Consistent & Appropriate Treatment Are Key To A Successful Case

You must treat consistently and appropriately if you want full compensation in any personal injury case.
 
  1. Inconsistent treatment means big gaps in treatment and/or failing to follow your doctor’s recommendations.
  2. Inappropriate treatment means continuing to do something that obviously hasn’t resolved your pain and discomfort despite repeated attempts. When one type of treatment doesn’t work then you must try a different kind of medical provider or technique. You can’t do the same thing forever and expect a different result.
 
Inconsistent and inappropriate treatment can kill cases.
 
Let’s look at three cases that are typical of what I see as a personal injury lawyer:
 
Client A gets into a crash and doesn’t get treatment for two months. He then goes to his family doctor who recommends an MRI. Client A finally gets the MRI a year later. Client A then goes to an orthopedic doctor who recommends a three-level cervical fusion. A cervical fusion is a highly invasive surgical procedure that requires replacing a damaged cervical disc with a cadaver bone and metallic hardware. It will cost him about $300K and he will likely be paralyzed if he doesn’t get it. He doesn’t get the surgery because he’s too busy. His out-of-pocket expenses consist of $200 in co-pays.
 
Client B gets into a crash and goes to a chiropractor. She treats a few times a week off and on for three months, stops treatment, and then returns to treating off and on again with the chiropractor. She discovers after nine months of treatment that she has cervical herniations. She doesn’t treat anymore but complains of continuing pain over a year later. She then consults with an orthopedic doctor who recommends a two-level cervical fusion that will cost her about $200K. Client B has the cervical surgery and is out of work and in a neck brace for three months. She lost three months of pay because she didn’t have FMLA or disability insurance. Her total out-of-pocket expenses are $250,000.
 
Client C gets into a crash, treats about 24 times with a chiropractor, and when her symptoms don’t resolve, has an MRI, which reveals the same type of cervical herniation as Client A & B. Client C goes to see an orthopedic doctor. The orthopedic doctor recommends Client C try injections and refers her to a pain management doctor. Client C has a series of facet and epidural injections, and her symptoms decrease. A few months later, those symptoms return, so she schedules a follow-up visit with her orthopedic doctor. The orthopedic doctor recommends a single level micro-discectomy, which is a minimally invasive technique to remove the impinging disc material and release pressure on the nerve. It does not require a cadaver graft or hardware, and it is often done on an outpatient basis. Client C has the surgery and returns to work the next day. Client C returns to her orthopedic doctor once every few months due to her activities aggravating her injury, but her orthopedic doctor doesn’t believe she requires a cervical fusion, although he thinks physical therapy might help her, so she does that. She still has some pain on occasion, but overall, she feels much better. The surgery cost about $50K. She has no lost wages. Her out-of-pocket expenses are only $50K.
 
Pop quiz time:
 
  1. Which case is easier to sell to a jury?
  2. Which case is a lawyer more likely file a lawsuit on?
  3. Which client is a lawyer likely to drop?
Here is how I view these cases:
  • While Client C has the least invasive surgery and arguably the lesser injury, her case is probably the most valuable and the best litigation case.
  • Client A has a very low value case and most personal injury attorneys would drop it unless there are very low policy limits. An insurance adjuster would likely make a very low starting offer.
  • Client B is an okay case, but it will probably settle pre-suit, and Client B will not be pleased with the result.

Treat consistently and appropriately if you want the full value of your case.

Discovery’s Role in Litigation

People love to threatened to file lawsuits whenever they believe someone has wronged them. However, in my experience, people are not nearly as enthralled with lawsuits after they encounter what is called “discovery.”

What Is Discovery?

Discovery is the process of gathering evidence for trial. Each side gets to request evidence or information that might lead to evidence that would be admissible at trial. The  Florida Rules of Civil Procedure has very broad discovery rules, and almost any type of information is discoverable. The information that either side seeks does not even have to be admissible at trial so long as that information might lead to admissible evidence.

There are several discovery tools. I will give you an overview of each discovery tool and how it is used.

I. Requests for Admissions

Both sides usually send Requests for Admissions to each other. They are limited to 30 requests without the court’s permission to send more unless the court grants more.

