She had charges of $2,617. Insurance paid $370 and there was a contractual adjustment of $2,047.00. That left her a balance of $200 to pay.

She had charges of $4,719.76. The hospital agreed to reduce it to $3,020.65.

Of course, if she got the same deal that the insurance company got and paid both her portion and the insurance portion, it would come out to owing the hospital only $1,027.96 .

We were able to work a significant reduction for her. But it’s crazy that this goes on.

My client is the passenger. He was buckled in and looking for the driver. He came to and was able to drag himself out of the car. Frantically looking for the driver, he finally found him 30–40 feet away from the car in a twisted mass. Dead.

The driver was a friend of his. Someone quite a bit younger, that he had been living with for three months, working with and mentoring in his trade. Dead.

My guy had the initial ER bills, four weeks off work and minimal follow up to that point, because he couldn’t afford the doctor’s bills. I called the insurance company. They had the state minimum policy limits of $25,000 with an additional $25,000 for UIM.

I figured that this was more than enough to get to the $50,000 and called them to check on their feelings. “Oh no…..that’s not nearly enough.” Not enough to get to the $50,000? “No……Not enough to get to the $25,000.”

But this is a very serious fatality case. It was his roommate, friend and co-worker. “Your guy didn’t die. We consider this a soft tissue case and nothing more”.

Wow. It’s breathtaking.

The insurance company is of course Allstate.

That means that depending on the renewal date, you can’t be 100% of having $25,000 minimum limits until July 1, 2007. The statutes and cites are after the jump. ]]>

§ 38-77-140. Bodily injury and property damage limits; general requirements.

(A) An automobile insurance policy may not be issued or delivered in this State to the owner of a motor vehicle or may not be issued or delivered by an insurer licensed in this State upon a motor vehicle then principally garaged or principally used in this State, unless it contains a provision insuring the persons defined as insured against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of these motor vehicles within the United States or Canada, subject to limits exclusive of interest and costs, with respect to each motor vehicle, as follows:

(1) twenty-five thousand dollars because of bodily injury to one person in any one accident and, subject to the limit for one person;

(2) fifty thousand dollars because of bodily injury to two or more persons in any one accident; and

(3) twenty-five thousand dollars because of injury to or destruction of property of others in any one accident.

(B) Nothing in this article prevents an insurer from issuing, selling, or delivering a policy providing liability coverage in excess of these requirements.

 Former 1976 Code § 56-9-820 [1962 Code § 46-750.32; 1963 (53) 526; 1974 (58) 2718] recodified as § 38-77-140 by 1987 Act No. 155, § 1; 1997 Act No. 154, § 12.

Amended by 2006 Act No. 395, § 3.A, eff June 14, 2006 affecting policies issued or renewed on or after January 1, 2007.

§ 38-77-30. Definitions.

(12) "Renewal" or "to renew" means the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer, the renewal policy to provide types and limits of coverage at least equal to those contained in the policy being superseded, or the issuance and delivery of a certificate or notice extending the terms of a policy beyond its policy period or term with types and limits of coverage at least equal to those contained in the policy being extended. However, any policy with a policy period or term of less than six months or any period with no fixed expiration date is considered as if written for successive policy periods or terms of six months.

Please tell me the status of the case. To save time, you can pick a number from the list below to indicate the status. Please feel free to add comments as necessary.

1) I haven’t heard of this case and don’t think it’s assigned to me.

2) I’ve heard the case name, but at this point, don’t know any more about it.

3) It’s on my list of To Do’s and I’’m just about to get to it.

4) It’s on my list of To Do’s, but frankly it’s not near the top now.

5) I have the information and reading up on the case and am in the middle of assessing it.

6) I need more information from your office before I can assess the case and send it to the adjuster.

7) I have finished assessing the case, but have not drafted the information to the insurance company yet.

8) I’ve sent everything off to the insurance adjuster and am waiting on authority.

9) The adjuster and I are talking about authority and should have an answer soon.

10) I have authority, but did not have the chance to call you yet.

Please respond to the following:

The number that is closest to the status is:

I expect to have an answer on the following date:

I need the following (if any) from you:

Comments/Additional Info:

The reason? Not enough damage to the car and they didn’t believe that my client could have herniated two disks from that amount of collision.

When I talked to my client his response “Well Dave, there wasn’t too much damage to my car. I was driving a Nissan Titan. The guy who hit me, his car was totalled. It was a crumpled mess that had to be towed away from the scene”.

Of course, the car that was totalled belonged to the adjuster’s insured, so she was well aware of that, but any reason to deny a case.

Question: Does anyone have any information on expert _______?

