there are sometimes ways around this problem, such as significant axle damage;
- Very serious injuries leading to disability and major surgery, or, often, multiple surgeries, or death;
- (Sometimes) significant provable lost wages; and
- A defendant driver with a high value insurance policy or a commercial business defendant, such as a Fed Ex driver, semi-truck, delivery driver, etc.
If all of the above facts all exist, we usually can recover a high value early in the case (like within 30-60 days). If our client is still receiving medical treatment, then we have to wait until their treatment concludes to fairly assess the value. Any firm that doesn’t wait until your primary treatment concludes is short-changing you by leaving money on the table. If the injuries were serious enough, such as multiple surgeries, amputations, serious burns, paralysis, brain injuries, or death, and there aren’t other problems in the case (such as disputed fault or causation), then we can recover the policy limits for any insurance coverage fairly soon after being hired.
Winning The Imperfect Personal Injury Cases
The real problems arise when the facts are not perfect, which is more often the case.
Recently, we reached a very large (billboard worthy amount) settlement in an auto accident case that had some serious problems.
From my experience, other lawyers might have actually taken a SUBSTANTIAL CUT in the value of this case, because, on the surface, many facts looked very concerning. (I can’t disclose the final amount because there was a confidential settlement — something insurance companies are requiring more and more often — so that Orlando car accident lawyers can’t easily advertise results.) But our client was extremely satisfied with an outcome that was MANY times the insurance company’s original offer to our client, which the insurance adjuster made to him through his prior high volume law firm, which our client fired when he realized that they weren’t paying nearly enough attention to details about his case.
As it turned out, those details made ALL of the difference, on many levels, to the outstanding result we achieved for him.
How Do We Reach Results In Orlando Personal Injury Cases?
To understand how these cases are resolved, you have to understand a little about how we process these cases. Once someone hires us, we either file a lawsuit right away (for the most serious injury cases, usually where our client has already received significant treatment, like surgery, or if there was a wrongful death), or we wait while our client receives treatment, so that we can make sure that the final case value will be enough to justify the added time and expense of a lawsuit.
Sometimes, even with more serious auto accident cases, we can settle without a lawsuit. If the injuries are serious, assuming there aren’t any major problems with the case, we usually will only recommend that our client settle the case if the insurance company offers to pay the entire value of their policy, which they often will do, once we prove the case with appropriate documentation and evidence.
With less serious injury cases, such as someone who received only physical therapy after an accident, we wait until treatment is finished, then aggressively negotiate to settle without filing a lawsuit. Even in those cases, we make sure that we know all facts that could help bump the value as high as possible.
With more serious injury cases that have some problems, we often have to file suit. This can happen in slip and fall cases, because those are usually contested, or auto accident cases, where there are some bad facts, or contested fault (such as an intersection accident where both drivers blame each other).
What Happens During An Orlando Personal Injury Auto Accident Lawsuit?
Once we file a lawsuit, we enter a fairly lengthy process called “discovery.” During this process, both sides can request depositions (i.e., testimony under oath in front of a court reporter), documents (such as medical bills or proof of lost wages), and medical examinations. The defendant is legally entitled to ALL of these things. The plaintiff (i.e., the injured person) has the burden of proving his or her case — and trust me when I tell you that insurance companies do NOT easily write LARGE checks. They just don’t. We have to prove every penny.
Toward the latter part of discovery, most cases to go mediation. 90% of cases are settled during, or within a few weeks after, mediation. So mediation is a very important day in your case. And you need a lawyer present at your mediation who knows the important facts of your case, has the skill and determination needed to present them persuasively, and the gumption to argue back HARD when the defense lawyer tries to spin the facts against you — something they ALWAYS do.
What Happens During A Florida Auto Accident / Personal Injury Mediation?
