Ready for a trick question?

You’re driving between Kelowna and Westbank and you pass by a speed sign indicating a maximum speed of 80 kms per hour.  At what speed are you permitted to drive?

If the RCMP only issue tickets to drivers going more than 10 kms over the speed limit, then the permitted speed is 90 kms per hour, right?

As much as that might be the prevailing notion of motorists, I expect that most of you would say that the permitted speed would be 80 kms per hour.

Now for my Borat attempt at humour:…pause….pause….pause….NOT.  See the movie.  It’s hilarious.

The right answer is that it all depends on the circumstances.

What about if there was a pack of two year olds bumbling along the shoulder of the highway?

How about if, as described in the Carrie Underwood tune that my three year old refers to as the “baby in the back seat” song, you’re driving on a thin black sheet of glass?

Did I fall into my own trap?  Have I not been careful enough in my choice of words?  I did ask what speed was permitted – not what speed was reasonable.

The suspense of possibly catching a lawyer being imprecise in wording would be a lot more compelling if this wasn’t a written column.

Let me introduce you to section 144(1)(c) of the Motor Vehicle Act:  A person must not drive a motor vehicle on a highway at a speed that is excessive relative to the road, traffic, visibility or weather conditions.

You can google it to see it for yourself, or to find some more light reading.  Have your pillow ready before you start reading our provincial statutes.

By the way, section 119 defines “traffic” to include pedestrians: the bumbling two year olds.

Can you be fined for running afoul of section 144(1)(c)?  You betcha.  You can also be thrown in jail.  The fine is a minimum $100.00, maximum $2,000.00, and you could be tossed in the clink for 6 months.

Perhaps you are wondering why you’re reading about speed limits and fines in a column about injury claims.

This isn’t about saving you a fine or some time in jail.  Heck with the quasi criminal sanctions.  Driving at a speed that is excessive in the circumstances is dangerous.  It causes crashes.  It hurts people.

I see the aftermath of car crashes every day.  I see how chronic crash injuries destroy lives and relationships.  For me, car crashes don’t just happen to anonymous people.

Like minded lawyers are available to go up against the big insurance companies to achieve the imperfect justice of financial compensation for crash injuries.  The very best justice, however, is achieved by preventing the crashes from occurring in the first place.  You don’t have to pay contingency fees for that justice.

Category: Safer Driving | No Comments »
Tags: False public perceptions

The standard routine played itself out again the other day.

It shouldn’t cause me to have an emotional reaction, but it always makes me angry.  The insurance adjusters are just doing their job.  Instead of feeling angry, perhaps I should be impressed.  They are very good at what they do.  Their job is settling claims for as little as possible, and their tactics for doing so are second to none.

I am talking about that inevitable meeting the insurance adjuster sets up at the claim centre to talk about settlement.  Up until then, the relationship with the adjuster is very positive.  You are encouraged to bring in your receipts for medications and treatments and a reimbursement cheque is cut right away for the full amounts.  Your wage losses are being paid in full.  Of course, this feigned generosity is a tactic.  

Am I just being cynical?  Well, let’s see.  

Why else would the generosity abruptly stop if a lawyer gets involved?  What’s to be gained by appearing generous?  Trust.  If a positive relationship can be built with the injured victim, then the injured victim is more likely to trust the insurance adjuster when the other shoe drops at the settlement meeting.  The tactic falls apart when a lawyer is involved, because the lawyer is there to give the straight goods on what the claim is worth. 

And it’s hardly generous.  Every dollar is going to be paid eventually at the resolution of the claim.  The income loss and treatment expenses are typically a very, very small portion of a claim.  In fact, cutting people off from this money because they hire a lawyer could be viewed as a punishment: “Get someone in your corner to ensure a fair result, and we’ll punish you by turning off the tap.”

OK, I’m getting angry again.