Answer: You are in trouble.  ______ is formidable.  I have used the expert myself on several occasions.  The expert is well qualified, very articulate, makes a very good witness, quick on his/her feet, and is married to a judge. Good luck.

Ouch. Just goes to show that both sides can have good witnesses.

They conducted a lot of focus groups and studies based on Clotaire Rapaille’s work. Here is Rapaille’s home page. The basic concept is that we have the modern functioning brain that helps us with decision making and functioning in our current environment. Underneath that is our lizard brain. The reptilian brain.

The reptilian brain works on basic survival mode. Does anything threaten our survival or make us safe? Very basic instincts. Like the fight or flight syndrome. When a sudden danger appears, the body is pumped full of adrenaline and either stands ground to fight, or gets out of the situation.

By studying Rapaille’s work and applying it to the legal field, they’ve used the same arguments as before, but frame them slightly differently in an attempt to appeal to the basic lizard brain inside us all. It sounds very powerful. It takes the biggest tort reformers that were against us the most and turns them into our strongest allies. Wow. I’d love to see it in action. I have a trial next week and will apply some of the principles and we’ll see how it goes.

They are still working out the best way to present the information. I think the best solution is a one day seminar presenting all of the information followed by a 2 day seminar a few weeks later showing how to apply the theory to all aspects of your trial. It’s very good stuff and I can’t recommend it highly enough. If you do plaintiff’s work, you really need to check this out. The Book is here. The Seminar is here. The next seminar is in June in Dallas. While putting the link in, I just found out the Dallas seminar is full. You owe it to your clients and yourself to check out the next one.

As my readers know, I’m a plaintiff’s attorney and the tagline of this blog is ‘Using Technology to Be a Better Trial Lawyer’. My focus is being a better trial lawyer, whether it’s through regular trial classes, using technology or even running a better office. That splits the readership because it’s a somewhat scattershot topic area, but that’s what interests me. I think it also interests plaintiff’s attorneys with their own practice.

So I have held myself back from talking about interrogation and torture so as to not further spray the field, but it’s time to offer my opinion on this.

But why should you listen to me?

I was an interrogator in the United States Army from 1982–1989, just short seven years. I signed up for 3 years the first tour and 4 years the second tour. The Army taught me Arabic on the first tour and Hungarian on the second tour.

I taught interrogation at Fort Huachuca, Arizona from 1986–1989. While at the interrogation school, I taught basic tactical interrogation for the United States Army. There were also ocassional classes for the Officer’s Basic Intelligence Course and the Foreign Allied Officer’s Course, where we taught officers from other countries.

In addition to those classes, I was on the team that did course development for the USMC reserve interrogation course and also was on a review board for the interrogation MOS (job specialty) training.

So that’s why you should put some stock in my opinions. I went to law school in 1989 and am now a lawyer. Having the interrogation and a legal background is a good reason to listen to me. 

Here are the reasons to take my opinion with a grain of salt:  

I got asthma rather severely and received a medical retirement a year or so before Desert Storm in 1989, so while I taught interrogation for 3 years, I did not do any live interrogations.

All of my experience was with tactical interrogations and not strategic debriefing of high level detainees.

I worked on a tactical level. While I did teach interrogation for three years and know the doctrine cold, it was on a tactical level. I did not set policy at the national level in D.C.

You can give a new client access to their case information. If they have multiple cases, they can look up information on any of their cases. A co-counsel can have a filter that will allows them access to information on any of their referred cases.

What information do they have access to? Anything you want. You can set up a template as to what information to allow them, but also alter it for a specific client. For example, you can have them see the incident report, medical records, pleadings and discovery requests, but not correspondence.

The client would also have access to all of their medical records in pdf format. Many of our clients want copies of their medical recods for Social Security Disability hearings, or just to have for their records. Now, they’ll have instant access to their medical records and can save as a pdf just by right clicking on it.

Also, all of the Notes and progress made on the case can be e-mailed them automatically just by saving in the Notes. You can also determine whether it’s an appropriate Note to share with the client by the coding on the Note. There is some information that you might not want to automatically share with the client. For instance, an evaluation of the client as a witness, or certain aspects of a case evaluation with a client with unrealistic expectations. Not that you wouldn’t share that information with the client eventually, but a raw note as it happens might not be the most helpful.

Anyways, you can pick and choose exactly what information you want to share and then it happens automatically.

Referred cases and co-counsel cases? You can keep the other lawyer informed in the case and they would automatically get copies of pleadings, discovery, notes or whatever you want to send.

I would imagine I would have a few different templates. A template for high information clients, low information clients, co-counsel that wanted to be informed, and co-counsel that just want to touch base every now and then.