Something that a defendant typically asks a plaintiff to admit or deny in an automobile negligence lawsuit is “Admit that your vehicle had a fully operational seat belt.” The next question might be. “Admit that you were not wearing your vehicles fully operational seat-belt.” You can probably see how Requests for Admission might be used later on at trial.

Request for Admission not only help each side develop their cases, but they can also be used to generate attorneys fees if a party does not answer truthfully. In other words, if you claim you were wearing a seat belt, but later on it turns out that you were not, then the other side can asked the judge for its fees and costs because you were not truthful. Fees and costs can get very expensive.

There are only allowable three answers to a Request for Admission:

  1. Admit,
  2. Deny, or
  3. Without sufficient information to admit or deny at this time.
II. Requests for Production

Requests for Production allow a party to request documents and other tangible items from the opposing party. These are typically tax returns, medical records, correspondence between a party and somebody else who might be involved in the case, diagrams, maps, photographs, video recordings, audio recordings, and anything else that might be used at trial.

The Florida Rules of Civil Procedure even has a mechanism that I have used in the past to request inspect of a vehicle long it had been involved in a crash. I have requested other things in the past  like vehicle repair estimates, cell phone records,  GPS records, black-box data, and driver logs in commercial vehicle crashes.

Requests for Production can lead to a gold mine of admissible evidence. For example, requesting a drunk driver’s credit card receipts can tell you how much he had to drink prior to getting into a crash and how many bars he visited  that night. GPS and black-box data can tell you how fast somebody was driving when the crash occurred. Requests for Production  are one of my favorite discovery tools.

III. Interrogatories

Interrogatories are nothing more than questions that a party answers under oath. Some of the most common questions are whether somebody wears glasses or hearing aid, the names of the doctors that they have treated with, the parties prior crash history, and if the party had been using alcohol or drugs when the crash occurred.

Many attorneys send out the same interrogatory requests each time they file a lawsuit. I do not. I tried to tailor my interrogatory requests to the case as closely as possible. I sometimes do not serve interrogatories on a party until I receive my Requests for Production and Requests for Admission responses. I also rarely  use all of my 30 interrogatory questions because I want to keep some in reserve  just in case something new pops up about which I want to inquire.

IV. Depositions

Depositions or when a party testifies under oath before a notary public. The other side’s attorney can hold one day of 7 hours of questions, and if need be, the other side’s attorney can asked the judge for more time. Depositions are by no means fun. It is a very structured form of speaking and you must be very careful about what you say under oath.

I spend at least a half hour telling my clients how depositions operate and how to answer questions during a deposition–short but full, truthful answers are the key to a successful deposition.

Testifying is a very different way of communicating. When you speak with your friends, you may go off on tangents, decide that certain information simply is important so you will not discuss it, and you even be careless about the way that you describe things.. But in litigation that simply will not work. In litigation, the other side tries to make you out to be a liar, and the easiest way to do that is to use your own words against you. That is because everything in discovery can be used against you. It is not that you are a liar or deliberately shading the truth, but that is exactly how opposing counsel  will try to use your discovery disclosures against you.

What I tell my clients to do is to be exceedingly careful about every word they utter under oath. I tell them to answer to the  best of their recollections and to state that their answer is to the best of their recollections, but to fully testify to everything they do remember.

V. Court-Ordered Medical Examinations

While court ordered medical examinations are usually performed on plaintiffs, the court can order defendants to undergo court-ordered medical examinations. That usually occurs when the plaintiff alleges that a defendant ignored a medical condition,  did not take his medications, or had some sort of physical infirmity or illness in which the driver and maybe even his employer knew was a dangerous condition. A court ordered medical examination serves many purposes, but usually, it is used against plaintiffs to attempt to show that the plaintiff does not have a permanent injury. It is a defense lawyer’s way of trying to show that the plaintiff is not entitled to pain and suffering damages because the plaintiff does not have a permanent injury. There are a lot of rules  that govern court ordered medical examinations, and it would take an entirely new post to discuss them.

VI. Discovery is Hard Work

Reading this post may make you believe that discovery  is not a big deal. I can tell you that it is always a big deal with clients. They think it is highly intrusive, they do not fully answer the questions that defendants ask them, they leave things out either accidentally or deliberately, and sometimes they simply do not remember things in their past that you would think anybody would remember.

