Sep 15, 2010

THE GAME: Last Thursday night the Rockies were home against the Cincinnati Reds. It was the bottom of the 8th, with one out, men on first and third and the game tied at 5 after the Rockies climbed out of a 5-0 deficit. Rockies' rookie, Chris Nelson, was on third as a pinch runner for Jason Giambi.

Reds' pitcher, Nick Masset, had batter Miguel Olivo at 1 ball and 1 strike with a go ahead run. The confident Reds' pitcher had the ball in his hand and was looking down getting ready to start his wind-up for the next pitch. On the mound, the pitcher is 60.5 feet away from home plate. Nelson on 3rd is 90 feet away from home plate. Masset regularly throws a fast-ball over 100 mph. No human on earth can run 100 mph. There wasn't a soul in the crowd, the manager, or a baseball coach anywhere who had a clue what was going to happen next.

Suddenly, with great disadvantage of both distance and speed, like a bolt of greased lightening Nelson darts for home in an effort to steal a run with the ball still in the pitcher's hand! When Masset first heard his teammates yelling at him that something was up, he first looked to 2nd, thinking if there is a runner stealing it would surely be the runner at 1st and couldn't possibly be the rookie stealing home. He was caught off guard and Nelson's audacious play was a success. A straight steal of home plate is rare and daring feat with one of the most famous being Jackie Robinson in Game 1 of the 1955 World Series. Mind you, Chris Nelson is a rookie in every sense of the word and up to this point had not even attempted to steal any base in his burgeoning major league career.

Like a flash, what was thought to be impossible was suddenly not only possible, but actually happened. On paper calculated by the sport's best statisticians, on any managers clip board and in the minds of everyone but rookie Chris Nelson, it seemed impossible. Yet, he did it! That run sealed the win for the Rockies after a being down 5 straight runs. And it all began with a Rookie looking hopelessly stranded on third.

With the odds so stacked against that rookie and his fortitude to make such a gutsy decision, it reminds me in no small part of the gut-check people battling the insurance company go through. With every client I have represented over the last 20 years, there comes that time in the case where they have to carefully decide if what the insurance company is offering in settlement is enough. Fortunately, as compared to the odds that rookie was looking at, our clients' decision is much easier and certainly the odds are not that stacked against them.

However, they do have to decide whether to take what is being offered or whether they are prepared to turn down that final offer and take their matter to trial with a jury for an ultimate showdown.

Being a trial attorney, there is truly nothing more satisfying to me than putting it all on the line and stepping into that forum. There is something about a jury trial and the human drama associated with this sort of battle that has no equal. The adrenaline rush for me is practically an addiction.

However, for the client, the risks associated with going all the way through a jury trial can seem as insurmountable as what Nelson was looking at 90 feet away. First, for a plaintiff in a personal injury action, losing at trial means they get nothing for all they went through; nothing for injuries, nothing for permanent disabilities. Even if a plaintiff "wins", if the jury comes back with less money than what was offered prior to trial, it really is a loss. The jury never gets to hear how much was offered by the insurance company prior to trial. For that matter, they are never even told that there is an insurance company involved.

Evidence Rule 411 requires all the litigants to pretend with the jury that the action we bring is actually seeking money directly from the at-fault driver. It's not. It is an unfair rule. The theory behind this rule of evidence is that if a jury knew the truth, that this is all about awarding insurance money, then the jury would more freely award money simply out of general disregard for it being merely insurance money. This rule's motivation is probably based on an inaccurate perception of most human beings' reaction to learning about the involvement of insurance. But, nonetheless these are the "Mickey Mouse" rules we are required to live by.

Moreover, if a plaintiff loses or even if they win, but win less money than what the insurance company formally offered before trial, it is the plaintiff who is responsible for paying theirs and the insurance company's litigation costs. Such costs can be many tens of thousands of dollars.

In addition to the specific concerns of the particular case, there are other general concerns that add to the uphill battle of trying your case. Included in those general concerns are the right-wing politically appointed judges, the prospects of tort reform-minded and Glen Beck viewing type of jurors slipping onto the jury, and a general juror apathy for awarding money to people injured in car crashes. There is also the fact that a litigant will have to fight the ideas sponsored by the insurance industry through their pollution of the airwaves with over-blown notions of fraud being perpetrated by people who file insurance claims.

In fact, if you sat down with a clean sheet of paper and listed out all the advantages and disadvantages of letting a jury decide the value of your injury case, your disadvantages and risks would so outweigh the safe-harbor of taking what the insurance company dictates, that it is hardly a wonder why so few injury cases ever make their way to the courthouse.

Yes, that's right, I said it. Contrary to what right-wing, Sarah Palin types might suggest in political rallies, the percentage of court cases involving personal injuries is a mere fraction of the total court docket. Figures place injury cases somewhere between 5- 10% of all court trials occurring nationwide. Contrary to what Rush Limbaugh might be saying, criminal and divorce cases vastly eclipse the personal injury court docket. The courts are bogged down by criminal and divorce cases, not car crash cases, no matter what that friendly looking actor in the Allstate commercials is telling you.

But, as you gear up for trial, these are all risks you must consider.

Quite often the risk is taken because the insurance companies give you little choice. Frequently, the insurance company's offer to settle is just woefully inadequate. The insurance industry knows that nationwide statistics show that nearly 95% of the time when they get to their declared "top dollar", plaintiffs will take. In their corporate mind-set why should they give you more if you are so likely to take less once they say "take it or leave it?"

Where you have an advantage, just like rookie Chris Nelson had looking at the Reds' pitcher holding the ball, is when you say no and walk into trial, you frequently catch the insurance company flat-footed. They often react with pure shock and even panic that you are going "off-script". Time and time again when we shock the insurance company with our audacious reaction, it causes them to recoil. It often causes them to take a fresh look at their settlement figures, even at the steps of the courthouse. Beyond that, we regularly march in to court on the courage of our clients and beat these insurance companies mercilessly in front of the judge and jury, taking from them, in levels of awards through the jury process, what they would never have volunteered on their own.

Don't get me wrong, we have had our share of losses and verdicts that were less than the insurance company's last offer. But, we also have a backlog of extremely happy clients, who achieved, by having the guts to take on the insurance company, the glory of the successful undertaking. However, very often, the true reason why these people elected to take the risks of this undertaking, much like that rookie did, was that they saw very little other choice under the circumstances. But, just like that rookie, no one will ever question either their guts or their instinct in taking that brazen and risky action again.

At Anderson Hemmat, we know that sometimes it takes guts to stand up to insurance companies and that without taking that stance our clients may as well be stranded at 3rd base with the winning run in sight but forever out of reach. If you feel like an insurance company is taking advantage of you in your car crash and you need someone to stand up for you, call us today.


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