Should I Settle or Go to Trial?

Most personal injury plaintiffs will be plagued by this question at some point during their lawsuit. Should you settle and take less than what you think your case is worth, or risk it all at trial? The vast majority of plaintiffs will choose to settle — and for good reason. I read an article once which argued that jury trials were no more likely to get to the truth than “trial by combat” or “trial by ordeal.” While jury verdicts may not be that arbitrary, I can say, having been through many jury trials (and hearing horror stories about many others), the one thing I know is that accurately predicting a jury verdict is about as likely as correctly predicting a coin flip. Think O.J. or Casey Anthony. Most experts didn’t see those verdicts coming.

Settlement — A Bird in the Hand. . .

The downside of settlement is obvious to most plaintiffs — you get less money than you would get from your best possible trial outcome. From a defendant’s standpoint, though, this makes perfect sense. Why would a defendant settle with you for the most you could get at trial? That makes about as much sense as you agreeing to settle for $0.00 when there is a chance you could win at trial.

The upsides to settlement are numerous:

  • You get paid a lot sooner than if you have to wait for a trial date.
  • You no longer have to stress about your lawsuit.
  • You don’t have to worry about a hung jury (I actually had two of these on the same case — which then settled).
  • The defendant can’t appeal a settlement. He definitely can appeal a judgment — which could easily tie up your money for more than a year after you win at trial.

The benefits boil down to a guarantee of payment in the near future and a lifting of stress. Of course, this all depends upon you receiving a reasonable settlement, given your damages and chances of winning at trial. This begs the question of what your lawsuit is worth, which is the subject of another article.

Trial — The Grass is Greener . . .

Many plaintiffs who settle their cases later experience buyer’s remorse and curse at not having had “their day in court.” Of course, this hindsight is viewed through rose-colored glasses. They quickly forget the stress that the uncertainty of their lawsuits injected into their lives. They become much more optimistic about what their chances were at trial. The risk of recovering nothing from their lawsuit is ignored now that it has been removed.

On the positive side, winning big at trial can be euphoric. You feel vindicated, relieved, and you act like you “knew you would win all along.” Bitch-slapping an arrogant insurance company or major corporation that refused to make you a decent settlement offer feels great. This brings me to the ultimate point of my article — trial should be reserved for those times when the defendant is totally unreasonable.

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When You Should Choose Trial Over Settlement

Some cases just can’t be settled. Most often these will be cases that involve one of two issues. The first issue is liability. Liability refers to whether the defendant was negligent or committed some other tortious act. If the defendant has an argument that he is not liable, he has a chance to win outright at trial and not have to pay you anything.

The second issue is causation. Did the defendant’s conduct, even if he was negligent, legally cause the injuries you claim? This can arise in many cases, such as those where the plaintiff had a pre-existing condition, the plaintiff was involved in multiple accidents or the plaintiff’s injuries could have been caused by an illness which naturally occurs in people who never had an accident.

Cases involving liability and/or causation issues are particularly difficult to settle when the damages are large. If you have $1,000,000.00 in damages, but the defendant has a chance to pay you nothing at trial, coming to a consensus on a reasonable settlement figure may be impossible. From your standpoint, you can’t afford a low settlement offer due to medical bills, lost wages and the chance of being fully compensated with a win at trial. From the defendant’s standpoint, why pay a large settlement when it may not have to pay anything after trial? When the stakes are particularly high, even when the amount of damages (should you win) is not hotly contested, a win-it-all or lose-it-all case may be impossible to settle. These are the types of cases that really should be tried.

When Should You Settle?

In cases where liability and causation are not at issue (there are cases where defendants will admit these things before trial) and the only issue is the amount of your damages, the possibility for a fair settlement is much greater. When the defendant knows that it is going to have to pay something after trial, and the only issue is how much, the case should settle. These types of cases should not be tried unless the defendant is completely unreasonable in evaluating your damages. The good news for you is that should your defendant prove to be unreasonable, you have the benefit of going into trial knowing that you will win, and you are really only gambling on the amount of the win.

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Be Reasonable

Thankfully, most parties to lawsuits will act reasonably when evaluating their odds of success at trial and the amount of damages at issue. This is why the majority of civil cases settle. As long as you are being reasonable, you should have no regrets about your decision, whether it be to settle or go trial.

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115 Responses to Should I Settle or Go to Trial?

  1. RRHW says:

    Our son received a concussion at a daycare in Florida when he fell from a table when he was 2. We’ve had two different attorneys but are now representing our son. We were presented with an offer of $6000 which we rejected with a counter offer of $20000. The adjuster made a counter offer of $10000. We are approaching the SOL date of 04/30 and we like to receive close to $15000. SHould we file suit to get fair settlement amount?

    • fl_litig8r says:

      Unless you or your husband is a lawyer, I don’t know that filing suit will put you in a better bargaining position. You obviously want to be sure that suit is filed before the statute of limitations runs and that it is filed in the proper court (circuit court for cases whose value exceeds $15,000.00) and against the proper defendant (if the day care was operating under a fictitious name, you can look up the true name of the entity operating it on the Florida Department of State Website. You’ll also have to file suit on behalf of the minor child in the name of one or both natural parents.

      You could file the suit to preserve the statute of limitations and hold off on serving the defendant while you keep negotiating. Be aware that Fla.R.Civ.P. 1.070(j) allows 120 days after suit is filed to serve the defendant before the case is subject to dismissal (if it is dismissed after the SOL runs, you’re out of luck).

      Any savvy defense lawyer will aggressively go after a pro se plaintiff, so you may not want to jump into the lawsuit until it’s absolutely necessary. Expect a motion to dismiss to be filed even if you’ve been very careful in wording your complaint — the defense lawyer will want to make you work and sweat as much as possible. He’ll also likely swamp you with discovery requests and file motions to compel if he thinks your answers are incomplete (or aren’t sent in time).

      If push comes to shove and you really want to file suit, I’d strongly recommend trying to find lawyer #3 before going it alone. Your case isn’t a simple fender bender. Proving the extent of head injuries, especially in a child so young, will be complicated (and expensive if you’re paying for your own expert witnesses out of pocket).

      Also, settlements of claims for minors can get tricky, especially after suit is filed. As long as you keep the settlement to $15,000.00 or less, you should be able to settle without court approval before the lawsuit is filed (Fla.Stat. 744.301). After the lawsuit is filed, court approval will be required (Fla.Stat. 744.387(3)(a)). So, one factor in deciding when to file suit would be the extra time and hassle of getting court approval for your settlement.

      • RRHW says:

        Thanks for your prompt response. Our son has a Dr appt in 3 weeks to read the last Brain CT which will make a last determination if he appears to have any residual affects from the concussion. Is mediation an option to extend the SOL? Do you believe the offer of $10000 is a “fair/good faith” offer?

        • fl_litig8r says:

          The only way to be sure the statute of limitations doesn’t run is to file your Complaint with the court. There is no separate filing for a mediation. You can choose to mediate before filing a lawsuit (it doesn’t require any court filings), but it doesn’t prevent the statute of limitation from running. Mediation will cost you a few hundred dollars (usually between $100-$200/hour per party in a two-party mediation) and it may not be possible to arrange one before the SOL runs, so it may not be an option at this point.

          As to whether $10,000.00 is a fair offer, I couldn’t say from the limited information I have. Obviously, that upcoming CT will be important in determining how much the case is worth. I can say that, without a lawyer, you’re going to have your hands full trying to litigate this. If you expect that your son’s CT scan will show a permanent injury, you may want to start looking for lawyer #3 now. If his tests have all been clear until now, you can wait for confirmation with the upcoming CT before deciding whether to accept their offer. Keep in mind that you’ll likely have to pay back your health insurer for the treatment your son received due to the accident. So, make sure you get enough to cover any claim of reimbursement your insurer may have.

          • RRHW says:

            Thank you so much for your expertise. We received the results back from the Brain CT and it indicates no abnormalities; everything appears normal! We are grateful. I would rather have a healthy child than any monetary compensation. However, I do not believe $10000 is enough. Our son has had 2 scans of his brain and those procedures were COSTLY. Are insurance adjusters required to pay the medical expenses? I’ve totaled everything from the medical procedures and visits to the pediatrician/neurologist to be $7000.00. What is your opinion?

          • fl_litig8r says:

            Tortfeasors are responsible for all the reasonable medical expenses caused by their negligence. Of course, many times they will dispute 1) that they were negligent, 2) that their negligence caused the injuries, and/or 3) that the medical treatment was reasonable. So, it’s not a pure black and white issue in most cases, even ones where liability is admitted.

            In your son’s case, due to his age you can eliminate a lot of variables from the damages equation (assuming he has fully recovered). One, you don’t have to deal with a past or future wage loss claim. Two, the chances of him having a pre-existing condition before the accident are greatly reduced, and he likely had routine medical exams which would support that. Three, his test results make it appear unlikely that he suffered an injury that will require future medical care of any consequence.

            The value of his claim appears to be limited to past medical expenses and pain and suffering. Keep in mind, we’re talking about his pain and suffering, not mom and dad’s (which you don’t get to recover in 99.999% of cases). In other words, don’t put any value on your fear that your son was seriously injured. Only consider your son’s pain and emotional distress. With $7,000.00 in medical bills, their $10,000.00 offer would mean pain and suffering damages of $3,000.00, which actually isn’t too bad for the pain of falling and hitting your head (this assumes the actual pain from the trauma itself would have lasted a few days at most). If you can successfully negotiate down your health insurance lien, that moves even more money into the “pain and suffering” category.

            Everyone wants to recover as much as possible in their lawsuit, but you also have to be realistic about its value. While in most cases, the rule of thumb is to shoot for between 1x-3x your medical bills in pain and suffering damages, this usually assumes a permanent injury of some sort. Also, in your son’s case, the medical bills are somewhat disproportionate to the actual injury due to the high cost of the diagnostic testing to rule out a serious head injury in a young child. I’m not in any way saying that the costs are not justified. I’m just saying that when the majority of your medical costs are from testing to rule out injury, this won’t help your pain and suffering claim the same way medical costs for treating an actual injury will.

            As long as you are comfortable that your son has made a full recovery from the injury, and won’t require further testing or treatment for it, you should give some serious thought to their offer. Considering the position that you’re in right now, with no lawyer and a statute of limitations rapidly approaching, you don’t have a great deal of time left to decide. I’m not sure that a lawyer could get you enough over what you could get by settling on your own to offset his fees and costs, given the facts as presented.

            While it certainly wouldn’t hurt to see if you could get them to increase their offer, I don’t see their $10,000.00 offer as being unreasonable for a very scary, but ultimately temporary, injury.

  2. RRHW says:

    Thank you!

  3. RRHW says:

    One last question: Does the SOL expire 4 years to the day of the personal injury accident 04/30/2012 or one month before? The insurance company isn’t returning our phone calls; so we may need to look for lawyer #3. 🙁

  4. RRHW says:

    Fl litig8r: Thought I would update you: We settled on 03/31 for $14000 (just received the check), only owed $1800 to the ins co and didn’t need lawyer #3! Thanks for your help! 🙂

  5. unknown says:

    I had an outpatient procedure in a hospital in Tn a couple of months ago. During the procedure, the assisting nurse made a mistake in computing the total saline absorbed in my body. As a result, my stomach got so big like nine months pregnant. I was in so much pain and discomfort that I ended up staying in the hospital for a night. My stomach went back to normal size after several weeks and I’m left with so many stretch marks in my stomach due to drastic skin stretching. After I sent a complaint to the hospital, they responded admitting the mistake and they apologized and offered $2500. I did not accept it and told the claims manager via e-mail that what they are offering is nothing compared to what happened to me. Weeks later, still no response, what shall I do? Is it normal for them to take a while to reply or am I being ignored?

