[Music] Hello and welcome to the millennial lawyer podcast with Mark Shirian. I am your host Kevin Rosenquist and today we’re going to talk about what you need to know to maximize your personal injury settlement. Mark great to see you again. 

Great seeing you too. 

So tell me what are the most important factors that influence the amount of a personal injury settlement? 

The key factors that influence the settlement include the severity of the injury, the clarity of liability, and the availability of evidence that ties the injury directly related to the defendant’s actions. But what I tell clients is before we can talk about damages and how much the case is worth, we have to make sure that we could prove liability. I think that’s the most important thing. If we can’t prove that there was negligence or that they did anything wrong, you’re never getting to damages. Now if it’s 50/50 or there’s a percentage that they were negligent or at fault, you may have to take some sort of a discount with respect to how much the case is worth if liability isn’t so certain. 

So how do you evaluate that like if someone comes to you with a case you know is it hard to kind of figure out that percentage? 

You were talking about as far as how liable they are, well at first it might be a little difficult. You get a much better sense of liability after you file the lawsuit and take depositions and testimony that could really impact how liable they may be. So I get a much clearer sense of where liability is while I’m conducting depositions or after I conduct depositions. But early on you might need to get an expert to, in a medical malpractice case, kind of guide you towards how liable they may be in that case. 

Okay how do things like medical expenses, lost wages, emotional distress factor into calculating damages?

Well we call these damages compensatory damages. So you have medical expenses, those are usually straight forward. You can take a look at the bills and add those up and figure out how much medical bills are and then you know if they require future medical appointments that’s another way that we can calculate those expenses. Emotional distress damages are a bit harder to quantify. Sure you know but it’s just as important to retain expert witnesses like a psychologist or a psychiatrist to give an opinion on how the emotional distress damages impacted our clients short term and long term, so those are very important to calculate. 

When it comes to things like lost wages, is there, could be you know like there’s so many people you know freelancing working from home, there’s so many different situations that people have now obviously. If someone’s a W2 paid employee, that’s easy but is it hard to calculate lost wages in certain situations? 

You know I had a client who was a dancer and because of the incident she was no longer able to perform. Underlying that her job as a dancer was quite therapeutic and there was an emotional component of that as well. And I understand that we live in this gig economy where more and more people are no longer W2 employees, but now they have side jobs, they’re getting paid on a 1099, but they’re still entitled to lost wages, to loss earning capacity if they’re unable to support themselves or their family. So we look at it in totality: how long they were out of work or if there are any activities that they’re no longer able to do or that they can still do but with difficulty. So that all gets factored in whether we need to make a disability claim with respect to an underlying injury claim. 

So that all goes with your dancer example. It’s really interesting because you’re right about the emotional aspect of it too, in the mental aspect because you’ve got somebody who has dedicated their life probably presumably from the time they were little to be doing something, and now they can’t do it anymore. I mean you see it sometimes with injuries for football players or other athletes or anything like that, the emotional strain on somebody for that has got to be huge.

Absolutely and it’s hard to quantify without actual, you know I tell people you need to treat you know you could be in a lot of pain but you need to be able to substantiate your damages. Whether it’s at a trial or an arbitration or even if you’re trying to resolve the case at a mediation, you need medical records, you need some sort of substantiation to prove your injuries and your emotional distress and your economic damages. So it’s very important obviously, insurance companies don’t want to pay money that’s not how they make money.

So can you kind of explain the negotiating process with the insurance company and how you work to ensure a fair settlement?

