EP03 S04: Personal Injury Settlements: Get The Inside Scoop in 2021

Get the Inside Scoop on Personal Injury Settlements During the Covid 19 Pandemic.

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Full Transcript:

Hi everybody. My name is Arkady Frekhtman and I’m a trial lawyer at the F&A Injury Lawyers here in Brooklyn, New York.

Hi, everybody. I wanted to talk about a recent case experience that I had in a real case. So, I’m handling this case on behalf of a very nice lady, and she was in a facility, like a nursing home type of facility, and she was seriously injured, she had a tri-malleolar fracture of her leg with open reduction internal fixation. And so I tried to settle the case and I use this method where I flip the script. Instead of making a demand, and then allowing the insurance company to whittle you down and pigeonhole you and put you in a corner and basically give you next to nothing, I flip the script.

I told them, “Hey, I’ll take a certain amount by a certain deadline. And if you don’t pay it, well then, I’m going to ask for more.” So, I’m actually doing what the insurance company does, but I’m flipping the script and doing it to them. So, the case involved a $1 million insurance policy. And I said, well, I was going to take 750,000 to settle the case. And the insurance company got upset. Everybody always gets upset when you send them a letter and you mention bad faith or the fact that they’re not going to be dealing in the good faith and fair dealing that they have to their client.

So, long story short, first they offered me 100,000. And I said, “100,000? This is an open reduction internal fixation. If this was like a pain management case, a soft tissue case, maybe one epidural injection, sure, that’s a fair offer. But for a tri-malleolar fracture with surgery, that is a ridiculously low inadequate offer, it’s not reasonable. So, if you want to give me 300,000 as an offer, I’ll go to mediation and I’ll talk turkey with you. I think my 750 is fair, my 750 is only valid until December 18th. If you don’t pay the 750 or negotiate in good faith against the 750, meaning pay like 500, 600… Something we would take, before the deadline, then the demand goes to 1.5. And you only have a million, so who’s going to pay the extra 500? I guess it’s going to be your policyholder, your insurer is going to have to pay it out of pocket. So now you’re endangering your insurance. So, why do that if I’m already saving you 250, a quarter of a million of the policy?”

So, I thought I was being very fair. But they’re saying, “Oh my God, Oh my God. You want us to triple our offer just to go to mediation.” And I said, “Forget it then, just forget. Let’s just go with what’s in the letter.” And then, I was just a little bit perplexed because I’m thinking, “Well, I’m trying to settle these cases, there’s a pandemic, there’s COVID-19. I can’t go to trial, there are no trials in New York, what am I supposed to do? I can’t take 100,000 or negotiate with them because honestly, I don’t want 200, I don’t want 300, I think the minimum amount I would take in a case like this is 600 or 700 because otherwise, I’m selling the case shortly, I’m not doing a good job for my client, because that’s what it’s worth. So, what am I supposed to do?”

So I asked actually a guy who wrote the book, the actual system that I’m using. I asked him in a webinar, live, and he said, “First of all…” This is great, I love this guy, this is great. He says, “First of all, why would you ever demand 750? If she has a tri-malleolar fracture with surgery, demand a million. Send the same letter, demand a million, that’s the policy. And then don’t speak to them, don’t call them. And if they call you, don’t pick up. Let them, in writing, give you the million. If they don’t, make the demand 2 million and just go to trial, go to trial. Prep it for trial, exchange the photos, exchange the evidence, put it on the trial calendar. You can’t do it today? So, do it in a year, go to trial, take the verdict. You will get more at trial from a jury if you have a real case. And if you’re not willing to go to trial, well, then don’t send the letter. Then negotiate, ask them for a high amount, come down…”

And I think he’s right, that’s basically what we have to do. So, essentially, the point here is, a personal injury lawyer has to really review all their cases, their inventory of what they’re handling. If they’re handling 100 cases, review all the cases and put them into different piles. The cases that are small, that you don’t want to go to trial, that you don’t see yourself sitting with the client in front of a judge, in front of the jury, you just don’t see yourself doing that, those cases, go ahead and settle. And the cases that you are confident in, that you can try, those cases, you could send a letter, you could try to settle for the policy or for whatever you think is reasonable and fair compensation. But if the defendant says no, great, let’s go to trial.

And the important thing to remember is that, if you are going to trial, whether you’re winning or losing if you’re going to trial and you’re getting verdicts, that’s exactly what the insurance companies are afraid of, and that’s exactly the kinds of records they keep to determine and to see which lawyers go to trial and which lawyers don’t. And the lawyers that don’t are always going to get much lower settlement offers, and the lawyers that do can command themselves the amounts that they want, they could call the shots, they can make the numbers and they’re going to get those numbers. So, that’s what it’s all about. So, I hope this has been helpful. A little bit of internal knowledge, behind-the-scenes knowledge for you on how lawyers prepare cases and how they negotiate cases with insurance companies. Have a great day everyone, talk to you soon. Bye-bye.

 

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