    • fl_litig8r says:

      It may very well be that they are ignoring you, most likely because they know it will be near-impossible for you to find a lawyer willing to take your case. While liability seems clear, your damages don’t sound near high enough to justify the time and cost of a medical malpractice lawsuit. Without a permanent injury (aside from the stretch marks, which I’ll get to), most (if not all) medical malpractice lawyers won’t want to touch your case, due to the high cost of medical experts needed for such cases.

      With respect to the stretch marks, the value of these will depend on a lot of different factors: how bad they look when resolved (they look far worse when they first occur than later on, when the purplish color goes away), how you looked before the incident, how old you are (stretch marks on a 20-something woman will be worth more than stretch marks on a 60-something woman), and the cost of trying to remove them. Hopefully, you’ve already taken steps to minimize the damage by applying one of the creams available to minimize stretch marks while they are still fresh. After that, the only option I’m aware of to treat them is a procedure involving a laser. If you haven’t already looked into this, it would probably help your negotiations to find out how much such a treatment would cost.

      I really think that this is one case you’re going to have to try to settle on your own (even though I usually recommend against this for med mal claims). Once you’ve figured out your past and future medical costs, I’d submit a settlement demand to them in writing. Include photos of the stretch marks (and some “before” pictures if you have them). I’d ask for the medical cost plus 2x that for pain & suffering and emotional distress.

      Don’t submit this demand via e-mail. E-mails are easy to ignore (or get “spam foldered”). Send a physical letter. If you don’t get a response, call them — repeatedly, if necessary. Ultimately, you’ll probably have to resign yourself to taking whatever you can get (which is better than nothing).

      Of course, by all means you should call some med mal lawyers first to see if any would take your case. Just don’t be surprised if none are interested. I’m sorry I don’t have better news for you, but I prefer to be brutally honest than needlessly get your hopes up.

  6. unknown says:

    Thank you for your candor. I really appreciate it.

    I am actually in my early 30’s. Unfortunately, I don’t have a “before” picture.

    Will it be better to send the demand letter to the Chief Medical Officer or to the Claims Manager? We sent the initial complaint letter to the CMO and he forwarded it to the Claims Manager. I wonder if the Claims Manager will be more inclined to work in settling our case if the letter will come from the CFO.

    Another thing is that I don’t know what is considered a fair settlement for this case. I could have died as a result of that mistake. Luckily, I did not. But I suffered for three weeks and my husband had to use up his vacation time to take care of me and our daughter. While I was glad that my stomach size is now back to normal, every time I look at my stomach full of stretch marks, I get reminded of what happened.

    Also, should I report the incident to the State Department of Health while trying to settle?

    I was hoping to settle this without a lawyer but if they are ignoring me, I guess I have no choice but to look for a lawyer who will be willing to take the case. I have filled up forms online inquiring about the case. There are a few lawyers who want to talk to me about it. I guess I will have to do some calling next week.

    Thank you again.

    • fl_litig8r says:

      I would send it to the CMO, explaining that you are sending it to him because your prior attempts to contact the claims officer received no response. “Fair” in a case like this is going to be highly subjective, as your damages consist almost entirely of pain/emotional distress and non-impairing scarring. That’s why I suggested finding out how much laser treatment to revise the stretch marks would cost. At least that would give you some solid dollar amounts to include with the demand. The rest really depends on what you’re willing to take — and unless you can get a lawyer, what they are willing to offer.

      Reporting the issue to the Department of Health won’t help your settlement prospects. If anything, it may get their backs up as they’ll already have to incur the cost of defending the nurse’s license (and perhaps those of other providers involved). They may also be more inclined to settle if they believe that it will avoid an administrative complaint. I don’t suggest using this as a negotiation tactic, though, as if you do wind up filing a complaint it would look pretty bad if you had previously threatened to do so only if they didn’t pay up. It could also be seen as extortion and possibly abuse of process.

      Before you do anything, definitely give some lawyers a call. When you talk to them, ask them explicitly if they’re taking your case purely for settlement purposes or if they’d actually file suit if an adequate offer isn’t made. If they’re taking it purely for settlement purposes and have no intention of filing suit, you may want to try settling on your own first, as the lawyer may not be able to get so much of a higher offer than you as to justify a 1/3 fee.

      I hope you’re able to settle this quickly and fairly.

      • unknown says:

        Thank you again to your immediate reply.

        I am a bit lost though. I’ve read somewhere before that the demand letter should include the next action they plan to take if the other party failed to respond. In my case, the next action plans are limited (1) file a lawsuit, (2) file a complaint to State Department of Health and (3) talk to the media, etc. I think all three options can be seen as a threat. My question is, since it seems like they are ignoring me because they know that I will find it difficult to find a lawyer to defend me, what leverage can I use to make them work with me in settling this issue? Why will they want to settle the issue with me if they know there will be no consequence if they don’t?

        • fl_litig8r says:

          I would say that you are “hoping to settle the case without having to hire a lawyer.” While they probably suspect you’ll have a hard time finding one, they won’t know for sure (just as I don’t). This should be a sufficient threat to generate a response. As I said before, threatening an administrative complaint is a bad idea for several reasons. Threatening to go to the media rarely works, because so few stories will ever get any attention from them. Your case isn’t emblematic of a widespread problem which screams for attention (it seems like it’s just isolated run-of-the-mill malpractice, and how often do you hear about that on the news?) and it doesn’t have a huge amount of shock value (like amputating the wrong limb).

          The bottom line is you’ll either be able to hire a lawyer or you won’t. If you can’t, then it really doesn’t matter much what you say in the letter — you won’t be able to sue regardless of what they do. If you can, then you won’t need to threaten anything else — if they ignore the threat, you sue; if they make a decent offer, you settle.

  7. unknown says:

    Thanks again for your very valuable advice!

    As an update, the Claims manager replied to my e-mail. She responded just hours before we call a lawyer. She said she’s been trying to call me but she was getting a “phone number not working” message. I don’t know what to think about that because the number is working. Anyway, she’s asking for authorization to access my medical records and my spouse’s wage authorization. My question is that, since my husband didn’t lose wages because he ended using his vacation time taking care of me and our daughter while I was recovering, will theybe paying for the lost vacation time? Also, they are asking for the names and addresses of all my physicians and authorization to access my medical records, is that normal?

    Thank you again…

    • fl_litig8r says:

      A wage loss claim can still be brought when vacation time is used to cover time missed from work. Clearly, that vacation time had value which was lost when it had to be expended due to the defendant’s negligence. In your husband’s case, if he was fully compensated for the time missed through using vacation time, you’d make a claim for the full value of lost wages during that time.

      As to the medical information requests, yes, they are typical. As a lawyer, I never give medical releases to insurance companies (some lawyers do). I get all of the medical records myself and forward them with the demand package. I don’t like the possibility that the insurer will get medical records before me (there may be mistakes in the records that need to be addressed). In your case, though, I doubt that they would be satisfied with you sending them the records, as they’d be more suspicious of a lay person either removing harmful records or not providing records for all medical providers. While a lawyer could do this, too, they know that it’s less likely due to us being “repeat players.” If we did it and got caught, it would make it very hard for us to settle cases in the future.

      If you decide to give them medical authorizations, I would make them out to each individual medical provider (no “fill in the blank” so they can send it to anyone) and make them “single-use only” (not “good for a year” or anything like that). You can easily write this language in on whatever release they provide you, in the area where it specifies the duration of the release. Because your case really isn’t susceptible to being harmed by a preexisting condition (unless you consulted a doctor about stretch marks prior to the incident), I’m less concerned about you accidentally revealing something damaging than I would be with most plaintiffs.

  8. unknown says:

    I already sent the authorization letter to the hospital representative and this time, it was addressed to the Paralegal Officer of the Claims Department. She said in her letter that she will get back to me as soon as she’s done with the investigation. My questions are: how long does it usually take for them to finish the investigation? Should I contact her to follow-up? How much time should I let elapse before I start pushing for a reply (i.e. What do you consider a reasonable turn-around time?) Thank you again for your guidance and your time and attention.

    • fl_litig8r says:

      I’d give them 30 days before I started nagging. Of course, this assumes that you have a good amount of time left on your statute of limitations (> 6 months). It really shouldn’t take a long time (given the clear liability), unless they have to get your medical records from other providers. In that case, it may take them 30 days just to get the records.

  9. unknown says:

    Thanks for the reply!

    I got a lot of time still before the SOL expires. It should not take them long to get a copy of my medical records. The General Physician I saw on the 5th and 10th day after the procedure was able to get a copy of the record of that procedure in a day. I don’t have much medical records here since I have only been living here for three years.

  10. Unknown says:

    Hi there!

    It’s been awhile…Unfortunately, my claim is not going so good. After a month and half, we contacted the the Parlegal officer and she told my husband that our case was back to the Claims Manager. Afterseveral attempts to get in touch woth the Claims Manager, my husband finally was able to talk to her. She said that based on their investigation, my case was only worth $2500. However, she said we can counter offer and so we did. We asked for $13K, which includes the vacation time lost and the cost of the supposedly unnecessary medicines and medical professionals fees after the procedure, I was being conservative in this number. They replied with an offer of $2500 again saying that my pain and suffering was minimal.

    I feel like she is just wasting our time. My husband and I hve decided that we will just file a complaint to State Department of Health and the Joint Commission. At this point, we don’t care anymore about the money. We just want satisfaction that we’ll be heard loud and clear. What will happen if we file a complaint? The thing is, I have been reading online and there are people saying that filing a complaint to those organizations won’t do anything at all. Now I feel so powerless. I hate to think that here in the US, hospitals can mess up with someone’s health and life and not have to worry about the consequence because they know they can get away with it.

    Is there a way we can file a case against them? Small court maybe? What about using Res Ipsa Loquitur? No lawyer wants to accept the case because they say that it will be more expensive to hire an expert and again, I did not die nor suffer permanent disability. I find the law here so messed up. Having to wait for a patient to suffer permanently or die before they offer justice is just so backwards.

    Thanks again!

    • fl_litig8r says:

      A complaint against the responsible medical professionals (doctor, nurse, etc.) will give them some headaches, as they will be investigated and possibly disciplined. It won’t help you get more money. Due to tort reform, many states won’t let you file a medical malpractice lawsuit without first obtaining an affidavit from another medical professional (same profession as the one you want to sue) stating that malpractice occurred. Tennessee is one of those states (T.C.A. Section 29-26-122), so you can rule out small claims court unless you want to spend a lot of money (easily over a thousand dollars, and likely a few thousand) to make a limited recovery.

      Yes, it is unfair, and it denies patients who have been injured a fair recovery unless their cases are worth enough to justify the high cost. The only thing you can do is give anyone who promotes tort reform or med mal reform around you an earful about just how “great” it is.

  11. kim says:

    Need to ask one more question, if I may. I had the constructive discharge case, that settled out of court. It has taken 3 months, we finally got the draft settlement, and the defendant (city) is trying to make me fully responsible for all taxes, both mine and theirs. Is that the customary practice? They just dropped it on us Friday morning, expecting me to sign off in hopes of closing it this year, which is not going to happen. It is currently structured to where about 2/3 is “wages” and 1/3 is “compensatory.” Got the wages going to deferred comp, and the rest to the lawyer for fees and costs. thx.

    • fl_litig8r says:

      This is not the customary practice. Considering the fact that the employer’s portion of the payroll taxes would not be an element of the damages you could recover at trial, I would argue that they should not be considered part of any settlement agreement unless that was specifically included. Without any discussion of that issue, the default position would be that each side should pay its share of the taxes as if this money were paid as your gross wages.