Okay well that’s a very good question. So when a case comes in first and foremost, regardless of the case, we always send a demand letter to the defendant and we make sure that this letter we give specific instructions that the letter is forwarded to the insurance company. We also make sure that any and all evidence whether it’s photographs or surveillance videos, all of this information is being preserved. Most often this letter gets forwarded to the insurance company and we receive a response from the insurance company. We don’t typically receive a response from the actual defendant or the entity but mostly we receive responses from the insurance company and they initially ask for general information about our client, about the injuries, sometimes they ask to speak to our client and most times we say no because they want to lock in our client to a specific statement. Which we don’t typically provide initially but what’s very important is to make sure that there is insurance coverage on the claim and to figure out to the extent of how much insurance is on the claim. Whether it’s a million dollar policy or a $500,000 insurance policy, we want to be able to know exactly how much Insurance there is on the claim and if there’s any exit Insurance based on that. You know we can put together a settlement package and make some sort of demand and start to negotiate, but with respect to how we negotiate at our office I don’t negotiate anything until my client is done treating. I want my clients to be treated so I have medical records that I can rely on to get the best possible settlement for my client. So once we get all the medical records and all the evidence that we possibly can get, we’ll put together a settlement package and we will make a demand in writing to the insurance company and we will give them a certain amount of time, usually 30 days, to respond to our demand.

You mentioned the insurance companies will ask to talk to your client. Do they sometimes try to reach out to them on their own without checking with you first? 

I don’t believe I’ve had that happen. 

Okay a lot of times though you do have clients that reach out to the defendant or the insurance company on their own? You know they look to make a claim on their own and there is some sort of communication between the insurance company and your client before you’re ever retained? 

I’ve had that happen a good amount of times and then you got to send your notice of representation so the insurance company knows that they are now represented by council. So usually those attempts to speak to my client directly cease at that moment. 

Right so fair to say that your advice to anyone listening would be don’t talk to the insurance companies, to retain counsel first? 

Don’t talk to anyone until you, yeah, anything can be held against you. And it’s very important to speak to an attorney before you speak to anyone. 

Okay what’s the difference between an out of court settlement and going to trial? 

Well cases can settle at any time. You know the way I look at it is we try to settle unless we’re up against the statute of limitations issue and we don’t have time for fruitful settlement talks. We really do aggressively look to settle a case before bringing it and filing it in court, but if there are lowball offers and the other side isn’t taking it seriously, then a lot of times we’re forced to file the lawsuit. And at that point after you file the lawsuit I’ve had the experience for a good amount of time after you file the lawsuit they want to resolve the case with you. They either want to suggest the mediation or they’ll just offer you whatever you were asking for before or like I said earlier, you can actually litigate the case and exchange documents and take testimony depositions and right when the case is ready to go to trial or right when you’re ready to pick a jury, the case resolves. Or if it doesn’t get to that point, the case will be tried and a jury will determine the extent of damages of any that our clients are entitled to. So cases can settle at any time but sometimes it’s just not right to resolve a case or you haven’t done enough to persuade the other side that it is a case that’s worth the amount that you’re putting on the case. And we don’t settle cases until we get what we know the case is worth. That’s one thing that I’ve prided myself on. We are not quick to settle cases for the sake of settling cases. We have an idea of what the case is worth and we’ll push whatever we need to do to get what we want and what our clients deserve in those cases. 

Is there typically a difference as far as the compensation amount when it comes to settling out of court versus settling through a trial or after a trial? I’m sorry, after going through a trial? 

Listen, the main difference is the certainty of an out of court settlement. You know, if you go to a mediation, which is different from an arbitration, an arbitration is with an arbitrator. It’s binding, you can’t appeal it. An arbitrator comes up with a number and that’s what you’re left with. At a mediation, you know, you do have control over how much the case is going to settle for. And if you’re not happy with the numbers being thrown out, then you can just get up and leave. But going to trial is always a gamble. You could win more, or you could end up with less, or you could end up with nothing. 

So you see that happen, you’ve seen that happen?