Fortunately, when this routine played itself out again some time ago, it was one of my clients who was in the hot seat.  The insurance adjuster didn’t know that I was involved.  I often lay in the weeds in the early stages of a claim, not letting the insurance company know of my involvement.  This way, the client gets the benefit of the feigned generosity.   I only make myself known when the taps are shut off.

The adjuster told my client, as if it was fact, that her claim was worth a certain dollar range.  The dollar range proposed happens to be a fraction of my opinion of the value of this case.  In fact, I expect my contingency fees themselves to exceed the proposed settlement range.  When the prospect of hiring a lawyer was raised, it was done so in such a way as to insinuate that it would be a bad idea.  He said that there are good lawyers and bad lawyers, with the insinuation that she could get stuck with a bad one.  It was also proposed that she could end up with much less money in her pocket after paying the legal fees.

This lady had been put on indefinite medical leave by her doctor because of her crash injuries, a crash that happened over a year and a half previously.  The insurance adjuster suggested she could end up with less than $10,000 if she hired a lawyer, which is absolutely ridiculous.

What makes me angry is that some people believe this bunk.  People accept low-ball settlement offers from insurance adjusters who discourage them from actually finding out what their claim is worth.

Making a low-ball offer isn’t unfair.  What’s unfair is discouraging people from getting the legal advice necessary to find out what their claims are really worth.

In many other legal transactions in our society, it is necessary for people to get independent legal advice so that they are fully informed before they commit themselves. Settling a car crash claim can be one of the largest financial transactions a person makes in their life.  In my view, fairness dictates that the insurance company insist that they have independent legal advice before doing so.

You do not need to retain a lawyer to get independent legal advice about the value of your claim.  Many lawyers give free initial consultations.  Knowledge is power.  Get informed before you make a decision as significant as settling your personal injury claim.

Category: A lawyer's role, Insurance company tactics, Key claim advice, Protect Against Injustice | No Comments »
Tags: Find out your rights, ICBC tactics, Key claim advice

One of the main functions of a personal injury lawyer is figuring out how many dollars are required to fairly compensate the client.  I call it quantifying the claim.

In this context, fair compensation means the amount of money that would be awarded by the Court if the claim was taken to trial.  Essentially, quantifying the claim means predicting the trial result.

We don’t look into a crystal ball to predict what the Court would award.  It is a very logical and analytical process.

As I’ve noted in previous posts, the goal of the Court is to put the crash victim in the position he or she would have been in had the crash not occurred.   The only tool the Court has to achieve this objective is money.

The Court will look at each of the things the crash victim has lost, and will assess the value of each of those losses.  The trial judgment will be the sum total of those values.

When quantifying a claim, a personal injury lawyer looks at how the Court has valued similar losses in decided cases, and applies those same methods to the file being quantified.

What are the losses that crash victims typically suffer?

The financial losses that nail you in the pocket book are the most obvious.  Lost income from missing work is one of those.  Another is the expense for treatments.

While these losses are obvious, putting a value on them is not simply a matter of punching them into a calculator.  There are many considerations.

For example, an insurance adjuster might tell you that you are not entitled to dollar for dollar compensation for income loss because an amount needs to be deducted for income tax.  This happens to be a “hot topic” in our laws and may simply be inaccurate, depending on the case. 

Further, what about compensation for the sick bank you used up?  What about the pension contributions you weren’t able to make?  What about the other financial losses you suffered because you didn’t have that income in hand, such as credit card interest?

As simple as treatment expenses might seem to be, you will be under-compensated if you do not add your mileage to attend those treatments.  I challenge you to find an adjuster who will mention that little tidbit to you.

 What about the less obvious losses? 

If you are physically unable to work for a period of time, then you are likely also physically unable to do heavier housekeeping or yard duties.  If you hire someone to help you with that, you are entitled to be reimbursed for that expense.  If a friend or family member picks up the slack for you, you are entitled to recover reasonable compensation to pass on to that friend or family member.