      If you’re forced to move to enforce the settlement agreement to establish this, there is always the risk that the judge will find that there was no meeting of the minds and simply do away with the agreement entirely. However, I would hope that most judges would see this weaselly maneuver for what it is, and recognize that the employer is now trying to revise the terms of the settlement knowing full well how their offer would have been interpreted by a reasonable plaintiff.

  12. kim says:

    Thanks. It’s still in draft form, I just did not know if that was a normal way of doing business or not. The city does very little that is normal. In fact, they usually refer to all settlement proceeds as compensatory, to minimize THEIR tax burden, even though this is highly scrutinized by the IRS. They don’t hold any taxes out whatsoever. When I insisted on putting part into deferred comp, that made that portion become “wages,” so now they are trying to shift their tax burden to me and negate any tax advantages I would have gotten from my using the deferred comp approach. They are slimy b#$t$@ds. What happens next depends on who has the bigger pair. Perhaps I will get the full-blown trial after all. Although I don’t see the city scrapping this over $1600, you never know.

  13. John says:

    Hello, I’ve been reading through your blog and found it very educational as I am in the middle of a car accident lawsuit myself.

    It has been almost 8 months since my accident and my lawyer finally submitted a demand letter maybe about a month ago. They came back with an offer of like $3000 which would not even cover the medical bills so far.

    My lawyer thinks we should put the case into litigation. I am not sure what I should do. The lawyer seems to think we have a case, however he says there is more risk by doing this as the loser may be required to pay lawyers fees etc. So my fear is that not only will I be left with all my medical bills (which I’m guessing my medical insurance will not want to cover) and then on top of that having to pay who knows what kind of crazy fees.

    What are the chances I will be stuck with my medical bills and having to pay lawyers fees etc?


    • fl_litig8r says:

      Ask your lawyer to explain to you the mechanism by which the other side can seek its attorney’s fees if it wins. As I discuss in this article, Florida has a particular statute and procedural rule by which a defendant can make a settlement offer during litigation which results in the plaintiff having to pay the defendant’s attorney’s fees if he ultimately recovers 25% or more less than that settlement offer. However, the offer must be made during litigation, it must comply with the formal requirements of the rule (so you know it’s one of those offers), it must allow 30 days for the plaintiff to accept the offer, and attorney’s fees can still be avoided after that 30 days if the plaintiff voluntarily dismisses the case before trial (or summary judgment). So, it’s not a matter of you being at risk for paying the other side’s attorney’s fees once you begin litigation. You still have the chance to avoid fees by (1) accepting the formal offer, (2) recovering more than 75% of the offer at trial, (3) voluntarily dismissing the case before you lose or (4) reaching a settlement agreement after the offer is made that voids the offer.

      I have a feeling that your state has a rule similar to this, which your lawyer is just warning you about in advance. The only other time you’d be liable for the defendant’s attorney’s fees would be if the court finds your case to be frivolous (which is extremely rare in personal injury cases, even in those where the plaintiff ultimately loses).

      So, just ask your lawyer how the attorney fee rule in your state works before getting nervous about having to pay the defendant’s fees. It’s likely that they’ll have to make some kind of settlement offer during litigation in order to trigger that rule, so you’ll have time at that point to decide whether to accept their offer or risk having to pay their attorney’s fees later.

      By the way, the rule in Florida works for plaintiffs as well, whereby you can make a formal settlement offer to the defendant, and if it rejects it and you go on to recover 25% or more than your offer at trial, the defendant has to pay the attorney’s fees you incurred from the time of the offer forward. These fee shifting rules tend to favor defendants, as they can make a token offer (like $100.00) that they know you won’t accept in the hopes of getting a defense verdict (which will always be at least 25% less than the amount they offered, since you get $0), while your offer needs to be realistic enough to make you happy if they accept it, but not so high that it makes it impossible for you to beat the offer by 25% at trial.

      • John says:

        Thanks! I am actually in FL also. We received an offer for $3000 however we are not in litigation yet so I’m assuming this is not the settlement offer you refer to and that I will still have a chance to accept an offer without having to pay any attorneys fees if we move forward with litigation.

        • fl_litig8r says:

          Yes, that pre-lawsuit offer can’t put you on the hook for the defendant’s attorney’s fees. In fact, the defendant can’t even make such a formal offer, known as a proposal for settlement, until at least 90 days after you file suit. If he does serve one after that time, you’ll have 30 days to accept it, so you can make your decision as to what to do at that time. Even if things go completely south after rejecting such an offer, you can still avoid paying his fees if you voluntarily dismiss your case before trial or summary judgment, assuming this is your first voluntary dismissal. Of course, if you voluntarily dismiss your case, you don’t get any money.

  14. Sad Parent says:

    hello I am a mother of a minor who suffered a severe brain injury during surgery leaving him in a vegetation state. We filed a lawsuit against the hospital in 09 and now we do mediation this year but if we don’t come to an agreement we have court In November. His father feels that he should be compensated but he did not file and he did not sign the paper to get anything when I did but he been knowing about the lawsuit from day one. what will happen?

    • fl_litig8r says:

      First, the issue of whether a parent can recover loss of consortium damages for injury to a minor child is one that varies from state to state. Some states allow it. Others allow parents only to recover their own out-of-pocket expenses stemming from the child’s injuries, such as payments for medical bills. Whether the child’s father has any independent claim for damages stemming will depend on your state’s law. In cases where the parents are estranged, some states have specific procedures in place to address this. For instance, Washington state has a statute that states that if one parent files a lawsuit for a child’s injuries, the other parent must be served with notice of the suit and given 20 days in which to join it with his or her own claim. You’ll need to ask your own lawyer about your state’s law regarding parental consortium for injury to a child to see if the father has an independent claim and whether that claim has been waived through inaction on his part.

      With respect to a settlement for your child, because it involves a serious injury that will likely make it quite valuable, you’re going to need court approval even if you reach a settlement agreement at mediation. At this stage, if you and the child’s father have a dispute over guardianship of the child’s settlement, the court may require that a guardian ad litem be appointed to independently represent the interests of the child — some states will require this even when no parental dispute exists. As with the parental consortium issue, the technical aspects of how a minor’s settlement need to be handled will vary from state to state, so your lawyer would know better than I what your particular state’s laws require.

      • sad parent says:

        its in Tennessee the suit has been going on since 09 and we finally have a court date this year but my lawyer said we will do mediation before then my question is will his father who is not on the birth certificate but has knowledge since we filed in 09 he recently been asking me if he was getting some money after we get our son situated what is the statue of limitations for him to file in Tennessee (09)?

        • fl_litig8r says:

          From what I can tell, the Tennessee med mal statute of limitations is 1 year from the date you discovered that you were injured through malpractice, but no later than 3 years from the date the malpractice was actually committed (the 3 year time frame is commonly known as a statute of repose). Even if the father could somehow file a claim now, because he’s not on the birth certificate he’d likely have to prove paternity before his suit would be permitted. Your own lawyer would know better than I. I really suggest you tell him about the situation with the father prior to mediation.

  15. sad parent says:

    Thank you sir for your information you are truly good and I have another question. I have my deposition tis April 17 2013 and they already have a court date for us on Nov 18 2013 why are they just now getting my deposition this late and this case has been going on since Apr 09? My lawyer got all of their depositions first and they asked for mine in Jan. Do you think we will have mediation before Nov. medical malpractice of a minor 1 1/2 at the time now 5.

    • fl_litig8r says:

      I can’t say why they waited so long to depose you. Perhaps they wanted to see if they could settle before having to do it, or maybe they wanted to wait until your child got older so that his injuries and future needs might be more certain before asking you about them.

      I would think you’d have mediation before your trial date. Many courts require it, and I can’t see why you wouldn’t in this case. Perhaps your deposition is being taken now in anticipation of mediation. Your lawyer would know better than I.

  16. ISABELLA says:


    I am a pro se plaintiff and I am within two weeks of putting my complaint into the court.

    I am suing my Town, Mayor, 2 Ex Mayors, Council Members, Town Manager, Town Clerk, Police Department and the Planning Board Chairman- my question is do I serve the Ex Mayors through the Town or do I have to sue them with service at their homes?

    I am also suing the Towns Attorney- they are Independent Contractors – Do I serve them at their firm, the Town or at their homes.
    I requested a copy of their contract with the Town but I have been told that they do not have one- do you believe that?
    I am also suing a woman who has now moved back to New Jersey. I thought I read that you cannot sue someone in Florida who lives in another state unless they have ties to Florida – this woman still owns a condo in Florida -can I sue her – I have somebody in New Jersey who will serve her.
    All if my case can be proven by public document and Town Hall Meeting recordings I am buying them certified off of the Town – I am doing this because I have heard that getting discovery can be difficult and time consuming -do you think that that is a good idea?

    Last but not least – would I have to pay to read and correct my deposition- I am indigent.
    Thanking you in advance for any help that you can give me

    • fl_litig8r says:

      If you are suing the ex-mayors in their individual capacity, you must serve them personally. If you are suing them in their official capacity, then you are really only suing the current mayor (suits filed against public officials in their official capacity are only brought against the person currently holding the office, regardless of whether that person did anything wrong — technically you are suing the office, not the individual). So, if I wanted to sue for actions taken by former Mayor John Doe in his official capacity, I’d still sue current Mayor Tom Schmoe, even if he never did anything wrong. You’d identify him on the complaint as “Tom Schmoe, Mayor of Happy City, in his official capacity”. If you want to sue the current mayor in his official capacity and the former mayor in his individual capacity, you list them on the complaint as “John Doe, in his individual capacity, and Tom Schmoe, Mayor of Happy City, in his official capacity”. You can say that you’re suing the current mayor in his individual capacity as well, just by changing it to say “in his individual and official capacity”. You’d only need to serve the current mayor once to cover suing him in both capacities.

      Where you serve them really doesn’t matter, as long as they are personally served (this applies to all defendants). It may be easier to serve the current Mayor at his office, or to see if the City Attorney will accept service on his behalf (get this in writing if he agrees).

      As to the contract between the lawyers and the town, I’d submit a written request for this, stating specifically that it is pursuant to CH 119, Fla.Stat. (this is Florida’s Public Records Law), and get a response in writing saying that there is no written contract.

      You can sue someone who committed a tortious act in Florida, even if they reside out of state. Florida’s long-arm statute specifically allows for this. So, for example, an Alabama resident who causes a car accident in Florida can be sued in a Florida court — his tie to Florida is the causing of the accident here. You still need to serve the person according to the service rules in the state where she resides, and if you get a judgment against that person you’d need to domesticate the judgment in a state where the person has assets in order to seize them.

      Getting as many public records as you can through Chapter 119, Fla.Stat., before you file suit is a good strategy. There are fewer objections the town can make than they could under traditional discovery rules — for example, they can never refuse to produce documents because your request is “overly broad and burdensome”. Often, it will even be cheaper to get records this way (though maybe not “certified” records), as the statute places limits on what can be charged for copies.

      If your deposition is taken, you do not need to pay to read it and make corrections. Of course, it will only be transcribed if a party orders the original transcript, so you’d need to wait for that to happen. If you wanted a copy of the deposition, you’d still need to pay for the copy, which is far cheaper than what the ordering party pays for the original. If you don’t order a copy of the deposition, your reading it and making corrections would likely need to take place at the court reporter’s office, as they won’t send you a copy (even a draft) for free.

  17. RWims says:

    It has been difficult to retain a mold attorney. Do you know why this is? We are approaching the SOL and have received seven rejections although we have been told our case has merit.

    • fl_litig8r says:

      It’s likely because lawyers would rather handle easier personal injury cases, like slip & falls and car accidents, which would be worth as much as your case but involve less work. If a lawyer has never done a mold case before (and most haven’t), or hasn’t done one in a while, he would need to spend time getting up to speed on the science and caselaw in that area — time he could be spending moving easier cases towards settlement.