I haven’t seen it yet, but I would imagine it would be very easy to set up e-mail alerts to send them information about thier case or just personal injury cases in general on set intervals as well.

We often say that clients don’t understand how much work we do on the case. This can give them a way to see the work that’s being done. It also significantly increases the number of touches the client gets concerning the case they have and gives them a chance to provide more feedback to the firm.

I think it will take a little bit of tweaking and practice to get the right level of information. For example, do you want to just tell clients when you get their medical records? Or do you tell them you ordered the records, the follow up calls and letters to get the medical records? Or do you just tell the client when the medical records don’t come in and the law firm takes special efforts to beat them in? 

I don’t know if there’s a right answer and think it will take time to find the best mix. I also know there are people that appreciate the higher level of information and there are other clients that too much information just increases their stress levels. It will be interesting.

Anyways, I was blown away by this. I thought it really is the next step to take and in the next five years is going to become the gold standard. It costs extra, over and above the standard Trial Works price, but there’s a tremendous amount of work in getting it set up correctly.

I think this is a killer app for TrialWorks.

I looked at and reviewed over 30 case management programs. as all of my case information was going to be in the program, I stayed away from companies that used a proprietary data system and from one man shops. I decided to go with TrialWorks over Needles. You wouldn’t go wrong with either of the programs, but TrialWorks was just a better fit and seemed to be fresher and more up to date than Needles. I purchased TrialWorks, put half the money down and they converted my TimeMatters data.

About 3 years ago, I heard about an incredible program being developed by a plaintiff’s firm in New York. About a month after I bought TrialWorks, SmartAdvocate came out. It was the program I had heard about and it looked like it was an amazing program. I liked the features and the screen layouts, but the best feature was one that set up a mini-website for each client and notified them about their case. Here is their description:

The ability to automatically forward cover letters and copies of documents to clients either by e-mail or snail mail as the documents are received (pursuant to the rules each law firm establishes – hereinafter referred to as “Rules Based”). For example, if a police report is received, if the law firm rules require, a cover letter and a copy of the police report is e-mailed to the client automatically as it was received, based upon the police report icon being linked to an image. If the law firm is not scanning documents yet, then based on the date the police report was received being filled in with the date the report was received, the client will get a cover letter advising them of your receipt[pt of the relevant document. Same will be true for all documents designed by the law firm ie: hospital records, medical records, medical reports, deposition transcripts, expert reports, orders, etc.

SmartAdvocate™ automatically creates an Extranet website for each client so that a client, with a user name and password, is able to obtain, at any time, the status of their case, access to their case calendar, access to case documents, hypertext links to the staff working on their case (all Rules Based). Whenever their Extranet is updated with new information, the client receives an e-mail with a hypertext link bringing them back to their Extranet to see what changes have taken place in their case.

Well….those sound like great functions. I really thought that a web-based system was the wave of the future. It’s not a feature that I needed to have right now, but it’s something that would be important down the road.

I called Smart Advocate. This is a program that they built inhouse and decided to market to the rest of the legal community. They went to a trade show or two (Mass Torts Made Perfect). They have a great programmer, who was doing the in house work and also doing the installs. They were starting off with a few local/ in-state firms and he said to check back in a month. So I did…..then 45 days…then a month. The next thing I knew it was nine months later. I was told that they weren’t going to sell the program outside the state of New York. Wow.

I wrote sent two e-mails and made two calls to Jerry Parker, the senior partner and brains behind Smart Advocate and didn’t get a response.

So…..While I still thought that TrialWorks was the best program on the market, I really wanted a web-based or extranet solution. Switching case management systems is a huge undertaking and it’s not something I wanted to do twice in five years. So I decided that I’d sit tight for 2–3 years or however long it would take for that to become readily available.

While I still liked TrialWorks the best, I didn’t want to switch to it, then switch again when an extra-net program became available.

The TimeMatters website says it has an extra-net option, but when researching it, they really didn’t. Then I got a call from TrialWorks telling me they were adding an extra-net option and that I should check it out. I did and am now moving to TrialWorks.

With his Damages book, David Ball gave plaintiff’s attorneys a structured way to talk about damages and to present a case from opening statements throughout the trial. It wouldn’t be an overstatement to say it revolutionized the courtroom for many plaintiff’s attorneys.

Following on the heels of that, Rick Friedman and Patrick Malone gave us Rules of the Road, a systematic way to approach liability. I liked Rules of the Road because it spelled out a number of things that I had been doing intuitively, but it gave a structured way to repeat and handle cases.

Well, there’s a new book coming out this weekend: REPTILE: The 2009 Manual of The Plaintiff's Revolution. If you click on the link, there’s a review from Lawyer’s USA in pdf format.