Anyone who has not achieved a complete recovery from crash injuries needs to look seriously at an entitlement to compensation for their reduced earning capacity.  This is the case even if the person has soldiered on and not yet lost any income.  Will they be able to continue soldiering on until they’re 65?  Are other career opportunities now lost?  Will they be a less attractive hire beside someone who does not have chronic pain?

The loss of income earning capacity is often the largest part of a claim, though it is one which many people negotiating directly with the insurance company don’t even consider.

How about future care needs?  Perhaps you are able to work through the pain to look after your housekeeping today, but what about 10 years from now?  Is there a progressive deterioration of your spine arising from the crash that needs to be considered?

The biggest puzzle for people seems to be a valuation of the lost enjoyment of life due to crash injury pain and limitations.  It is tricky to determine what the Court would due in your particular case, because there are many factors that the Court considers.  Identical injuries can result in very different valuations, depending on the level of impact those injuries have on a person’s life. 

Trying to compare decided cases with your case is a very dangerous thing to do if you do not know what you are doing.  A case that may seem comparable may not be comparable at all.  Insurance adjusters are good at finding cases with unusually low awards and using them to try to convince unrepresented claimants that their claims are worth less than they really are.

I hope to accomplish two things with this posting.  De-mystifying the quantification of a claim is one of them.  The other is a warning not to try to quantify your claim without legal advice, and certainly not to rely on an insurance adjuster to do it for you.

Category: A lawyer's role, Key claim advice, Protect Against Injustice | No Comments »
Tags: Find out your rights, Key claim advice

There’s a dangerous driving mentality out there.

I’m sure you’ve witnessed it countless times.  It happens to be a pet peeve of mine.

The thing is, the idiot drivers who have that mentality think they’re in the right, and are the ones you might see flipping the bird to prove their point.  I’ll refer to that type of driver as “Righteous One”.

Here’s a common example.  The light turns green for Righteous One, but cross traffic is slow to clear the intersection.  Righteous One immediately hits the gas, regardless of the blocked intersection.  If he can make it a close call, he will, missing the back bumper of the “offending” vehicle by a hair.  If the traffic can’t clear the intersection in time, he lays into the horn and slams on his brakes.  The bird flies.

God forbid you turn onto the highway in front of Righteous One and he has to slow down a little while you get up to highway speed.  Righteous One doesn’t slow down until the very last second before his bumper would otherwise hit yours.  You can then count on being tail-gated for a while.

Righteous One thinks he’s following the rules of the road and that you are not.  He gets pissed off.  He creates a close call by not taking evasive action until the very last moment.  He’s trying to teach you a lesson, showing you that you nearly caused a crash.

To make matters worse, he doesn’t behave like this just with other motorists.  Righteous One sticks his chest out and pushes his perceived right of way with cyclists and pedestrians as well.

I have news for you, Righteous One.  Aside from being an idiot, you’re wrong.

The technical rules of the road are qualified by an overall duty of care that vehicle drivers owe to other drivers.  That duty to drive carefully extends especially to cyclists and pedestrians because greater harm could come to them if care is not taken.

Instead of fulfilling his duty of care, Righteous One is taking a potentially dangerous situation and making it worse.  Instead of being patient and courteous, and eliminating any potential danger, Righteous One creates even greater danger.

Righteous One’s driving mentality causes crashes and hurts people.

If you were sitting on a jury, whom would you find most blameworthy for a crash: the driver who honestly misjudged and mistakenly pulled out a little too close in front of the next vehicle, or Righteous One, who stuck his chest out and thought he’d teach that driver a lesson?

Taking care means driving defensively.  It means immediately slowing down if you see a potential hazard.  It means recognizing that you’re in control of a 3,000 lbs projectile that could forever change a person’s life, or even end it.

Category: Safer Driving | No Comments »
Tags: False public perceptions

There seems to be a perception that those claiming compensation for injuries are being greedy if they don’t accept the insurance company’s first offer of settlement.

That perception might be accurate if insurance companies always made fair settlement offers.

Of course, the perception is totally false. Insurance companies regularly make unfair settlement offers.