      You need to find a lawyer who has done mold cases before, preferably recently. If that lawyer isn’t willing to take your case, then it’s likely that there are some problems with your case itself. Unfortunately, many lawyers would rather lie to you about why they are rejecting your case than start an argument over whether you have a good case at all — so while you may hear that you have a good case but the lawyer isn’t taking it for some other reason (“conflict of interest” is often used because if the client asks for clarification, the lawyer can say that he can’t clarify due to confidentiality and shut the interview down in no time), that may not be true.

      • RWims says:

        Well, I have prepared everything they need to move forward. Independent lab results from an accredited lab that test air samples and carpet samples, medical records confirming skin and resp infections our family experienced and extremely gross photos of the mold growing on everything. It would appear that no one wants to do this because of the amount of work involved. Our SOL runs out in December, if we don’t secure an attorney by the end of October, what should we do? I mean I don’t want to sign over our past five years of medical history to the insurance company for $4500 dollars.

        • fl_litig8r says:

          You already know the answer. You need to find a lawyer. If you can’t, either settle for the little they offer or walk away from the matter entirely. If you sue on your own in a case like this, you’re likely to end up losing money.

  18. ladybug says:

    My husband had an accident about 3.5 years ago. He had rehab, was diagnosed with a mild TBI. Before the accident, he was almost finished with his Master’s degree, and has worked full time since he was a teenager. It has made a HUGE impact on our lives. He continues to do Speech Therapy, etc. He was approved for SSDI the first time we applied. We do have an attorney, and we filed a suit. We were both deposed last week, and now I feel more insecure. Is it normal for the Defense to be complete jerks?

    • fl_litig8r says:

      I would not say that it’s normal for the defense to be jerks, but it’s not all that unusual, either. My own philosophy when I was on the defense side many many years ago was basically the Patrick Swayze Roadhouse rule: be nice until it’s time to not be nice. Generally, if the person I was deposing wasn’t openly hostile to me, I’d be friendly and polite — that usually makes people more talkative, anyway, which is good for the lawyer taking the deposition. If the deponent was being evasive or outright hostile to me, then I’d have to put pleasantries aside, while still trying to be professional about it — I can really only think of one time that I was outright rude, but that guy was a major asshole and had it coming (he also wasn’t a personal injury plaintiff — it was a different kind of case).

      Of course, not all defense lawyers are like I was. For me, it was a job — nothing personal. Some defense lawyers are what I like to call “true believers”. They have a big chip on their shoulder and their starting position is always that the plaintiff is a fraud until proven otherwise. They are more likely to be jerks during interactions with the plaintiffs, because they have convinced themselves that all plaintiffs are liars and cheats. If you have such a true believer on the defense side, try not to take it personally. It’s not you. It’s them. The upside of having such a jerk on the defense is that they tend not to play well in front of a jury. So, should your case be forced to go to trial, a jury will likely wind up disliking the defense attorney — which can make a difference. The most successful and well-regarded defense attorneys I know also tend to be the most cordial.

      Don’t feel insecure just because the defense attorney was a jerk during your deposition. That likely had nothing to do with you or your husband’s case. It’s just how some lawyers operate, usually to their detriment.

  19. SunninginWA says:

    I have been in a mass MDL and was recently left to go pro se after my attorneys withdrew. Most have not been successful and they had won only one bellwether trial. This suit is product liability that they failed to disclose. I met all the criteria for settlement except for age due to the loss of the bellwether trials, which based age on the epideameology report. So I have been very brave at going forward and sitting in on all conference calls and being persistent. Well they reached out today and offered 1,000 dollars and I feel like this is let’s make it go away money. My plan is to tell them that I feel my case is worth more then a thousand dollars and counter them 10k and hope that they will come back with an offer. The courts want this MDL over with. Am I in my right to tell them that I will settle my case for 10K? The only other thing I’m worried about is signing something that will take all my rights away for anything that arises in the future. They want to know the answer by the end of this week. This week ends on 7/11/2014. Ugh, I’m stuck.

    • fl_litig8r says:

      Well, you said yourself – you’re stuck. Without a lawyer, you’ve got zero chance of recovering anything in a product liability case. You know it and they know it. You can try to counter, but they have very little incentive to budge. I doubt that a counter would make them pull the $1,000 offer, so I see little risk in trying to get more.

      I’m not sure what you think is going to arise in the future that would make you afraid to sign a release. Yes, you’re giving up your right to sue them over this issue forever, but right now that isn’t worth anything anyway. I don’t foresee that changing, unless some lawyer decides to suddenly swoop in and take up all the discarded cases — but what are the odds of that happening?

  20. Lashondra Jones says:

    if I haven’t worked in five years and was hit by an 18 wheeler which it was a slight side swipe then can I be compensated for loss wages. also, can my husband be compensated for consortium. I had a kneck injury that lead to surgery and I wanted to know if 165,000 sounds decent

    • fl_litig8r says:

      The value of your lawsuit, assuming that the defendant accepts full liability for the accident, really depends on the cost of your medical care (past and future), how well you recover, and your ability to prove your intent to return to work. I wrote an article which explains generally how to figure out how much your lawsuit is worth, which you should read. With respect to your wage loss claim, your five year absence from the work force will definitely be an issue you need to overcome. If you don’t have a good explanation for why you planned to return to work, or why you took the time off, it’s going to be a tough sell to either the insurer or a jury. If you took the time off for a specific reason, like waiting until children reached a certain age, or caring for a sick relative, or attending school, it will be easier to sell the idea you always planned to return to work some day. Having witnesses (aside from people who have a stake in the outcome of your case, like your husband) who can verify that you spoke of returning to work would also help. Of course, even if you can prove your intention to return to work, you face the problem of proving how much you would have earned and how your injuries affect that amount. Purely speculative damages won’t be awarded, so be prepared to back up your claim that you would have earned a certain amount by proving your qualifications for certain jobs and how much they pay in your area. It won’t be easy.

      With respect to your husband’s loss of consortium claim, theoretically he would be able to recover, but again it comes down to proving his actual damages. I wrote another article about loss of consortium claims here.

      I can’t say whether $165,000 is a fair value for your case. I know nothing about any liability issues you may face, the cost of your medical care, whether you had any preexisting conditions, how much your future medical care will cost and how your injuries will affect you in the future, all of which play an important role in valuing a case. This is something that you (or your lawyer) will need to figure out on your own. The article I cited above about valuing a case can give you some guidance, but I can’t place a value on people’s cases online.

  21. Faith says:

    Can a NC Superior court judge allow a defendant’s expert to go on schedule prior to the plaintiff’s? Is this not court room bullying on a Friday afternoon to scare the plaintiff in a quick settle for zilch? Plus if the Defendant omits notes for your expert and witnesses testify as missing…why does the plaintif not win automatically? I was told to settle nil as I had an MVA 2 years prior and small parking lot one..Neck and TMJ yet had a dissected artery after chiropractic and facial drooping.

    • fl_litig8r says:

      Judges are given very broad discretion when it comes to scheduling matters, even when it comes to trial. If the defendant’s expert’s availability makes it necessary for him to testify before your case in chief is finished, he can allow him to testify early. I don’t see why the order of expert testimony makes much of a difference, really. In fact, I’d prefer my expert to testify second so that I have the chance to develop rebuttal arguments to any unexpected testimony by my adversary’s expert.

      I have no idea why you mean by “if the Defendant omits notes for your expert and witnesses testify as missing”. Do you mean that they lost records that your expert wanted to review? If you can prove that the defendant destroyed these records after they realized that they would be relevant to your claim, then that would constitute “spoliation of evidence” (and yes, that’s spoliation, not spoilation) and it would entitle you to a jury instruction telling the jury to assume that whatever was contained in those records would have been damaging to the defendant’s case. Of course, you’d need to prove that this was an intentional destruction of evidence, and not merely them being accidentally lost, which is harder than it sounds. In either case, you don’t get to “automatically win” even if records are intentionally destroyed.

      If your lawyer told you to settle for very little (or nothing), then it probably means that the trial went pretty badly, and he’s trying to avoid you actually owing the defendant money, which can happen if you lose. He wouldn’t make that suggestion lightly, as he’s almost guaranteed to lose money himself either way — so he doesn’t have much incentive to suggest a “nuisance value” settlement after putting in all that work unless he’s doing it for your sake. He won’t owe the defendant money. You might.

  22. Chris says:

    My wife is part of the Yaz MDL and has recently been given a settlement offer along with a group of 13 other woman. By looking at all of the settlement offers none of them come close to the average settlement amount for 8k other lawsuits. My wife and I have decided to turn down the offer and the lawyers have become very nasty. They claim that if we refuse the other none of the other 13 women can proceed and get their settlement. I replied ” with well we are doing them all a favor then.” The lawyers also claim that bayer will not up their offers in the future and we stand to settle for much less than our current offer. My personal opinion is this is all bs trying to get us to settle quickly. We are blessed financially and can afford to wait many years for a proper settlement.

    My wife suffered multiple PE’s and a dvt. She was in the hospital for 5 days and was on blood thinners for 2 years after wards.

    In your opinion what do you think the law firm will do to us by turning down the current settlement offer. Will they drop the case?

    • fl_litig8r says:

      They may take one more crack at the defendant and use the “I have one difficult client — please work with me” negotiation tactic, but if that fails, then they may dump your wife’s claim. To a degree it depends on their perceived value of your case. The less it’s worth to them, the easier it is to let it go. Looking at the average settlements for Yaz cases involving pulmonary embolisms and deep vein thrombosis (over $200,000), the firm may be reluctant to just drop your wife’s case. I’m not saying that they’ll ultimately be willing to take it to trial, but I would expect that they’d at least take another crack at negotiating a higher settlement with defense counsel before they would choose to walk away from her case entirely.

      I do have to say that I don’t approve of them trying to guilt your wife into taking a settlement by saying that she’s depriving the other claimants. If the defendant made the offer conditional on every client accepting it, that’s on them — not your wife. There’s no reason why the defendant couldn’t complete the settlement with these other women at the suggested value if it truly wanted to. This is an MDL case, not a class action. There’s no reason why the defendant can’t settle each claim individually, because they’re all still technically separate cases. They’re just lumped together for discovery and other pre-suit matters.

      • Chris says:

        Thanks for the quick reply. The law firm has had my wife’s case for over 2 years and have had a settlement for the past 6 months. For what ever reason it took them 6 months to finally give us the “Amount”. The only thing they would tell us during this 6 month period is they where extremely pleased with the settlement and they got exactly what they asked for. Well when we finally see the numbers I told them it was obviously clear they didn’t ask for enough money to start with.

        In your opinion do hold outs normally fair better in these types of cases? I feel that if one or two of these yaz cases could ever make it to trail everyone else’s settlement amount would go up. Or what about the last group of people at the very end. Will the defense just throw money at them to go away and finally get the ordeal behind them? We don’t need the money and even a 200k settlement won’t change our lives. I’m not trying to be difficult just want a fair and maybe slightly above average settlement for these bastards trying to kill my wife.

        • fl_litig8r says:

          I can’t say whether hold outs do better because there are just too many variables, not the least of which is the willingness for a firm to go along with the hold out. The flip side of your opinion that “if one or two cases were tried, the plaintiffs would do better” is that if one of those cases lost, it may screw things up for all plaintiffs. That’s one of the problems with mass tort litigation like this — the lawyer has to decide whether he’s willing to risk everyone’s cases, not just his own client’s (or clients’). These types of ethical issues are one of the reasons I avoided cases like this like the plague — that, and the fact that you really have to coordinate your efforts with other firms, many of whom will likely have differing opinions on what to do. Who gets to decide which lawyer and which client should be the “test case”, and is that a decision a lawyer should make unilaterally without regard to all the other plaintiffs?