Mediation is like a mini-trial, where both sides present as much evidence as they have gathered at that point in the case (but not as much evidence as we present at trial — because discovery continues after mediation if the case doesn’t settle — and new evidence is often uncovered later). A person called a “mediator” presides over a mediation, which is an entirely voluntary settlement negotiation process. You never have to accept the offer at any mediation (and the insurance company isn’t required to make any offer). The mediator only facilitates discussion, and gives both sides another opinion as to the good and bad facts about any case. But the mediation day is still important — and we need GOOD evidence at mediation, or insurance companies simply will NOT make good offers, based on the actual facts & injuries involved in the case.
(You MUST understand that insurance companies, and corporate defendants, absolutely, positively, do NOT want to pay one single dime more than they have to pay. And that means they do not want to pay more than they think a jury would award at trial. In higher value cases, they do a lot of work to try to prove that your case should be lower in value. They might take videos of you at home or work, to prove that you really aren’t as injured as you say. Or they might dig through your medical records to find a comment by one of your treating providers that suggests you are doing just fine. Or they might dig through your financial records to prove that you really didn’t lose wages. Or they might dig through your criminal record to find evidence that they want to share with any future jury. Their techniques and potential arguments are endless — I know because I used to work as a defense lawyer on VERY LARGE, almost always multi-million dollar cases. We worked many, many hours to uncover facts to harm the other side’s case. Hundreds of hours — pouring through documents, witness statements, photographs, social media posts (from plaintiffs) and whatever else we could find.)
Usually, at the mediation, we have all of the evidence that our client has provided to us, including all of their medical records, any lost wages proof, witness statements, and deposition transcripts from our client, the other driver, and sometimes other people. We often don’t yet have testimony from medical experts, because doctor testimony is expensive, and our clients have to pay that money back from their settlement or verdict. In most cases, we don’t spend the money paying doctors for testimony until after the mediation, unless there is some unusual reason why we think we need better proof earlier in the process.
What Do Defendants Argue Against Plaintiffs During Orlando Personal Injury / Auto Accident Mediations?
During the mediation, the defense will argue things like the accident wasn’t serious enough to cause the injuries. The idea behind that argument is that if the vehicle damage is slight, the jury will not believe that the accident caused our clients usually serious injuries (something we have to prove), rather than some other random life event, like falling down, playing sports, or anything else in life that could cause injury.
To counter that argument, we need good photographs of the vehicle damage and/or testimony from doctors saying that the accident caused the injuries. Sometimes those facts just aren’t on our side (like when the vehicle was barely scraped, indicating a low impact collision, suggesting that type of hit wouldn’t cause serious injuries) — and the value of the case takes a hit as a result. BUT you still need a lawyer who will dig to make sure that there really are no arguments that could help you.
(Because the vehicle damage is such a big issue, we are unable to accept cases unless they meet a certain vehicle damage threshold.)
For example, during our last mediation, our client’s axle was damaged, although the visible damage to the vehicle (from the accident photos taken by our clients) was minimal. The only reason we were able to effectively counter the minimal vehicle damage argument was because, from talking to our client extensively, we knew that our client would testify that he had trouble driving away from the accident, the car kept stopping and starting, and he had to drive very slowly. Those facts suggested that the axle was broken (breaking an axle takes a HARD hit, but often isn’t visible in photographs), which means that the impact was hard enough to have caused our client’s injuries. However, if we hadn’t taken the time to talk to our client at length about why his vehicle photos weren’t that bad, we never would have uncovered the facts that helped us prove that his accident really was serious.
I can’t tell you how many clients have called me after hiring another high volume firm — with very serious injuries — and totally frustrated because their lawyer barely knows about their injuries, much less other details like what happened to their vehicle.
You should understand — another law firm might settle for what appears to be a high amount, let’s randomly say 250K. But if the medical bills, which we must repay before our client gets one penny, are 500K, then that’s not a very good outcome. The issue is how much money does the client receive at the end of the day? And that takes finesse, digging for details, and FIGHTING when needed with the insurance companies and/or corporate defendants.