In my experience, it is not until the insurance company knows it’s back is against the wall that reasonable offers are made.  Often, this does not happen until the eve of trial.

Why wouldn’t insurance companies make fair settlement offers at the outset, saving everyone a lot of time and expense?  They know that there are factors that will lead claimants to accept unfairly low offers, and they want to capitalize on those factors.

I have referred to some of these factors in previous columns. The most significant ones are financial desperation, lack of legal advice to know what a claim is worth, and fear of going to trial.

In this weeks column, I am attempting to reduce the impact of that last factor.

Trial is not to be feared, In fact, provided you have retained competent legal counsel, a trial can be a very positive experience.

Even though I am not a psychologist, I have seen a weight being lifted when an injured victim has the opportunity to be really heard, with the confidence that justice will be achieved.

A trial is not a performance requiring photographic recall of dates, times and events. It is not like an Olympic event where an athlete wins or loses on the basis of a slight error in execution.

When being sworn in, you will be doing so with the confidence that you will be really listened to.

You will be given as much time as you need to tell your story.  You will describe how things were before the crash and how everything has changed.  Just like you would not require a script to describe the loss of a parent or grand-parent, your description of how the crash has impacted on you will naturally flow.

Yes, you may be facing a sceptical judge or jury.  Your injuries may not be obvious as you sit there, four years after the crash.  The scepticism will dissolve however, with your honest evidence and that of your family members, friends, co-workers, supervisor, therapists, family doctor, and specialists.

The insurance company hardly stands a chance against such a force.  Unfair insurance company tactics can be easily diffused when the full story is told.

Some people worry about inconveniencing so many people by asking them to testify in a trial.  I have been struck by how willing, if not anxious, ordinary people are to play their part in the pursuit of justice.

Most personal injury claims settle.  The time and effort that goes into preparing for a trial, however, is never wasted. The insurance company needs to see your resolve.

The increase in the insurance companies settlement position once their backs are against that wall is often dramatic. With one of my files, an $80,000.00 offer several months before trial increased to $150,000.00 the month before, and then $300,000.00 the week before the trial was scheduled to commence.

As large as that number may seem, it was still not fair compensation, and the trial proceeded with a more favourable outcome.

Your lawyer will advise you as to what level of compensation is fair in your particular case. Listen to your lawyer and hold out for a fair settlement.  That offer may never come, however.  Don’t fear going through a trial to ensure that justice is achieved.

Category: Insurance company tactics, Litigation basics, Struggle for justice | No Comments »
Tags: Don't settle quickly, ICBC tactics, Struggle for justice

Innocent or not, it is standard legal advice not to talk to the police if you are the subject of an investigation.

Why is that?

It doesn’t matter how much you profess your innocence.  An investigator will ignore your impassioned pleas.  All ears will be tuning into that one word, or sequence of words, that might possibly be construed as implicating you in the crime.  It’s one factor in how so many human beings have been wrongfully convicted.

If you’re innocent, shouldn’t you feel free to talk freely?

It should be that simple, but it’s not.

The rules of evidence allow the insurance company to show the jury anything you have said that could possibly be twisted to find a meaning that could work against you.

You are not on an equal playing field.

The rules of evidence do not allow you to show all the other things you have said that cannot be twisted against you.  Your husband or wife, friends or neighbours, are not permitted to testify about what you have told them about your injuries or how they have affected you.

Until recently, this uneven playing field could not be capitalized on by the insurance companies.

A lawyer isolated you from dealing directly with the insurer, so you could not be recorded in conversations with the adjuster.  Without the ability to tap your phone or plant recording devices, there were little other opportunities for the insurance company to get a recording of what you might have had to say about your injuries.

Things have changed.

People are spilling their guts on the internet.

Some of those people have suffered injuries in car crashes.

Some of those people are being taken advantage of by an insurance company.

There are various internet web sites where people share personal information about themselves, often in the form of a diary.  Why do they do that?  I don’t know the psychology of it, but perhaps it has a bit of a cathartic effect.  You see it all the time on facebook, and in blogs.