          I have seen speculation that the later PE and dvt cases may get higher settlements than the ones which have already settled, but I doubt that this is true across the board. I really don’t follow mass tort issues closely enough to have an opinion on this. I prefer the “one client, one case” approach. Though I recognize the need for mass tort lawyers and lawsuits, it’s just a personal decision I’ve made to stay away from the drama, politics and ethical quandaries involved in these cases.

          One thing which you haven’t mentioned specifically, but is implied, is that it appears that your lawyer was making settlement offers to the defendant on your wife’s behalf without her authority. While this is expected in class actions, it shouldn’t happen in MDL cases because they are still separate lawsuits. He should have gotten a number from your wife before making any offers to settle her case. I know that recent MDLs have taken “innovative” settlement approaches, including certifying mini-classes for settlement purposes only, but if something like that was done in your wife’s case, I would hope that the firm would have communicated this fact to her.

          • Chris says:

            Yes you are correct. They never asked what “our settlement number would be”. They claim my wife was put in a group of 13 other women and then that group was offered a settlement. Then it went to some allocation company and they broke it down to what they figured everyone in the group should receive based on a point system. Basically my wife was awarded 275 points and then lost 20% of those points to other factors that they claim effected her case.

            They have also held back 20% of the group settlement to cover any appeals of the point system. After all appeals are satisfied they will divide that 20% pro rata between all the women in the group. The attorney told us that appeals very seldom work and our settlement should increase by about 40,000 once the 20% hold back is released.

            Another thing that doesn’t pass my smell test is they’ve had this lawsuit for the past 2 years and have had a settlement amount for the past 6 months. They are trying to tell us we only have 2 weeks to review it and settle before the defense has the option to cancel the settlement and the entire group loses out.

          • fl_litig8r says:

            This process of negotiating a group settlement when the lawyer isn’t even sure how much each client will receive until after the total amount is “scored” and divided is one of those ethical quandaries I mentioned. I’m not saying this is out of the ordinary for MDL cases, but it’s one of those practices that makes me avoid those types of claims altogether. How do you even arrive at a group number without consideration of the value of each individual claim? It seems rather arbitrary, though I don’t know that other firms handling these kinds of cases do it any differently.

            I can’t speculate as to why the firm would sit on the settlement amount for 6 months. I don’t see any benefit to them in waiting. However, I can’t see any real problem in them giving your wife two weeks to make a decision. That’s plenty of time. Most individual clients make settlement decisions on the spot once they hear an offer. It’s not like clients at mediations get two weeks to decide on an offer.

  23. Chris says:

    Thanks for all your replies. I’d like to run one more thing by you. The law firm we are using is a national firm and with in the last 8 months they have approached the organization that I work for to represent us on product liability cases that might be brought against my organization. The amount of money the firm stands to make off this contract is staggering compared to any money they will make off my wife’s case. The decision makers in my organization know this law firm is handling my wife’s case and let’s just say many eyes are watching.

    I don’t want to step on anyone’s toes and I don’t know if this is ok to do in this situation. I certainly don’t work for free and I don’t expect anyone else to either, but given all these circumstances and the fact the settlement is lower than we where expecting. Is it ok to ask the law firm to lower their fee on my wife’s case in order to get all this behind us and I give them the recommendation to my organization.

    • fl_litig8r says:

      I see nothing wrong with asking a firm to lower its fee, or even to use your wife’s consent to the settlement as leverage to get them to agree to it. Offering your recommendation in exchange for the fee cut, however, sounds like a kickback to me. Would you want to risk having the firm reporting your “offer” to the organization?

  24. chris says:

    Great point. Our original contract is to pay the attorney 33.5 percent. Would it be ok to offer them 25 percent and we agree to the settlement? If not what what do you think is a good starting point on lowering their fee.

    • fl_litig8r says:

      It might be best to approach this from the standpoint of how much below the average settlement amount your wife is getting. You could base their reduction on what she would have netted had she received the average amount, so at least it sounds reasonably thought out and not just some arbitrary number you’ve plucked from thin air.

      • Chris says:

        Well it’s been two months and I’m back with some more questions. We decided to wait the law firm out and eventually they agreed to give us what we asked for which was for them to lower their fees which would have put a certain amount in our hand. I had spoken with two different lawyers and they both agreed they got the ok from the top brass to lower their fees and cut us a check for the agreed amount in order to move the group settlement along. They insisted we sign the release right away and to trust them. I laughed and said when you give it to me in writing and we review it we will sign the release. Well we didn’t hear a peep out of them for two weeks. Then all of a sudden the paper we requested on the lower fee would be sent out that day and to trust them. Just sign and return the release asap.

        Well low and behold what do you know. The fee reduction paper finally shows up and they tried to pull a fast one. Yes they agreed to write us a check for xxx,xxx amount but when you read the fine print it was only a loan that would have to be paid back out of a second distribution from any medical lien hold back that was remaining. Basically they lied about cutting their fee the entire time. When I called them out about this they tried to play the victim and question why I’d try to cheat them out of their fee. How would you proceed with this…….

        • fl_litig8r says:

          My take on this kind of depends on how the fee negotiation was stated and how the new agreement is worded. If you said “I want $x net” and they have crafted their agreement to see that you get that amount (and no more — the rest going to fees) by claiming a right to the amount of the medical lien holdback that exceeds that amount, I don’t really have a problem with that. I can see the loan language being employed to avoid a claim that they are seeking an excessive/unethical percentage of the holdback. I can explain this further if you don’t follow what I mean. Be sure that this isn’t what’s going on before things become too hostile.

          If, however, they are truly pulling a fast one without guaranteeing you a fixed amount, then that’s another matter. If they agreed to reduce their fee percentage by a stated amount, as opposed to guaranteeing you a fixed net amount, then I can’t imagine a legitimate reason for the loan/holdback language.

  25. Ann [last name removed by admin] says:

    I had a car accident on 1/11/2013 and the SOL is this Sunday. The claims adjuster at Allstate told me just to file in small claims court because she would not have her paperwork ready to meet the SOL. I have all documents into her office. The cash out-of-pocket ($6500) already exceeds the maximum in Small Claims court in California. I would have to file a civil lawsuit, right? I do not want to get an attorney for $15k, but I am aggravated and cannot miss anymore work. Can I file a civil lawsuit myself just to stretch out the settlement time. Frustrated…

    • fl_litig8r says:

      The California small claims limit for individuals is $7,500 (it’s $5,000 for corporations or other business entities other than sole proprietors), so your out-of-pocket expenses wouldn’t exceed that. Of course, with $6,500 out of pocket, it’s unlikely that the $7,500 limit would be sufficient to meet the total value of your claim. So, yes, you can file a complaint pro se (commonly also called pro per in California) in the regular (non-small-claims) superior court to protect the full value of your claim. Once the insurer sees that you’ve filed within the statute of limitations, it will probably stop dragging its feet and make you an offer. I really wouldn’t be surprised if they caused this unnecessary delay just to see if you’d miss the statute. The adjuster really shouldn’t have advised you to file in small claims court. That could be considered unlicensed practice of law (among other things), especially when that advice clearly works to the benefit of the insurer by capping your damages at $7,500.

      Note that you need to sue the at-fault driver (and vehicle owner, if it’s a different person), not their liability insurers. Suing the other driver’s insurer is a mistake that will cause the statute of limitations to lapse.

  26. Lila [last name removed by admin] says:

    Hi there i have a question my father had a accident in 2011 he was crush with a 2000 pound grape gondola he was air lifted from soledad ca to san jose ca with a lot of trauma. we got a lawyer bt my question is the lawyer wants to settle with a really low amount and my father is not happy! he has 94% disability already bt what should my father do take it to court or take a settlement

    • fl_litig8r says:

      I can’t say whether the offer is reasonable because (a) I know nothing about your father’s case and (b) serious, even fatal, injuries do not always mean that there will be a finding of negligence against the defendant. Is this a workers’ compensation case, a standard personal injury case or some combination of the two? What reasons did your father’s lawyer give for recommending the settlement amount? Is there a question as to whether the defendant will be held liable at all? Is there an argument that your father was comparatively negligent? Just knowing that your father was seriously hurt doesn’t tell me that he has a case worth a lot of money.

  27. Fern says:

    I received a settlement offer that is completely laughable. At this point, what should I do? Do I need to respond (I’m pro se) to their offer explaining count by count why their offer is laughable? Should I propose mediation? I’m a bit confused because the offer is so absurd, it is actually insulting… Thank you for all your help.

    • fl_litig8r says:

      Don’t react emotionally to their offer. Initial offers, both from plaintiffs and defendants, are usually not anywhere near where a settlement ultimately winds up. I would just send them a counter-offer without specifically stating that you find their offer insulting or absurd. You can say that it’s inadequate or something like that. If they went into specific reasons for their offer in the letter, you can take the time to rebut their points with your counter-offer. Otherwise, I would just keep it fairly broad and brief.

      There is a tendency in settlement negotiations to keep maneuvering the offers so that it comes to a point where you can meet in the middle, so keep in mind that whenever you make an offer, you’re kind of telegraphing to the defendant that you’re willing to settle for the middle of the two last offers between the parties. The “moving the middle” game in settlement negotiations won’t always go your way. If your initial middle is much higher that what they’re willing to pay, expect them to increase their offers at a slower rate than you decrease yours. The middle amount often shifts during negotiations, as each side tries to tug the number higher or lower. You need to let negotiations play out a few rounds before you get a feel for where they are really looking to settle. Eventually, one side will stop moving. At that point, it often settles for the last amount offered or the parties agree to split the difference between the last two offers (or it doesn’t settle at all).

      I tell you this just so you don’t send the wrong signals to the defendant, not realizing what they’re reading into your offers. I’d engage in negotiations with them, but don’t be angry or indignant about their offers. They aren’t meant to insult you, though continual low offers do send the message that they don’t think much of your chances at trial — but that’s not a personal attack.

      • Fern says:

        Thank you for your response. They actually sent me a certified-mail, formal proposal where they give me a total amount, no punitive damages, but they don’t itemize the amount at all. I can informally e-mail them to tell them I don’t accept, but shouldn’t I also send them a proposal? I’m simply thinking of the consequences of FRCP 1.442 about paying them for legal costs… Also, if I send them a proposal, should I itemize my monetary demands or just give a lump sum like they did? Thank you so much!

        • fl_litig8r says:

          Be careful. A counter-offer will be deemed a rejection of their proposal for settlement, so if you have any doubts about rejecting their offer and you just want to see if you can get more, a formal counter-offer wouldn’t be the best way to go. A crafty way to get around this quandary is to call the opposing counsel and just ask “would you be willing to go to $X?” This way, you haven’t rejected their offer because you technically didn’t make a counter-offer. You just asked a question. If they say “no”, you can still accept their offer, assuming it’s within the 30 days the rule allows.

          I wouldn’t bother breaking down your offer at this point if you are going to counter. They don’t care about the breakdown. They just want to know the total that will settle the case. In early negotiations, providing a breakdown helps explain how you arrived at your number. After that, it’s unnecessary.

          • Fern says:

            Well, I really would never accept what they are offering, so I guess, from what you are saying, it is better to simply not say anything and let the 30 days go by? If I call them and give them my amount, and they say “no”, I still don’t want to accept their offer, so if they do, in fact, say “no”, what’s next?

          • fl_litig8r says:

            If you ask them if they’d be willing to do more and they say “no”, you can just say “Well, then I’ll have to think about it some more. . .” and end the call. Then you can use the remaining time in the 30 days to decide if you want to accept it or let it lapse, which would be deemed a rejection.