Litigation is very  tough indeed, and really, discovery is the toughest portion of all. I can teach my clients how to testify at trial. I can tell each them to answer the question the attorneys or judge asked them, and not the questions they wanted the attorneys or judge to ask them, and I can teach them to answer the question and then stop talking. But getting clients to fully answer discovery can be extremely difficult because clients do not understand, no matter how many times I tell them, how important discovery really is until the other side tries to use their discovery disclosures against them.

So what is discovery? It is a means of find evidence that hurts the other side’s case. Trust me when I say that opposing counsel has absolutely no interest in discovering evidence that helps your case. The entire purpose of discovery is to somehow hurt your case or help theirs.

I have had clients who have dropped their cases rather than engage in discovery. It can be that brutal. But if you handle it correctly and with utter honesty, then it can make your case long before you step into the courtroom.

I like discovery. It is pure legal chess. It is often the most satisfying portion of the case second only to winning.

That saying a helluva lot for a trial lawyer like me.

The Cellular Culture

America is quickly becoming what I call a Cellular Culture.

 
Many people no longer own computers or printers. Scanners? Ha! No.
 
Instead, the Cellular Culture uses their cell phones for almost everything. That’s particularly the case with the sub-30 year old segment of our population. Some don’t even use email.
 
Their major means of communication is through . . . wait for it . . . social media.
 
If a Cellular Culture person wants to complain about a customer service issue, she uses Facebook, Twitter, and even Yelp. I’ve seen people pick up their phones in a restaurant to write a scathing review online rather than speak with a manager.
 
Less chance of having someone spit in their food, maybe?
 
Ringing doorbells is apparently now considered intrusive to some people. I have a neighbor whose friends don’t get out of their cars to announce their arrivals. They used to blow their horns, but now, I more often see them sitting quietly in their cars and texting until someone comes outside,
 
Yet even texting is considered old school by some younger people.
 
The Cellular Culture is different than any we’ve seen before, and it’s evolving far more rapidly than we know.
 
I practice personal injury law across Florida, and that means I will represent clients from from the Keys to the Panhandle. I do not meet in person with all my clients. There’s little need for it today because I use a Cloud-based software platform that allows my clients to see every document I send or receive in their cases, and my clients can use Face-time or Skype if they really want to see my smiling face.
 
Plus, I communicate with my clients every month or so via phone calls, texts, and email. I want to know what’s going on with them. I want them to know they can reach out to me through a variety of ways whenever they want. I respond whenever I can.
 
So far, so good, right?
 
The proverbial fly in the ointment, though, arises when my clients must send me legal documents. The Cellular Culture tends to send pictures of documents. Those pictures are often illegible and incomplete. I’ve received pictures of a contract’s signature block before.
 
That obviously won’t do.
 
Discovery in a lawsuit can be a nightmare. Think of someone sending you a picture of each Interrogatory answer. If you’re lucky enough to get PDFs, well, you’ll potentially receive a separate PDF for each page—that literally can mean dozens of PDF pages that could and should be sent as a single document.
 
I’ve spent many hours creating a single document from a jumbled mess of discordant PDFs. Such messes sometimes arrive a few hours before the discovery deadline.
 
It’s frustrating.
 
Yet I don’t blame my clients. It’s an educational process for them. I now discuss their legal needs—not mine, theirs—in the beginning stages of my representation of them.
 
No pictures. Opposing counsel and the E-Filing Portal won’t accept them.
 
If I send them a document to complete, then I need them to return a whole document. Not the signature page and certainly not just a picture of the client’s signature.
 
Don’t send legal materials and confidential through Facebook.
 
Don’t text discovery materials to me.
 
I also send SASEs to my clients now because I had one client who was unfamiliar with how to buy stamps. Some people do not use a service if it’s not online. Some seemingly have never mailed anything.
 
So how else do I handle this new communication challenge?
 
I now recommend my Cellular Culture clients download free PDF apps like Adobe Fill & Sign. I ask them to try a few until they find one they like. PDF technology has become increasingly more intuitive over the last few years.
 