The injured victim is not permitted to show the jury the blog or facebook entries that talk about how much pain he or she is in and how that pain impacts on his or her life.  The insurance company representing the negligent driver, however, is able to show the entries talking about the good days when things are not so bad.

The jury only gets to see the rare good days, when the headache has eased because the claimant has sat on the couch all day instead of doing the vacuuming and laundry.

How does the insurance company find out about these facebook and blog entries? How do you think? They specifically look for them. They have staff whose job it is to search the internet to find such entries made by car crash victims.

In a previous posting, I specifically advised my readers to keep a diary, so as to preserve the evidence of how the injuries have impacted on their lives.  A diary kept for the purpose of prosecuting a personal injury claim can be kept private from the insurance company.  That diary can be used to refresh the injured victim’s memory of how things have been, without the risk of the insurance company picking out portions that can be twisted and turned for their purposes.

A blog or facebook entry, shared with the world, cannot be protected. Don’t do it. Protect yourself from giving the insurance company an unfair advantage.

Category: Insurance company tactics, Key claim advice, Protect Against Injustice | 2 Comments »
Tags: ICBC tactics, Key claim advice

There are various levels of function.

On one end of the spectrum, there is simply looking after your own personal care.  Some people who have been injured in car accidents lose even that level of function.  What a scary thing.  I vividly remember the evening after my first day of snow boarding when I was so seized up that my wife had to fork my dinner into my mouth for me.  It is regrettable that it is only by losing function that some of us can truly appreciate the function that we have.

The strongest push for a return to function after a car crash is for a return to work.  It is no surprise that the insurance company would push for that.  They will have to pay your income loss at the end of your claim, and getting you back to work will keep that loss to a minimum.  The reality of having to make the mortgage payment is often enough to force people to work even before they are medically ready to do so.

On a positive side, returning to work can also be very important for recovery.  With many car crash injuries, the worst thing you can do is sit on the couch and do nothing.  The structured routine of a job can help with forcing you out of bed in the morning, notwithstanding stiffness and pain.  Even if the job is not physically demanding, it keeps the body moving.

Where one end of the spectrum of function might be the ability to feed yourself, and returning to work might be somewhere in the middle, the other end of the spectrum might be a return to the activities, hobbies, and social outings that many of us see as the true pleasures in life.

For crash victims suffering from chronic symptoms, it can take all their available energy just to pull themselves out of bed for that job that makes the mortgage payments.  At the end of a shift, they are often too wasted to do much else.  Whether or not they would be physically capable of it, the energy just isn’t there.

If the energy hurdle is passed, there is the issue of whether or not the activity should be attempted.  When turning your head quickly results in a shooting pain down your arm, does it make sense to attempt a return to bowling or dancing or down hill skiing?

Also, how wise is it to attempt an activity when the insurance company surveillance team may be standing by to catch it all on video?  Often, actually doing the activity doesn’t bring on the most pain; it is the day or two of muscle spasms that follow.  Video footage of you trying something paints an unfair picture when it does not include the video footage of the painful aftermath.

In my last posting, I provided ground rules for returning to work.  This week, I am going to provide ground rules for returning to non-work activities.  They are very similar.

Get your doctor’s advice and follow it.  If your doctor says that you can try a return to down hill skiing, then try it.  If you use your own judgment as to whether or not to return to an activity that you used to love, you run the risk of not being fairly compensated for that reduction in your enjoyment of life.

If you get your doctor’s approval to attempt a return to an activity, give it your best shot.  Don’t let an insurance company surveillance team get in the way of living your life as fully as possible.  I have every confidence that our Court system will root out unfair tactics and will allow justice to prevail.

Finally, don’t mask the fallout.  I noted in my last posting that our parents started conditioning us not to be complainers back when we were babies, and that we are well trained to silently shoulder our burdens by the time we are adults.

You need to push against that conditioning and training.