            If you haven’t ever voluntarily dismissed your case before, you can still avoid owing them fees after the offer lapses (or is rejected) by voluntarily dismissing your case without prejudice. There are some limitations on this, like if a summary judgment motion is pending or you’re in trial, but this trick to avoid paying fees will work in most other circumstances.

  28. Russell says:

    I was in mass tort case with a medical device ( hernia mesh) I didn’t accept the settlement offer. What can I do next? The law firm seem to be nasty to me and stop communicating with me after I wanted it to go to trial. They called me several times trying to get me to sign the settlement papers. Will I have to find another lawyer to take medical device company to court? What are my rights?

    • fl_litig8r says:

      If you’re asking whether you can force this firm to take your case to trial, the answer is no. If they want to drop your case, they’ll need the court’s approval to withdraw (assuming a lawsuit has been filed — if not, they don’t even need that), but judicial approval for an attorney to withdraw is routinely granted unless it’s practically the eve of trial. Your real options, assuming this firm will drop your case if you don’t settle, are to take the settlement or look for another law firm. Finding another firm to take your case will likely be very difficult, unless your case is really great — of course, if that’s the case, it makes it less likely that the first firm would drop you for not settling.

      One of the problems with mass tort cases is that only a small handful will ever be tried, and those will usually be the best of the best. Trying lesser cases risks creating bad precedent which could negatively affect the host of other plaintiffs with similar claims. Plus, these cases are usually not cheap to take to trial. A smaller case might have nearly all of its recovery eaten up in costs.

  29. Adrian says:

    So, I am in a bit of a dilemma. I mediated a custody dispute with the mother of my child. One of the agreements was to split travel costs for the child 50/50 since we live in separate states. The mediated agreement was signed by both of us, our attorneys, presented to a judge and entered into the court system. There is a provision to turn the mediated settlement into a full blown Order, but that hasn’t happened yet.

    In the meantime the mother is refusing to pay for her 50% of travel until the final order is drafted and entered. Is this a violation of our mediated agreement?

    It has been 6 months since mediation and for whatever reason, my attorney has not drafted the order. I have emailed and called his office, several times in the last 2 months to convey the current situation and inquire when the draft will be prepared but haven’t received any communication from him. I owe him quite a bit of money and pay him a set amount every month. Does this justify him not working on my case or responding to my inquiries?

    • fl_litig8r says:

      I’d say that your wife did violate the mediation agreement, but because I don’t practice family law at all I can’t say whether mediated agreements in family law cases are enforceable prior to them being approved by the court and reduced to an order. Sorry, but family law just isn’t my bag.

      With respect to your lawyer, unless he’s withdrawn from your case due to non-payment or late payment (or whatever reason), he still has an ethical duty to pursue your case with diligence and maintain reasonable communications with you regarding its status. Whether you should push him or not (and if so, how hard) in light of how much you owe and how much slack he’s cut you on the financial arrangement is a judgment call that only you can make, based on your past dealings with him. I always suggest a soft touch at first, resorting to more threatening language only if necessary. You might want to look at my article on how to get in touch with a lawyer who won’t return your calls. It may help in your situation to at least get a status update.

  30. George says:

    Filed a lawsuit against two defendants, went through discovery, and agreed on a settlement with both.

    One defense attorney sent me: an order to stipulate to which dismisses the case in entirety with prejudice and without costs; and a release and settlement agreement which says “For the sole consideration of $X, receipt of which is acknowledged, … release and forever discharge…”

    The other defense attorney sent me: an order to stipulate to which dismisses the case in entirety with prejudice and without costs; and a release which says “For and in consideration of $x, the receipt of which is hereby acknowledged, … releases, acquits and forever discharges…”

    Both attorneys say upon receipt of the signed documents, they’ll have a check cut.

    Question 1 – Signing the dismissal order before receiving the check seems backwards to me. What if I sign the dismissal order and they never send the check? There’s no judgment being entered. The order to be entered doesn’t even mention there is a settlement. Only the separate settlement agreements (not to be filed with the court) mention there’s a settlement. And, only I am to sign these agreements – not the defendants. Shouldn’t I say check first, then I sign the dismissal order after the check clears? If I took the check and ran, which I wouldn’t, they could show proof of payment to have the judge dismiss the case.

    Question 2 – Seems to me like each stipulated order should dismiss the respective defendants, and there shouldn’t be two orders which dismiss the case in its entirity twice. Again, what if I sign one stipulated order which dismisses the case in entirity, and the other defendant backs out of the settlement?

    Question 3 – Shouldn’t I insist on the settlement agreement language “the receipt of which is hereby acknowledged” be changed?

    • fl_litig8r says:

      Typically, the release and stipulation for dismissal are signed before the plaintiff gets the check. It’s just the way that things are done, likely because individual plaintiffs are a greater risk of flaking out on a settlement than insurers who settle cases reliably all the time. Don’t expect them to send the check first, much less wait until it clears. Your settlement agreement will be evidence enough, even without their signatures, to force them to pay if something goes wrong.

      If you want to be super cautious, you can see if they will change the stips to be individual to each party and you can include a provision that the court will maintain jurisdiction over the case for 60 days after the filing of the stips, and will dismiss with prejudice after that time unless it hears from any party that the settlement has not been consummated. If you can get them to agree to this, that would be best, but I don’t know that I would risk the settlement even if they don’t agree. You will be able to enforce it if they screw around even with the documents as is, and I doubt that the insurers would risk their reputations for reliably settling cases among all the local attorneys (word will get around) just to mess with you.

      I’d have them remove the “receipt” language unless they sent a check along with the stips. They likely do this when a lawyer is involved, because they know the lawyer won’t distribute the funds from his trust account of the client refuses to sign the stip and release. They probably just didn’t change the language of their standard release for cases involving lawyers. I don’t think it’s an attempt to pull a fast one. It’s just laziness.

  31. confused says:

    I was in an accident almost 3 years ago, had surgery recently and still need another surgery which i am suing for but not having done rt away. I had a trial date scheduled , the lawsuit was filed over a yr ago. We had two settlement conference dates cancelled, the last one was with a private mediator, so now i have a new trial date three months away and still havent had any settlement offers and no conferences to settle. Will this just get postponed again? I do not even know if my lawyer told the court that our private mediation date was cancelled. It was cancelled because the other side said they won’t pay near what we asked in a letter issued to them and they agreed its not worth paying for a mediation since we are not on same page , the first one was cancelled because the other side said they couldn’t make the date (according to my lawyer). Its also 3 months since i had the DME and neither party has received the report of that exam yet.I do not know if my lawyer is making my case e a priority to close, i also borrowed money from a loan company friend of my lawyer and that interest is picking up overtime as we delay . My lawyer just says he is going to prepare for trial and we can’t talk settlement till after we get that report to see what they are thinking. Yet why did we have trial date set and 2 conferences if we don’t even have the report,did he know all along that we wouldn’t settle and we would have to postpone first and maybe even second trial date? we don’t even have an itemized bill from the surgery center either, they just gave a bill with no explanation etc (surgery was on a lien). I don’t think a demand package was ever sent out but only a demand letter. please advise, i have had my lawyer for almost 2 years, and went through therapies first before having surgery. we haven’t even sat down to try and settle at all and trial is again 3 months away. And the defense says they have yet to receive their ortho DME report.Our demand was for policy limits and they say they won’t pay near that, but never issued any settlement amount. My lawyer just says he doesn’t know what their thinking and tried to contact them but hasn’t been able to. Please email mail me to let me know when you answer this. thanks

    • fl_litig8r says:

      It sounds like the case isn’t going to settle (unless that latest report shakes things up considerably). I can’t speak to why trial and settlement conferences were set before this report was issued except to say things change over the course of litigation, and something that didn’t seem important yesterday can seem very important today. I wouldn’t split hairs over whether a demand letter or package was sent out. By now, if you’re gearing up for trial, the defendant has everything it would have gotten in a demand package. If it still doesn’t even want to mediate at this point, whether it was sent this information with the demand wouldn’t have made a difference.

      I really can’t say if the current trial date will stand or if you have everything you need to go to trial. That requires information specific to your case that I simply do not have.

      I don’t e-mail people when I’ve answered their questions. I try to answer within 48 hours (usually less than 24), so I don’t think it’s too big of a hassle to make people check back for a day or two to see if they were answered.

      • confused says:

        thx for the reply, the other side says they are open to reconcile but not anywhere near the limits yet they made no offer nor any explanation why they feel this way. I’m just hoping if we do go to trial that it won’t be delayed again.theirs no issue of liability etc

        • fl_litig8r says:

          If the other side was serious about settling, they wouldn’t have said no to a mediation. Plenty of mediations start with the sides being miles apart in their offers, so them saying that they didn’t want to mediate because your offer indicated that you two weren’t on the same page says to me that they really just don’t want to settle — except maybe for nuisance value.

          • confused says:

            I finally got the DME report and the other side said the reason they didn’t want to settle was that the med bills were way to high, the bills weren’t high except the surgery bill which was ridiculous, so now we are hiring a billing expert to get usual and customary rates for all services down then will discuss settling. thx again for your replies, i hope this case finally comes to an end soon.

  32. Brokentooth_brokenhome says:

    First off, I appreciate your website.

    I am a Pro-se litigant in a dental malpractice case with my partner who is adamant about putting money into an expert witness.

    Do we HAVE to employ a hired gun to prevail?

    I understand many, if not most, medical mal cases in California rely heavily on the subject matter expert, but I don’t have the money. The subject matter dictates an interpreter of complex information for the trier(s) of fact.

    Because of the cost, and the risk of putting all our eggs in one basket, I have considered other ways to prosecute our case.

    I can meet the burden of proof and show the defendant, though possibly not his attorney, is intentionally frustrating the process of discovery.

    Common knowledge argumentation. Sometimes the order of events or a similar series of procedures can demonstrate liability.

    We have written records showing the opinions of other professionals. We can subpoena them to elaborate in writing or appear.

    …. I have to be cryptic and vague, I apologize.

    I put a great deal of time and energy into using what we had at our disposal before the Case Management Conference using only medical records to illustrate what happened. But my partner will not let go of the idea of hiring a specialist.

    My response to my partner’s insistence we use a specialist to illuminate our case, is the defense can and will challenge their testimony, just as we challenge our adversary’s expert.

    I read the opponent’s expert testimony, and I am appalled at what this person said. Knowing what I know about the documented facts, it’s absurd.

    And we end up relying on a person whose only stake in our case is whether or not they get paid for their services. It seems more like a check in the box, rather than a strategy.

    Pardon me. I am rambling.

    I guess a part of me just wants someone to just say “Yes. You can do this without a paid specialist,” when deep down I know this is not the case.

    Thank you for your time.

    Best regards!

    Broken Pair

    • fl_litig8r says:

      It sounds like you saw this coming, but I have to side with your partner on this. Getting an expert is the way to go. Only in the most obvious of malpractice scenarios (like a surgeon leaving an instrument in a patient) should forgoing an expert be considered. No matter how absurd their expert’s report sounds to you, you can’t underestimate a jury’s willingness to believe expert testimony. Not having your own expert to dispute theirs is a huge gamble. I would count on the defendant moving to exclude (via a motion in limine) any written opinions you may have from other dental experts, even if those opinions are stated in medical records. Their opinions about what treatment was needed are fine, but any opinions about the defendant having breached the standard of care would be excluded, perhaps by redaction.

      Is it worth the money to hire an expert for your case? It sounds like you’ve put a lot of time into it so far, so the question becomes whether you’d rather skip the expense and drastically increase your chances of losing or spend the money and maybe still lose, but at least you’d know that you did all you could.

