What I have learned over the years from representing injured victims is that the old maxim of “keep it simple” makes a lot of sense. It should be followed. We, as plaintiffs, when presenting a case, want a very clear, coherent presentation of that case. I find that the other side, the defense, really the insurance company, has another view of things. Their preference is for confusion, complication and delay. And why not? The more uncertain the reason for the injury, the reason for the accident, or how the damages have affected the plaintiff, the less likely their defendant/client will be held responsible.
Defense counsel and insurance companies want to confuse the issue or set up straw men as the saying goes. This allows them to create other defendants who are not a party to the litigation. They then can say that if anyone is responsible, that other party – actually from their point of view it can be a co-defendant or an unnamed party- are responsible. They like to complicate matters. This leave people uncertain and creates doubt about what they, the factfinder, is hearing.
What can be better from the defendant’s perspective than to have people second guess and to doubt the evidence that comes in? Certainly, a healthy skepticism is okay, but I do not mean it in that sense. Finally, and this applies more to pre-trial litigation, there is a desire on the part of the other side to delay and to throw up obstacles so there cannot be an orderly flow of discovery. Thereby, the plaintiff’s opportunity for resolution of the case is significantly delayed.
Again, your attorney should have a different view. That view is to expedite things, but not of course at the danger of missing important facts or evidence in the development of the case. Take something as simple as putting in loss of earning capacity. (I recognize that can have some permutations which make it tricky in some instances.) I have always said and I have said in prior blogs that you want to establish a baseline of earnings. What was the person making at the time they were injured? Next, how long were they out of work? Is it a permanent work disability? These questions, broken down as they are, suggest a clear approach to what can seem, at least sometimes, tricky issues.
Your lawyer will need the proper medical foundation to establish that there was a reason the client is out of work. Surely, any permanent work disability needs the appropriate medical conclusion. But once that medical conclusion is there, I approach the issue in a very straightforward way. I take the figure that the person was making, the baseline figure. To that, I will add certain increases and fringe benefits and so forth that the person would expect. You can do this with an economist or you can do it without. Then you establish the duration of the person’s loss which could be permanent. The defendants do not really want that basic arithmetic formula to be used; they want to obfuscate, a fancy term for confusion or muddying the waters. Then there is the issue of reducing damages to present value; a tricky concept but one that is not, in my view, an impediment to the straightforward approach.
The defense arguments are familiar ones to plaintiff lawyers: “Well, we don’t really know about what the person was making, or at least, it is hard to tell.” Maybe the plaintiff is the owner of a business and maybe other factors came into play in determining income and so forth. While at first blush that may be reasonable, you can expect an insurance company and their representatives to cloud the issue as much as possible, even where it seems unfair.
This little illustration on earning capacity and how to establish it is a perfect template for damage development, in my opinion. The way it is established is hopefully very clear and very direct. In contrast, the way the defendant wants people to view it is very unclear, circular, and uncertain. That is what you will face. If I may say, in the appropriate hands, your loss of earning capacity, as well as your case overall, can be developed in a way to counteract the diversionary tactics of the other side.
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