I actually get the Cellular Culture despite some of the challenges it represents. I hate paper. I rarely print anything. Why should I? We lawyers rarely file paper motions anymore unless a judge requires it.
 
I use my iPad for referring to motions and pleadings when I’m in state court. My trial exhibits, unless I’m entering them into evidence, are encompassed in PowerPoint presentations.
 
I literally do not keep paper files or even CD-ROMs. I turn everything into a digital file and use a multiplicity of Cloud and backup hard drives in order to ensure nothing gets lost.
 
It’s a rare occasion when I can’t tell a client exactly what’s going on with her case. I’ve even done it from the Bahamas. Yes, I answer emails, texts, and phone calls while on vacation. I doubt you’re surprised. If you are, well, you’re probably new here.
 
Yet I wonder what the future holds for communication.
 
One day, and it’s coming very soon, we may be dealing with embedded communication technology that doesn’t require external devices. Indeed, that’s the premise of the Synchronicity. Google the term. You’ll probably be fascinated by the concept.
 
We will all be the Borg. Resistance is futile.
 
Until the Synchronicity arrives, though, we have the new Apple Watch. It no longer requires a cellular phone to be present to use it, and I suspect some of the Cellular Culture will no longer use their cell phones very often.
 
Eventually, we may have a strictly Watch Culture. I’ve no idea how I’m going to handle that technological evolution.
 
I’m sure there’s going to be an app for that.

Don’t Discuss Your Case On Social Media

Please do not post anything about your legal matters on social media. I guarantee you that opposing counsel will try to use it against you. That’s defense counsel’s job.
 
You can’t blame opposing counsel when you make her job easier.
 
I’ve had personal clients post pictures and videos of themselves climbing mountains, skydiving, running in marathons, lifting heavy weights at gyms, easily swinging children around like rag-dolls, clearing voluminous amounts of debris from their yards, and many other such things that defendants will use against them during litigation.
 
Can I explain away those things to a jury? Maybe. But why complicate your case? Why shoot yourself in your foot before you even step into the courtroom?
 
You might as well grab a big stack of cash and burn it.
I saw a video last night in which someone got rear-ended. The first words the driver spoke were less than kind and cultured. Okay, that stream of profanities is understandable, but a jury is not going to like it. But what’s worse is the fact that the driver and passenger then reassured each other that neither was injured.
 
Guess what opposing counsel will play to the jury? It will probably become her closing argument’s soundtrack. The jury will likely hear it several times.
 
You see, the fact is facts don’t always matter. The defendant gets to play defense, and if he can make you out to be a greedy liar, well, he’s probably within his rights to try it. Many jurors don’t like personal injury victims.
 
Don’t cripple your own case.
 
Here are a few things I’ve also seen hurt cases:
 
1. Posting “I had a great day!” Really? But you testified under oath in your deposition that you’re miserable every day . . .
 
2. Posting about your hobbies. You know, the hobbies you can no longer do? Those hobbies.
 
3. Posting derogatory comments about the person who hit you. Calling the woman who hurt you a “cunt” or a guy a “dickhead” is not going to play well with a jury. It’s a negligence lawsuit and not a deliberate act.
 
4. Bragging about what you you’re going to do with your lawsuit winnings. Well, they might not be as big as you think now, because opposing counsel will try to make your case into the next “hot coffee” example for tort reform.
 
5. Posting pictures of you hugging your car and weeping over its damage. “So, Mr. Plaintiff, you were more concerned with your car than with your alleged injuries at the scene, weren’t you?” Yeah. Seen that before too.
 
Here is my “free advice” on legal issues and social media: Nothing you post will help your case. Many jurors don’t get vacations, won’t appreciate your wedding pictures, will despise you for looking happy when you’re supposed to be miserable, and so on.
 
Don’t give the other side anything they can use against you. Claims adjusters and defense counsel can, do, and will comb through your posts to see what’s there.
 
Set your privacy settings as high as possible to minimize that possibility.
 
I’ve literally had to tell clients they’ve destroyed their cases through social media posts. No personal attorney wants to get a phone call from a claims adjuster or opposing counsel that says, “Tell your client we are reducing our settlement offer . . . Oh, and please tell her to save her social media post from XX-XX-XXXX. I’m sending you a spoliation letter/Request for Production today. Will you be dropping her?”
 
