This case was to recover for motorcycle accident injuries. As usual, there were issues in the case that the defense hoped to exploit.
The offer by the corporate defendant was low, in spite of my presentation as the injured party’s personal injury attorney that argued for a higher offer.
Result in Court: The judgment obtained was for over 10 times the defense offer.
Why was the defense offer so low?
Most likely, because of an earlier inter-company arbitration. This was between the insurance company of the injured party and the insurance company for the defendant corporation. No attorney was present for the injured party. The injured party’s insurance company lost, probably because of unchallenged hearsay. My theory is that this arbitration victory encouraged the defendant adjuster to get tough. This defense victory in an arbitration, before a personal injury lawyer was involved, may have made the defendant adjuster too agressive.
What caused the trial victory?
Before the trial, appropriate motions in limine were filed. The order by the Judge prohibited some irrelevant and prejudicial testimony, and set up the trial presentation.
The injured person testified well about the events before the collision. He also testified about the effect of the injuries.
His good presentation was due in part to preparation. My practice is to go over the actual questions and expected answers with the client, before the trial, to avoid any need for the client to guess about the question’s specific topic. This avoids uncertainty, allows for variation if the client remembers something new but gets the testimony back on track, and makes clients more comfortable.
This technique is one I learned a number of years ago. It was recommended by a retired Judge who started practicing law again, and had noticed many times the confusion of witnesses trying to figure out what their own lawyer’s questions meant. Many attorneys only use outlines, but this is inferior to writing out the actual questions. Writing out the questions does require time and organization.
Our witnesses testified well. For example, the treating physician testified by video deposition. Just before his deposition, he and I briefly went over the list of questions I planned to ask, with the images (x-rays). He said what he would testify to in response to each planned question, I made notes to clarify my questions, and then his deposition went well. Take note: this is another example of the effect of writing out the questions in advance, even if discussed with the witness only a few minutes before the testimony.
A friend of the client came to testify. This witness, although friend of client, was under subpoena. The testimony went well and was consistent with the testimony of the client.
The adverse witnesses did not testify so well. In trial there are times for quick decisions. A couple of times, I decided on the spot that the adverse witness testimony was not harmful, so I used a favorite cross examination technique, and I said, “No questions.” This has an added benefit of cutting off any re-direct testimony. Moreover, I like for the last word to signal that no harm was done by the adverse witness.
Lessons learned: get an attorney involved early, to avoid getting the adjusters anchored to a low-ball case valuation. A trial has risk. If I get a fair offer we accept, otherwise we go to the courthouse and see who wins.
Disclaimer – as you know, a prior result does not guarantee similar result in any other case.
This post authored by E. J. Simmons and relates to his representation of an injured person as a motorcycle accident attorney.