  33. Brokentooth_brokenhome says:

    Thank you for your response.

    I appreciate your candor.

    We do have comments from from several providers, but none that would be useful in litigation. I am sure this was intentional.

    Healthcare professionals are so reluctant to put an opinion in writing against another provider, so we have several professionals saying the work needs to be “redone,” not “so-and-so did a bad job.”

    They say the work is bad and their body language screams they don’t approve of the efforts, but they are vague and subjective in writing.

    With that, I will press forward to find an expert, and I will need to provide my expert with accurate information. If the defense continues to frustrate our efforts to get accurate information, I can capitalize on their reticence.

    I believe it is a Florida attorney and law professor who wrote a great article to hold litigants to task for being less than honest. I can’t remember his name or the article he wrote, but it was written like a brief.

    We have been ordered to participate in mediation. Since they already have a statement by an expert, we will have to pony one up as well. The mediator will likely side with the defense because they have an expert.

    Is it too late to revisit seeking redress the insurance company? They denied our claim and we sought litigation. But we have more information and we demonstrate that we are not just going away, and our case passed without summary judgment?

    I suspect an insurer lurks somewhere in this battle and they are paying the defense’s counsel. Can we just cut out the attorney out as the middle man and go to the insurers?

    • fl_litig8r says:

      I feel with your pain with how the subsequent treating doctors allude to the malpractice in such wishy-washy terms when it’s clear that they know malpractice occurred and that’s why you need more treatment. It happens all the time. Many times, you’ll be forced to go outside your immediate geographical area to find an expert to say that it was malpractice, so keep that in mind if you strike out trying to get a local dentist to be an expert for you.

      With respect to the mediation, expect the mediator to beat up on both sides. That’s what they do to try to encourage a settlement. He’d be able to beat you up more if they had an expert and you didn’t. That’s not “taking sides”. You need to give him the ammunition to beat the other side up. He already has the fact that you’re pro se to use on you — pro se litigants don’t tend to do well against attorneys. Having an expert ready will help demonstrate that you’re not the typical pro se litigant. The mediator just wants the matter to settle (they do keep score on how many cases they settle) — he really doesn’t care which side gets the better deal. So don’t get your back up if he beats you up in the private sessions. He’s likely doing the same to the other side, assuming you’ve given him ammo to work with.

      I wouldn’t try to contact the insurer directly right now. You can, because as a non-attorney you don’t ever need to worry about having ex parte communications with anyone. I just don’t think you should. A rep from the insurer will be at the mediation and you’ll be able to speak directly to him or her there. I see no advantage to trying to contact the insurer directly before then. If anything, it would be interpreted as a sign of weakness — like you’re desperate to settle before incurring the cost of mediation. It wouldn’t make a difference, anyway. It’s rare that the defense attorney is the one impeding a settlement. It’s usually the adjuster, or because this is a malpractice case, the defendant. Many malpractice policies gives the final authority to settle to the insured doctor (unlike other liability policies) because of the potential licensure issues that can arise from a malpractice settlement. The insurer decides how much it’s willing to pay, but whether they get to make the deal may depend on the doctor’s approval. If your defendant has this type of policy, settlement may never be possible. I’d just wait for the mediation if I were you. The insurer knows what’s going on, so it’s not like the defense attorney is keeping them in the dark and your phone call will show them the light.

  34. Brokentooth_brokenhome says:

    I appreciate your perspective on mediation. Do you see a problem with accepting mediators the defense chooses? This is court ordered, cost is not an issue.

    The defense has provided us with their two picks of a mediator. We are concerned their choices may somehow benefit the defense, but from what you wrote this may not be true. If they favor the defense inordinately, they could jeopardize their reputation.

    On the other hand, we are mired in trying to get discovery on track and it may be more important to focus on providing the mediator with the ammunition to see our side more clearly.

    One final note. We are prosecuting this case from outside the area jurisdiction as we had to move. Could we find a mediator outside the area of influence in the jurisdiction?

    Pardon the sneaky second question.

    Thank you for your feedback.

    • fl_litig8r says:

      Without knowing anything about the mediators, I can’t say if you should go with their options. Most mediators will be honest and neutral. Some of the best mediators I have used are also insurance defense attorneys, so the side they practice on or practiced on (if they now mediate full time) isn’t a great predictor of their impartiality. You may be able to pick the brains of some local plaintiffs’ attorneys regarding whether either of the mediators is problematic if you make it clear that this is the only question you have. That’s really the only way to make an informed decision. If you can’t get any opinions, I’d just pick one and hope for the best.

      I wouldn’t try to find a mediator from outside the jurisdiction. I don’t know what influence you’re concerned about, but mediations are almost always done with a local mediator, no matter who the defendant is. As long as the mediator doesn’t have a conflict of interest (which he should use to recuse himself if there is one) I don’t see local influence being an issue. If anything, it’s better to have a local mediator who may be more familiar with how local judges rule and how local juries stack up, especially if you don’t have that information yourself.

  35. Lisa says:

    Hi, I appreciate all comments and feedback. I am in the middle of a settlement agreement. My attorney says the mediating judge recommends or believes that my case is worth X amount, and my attorney is advising that I take this deal. I am not too happy with the deal because I believe its worth more (yes I read your articles you wrote they were helpful) so I told my attorney I wanted 5-10k more and asked if he can waive the costs or reduce his fees, he wasn’t too happy about that. he told me my best bet is to take the settlement. I told him I want trial, he said there 20% chance I could win at trial and I shouldn’t take the gamble. I am thinking if I hold off longer maybe the defendant will increase or maybe the lawyer will reduce costs. I don’t know. I wanted some feedback, what should I do?

    • fl_litig8r says:

      You’ve done everything I would have suggested already. Whether you should hold out and hope that either the liability insurer or your own lawyer flinches is something you need to judge for yourself based on reading them from past interactions. I have no basis to even speculate whether either will give in. It may be that if you don’t take the deal, your lawyer will withdraw from your case — and then who knows if that offer will still be available or of you’ll be able to find another lawyer if it isn’t? What you have now is purely a judgment call based on the players involved. I don’t know them so I can’t help with that. Sorry.

  36. brokentooth_brokenhome says:

    The defense sent us “courtesy copies” of my partner’s records, when we asked for records that met the standard of a ” subpoena duces tecum.” These amounted to nothing more than a word document called a “transcription” that contradicted all of the information we have, including our claim. Go figure.

    We received our courtesy copy with a motion to compel proof of purchase of a bond, because we are out of state.

    Considering we are out of state, and pro se, is there a way to compel the defense to produce documents to the standard set by a subpoena duces tecum?

    Whatever they send also has to be admissible and be something a mediator or the court will trust.

    If I were in the area of jurisdiction, I could go to the dental office. But unless I have a trusted agent to view and record the documents, all I can do is accept what they send me.

    One of the vulnerabilities to maintaining an unemotional view on a very personal matter is knowing which facts I need, that they are out there, and I not being able to get a hold on them.

    We complied with the defense requests for information and documents….

    Now I’m whining and the first rule of litigating pro se is don’t complain about the choice you made. LOL

    • fl_litig8r says:

      If these documents were produced in response to a Request to Produce, there’s no need to specify that they treat it like a subpoena duces tecum — the production requirement would be the same. You could file a motion to compel demanding that they produce the actual records, and not whatever summary they concocted. If they claim that they do not possess the documents because you didn’t sue the business (just the individual), you could contest that claim based on the individual’s clear access and control of his own patient’s records. Alternatively, you could subpoena the business itself. If they fail to adequately respond to that, the proper response would be a Motion for Contempt against the business.

  37. Brokentooth_brokenhome says:

    Thank you for thoughts. I think subpoenas are the way to go. They could be more efficient, and their request puts our concerns on the desk of the judge and defense attorney.

    My next concern is if going through the trouble to build our case is more important than tearing down their case.

    Previous to reading you response, my partner showed me a stack of paper that included notification of defense request for summary judgement set for late this year.

    Of course there is the table of authorities, and the statements by the defendant, expert witness and the defense attorney.

    Of course my partner was crushed. I wasn’t. I expected this, though the volume of paperwork was more impressive than I would have thought. I thumbed through the mass quickly, saw mostly the same old ….stuff.

    In assembling the timeline of events, I know the defense has created an alternate reality based on some gaps in documentation, and the transcript they created to create a favorable narrative for the defense.

    My origins, line of effort is now comprised of showing which story is true, instead of trying to prove our claim of substandard care.

    I am naive to believe the defense would provide the truth once compelled. They did not.

    I can see them holding onto facts to see if we would just go away. Most pro se litigants do.

    All things considered, I want to shift our strategy from proving our claims to revealing the defendant is intentionally frustrating discovery.

    Donald A. Blackwell wrote “The Big Lie – False and Misleading Testimony by a Litigant Does Have Serious Consequences” in 1999. It is my manifesto now for justice.

    He brilliantly outlines a brief, complete with Federal cases, describing how to argue for sanctions against deceptive litigants, and officers of the where applicable.

    My partner does not think this will work, and an expert will be more useful.

    I think it’s our only chance at a win-win at mediation. Their expert now has carte Blanche to interpret mailable information with impunity.

    Proving defense testimony is false takes away the expert witness who used the information given. The defendant has a lot tap dancing to do, and hopefully his lawyer and insurer are unawares.

    If we take their credibility away, I can’t see a use for an expert.(especially if we file motions for sanction before mediation)

    We have nothing for an expert to testify on our behalf, because the defendant’s withholding of records gives us nothing to work with.

    Imposed sanctions could neuter the defense’s ability to prosecute their case and afford us an apprise settlement, particularly since we are not asking for the keys to the kingdom.

    I am trying to decide whether to file motions against the defense before mediation, or after. The motions would contain all relevant facts and hopefully resolve this sooner.

    But the motions could stir up a storm that would lead to more paperwork on our part, and we go to mediation on a sour note.

    On the other hand, the mediator might be more receptive to our argument than a judge that the defense’s frustration of our discovery efforts warrants finding in our favo. Especially when the jurisdiction is in a state whose legal system is several times larger than the Federal government’s.

    Thank you again for your generosity.

    • fl_litig8r says:

      Be careful about putting all your eggs in the “I’ll show they’re lying” basket. Proving that they’re lying is easier said than done, unless you have proof that they have the smoking gun documents you think they have. What if they destroyed them and claim they never existed? Sure, you can attack their record-keeping and maybe say that it doesn’t comply with medical standards, but that’s a far cry from providing evidence that they destroyed documents — at least enough to support sanctions. You can raise suspicions that they withheld or destroyed documents, but how would you actually prove it without them admitting they did it? It’s a challenge, so you should still work on proving your own side of the case. If you can’t do it through their documents, you’ll need to do it through your partner’s testimony.

      At the very least, you should prepare affidavits, especially one from your partner, disputing whatever falsehoods are contained in the records they did provide. You’ll need this to create an issue of disputed fact to survive summary judgment. Just claiming that their documents are false or incomplete isn’t enough.

  38. Brokentooth_brokenhome says:

    Thank you for your help.

    Our mediation hearing comes prior to the motions set forth by the defense.

    I don’t know if a smoking gun exists in this case.

    We built our case on documents that support our claims. These include billing statements, written notes by other dentists and we will seek phone records and electronic data to show the defense’s narrative could not have happened the way they said it did.

    My partner and I are trying to figure out what we can produce for evidence to show our narrative is true.

    I think our real shot at a settlement is at mediation. The threshold for evidentiary quality is lower than at trial. There won’t be trial, because if we can’t succeed at mediation, I think the judge will find in the defense’s favor on both their motions.

    There is a ray of hope, now that I think of it.