Insurance companies also sometimes argue that the jury will hear about our client’s prior criminal record, if they have one.
How Do We Know The Highest And Best Value Of Any Orlando Accident Case?
Now I need to divert again to explain something important. When insurance companies and plaintiff’s lawyers are negotiating a settlement, such as at a mediation, both sides are trying to predict what a jury of 12 random people MIGHT think about the value of the case. So neither lawyer, for the plaintiff or defendant, actually knows for sure what any future jury might do. (To partly deal with this problem, we continuously research reported settlements and verdicts throughout the state, for similar accidents & injuries. Still, these cases can have quite a large range of potential outcomes, so this only gets us so far.)
What Can Juries Consider, When Determining The Value Of Any Florida Accident Or Injury Case?
Juries can consider just about any facts they want, including something that might seem irrelevant like prior criminal conduct. However, the law provides that many (most) prior convictions are not admissible to the jury because they are irrelevant and prejudicial. (Believe it or not, seriously, many personal injury lawyers do not know this — it’s absolutely crazy how many practicing accident lawyers really don’t know the law very well, something that is a particular pet peeve of mine, as a former top law student, and law professor.) Anyway, there are some limited criminal convictions, involving dishonesty, which are admissible in evidence at trial. The question, in those cases, is what do both sides think a jury will think about the conviction? Will a jury think that the defendant is not believable (for example: the jury might think our client’s pain complaints are a lie) if there was a conviction involving dishonesty, such as fraud? We have to ARGUE for our client — that the law doesn’t allow the admission of the evidence, or, if the evidence will be admissible, that we don’t think a jury will be persuaded.
In our last mediation, our client had a few criminal convictions. But they were from 20 years prior, when he was a young man. And the only admissible crime involving dishonesty, was presenting a fake ID to a police officer. We only knew this because we had dug into the facts before the mediation. So it was very easy to argue that there was no jury in hell that was going to lower the case value of a serious injury case because our client used a fake ID when he was 18, even assuming the judge would allow such remote (in time) evidence to get to the jury in the first place. And that was the end of that potential defense argument.
Again, if our client had continued with the high volume billboard lawyer who he could tell didn’t know anything about his case, then there is a very high likelihood that lawyer would have sat silently, or even used those criminal conviction facts to convince our client that he should take a lower value, rather than FIGHTING with the actual friggin facts — that the case value should still be high.
Do Medical Records Have To Prove That The Florida Accident Caused The Injuries?
Our client also had a problem, of sorts, with his medical treatment. Basically, the doctor had not performed an MRI before both of his prior surgeries. So there was an argument that the doctor was too aggressive — and didn’t properly evaluate our client before he had surgery — so the insurance company shouldn’t have to pay for those surgeries. That was actually a pretty strong argument against our client. But there were other aspects of the medical records that we were able to use to prove that our client had the pain complaints consistent with his diagnosis and surgery. And doctors aren’t required to give MRIs before surgery. Plus, because we were involved, our client had seen a doctor who was known for being conservative. (There are some doctors who will cut anyone — which is totally disgraceful — we would absolutely NEVER recommend those types of doctors to any of our clients!! But the insurance companies know this — and guard against it by not paying as much when a doctor has an “easy cutting” reputation. Since our clients only visit doctors who try all conservative treatments BEFORE recommending surgery, we are in a stronger position when the insurance companies argue, as they always do, that our client didn’t need the surgery.)
How Do You Prove Lost Wages In An Orlando Accident Or Injury Case?
Our client was a business owner who had also lost considerable income, but that lost income was going to be difficult to prove. We dug through extensive evidence to counter the anticipated defense attorney argument that our client’s lost wages would be too speculative to recover. There is law saying that plaintiffs cannot recover damages that are too speculative, but we presented enough evidence to demonstrate that our client’s loss was not speculative. This required our entire team (usually me, one or two other lawyers, and one or two experienced paralegals prepare every case) to review many years of tax returns, before and after the accident, invoices, and speaking with witnesses including our client’s spouse, and business partner. Once again, digging into the details allowed us to uncover necessary facts to prove that the case value should be higher. MOST high volume law firms WILL NOT come close to digging into the facts needed to maximize value. They just don’t have time, with 600-700 other clients per SINGLE lawyer, for most high volume “billboard” or TV commercial lawyers. So they “take what they can get” with the easy facts in front of them.
