The massive lack of public understanding about personal injury lawsuits often amazes me. Consumers generally do not understand the critical importance of hiring a personal injury lawyer who can write effective & persuasive legal arguments, particularly when the case involves serious injuries or death.
Did You Know Some Personal Injury Plaintiffs Never Get Their Day In Court?
If your personal injury, slip and fall, auto accident or wrongful death lawyer files a lawsuit (and you should be wary of firms that rarely or never file lawsuits), the insurance company and/or defendant may either answer the complaint, or file what is called a motion to dismiss. A motion to dismiss can lead to the total dismissal of your lawsuit before you have any chance to get to a jury. These aren’t terribly common in garden-variety personal injury cases, but can having a crushing impact in certain scenarios.
You Might Lose The Money Source
As one of many examples, certain defendants can file motions to dismiss, while leaving other defendants in the lawsuit. This can be important if the defendant with the “deepest pockets” tries to get out of the case. For example, I once drafted a reply to a motion to dismiss filed by a huge nationwide furniture company from a tragic burn injury / wrongful death case. This company fought hard to establish, despite the fact that their huge, well-known logo was plastered all over the semi truck that hit the stopped and standing plaintiff, burnt him over a large percentage of his body, and caused him to suffer the most horrifying of deaths, they were not responsible for his widow’s wrongful death claim because (in simple terms) they did not actually own the truck and the trucking company was not their agent.
Creative Strategies Win Wars
Replying to this motion required, most importantly, thinking of creative ways to combat defense arguments, then finding the facts to support my argument by careful & detailed review of underlying shipping, invoice and other documents (to leave no doubt, factually, about the close working relationship between the two companies), as well as sifting through hundreds of pages of legal case law, to prove that the small mom-and-pop trucking company actually was the agent of the larger furniture company. Once I had both the idea and the data to prove my argument, I had to write a lengthy and persuasive argument to the convince the judge that he should not dismiss this case. Writing effective motion replies is akin to writing the hardest term paper of your life, on steroids. In more difficult cases, these arguments are neither obvious nor automatic nor guaranteed to be made (by your lawyer). This particular motion was far from a slam-dunk based on the unique facts of the case. So the attorney who hired me to draft the reply was very concerned about losing a case that ultimately settled for over 2 million dollars, and which settlement would have been largely uncollectable against the smaller trucking company defendant.
Lawyers Are Entitled To Review Evidence Before Trial
Moving forward from the motion to dismiss phase, assuming the judge doesn’t dismiss the case, both sides begin a process called “discovery.” During discovery, we lawyers seek evidence to prove or disprove claims and defenses. In personal injury cases, the discovery phase of a lawsuit involves extensive review of medical records, witness accounts, wage claims, the accident itself, operating procedures in certain scenarios, medical and other expert analysis and opinions, and all sorts of other information.
Lawyers Can Demand Access To Evidence
During discovery, if one or the other side refuses to cooperate by providing necessary evidence (as is VERY common in ALL types of cases), the other side may file a document called a “Motion to Compel.” This can be another critical piece of winning or losing your case, or getting a higher or lower personal injury settlement or verdict. The reason is that if your lawyer loses a critical motion to compel, then you might be at a disadvantage when the insurance or corporate defense attorney assesses your likelihood of success at trial (because you might not be able to present critical evidence at trial, if you lose any important motion to compel).
The Motion You Never Want Filed In Your Personal Injury Case
Perhaps the most critical motion involved in any case (but not applicable in all personal injury cases) is the motion for summary judgment. This is similar to the motion to dismiss. But a motion for summary judgment often happens after both sides have completed discovery. This motion is a lengthy document filed in some lawsuits, in which defense attorneys argue, based on all of the discovered facts, and existing law, that injury plaintiffs have no case. If the judge grants a motion for summary judgment, your case would be 100% OVER, unless you successfully appealed (which might be possible in some but definitely not the majority of cases). That means you would get no jury, no money, nothing. You would walk away with nothing, while the defendant would walk away free and clear.
Slip And Fall Cases Are Notoriously Perfect For Summary Judgment Motions
Motions for summary judgment are very popular in Florida & Georgia slip and fall cases because the statutes are so convoluted (and frankly unfair) that defense attorneys would be foolish, in many instances, not to file them. In fact, back when I worked for a big defense firm, we often waited to learn the outcome of summary judgment motions to determine how much we were willing to offer to settle a case. However, a plaintiff victory at the summary judgment stage often led us to raise our settlement offer substantially.