    I have all their evidence, and since we provided most of it to them per their requests, we don’t have to guess where their going next, which has been toward using fabricated documents.

    Instead of filing motions, do you think we should focus building a cache of ammunition based on the contradicting evidence? In other words, we make our claim for substandard care and simply note the discrepancies as we present our side.

    We will also have expert testimony refuting the claims too.

    The backbone of this strategy will be on my partner’s testimony.

    Well get to work on the affidavits.

    Again thank you, and have a great weekend.

    • fl_litig8r says:

      It’s not so much that I think you should ignore discovery violations by the defense, but rather that building your own case should always be job number one. My concern with the alleged discovery violations is your ability to prove them. Only pursue that angle if you have a plan as to how you can show that they’ve withheld, altered or destroyed evidence. Mere suspicion gets you nowhere.

      When facing a summary judgment motion, your concern is always to produce some evidence that shows the court that there are disputed facts that need to be decided by a jury. It doesn’t matter at that point how much evidence is on each side. They can have 100 pages of medical records that say something happened one way, and those can be disputed by one affidavit from your partner saying that they happened a different way. The court can’t weigh the evidence when deciding whether to grant summary judgment. It must deny it as long as you have any evidence on your side creating a “material issue of disputed fact.” A mountain of evidence can be disputed by a molehill. I’d concentrate on showing the defendant how you’re going to dispute their facts such that they will be denied summary judgment and will have to go to trial. That’s your biggest leverage for mediation. They really want summary judgment. No defendant wants to go to trial, no matter how strongly he feels about his case.

  39. Brokentooth_brokenhome says:

    Once again thank you.

    My partner’s primary language is not English. Translating would be cumbersome and prone to misinterpretation.

    I have been putting my partner’s story, case and the circumstances and facts into words.

    So far it has been okay. But in the summary judgement, the defense is alluding to questions of my standing in this case.

    With that, is it okay to continue to do the writing? I can’t see a problem if my partner can read, comprehend and imtelligently discuss a document after having signed it.

    Also, would I have to identify mysel as the compiler/author?

    • fl_litig8r says:

      To have standing, you must have a legally recognized relationship with your partner. If you don’t, then you have no standing at all. That doesn’t mean that you can’t help act as an interpreter. Just be careful what you disclose to the other side or the judge with respect to anything you’re doing beyond mere interpretation. Drafting legal documents on your own for your partner would be considered unlicensed practice of law (UPL). Acting as an interpreter in assisting your partner in drafting such documents likely wouldn’t be.

      When it comes to affidavits or similar items, be careful in having your partner sign something she can’t read. If she’s questioned as to her ability to read an affidavit she signed at a deposition, hearing or trial and she fails, it will look very bad. If that is a concern, it may be best to have the affidavit in both her native language and English. This way, she’d clearly know what it says and there will be no issue as long as the English interpretation is fair.

      I see no need to identify you as the author as long as your partner understands and approves of everything you’ve written. As I said, though, be careful not to expose yourself to a UPL claim.

  40. confused says:

    update- last time i wrote you it was that we never had a settlement conference and we already had one trial date postponed, the reason the other side said they wouldn’t pay policy limits is that med bills were too high, so we hired an expert biller who submitted the usual and customary rates to them and they just haven’t responded now for 3 weeks, and are not returning my lawyers calls. our trial is set for just 2 months away and no settlement offer has been made at all. is this normal? they are not disputing liability or causation. How can i know if they will just keep stalling and try to postpone trial again or if we are really finally going to trial? its 2 and a half years since accident. what would my lawyer be doing to show me signs that we are prepping for trial? I have never heard of this where the other side hasn’t even made any offer to our demand, no counter nothing, and we did use a 998 , and sent in bills from the billing expert etc

    • fl_litig8r says:

      Your guess is as good as mine as to why the defendant hasn’t responded to your offer, or whether it will try to get the trial postponed again. I wouldn’t worry about whether your lawyer is getting ready for trial 2 months out. The only concern at this point would be making sure your expert (and other witnesses) is available, assuming he will be testifying live. Other things, like preparing exhibits and demonstrative aids (if any) can be done in a fairly short amount of time. You don’t want to incur those expenses before you have to.

      While it’s annoying that the defendant hasn’t given you a definitive answer, their silence is kind of an answer in and of itself. It’s either a “no (and we’re not going to counter)” or a “we need some time to think this over”. I wouldn’t say it’s normal, but it’s definitely not rare.

      • confused says:

        Still no response or offer to our 998 ,its been over a month or two are they now set up for bad faith claim? we sent them medical bills experts billing based on usual and customary rates and a demand for limits etc. It still seems crazy to me that almost 3 years in and no offer and one court date postponed already. we have trial within a month or two. Any advise?

        • fl_litig8r says:

          A CCP §998 offer doesn’t set up a bad faith claim. Bad faith is a totally separate theory. The defendant is subject to penalties under CCP §998 if it rejects your offer (or fails to accept it within 30 days, at which point it is deemed rejected) and you recover more than the offer at trial. Therefore, whether the defendant is set up for CCP §998 penalties depends on whether it has been at least 30 days (plus mail time if the offer was mailed) since the offer was sent.

          The only thing you can do now is keep prepping for trial. That’s almost entirely in the hands of your lawyer.

          • confused says:

            yes its been over 30 days, and no response even when my lawyer tried calling them, they never got back to him. trial is in 2 months, so i guess its def going to trial now? thx again for your reply

          • fl_litig8r says:

            I wouldn’t say definitely, but if I was a Magic 8-Ball, I’d say “Signs point to yes”.

  41. Brokentooth_brokenhome says:

    If we were married, than I would have more latitude in assisting because we would be united in a legally recognized relationship. But I would still not have standing as a named plaintiff per se. This union does not constitute grounds for a reasonable expectation by the court or legislature that the defendant owed a duty to me.

    Similarly, loss ofconsortium also relies on the party claiming this damage on behalf of themself or another family member(s).

    The relationship is essential for a couple to “work together”, because their union has merit. The lack of merit in same-sex relationships is lack of acknowledgement by the government, e.g., court or elected official.

    (I am not debating same sex Union equality)

    I’m curious if there is a way to build a causal relationship between a professional’s substandard treatment of one spouse and the other spouse who may not only have to contend with typical loss of consortium issues, but less typical issues like impact on children.

    In other words, if the professional knew his treatment would extend beyond the means of insurance coverage, and he knew a spouse would be responsible for the balance, isn’t their a fiduciary responsibility to the providing spouse?

    Loss of consortium essentially invites spouse and family members under the umbrella of duty held by the defendant. If a wife cannot perform as a wife intimately or in managing household duties, the other family members can claim money for injuries. The injuries exist because the impact if the malpractice was felt directly by the spouse and by extension, other immediate fMily members.

    If the providing spouse has to pay to replace, re-treat, or bear additional financial burden because of the defendant’s actions hasn’t the causation link been made because the professional had a fiduciary duty to the provider?

    I am not only referring to the typical definition of fiduciary, that off being responsible for stewardship of another’s money and other assets.

    I am also referring to the fiduciary relationship writ large, that ll professionals have when agreeing to use their licensed skills upon request from a patient or client.

    If I were an insurer, military Tri-care for the sake of argument, the defendant would be accountable to me, corporate entity, for accuracy and other professional responsibilities.

    Like a corporation is a unique individual separate from its constituents or share holders, doesn’t a marriage also hold discreet rights and responsibilities because of governmental acknowledgement?

    Again, I’m not thinking about same sex Union. Different battle.

    Loss of consortium has minimum relevence to a jury, and will not persuade the defense at mediation in a dental malpractice suit. The symptoms of Temporomandibular Disorder are debilitating, and I know this first hand.

    But I am talking about finding a way to show the damages we are seeking are real and the real question is who should pay. I wasn’t negligent. I made sure my wife had adequate insurance and means Leo she could reasonably negotiate services, with a professional, and The Affordsble Healthcare Act might crack down on providers who do not insure their family members like the government does deadbeat dads. LOL.

    If I were in a recognizes Union, is there a way to establish a fiduciary duty to me by the professional?

    Thank you for your time, and pardon me for burying the leed in this question.

    • fl_litig8r says:

      I get what you’re trying to do, but without a legally recognized spousal (or civil union) relationship, the court won’t allow you or your child to recover any damages due to the plaintiff’s injuries and their impact on you. Foreseeability is irrelevant. It’s foreseeable that close friends would be affected, or even employers, who may be losing a valuable worker. That doesn’t give those people the right to seek damages in another person’s personal injury case. The court isn’t going to extend the right to seek damages beyond those traditionally recognized under a loss of consortium theory. To do so would open a Pandora’s box of litigation.

      The doctor doesn’t owe you a fiduciary duty. You’re not a patient, and you’re not legally responsible for the plaintiff’s bills, regardless of whether you paid them and the doctor knew you would.

      Without some form of legally recognized same-sex union (and I’m all for same-sex marriage, by the way), I think you’re wasting time trying to make out a claim for yourself or your child. No matter how you try to couch the argument, I can’t see any judge allowing it.

  42. confused says:

    spoke to my lawyer recently and he still hasn’t booked my expert witnesses, but his office says he sent out on call subpoenas, his last message said that many times trials won’t happen on the date scheduled due to no courtrooms available. After almost 3 yrs since my accident and one delay of trial already, it seems ridiculous that their wouldn’t be any courtrooms available, I’m not saying he’s lying I’m saying that as a person who was injured due to no fault of his own, this is ridiculous what it takes to get to the end of a case. Whats your opinion on the maybe no rooms available idea? and what kind of timeline would you have to know that trial will be delayed again? and if delayed it is like last delay 4-5 months?

    • fl_litig8r says:

      It’s really not an issue of courtrooms being available. It’s that courts schedule multiple cases for trial on the same day because they know the vast majority will settle. See this article (scroll down to the section titled “Delays in Your Trial Date”) for how trial scheduling works, and why having a trial date doesn’t mean you’re definitely going to trial on that date.

  43. confused says:

    i understand delays happen but their has to be some sort of limit to what someone has to go through to get their day in court. my case was filed a year and a half ago already and we had one delay so far and I’m hoping we actually get to court on the next date which is coming up. My fear is with the fact my attorney hasn’t had contact with my docs really other than maybe sending that on call subpoena and that their has been no settlement conference at all, and that the other side just hasn’t answered the 998 and i am the only one that was deposed as far as i know. The other side doesn’t deny fault etc, but where am i other than being at mercy of others? i don’t know if they will later play games and want to depose my doctors or anyone else but trial is only 5 weeks away and I’m pretty lost at whats going on. my accident was almost 3 yrs ago and trial was set a year and a half ago.

    • fl_litig8r says:

      The “limit” you think should be there doesn’t really exist. A year and a half in litigation is not a real long time, compared with other cases. If your trial date is getting moved because cases ahead of you on the docket aren’t settling, the only way to avoid this in the future is to ask the court for a special trial setting for just your case where you’re guaranteed to go to trial. Courts are reluctant to grant these, and even when they do it usually needs to be set at a much later date than if you rolled the dice on another “group” trial date. If one side asks for a continuance, that is completely within the discretion of the trial judge as to whether it is granted. You say your trial date is 5 weeks away. Do you know if there are cases that haven’t settled ahead of you on the docket? Has the defense moved for a continuance? You may very well go to trial in 5 weeks if the answer to both of those questions is “no”.

      I can’t say if your lawyer has done what he needs to to prepare for trial. If the trial is likely to be postponed, it may be wasteful and stupid to spend a lot of money prepping doctors or other experts now. I can’t play backseat driver to your lawyer because he’s in a much better position to know whether the case will go to trial as scheduled and what he needs to do to get ready in your particular case.

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