Your doctor needs to find out to what extent your symptoms were aggravated by the activity so that he or she can properly advise you regarding whether or not and to what extent you should try it again.  Your friends and family deserve to know why you are no longer wanting to participate in certain activities with them.  Your wife deserves to know why you no longer seem interested in being intimate.

From the perspective of your claim for fair compensation for your injuries, it will be difficult to establish the extent of your functional limitations if noone around you knows how serious those functional limitations are.  There’s a big difference between being a whiner and complainer and simply being honest with how you are feeling.

Category: Key claim advice, Protect Against Injustice | No Comments »
Tags: ICBC tactics, Key claim advice

When I started writing my newspaper column, where I get my material for this blog,  I wondered how many personal injury topics I could come up with that would be of interest to readers.

I’ve been at it for over three years.  I am no longer concerned!

There seems to be an unquenchable thirst for guidance. Not having a road map, injury victims face so many areas of uncertainty. Particularly when there is a lot at stake, as in a personal injury claim, uncertainty is stressful and frustrating.

By the way, one reader told me her belief that it is a deliberate strategy of the insurance company to create stress and frustration.

This week, the area of uncertainty I am going to deal with is about returning to work after a car crash.

Like any personal injury lawyer, my experience has familiarized me with most every cynical spin an insurance company might try to put on a claimant’s return to work.  It is by anticipating those unfair tactics that I am able to advise my clients about ways to neutralize or avoid them.

I have found that there are three basic ground rules that are really effective.

One ground rule is to leave the decision making in the hands of your doctor.

You may know, better than anyone, how you are feeling and what you are capable of.  Make your own decision about when you should return to work, though, and watch out.

If your doctor hasn’t made the decision to keep you away from work, how do you prove that you were not capable of working?  How do you counter the cynical suggestion that you stayed away from work simply to increase your claim?

As I noted in one of my first postings, honesty is not enough.

Also, there may be some very good reasons why your doctor might recommend that you return to work, even if you are certain that you will not be able to follow through.  Staying active is an important part of recovery, for example.  If you fail to follow your doctor’s recommendations, you will be opening yourself up to the attack that it is your fault you haven’t recovered from your injuries.

Another ground rule is to try your very best when attempting a return to work.

If your doctor thinks you should return to work, then give it your very best attempt.  Put your heart and soul into it, no matter how difficult it may be.

If you absolutely cannot make it through your shift, then at least your co-workers and supervisor will be witnesses to the blood, sweat and tears you shed trying.  You will be countering the cynical assumption some people might make that you are just another car crash claimant looking for a big payout.   As sad as this may be, sometimes people need to see pain in order to believe it.

Get in to see your doctor as soon as possible and tell your doctor how things went.  Again, leave the decision making to your doctor as to whether you should continue with the attempted return to work, or wait a while longer before trying again.

A final, and perhaps the most important, ground rule is to struggle against your basic human (Canadian) nature of pretending that everything is ok when it is really not ok.

Yes, you hate it when people feel sorry for you, and you would prefer not to bring attention to the fact that you are in pain. Yes, you have seen too many times how people seem to roll their eyes when they find out you have an outstanding claim for car crash injuries.

The thing is, the insurance company will pay a private investigator to interview your co-workers two years from now.  How credible will your claim be when your co-workers say they had no idea you had ongoing symptoms from your car crash?  Shedding blood, sweat and tears on the inside just destroys you psychologically.  Stop holding it all in.  Allow some of it to show.

If you are not used to sharing your feelings, this can be a tall order. Our parents started conditioning us not to be complainers back when we were babies.  By the time we are adults, we are well trained to silently shoulder our burdens.  Nobody likes a complainer.  Nobody likes a whiner.

I am not suggesting that you look for ways to let people know you have been injured.  I am just suggesting that you stop holding it all in.  If someone asks how you are doing, don’t lie and say you are fine when you are so very much not fine.  If a sharp pain hits, don’t mask it.

If you follow these basic ground rules, you will be able to effectively counter any cynical spin the insurance company may try to put on your return to work.