We Have Extremely Complex Rules Of Procedure & Evidence
Once past summary judgment, your lawyers start preparing more intensely for trial. During the immediate pre-trial phase, another potential series of motions of extreme importance are called Motions in Limine. These are basically motions to limit or exclude evidence at trial (they are different from motions to compel, which just involve giving the evidence to the other side during discovery, rather than the admissibility of the evidence at trial, which, confusingly, are not governed by the same legal standards). For example, someone might file a motion in limine to prevent the jury from seeing photographs from a particularly horrific auto accident scene, which might be gruesome evidence of burn or other disfiguring or catastrophic injuries, on the grounds that the jury would be unfairly prejudiced against the defendant after seeing them.
The “Law” Fills Volumes & Volumes
These motions can involve exceptionally complicated legal arguments requiring extensive review of facts or data, as well as (very often) hundreds of potentially relevant legal case opinions, statutes, or other governing laws. We have volumes and volumes of books containing the law that might be relevant to any particular legal argument (many of those sources are only available to attorneys through private subscription online, but still the volume of material that might conceivably impact your case is the same as a big library full of books).
Other Important Motions That Could Negatively Impact Case Value
There are many other critical motions involved in personal injury lawsuits, including requests for certain jury instructions, requests to move the case to a less desirable venue or jurisdiction (which can also have a major impact on case value), and motions for defense judgment notwithstanding favorable plaintiff verdicts, not to mention appeals following even successful verdicts.
The Overwhelming Majority Of Cases Never Go To Court
Since the vast majority of cases never go to trial (with judicial estimates at 2% of filed cases, keeping in mind that many personal injury lawyers never even file lawsuits for various reasons, which further lowers the percentage that ultimately go to trial), effective pre-trial motion practice is critical. Effective motion drafting also demonstrates effective preparation, which sends a message that you will be well prepared on the first day of trial.
My Legal Writing Background
I have spent a good bit of my career drafting important motions in high value, complex cases, back when I worked for large defense firms, and later when I was hired by numerous Florida and Georgia personal injury and medical and legal malpractice lawyers, often to draft critical motions in huge value cases.
Thanks For This Glowing Review About My Legal Writing!
Recently, I was honored to receive this review from Casey Stephens, an Atlanta personal injury attorney whom I greatly respect, who is one of many attorneys who has hired me to draft important motions in his practice:
‘I am the principal attorney at an Atlanta based civil litigation firm, handling serious personal injury and wrongful death cases. Many of these cases involve complex legal issues. Over the past five years, Ms. Willis has performed research and writing work on several complex matters. One of these cases involved four deaths as a result of a boat sinking in Utah. Ms. Willis was instrumental in helping my firm defeat a Motion to Dismiss filed by the vessel manufacturer in the State of Florida. She also wrote an impressive and successful Appellate Brief in the Florida Court of Appeals* on that case. Her brief writing skills are, in my opinion, unparalleled in the realm of civil litigation. She is very skilled at crafting compelling and persuasive arguments, and my firm has prevailed on every motion or appeal she has drafted. I continue to utilize Ms. Willis’s services, and would recommend her without qualification for any civil litigation matter. And, while I have only worked with Ms. Willis on civil litigation matters, I am quite sure she would prove successful on other matters as well.” Casey W. Stevens, Esq.
*Note: reading the appellate reply brief linked above will give you a glimpse of the potential complexity of legal arguments, particularly in high dollar value cases, such as this 4 party wrongful death / admiralty case, in which big money defense firms pull out ALL of the stops to try to defeat the claims in any and every way possible.
Facts Are Facts
I must caution that even the best writing lawyers can lose motions and replies. One popular inside lawyer joke is that we want to file a “motion to change the facts.” All jokes aside, unfortunately we can’t change reality. Sometimes the facts just aren’t on your side, no matter how creatively your lawyer tries to argue otherwise. But a lawyer who can write effective legal arguments, will give you the best chance, at many critical phases of your lawsuit, to increase the value of your personal injury, slip and fall, car accident, wrongful death or other serious injury case.
Heed My Advice
If you need a personal injury lawyer, particularly in a serious and/or catastrophic injury or death case (when bigger numbers mean more attempts to beat down the value of your case through motion practice), ignore your lawyer’s ability to write (or not) at your own peril.
If you are another personal injury lawyer, I would be glad to help draft your next complex motion or appeal, as I continue to provide legal research and writing services to other injury attorneys in complex cases.
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2014
About the Author:
Tina Willis is a serious injury, accident & death lawyer, based in Orlando, Florida, although she accepts cases throughout the states of Florida and Georgia. Ms. Willis has won many prestigious industry awards, best personal injury & car accident lawyer awards, and recovered multi-millions for her clients. She was formerly a law professor, and graduated second in her law school class back in 1997. She formerly worked for some of the largest defense firms in the country, often on multi-million dollar cases. She used to represent large corporations & insurance companies, so she knows their playbook. We are very focused on the highest quality client service, and maximizing the value of every case we handle. We vigorously prosecute serious injury and death cases caused by auto accidents, semi-truck accidents, slip and fall accidents, products & premises liability cases, as well as medical malpractice.