Personal Injury Case

Robert I. Feinberg

05 November 2008
As I approach my thirtieth year of practicing law, I am still intrigued by what makes for a successful personal injury case. The reality is somewhat different from what was taught in law school. Law school conveys a sense of what the law is, but the practice of law is about people in addition to the law.

First and foremost, for a personal injury action to be successful, it requires what is called a deep pocket. Usually this means insurance coverage. Without that, a person finds himself or herself in the unhappy position of trying to recover money from a private individual.

I recently obtained virtually one half-million dollars on a case where the client had four days of hospitalization but no other medical treatment. Ordinarily his lawsuit would not be expected to pay this kind of money. Why did I achieve almost a half-million dollars when the treatment stopped four days after the accident? I believe strongly that the answer is because the case was aggressively pursued.

By aggressiveness I mean that the court process was started very early. (It is important to note that sometimes a claim will settle before the court process or lawsuit begins and as a result, a lawsuit is not necessary in every situation.) I filed the lawsuit within a month of the man’s accident. Sometimes, this is not advisable. I compare it to a doctor treating somebody with medication and, if that fails, surgery. Medication is comparable to negotiations before a lawsuit and surgery is comparable to the lawsuit. One is conservative and the other is aggressive. This case demanded a highly aggressive posture and it paid off. Insurance companies will pay money for the aggressively handled case, but only if it is a good case. The point is a good case permits the lawyer to be aggressive if the lawyer is so wiling.

The case had a sympathetic plaintiff – the person suing – and a defendant – the person being sued – who was not particularly sympathetic. Further, there was $500,000 in insurance coverage so there was a lot of money to work with. Even without much medical treatment, I arranged for the client to be examined by two neurologists and I also obtained a psychologist’s report on the effects that his accident has had on him. These appointments were not for medical treatment, but instead were evaluations for purposes of making the adversary understand the case. Other approaches involved getting written statements from the client’s coworkers who explained how this man had been negatively affected by the accident. Finally, I arranged with a medical illustrator to show in a graphic demonstration the injuries that were suffered.

Fortunately, everything fell into place. The case settled at a mediation. Mediation is a private, low-key negotiating session in a lawyer’s office, not in a courtroom. The case was prepared for trial but no trial had to occur and the client got a very, very large sum of money, well beyond what he had ever expected.

This result can be achieved when the lawyer is presented with the right elements and presents them in the right manner.