Social media bad.
Silence good.
Zip your lips and still your fingers!

Void Ab Initio: An Unfair Legal Fiction

You would think that a contract is a contract is a contract. We expect parties to uphold their ends of a contract whenever they enter into them.

Unfortunately, that is not the case with some insurance companies.

I will not mention specific insurance companies, but some insurance companies try to weasel out of claims by using a process called “void ab initio.”

Void ab initio is a legal fiction that allows one party to a contract to pretend that the contract never existed. Some insurance companies use this legal fiction in order to avoid an insurance contract rather than paying the value of claims when they occur.

What happens in a void ab initio action is the insurance company returns all your policy premiums and then pretends that your insurance policy never existed because it  supposedly never would have written your policy if it had known about certain facts.

Those insurance companies will happily take your insurance premium monies for years until you  or somebody else makes a claim. After you or someone else makes a claim, the insurance company holds what is called an Examination Under Oath (“EUO”) EUO in order to  discover something that would allow them to void your policy contract. The insurer is often looking for a way to deny your claim if it holds an EUO.

Sometimes they will do it based upon just a recorded statement.

So what do the insurance companies look for?

Well, it can be as simple as somebody who lives in your home that you did not disclose to your insurance agent when you got the policy. I have seen insurance companies  deny coverage because the insured party did not disclose that they had children of 15 years or older living with them, live with their parents, had roommates, or anything else that would raise the premium by such an insignificant amount is $10 (or maybe less) per policy period.

I have also seen this occur once somebody has changed their address without notifying the insurance company.

One insurance underwriter admitted during her deposition that her insurance company was engaging in what is called “post-claims  underwriting.” All that means is the insurance company  is trying to reach back in time in order to say they would not have underwritten your policy had they known about some fact.

So you didn’t tell your insurance company that you drive for Uber or Lyft when you took out the policy? Get ready for a denial. Nothing is covered. Your policy is voided. It’s as if it never existed.

In my opinion is that it’s an underhanded way  of denying claims instead of paying them. It is usually the lower-tier insurance companies that act this way. They will literally try to void your policy for any reason they can rather than paying thousands of dollars to pay your claims.

However, many times it is the insurance agent who fills out  the  insurance company’s initial policy application. This is particularly  true when it comes to immigrants, poor people, and others who do not have the best reading skills. Sometimes the insurance agent, claims adjuster, or underwriter do themselves not understand questions the these applications ask. If the insurance company representatives do not understand their own applications, then how are common  citizens expected to do so?

Here is how to avoid the most common void ab initio traps:

  • List everybody  who lives in your household. It does not matter that they have their own insurance.  It does not matter if they will never drive your car.List them anyway. You can exclude those people from your policy, but they can never drive your car, even in an emergency. You can also list some people as what are called “permissive drivers” if they drive your car on a frequent basis.
  • Tell your insurance company if somebody moves in with you too. You can add or exclude them from your policy. You can’t ever let an excluded person drive you car, though, because that will result in a denial or reduction of coverage.
  • Make sure that your  insurance company knows exactly where you live. I am frequently surprised when my clients do not update their  insurance companies about their addresses. An insurance company will Void ab Initio your policy in a heartbeat when you move to a higher risk area, and there is no way for you to tell if you live in a higher risk area. This is called “garaging.”
  • You must tell your insurance company if you drive or start driving for Uber or Lyft (even part-time), deliver  food  or people for money, or otherwise use your car for any business other than driving to and from work.
  • Please tell your insurance company about all crashes that you have been in. One favorite tactic is for your insurance company to run a report on you after somebody makes a claim in order to say they would not have issued a policy to you had they known about your loss history.

Void ab initio is a tool that insurance companies often use in order to deny claims that they should have paid. Do not give the insurance company any ammunition to claim that it would not have written  your policy if it had known about some circumstance that you do not think is important.

It’s all important.

The insurance company denying your claim is bad enough, but it gets even worse, because the State of Florida can suspend your license because you got into a crash and did not have insurance—even though you did. How unfair is that? Yet it happens frequently in Florida.

Avoid a void ab initio problem by following my advice.

Kindest regards,

Christopher R Dillingham II, Esquire