MOST ACCIDENT LAWYERS DO NOT DIG FOR HELPFUL FACTS & EVIDENCE! WE ABSOLUTELY DO!
Since the first day I started practicing law, I have always dug into the facts, to kind of an absurd degree at times. I graduated at the top of my law school class for that same reason — I have always been the lawyer digging into the facts and law, seeking every conceivable argument that might improve the case for my clients. As one of my law school professors used to say “a shot glass of facts is worth a tub of law.” That’s why everyone on my team is trained to DIG into the facts — and we take a much lower volume of cases so that we always have enough time to do the real work, on every case.
How Writing Your Own “Narrative” Might Increase Your Orlando Accident Case Value
We also work with all of our clients to help them write something called a “narrative,” for mediation. Many accident and injury lawyers will not do this, either. (I don’t know anyone else who uses the narrative approach.) Without the narrative, the defense attorney will never have heard your side of the story, before you settle the case. The defense attorney will have deposed you (i.e., asked you questions under oath) — but that’s just when they ask what they want to know. During your deposition, we encourage you to just answer the question, short and simple, for a variety of very important strategic reasons. So, when the mediation comes along, you will not have told your story to the defense attorneys and defendant (rather than just your own lawyers — and we don’t write the checks that get you paid). The narrative is when you tell your story. And we help you understand what needs to go into the narrative, to present your most compelling case. Then, during the mediation, we read your narrative, and any narratives from your supporting witnesses. These narratives can be very compelling because they allow you to tell your story from your heart. Heart-based stories very often lead to bigger checks. 🙂
Of course, we also dig through any possible photographic or medical evidence, or witness testimony. We absolutely uncover every stone, in every case, to try to find facts that will help increase the value of any serious injury or accidental death case.
How “Mediator Math” Might Change Your Settlement Amount Goals
During the mediation, the mediator will usually walk the plaintiff through a comparison of the amount a plaintiff would NET after a mediation, versus waiting until trial, when the costs are usually much higher (because we have to pay for things like doctors to testify, which can run in the tens of thousands or even hundreds of thousands of dollars, depending on the case). Think of this as a sort of chalk board math lesson — with the settlement amount, minus estimated expenses, which must be deducted before you get paid.
During our last mediation, once the mediator explained his “mediator math” to our client, it was very clear that our client would be walking away with the absolute most he could ever hope to recover (given anticipated future trial expenses, and medical bills, since he needed another surgery), even if he later received 100% of the insurance policy from the jury — which would have been a home run. And that home run outcome (in front of the jury) is never guaranteed, especially if there are ANY problematic facts, like minor vehicle damage, questionable medical causation & records, questionable fault for the accident, or questionable / speculative lost wages.
My Extreme Gratification When Our Client Was Sure He Won
At the end of this particular mediation, I felt extremely gratified when my client said, several times, that he was sure his prior (high volume) law firm would never have done the work we had done. (His prior lawyer was looking at his phone throughout his deposition!) He knew we had worked hard to get the facts needed to present his case in the most compelling way possible — and he was fully convinced that he was getting the most money possible in his pocket — which is always our goal.
We were absolutely thrilled for our client! And we can sleep easy knowing that we truly did our very best for our client, and helped him recover the most money possible for his particular injuries & accident. In our book, doing the WORK to learn the FACTS and EVIDENCE is how to WIN any and all Orlando personal injury & auto accident cases.
If you would like someone who you can trust will really fight for you, and maximize the value of your accident case, please give us a call, or send a text, today. You can contact us 24/7/365 at (407) 803-2139.