Category: Insurance company tactics, Key claim advice, Protect Against Injustice | No Comments »
Tags: ICBC tactics, Key claim advice

At a Westside Governance debate, when amalgamation of the Westside with Kelowna was being considered, one of the panellists suggested that we look critically at the advice we were receiving from various people and organizations.  He suggested that we consider that advice in light of the way those people and organizations might benefit from the decisions they are trying to influence. 

What an excellent suggestion. 

How much weight can you give to advice from a person in the pro-amalgamation camp if that person stands to benefit from amalgamation?  So as not to be one-sided, how much weight can you give to advice from an incorporation supporter if that person would benefit from incorporation?

 Is the person giving you advice trying to benefit you, or is he or she trying to benefit himself or herself?

This comes up all the time in our daily lives.  We are inundated with self serving advice.

Think about all the radio, telephone and newspaper advertisements we are exposed to on a daily basis that try to convince us that a particular product or service is better than the competition.  Perhaps, in some circumstances, the product or service really is superior.  Perhaps, however, the advertisement is more an indication of inferiority because obviously word of mouth is not bringing in enough business. 

How many times have you been given a warranty pitch by a salesperson trying to convince you to pay an extra 20% for an electronics item in order to get the 3 year warranty?  Unless you know the statistics for needing to rely on that warranty, you are as unequipped as I am to make the call.  Can you rely on the salesperson’s advice when they are driven by commissions to peddle the warranty?

Any time a person can benefit from the outcome of a decision you are struggling with, that person is potentially in a conflict of interest with you if he or she is helping you make that decision.

The conflict arises when the right decision for you is not the right decision for the person advising you.

How much strength of character does it take for someone to give you advice that benefits you, but financially hurts the person giving you the advice?

We have all come across such gems: the mechanic who tells you your car is perfectly fine; the salesperson who tells you, under her breath, to go to the competition for a cheaper product; the tire salesperson who tells you your tires are good for another year; the bank employee who tells you the life insurance offered on the mortgage is not necessary if you have sufficient private insurance.

The legal business is no different.

In my view, there are two clear situations in a personal injury case where the lawyer is in a potential conflict of interest with the client.

The one situation is when the lawyer is answering the question injured victims often have, as to whether or not a lawyer is really needed in order to achieve a fair result against the insurance company.  I’ve covered that issue in a previous post, “Is a lawyer necessary”.  I do not know how successful I may have been, but I tried to give my advice in a way that would not be self serving.  I directed readers to go to a different lawyer instead of me if they accept my advice that a lawyer is necessary.

The other situation is much more problematic.  It is when a settlement offer is being considered.

This conflict of interest issue recently came up in my practice.  I forwarded a settlement offer to a client.  When she came in to discuss it, she told me that she had been cautioned by a friend that I might recommend rejecting the offer for my own financial gain.

Her friend was wise to caution my client about lawyer self-interest, but he could not have been more wrong.

The fact is that lawyers typically benefit financially from settling files, and settling them early. 

It takes a lot of a lawyer’s time to prepare for and run a trial.  This is time that the lawyer could otherwise be billing to hourly rate clients at $300.00 an hour.  It doesn’t take long for the value of that time to overtake any increase in fees arising from an increased settlement or trial judgment.

Let’s take a three week trial, which is not out of line for a chronic pain case.  I would spend a minimum of 15 hours for each day of trial, including preparation and actual trial work.  At my hourly rate of $300.00 per hour, that’s $67,500.00 worth of billable time.  To financially benefit the lawyer and produce a greater than $67,500.00 increase in fees,  the trial result would have to beat the settlement offer by about $200,000.00 (at a one-third contingency fee).

What if the insurance company’s offer is only $50,000.00 less than fair?  The lawyer faces the prospect of spending more than that in billable time to enforce fairness at trial.  The increased fees actually recovered by the lawyer would be only about $15,000.00 if a fair result was achieved.  How much strength of character does it take for a lawyer to recommend going to trial to achieve a fair result in these circumstances?

