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What Does an Insurance Company/Defense Attorney Look for in a Personal Injury Case?

I am happy to invite a leading defense attorney to participate in this video blog. John Johnson has been defending civil cases for forty years and has been involved in some of the most serious personal injury cases in Massachusetts. That involvement has included the handling of not only trials but appellate cases. As you may be aware from my prior blogs, or from your own sources, appellate cases create most of the tort law or negligence law that we encounter in Massachusetts.

I thought it wise to ask John what he, as a defense attorney in serious accident cases, looks for in a plaintiff, or person suing. He mentions that his first person-to-person meeting with the person bringing the lawsuit is at a deposition. A deposition, unlike a trial, is not held in a courtroom, but is held in a lawyer’s office. The deposing attorney tries to elicit facts from the person suing. However, there is another dynamic that goes on: the assessment of the plaintiff is taking place. I have known about this aspect of depositions since I began working as a lawyer. I started working in a very busy defense law firm and I recall my boss who, if he were alive, would be in his eighties and always saying to me, “Now, I get to size her/him up.” Evidently, this is the common view of defense lawyers. As John Johnson says, he expects the person to be somewhat nervous and he attributes that to the process. One of the roles that he has as a defense lawyer is to determine if the nervousness is an understandable reaction to a formal process or if it’s due to something entirely different. Is the nervousness due to the witness’s concealing of information or to the desire to exaggerate? You should know that the deposing lawyer is filing a report with the insurance company and will report the facts as presented in the deposition but also will provide an assessment of the plaintiff. Will he or she make a good witness at trial? Is he or she likable? In my experience, the answers to those questions go a long way to determining if a case will be settled.

John Johnson also speaks of how he uses documents to assess the value of a case. He mentions that hospital records are relevant. Certainly, they tell us about the physical injury but, he, as defense attorney, is particularly interested in how the injured party has described the accident. It is generally felt that a person’s description is most reliable at a point that is closest to the time of the accident. That is just common sense. The individual has not had an opportunity to reflect upon the accident or to speak to a lawyer. Thus, there is an aura of authenticity to that description. To be sure, there are interesting evidentiary considerations on whether that description is admissible as evidence. There are some circumstances where it is admissible and others where it is not. Nevertheless, that description can go a long way to determining whether there is a personal injury settlement.

You will note that John continued to speak of exaggeration and/or overreaching on the part of the person bringing the injury action. He says, not surprisingly, that such exaggeration can hurt a case badly and discusses how such exaggeration is easy to detect. Even though John Johnson represents defendants and I represent plaintiffs, we are in full agreement on that point. Overreaching runs the risk of hurting the very valid injuries for which my clients seek compensation.

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