Personal Injury Case Part II

Robert I. Feinberg

07 November 2008

Valuing a case involves three crucial elements: Liability i.e. fault on the part of the person/corporation being sued; damages; and qualities relating to the plaintiff. But to pursue a case you need something else: a fourth and very crucial element, a source from which to recover money such as liability insurance.

Assuming there is sufficient insurance coverage, a question that is always faced is: What constitutes a desirable plaintiff?, Who is viewed favorably and who is not? It is usually a matter of common sense. Is the person reliable? Honest? Does he/she have a job? If he/she is not presently working, does he/she have a long work history? Another set of questions deals both with the credibility of the person who is suing and with that person’s damages. Has he/she had many accidents before? Has he/she sued many times before? Specifically, has the person injured the same part of his/her body before and did he/she sue for that?

On the question of credibility, I am happy to report that whenever I have represented honest and hardworking people, I will do well. Further, I have found my foreign clients to be very reliable. They have jobs, they had jobs in their former countries, and that makes a difference. The individual need not have worked in state in which the lawsuit is brought. Accordingly, I always inquire of my clients, American or foreign born, what their entire work history is. Insurance company personnel are bureaucrats and they evaluate what comes across their desk often by basic information. If they see that the person making the claim is in fact honest and hardworking, the lawyer will be representing a person for whom the chances of success are greater, assuming all things (such as insurance coverage) are equal.

A recent article in The Lawyer’s Weekly for Massachusetts had a headline: “The Fall of Torts.” Torts is the system in English common law which is followed here, whereby a person receives money for civil infractions or negligence. Contrary to the sentiment expressed in the article, I have found that “good money” can still be obtained with the right plaintiff and the right fact situation.

Many factors explain how a case will resolve for a lot of money or a little money. Some of those facts are in the control of the person suing. Other facts are not at all in that person’s control, such as insurance coverage. Your credibility, on the other hand, is very much in your control. Fortunately, that has worked well for the vast majority of clients whom I have had the pleasure of representing.