Do your homework before you hire a lawyer.  Interview several.  Don’t rely on fancy advertisements.  Rely on word of mouth and your good instincts.  You will find the gems.

Category: A lawyer's role | No Comments »
Tags: False public perceptions

I have a number of clients who are in really bad shape.  I’m going to write about one in particular, though he’s not an unusual case by any sense.  I’ll call him Mark.  Mark’s life will never be the same, because of a car crash.

Mark led a normal life before the crash, working hard to support his family.  You all know people like him.  Hard workers.  Perhaps it might have occurred to his wife and kids that it would have been better if he was a little more available, but this is the man she married.  She married a man whose sense of self was defined in large measure by his ability to provide.

The construction industry is stacked with this kind of person.  Their backs, arms and hands are a license to print money, though it’s not easy. It’s one hour, one project, one house at a time.

He wasn’t rich by any means.  On his construction income, he could support a mortgage and a family and maybe have a little extra to go into RRSP’s.  With the cost of living in the Okanagan, early retirement was not a reasonable prospect. 

Yes, he suffered an injury to his shoulder, and it hurt. But he could grin and bear it. The shoulder injury wasn’t stopping him from working.  The truly debilitating symptom is the headaches.  Mark can’t get through a day without a headache.  And if he’s working at his construction job, which requires him to look up regularly and for long periods of time, the headaches become unbearable.

I am not a doctor, and I am far from being an expert in pain medication, but the old standby seems to be Tylenol #3.  It’s a form of Tylenol that’s laced with codeine.  This fellow was popping 8-10 of these things in order to make it through his work day.

Mark carries on as long as he can.  He has to carry on.  He’s got a mortgage payment to make.

I don’t care who you are.  Try working through the kind of pain that requires 8-10 T#3’s per day.  Perhaps you can make the sprint.  Nobody can make the marathon.

Well, of course, the insurance company is refusing to pay his income loss. 

Mark comes to me.  He comes to me to achieve fairness in his claim against the insurance company.

I cannot force the insurance company to pay compensation until I have the opportunity to put his case in front of a jury.

Justice will have to wait.

In the meantime, I do my very best to help this man get on with his life.

He’s got a family doctor who is doing his very best to help him.  He’s got therapists who have done their very best to get rid of the headaches.

What could his lawyer possibly do to make a real difference in his life?

Isn’t a personal injury lawyer’s role limited to fighting the insurance company?

Lawyers who handle car crash cases become very familiar with the treatment of car crash injuries. We review the medical records of every one of our clients. We become familiar with the various chiropractors, physiotherapists, massage therapists, and other treaters in the area. We also become familiar with the various specialists who are most likely to be consulted about car crash injuries.

Through affiliations some of us have with other like-minded lawyers in other areas of British Columbia, we become familiar with the best qualified experts, medical and otherwise, throughout the Province.

With this particular case, I was able to assist the family doctor by providing the name and qualifications of one of the highest regarded headache experts, whose practice happens to be in the Lower Mainland.

 have also had Mark’s physical abilities objectively tested by one of the Okanagan’s highest regarded Occupational Therapists.  The results of that testing have been provided to a Vocational Analyst whom I hired to assess Mark and provide recommendations for alternate careers.  This Vocational Analyst, whom we are lucky to have residing in the Okanagan, is in demand for his particular expertise all over the Province.

Mark has been taking concrete steps to follow through on the recommendations that have been made, so as to get into a career that he can physically handle given his unresolved car crash injuries.

Rather than being left to despair in the bleakness of a desperate situation, Mark is being given hope. During one of my update consultations with him, he expressed his gratitude.  His gratitude had nothing to do with the justice that I have been hired to achieve.  His gratitude had to do with the very real difference I had been able to make in his life.

There’s something about making a difference in another person’s life. I don’t know if he or his wife noticed, but I could feel a tear in my eye as he shook my hand on his way out of my office.

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