it hasn’t necessarily happened with us, but it certainly is a gamble. You can go to trial and not get anything or you could end up settling for way more than what the case is worth. So I think it’s all a gamble, but when you settle before a trial, at least you’re getting certainty and you’re not quitting your case in the hands of a jury. But sometimes, you might end up with a lot more by going to a trial, and that’s really up to what your attorney is saying and how you feel about what you’re entitled to. But it is always a gamble. Settling instead of going to a trial is always quicker and it avoids the uncertainty of a jury decision, but if you have a strong case with high damages and strong liability, a trial could result in a significantly higher pay as long as you’re willing to. It’s more stressful obviously going to trial but you have to assume, I guess,  that’s just me assuming, but that a jury is, I don’t know, probably more sympathetic to a plaintiff over an insurance company as a general rule. I think it depends on who the plaintiff is. Okay also you know when I mentioned depositions I’ve had cases settle immediately after my client testifies because I feel the other side sees how great of an impression my client makes. This is someone that’s likable, this someone that elicits a lot of sympathy, someone that is honest, someone that isn’t necessarily a professional plaintiff who’s genuine. So these are variables that really dictate whether a case is going to settle or not and how much the value of the settlement will be. But I can’t, you know, sometimes when you’re up against a municipality on the other hand, someone on a jury might not be so keen to provide or to award a high amount because that’s coming out of taxpayer money. So these are variables that you need to look for. The other thing that I think is extremely important is where the case is. You know in New York City, a case in the Bronx for the most part is going to have higher exposure than a case in Staten Island because it’s known that the verdicts that come out of the Bronx are just higher for the most part, relatively speaking, than verdicts in Staten Island or if we’re talking about Long Island Nassau and Suffolk are not the greatest venues to be in for the most part compared to the Bronx or Brooklyn where you have different jury pools. These are things that you need to look at and evaluate your case accordingly. The venue and who the jury pool will be is very important. To answer your question, it’s not always a slam dunk and is relative to who the plaintiff is and where the jury pool is as well. There are also variables too, gender, age, race, occupation, these are things that you have to look at. And it’s an unfortunate thing that I know many lawyers have been frustrated about, but these are things that you need to look at. It’s unfortunate, but it’s a very real variable that you need to understand when it comes to trying a case before these particular jury pools.

Is there any one case that comes to mind where you increase the settlement significantly for your client?

There was a case where we had filed, well, we had sent a letter, and we were trying to resolve the matter, and the other side didn’t think much of it.

Kind of blew you off a little bit? 

Completely blew us off and basically dared us to file the lawsuit. We had filed the lawsuit and the attorney gave me a call on the other side, suggested that we settle the case and I asked him why did you change your attitude with respect to this case? And he did not really get an idea of what our allegations were, and when he read our complaint and our lawsuit and the allegations that we were making specifically, they were under a lot of pressure to come to the table and resolve them. We were able to mediate the case before a prominent mediator and we got an excellent result for the client without going through the litigation process. Now the case was filed there was a docket, but I think it’s very important to put together a comprehensive detailed lawsuit so you know you’re ready to go once you file the lawsuit. So I just remember, that sticks out because we were able to resolve the case shortly after filing. 

That’s awesome. How do you have any advice for victims and how they can ensure they’re not low balled or taken advantage of? 

I think documenting everything, yeah, whether it’s, like I said, every case comes down to liability and damages. And if you look at most litigation, beyond personal injury, whether it’s a breach of contract or an employment matter, it’s liability and then it’s damages. So if you have video of how, now look video sometimes is not good for you. Sometimes video it will not help you, yeah other times it will, but making sure that you’re documenting videos, photographs, witness statements, are very important. That contradict what the other side are saying hopefully or supporting what you’re saying, documenting your medical records, having a clear idea of what your injuries are and where you’re getting treatment immediately and not delaying that and seeking the assistance of an attorney as soon as possible because in a lot of these cases when you’re talking about personal injury, let’s say it’s against the municipality, a lot of times you need to file a notice of claim within 90 days of the incident. And you have a year and a half and 90 days to bring a lawsuit. In other cases you might have three years, some cases you have two years, so it’s very important to speak to an attorney immediately to maximize how much you can get in a case because you don’t want the case to be time barred. You know how many cases that are time barred are worth zero dollars for the most part. So it’s very important to seek the assistance of an attorney. 

Great advice as always, well thank you for joining us on the Millennial Lawyer Podcast with Mark Shirian. If you want to get in touch with Mark, please visit shirianpc.com and of course make sure to like and subscribe to our channel. We love having you be a part of this. Mark, so glad to see you again thanks for being here. 

Pleasure being here thank you.

Thanks for watching, be sure to hit that like and subscribe button, and leave us a review in the comments.