They did a ton of research and based on neuro psychology or cognitive psychology, have found a way to turn tort reform on it’s ear. A lot of people do not want to give money to ‘greedy plaintiff’s’ and ‘jackpot justice’, but if you show them community standards and how the defendants violate community standards, and how that affects the juror and their family, they will make the defendants pay.

Interestingly enough, people that were strongly against civil litigation and big advocates of ‘tort reform’ would still give solid verdicts when using this system.

A lot of research has been done in the past 10–15 years on social sciences, how people think and how people actually make decisions. The research in this book is based on deep in the id, the reptilian response to situations, which the ‘fight or flight’ syndrome is based on.

The book is coming out this week and I’ll be going to a seminar in Atlanta on it Friday and Saturday put on by Don Keenan and David Ball. I’m excited and looking forward to seeing what they’ve come up with. It meshes with everything I’ve read on NLP, neuro psychology and cognitive psychology. So it should be good…..Plus, it’s hard to argue with the track record of the authors.

Here is information for the Atlanta Seminar on May 8–9, although it might be too late to sign up. If you miss it, David Ball is giving the seminar in Dallas on June 12, 13.

If you just want the book, you can get it from their website, from Don Keenan’s publishing company, or from Barnes and Noble. It’s not on Amazon yet or Trial Guides, yet.

I’ll report back after the seminar. A lot of it is plaintiff’s attorneys only, so I might not be able to give all of the scoop, but enough to give some pointers (with the author’s permission) and enough to let everyone know whether it’s worthwhile.

We were in mediation today and the defense had topped out. After the first offer, it looked like they were going to top out in the $40,000 – $50,000 range. We would be okay with $50,000, but would not be okay with $40,000. As the offers and counters went back and forth, it looked very clear that they were going to top out at $40,000.

My client wasn’t happy about that, but was uncomfortable with going to court and wasn’t certain what to do. He said that if we could get more money than that, he would settle, but couldn’t see settling for $40,000.

But the defense pegged out at $40,000 and wasn’t going any higher.

I asked the mediator if he had a Consent Order of Dismissal in his computer. He said “Heck, Dave. I’ve got a blank one in my folder”. It was perfect. It had the caption and the signature lines of all involved and had a blank for the dollar amount.

I filled in $42,500 and signed it along with my client. Telling the mediator to tell them if they came up just a little, that it would resolve the entire case. And it worked.

I was involved in a mediation with Karl Folkens a few years ago when he did the same thing. I think that used sparingly and in the right situation, it’s a good way to squeeze a little extra out of the case. But I wouldn’t try that early in the mediation or on every mediation.

But it’s not something that I can realistically blog about. Let’s say I settle a case for $50,000. Maybe it was a case that I thought was worth $40,000 and negotiated it like crazy and got $50,000 for it. I then blog about it and the other side who thought they  might have done a pretty good job goes “Hey. Dave thought he got over on us….Next time, we’ll have to dig in harder.” Not good for my clients.

Or, let’s say I settle another case for $50,000. I had thought it was a $60,000 case and really, really wanted to get more for the client, but for whatever reason that was all we could get (…and don’t say Allstate). Well, if I blog about that, then people would say “Hey…..in this situation, Dave let his client get held over a barrel and so I bet we could do it to.” Again, not good for my clients.

And while over a period of time, you can get a pretty good feel for what a case is worth, you never know how much is on the table and whether you got all, or nearly all of it. And when you finish the case, all you can do is cash the check and give the money to your client. You can’t call up and say “How’d we do? Did you hold out on us and make your client happy? Did we settle to easy? Or did we get everything that was there?” Of course, they can’t tell you that, because it would be giving away their secrets just like blogging about negotiating would give away mine. Ah well… some fun stories that can’t be told.

What a great idea, I naively thought. The big day came and I had 5 cases with GEICO at that time. She didn’t even read the demands and medical records:

• Too Young – I can’t believe that such a young girl has such serious injuries and won’t recover. She’s young, she’ll get better.
• Too Old – I can’t believe that she’s having such problems from the car wreck. She has to have a ton of pre-existing conditions.
• Too Much Treatment – It’s clear she’s ‘milking it’.
• Too Little Treatment – She’s obviously not hurt.

Let’s play this ‘game’ a little more.

• If a person goes directly to the doctor – She ran to the doctor. Why is she doing that?
• If a person waits a day, to see how they’re feeling – They must not be hurt. If they were hurt, they’d go immediately to the doctor.

It took me awhile to realize that to a very large degree, the facts don’t matter to the adjuster. They’ll find anything they can to poke. After awhile you learn to document your case and if the adjuster won’t listen, then you just file suit, and move the case forward. The best way to settle a case is to prepare for trial.