Whether you  should accept the insurance company’s settlement offer or proceed to trial hoping to get  more money is a question that every person that has a claim or lawsuit pending will ask at some point during the process.  The only person that won’t is the one that isn’t offered any money at all, thus making the decision rather easy.  Unfortunately, there is no one right answer to this question.  So, what should you do?

     The reality is that the vast majority of injury cases settle before trial.  The number that settle before trial is estimated on the low side to be about 80% and more likely well over 90%.  I previously wrote a blog about which types of cases are more inclined to settle or be tried, but except for the “no settlement offer” types of case, every injury or death claim will have some settlement offer made at some point during the process, and the question is: do you take the money?  How do you answer that question?

     A study soon to be released in the September, 2008 issue of the Journal of Empirical Legal Studies suggests that most  injury victims who decide to go to trial hoping for more money tend to get less money than what the insurance company offered.  The authors of the study apparently analyzed cases over a number of years and conclude that injury victims that decide to go to trial receive less money in 61% of the cases, to the tune of approximately $43,000.00.  I have only read news items about this study and I am anxious myself to actually read all the details of the study.  One thing I know for sure is that statistically, well over 80% of cases settle without trial and there is therefore no way of knowing whether those people would have received more or less money from a jury.  But the question that still needs to be answered is:  what should you do??

     There are a multitude of factors that will influence, in greater and lesser degrees, the decision to settle or go to trial.  I cannot possibly discuss all of them because many of the factors are UNIQUE to the individual case.  First and foremost, make sure you are in the hands of an experienced INJURY LAWYER!!  I have written about this before and cannot over emphasize that point!  If you have entrusted your loved one’s injury or death claim to your local “jack of all trades” lawyer, you may be in trouble.  Before I saw the light and started helping victims many years ago, I too was a “dark side” injury defense lawyer, and a very good one I may add.  Injury trial work is all I have ever done, and as a defense lawyer, it became very apparent very quickly whether the injured person’s lawyer really knew what he or she was doing.  And when they didn’t, the case was settled  for less than it was worth or often lost by the victim at trial,  all to the very obvious detriment of the victim or her family.  Enough said about this factor.  CHOOSE THE RIGHT LAWYER!!!

     In terms of evaluating the settlement offer you received, your lawyer should be able to very quickly put that offer in perspective based upon her personal experience in prior cases, the experience of her firm, and the reported outcomes from other cases for similar types of accidents and injury.  There is a company in Chicago that regularly publishes the results of settlements and trials and it strongly encourages all lawyers to submit to them the information on cases they settle or try and the outcomes.  Other lawyers are able to review that data and it certainly can add some light on your own settlement offer.

      One obvious factor that bears on your settlement is where your case is pending.  Unfortunately, the reality is that the exact same accident and injury case has potentially differing values depending on where it is pending.  Some county juries are just more conservative in their verdicts than other counties.  That fact alone will have substantial bearing on the size of your settlement offer and whether you should take it.

     The reality is that there is no exact dollar value for any particular case other than what both sides will agree to.   Prior to that point, as we tell our clients, every case has a settlement “range.”  When my clients receive a settlement offer, it is my solemn duty to let them know whether the offer is, first off, even in the “range” and if so, whether it is at the low end, middle or high end.  Whether my client wants to accept the money is a decision that they  make, not me.  Some clients for their own reason may want to accept an offer even if it is in the low range.  I of course tell them that I should be able to get them more at some later date, but it is their decision and theirs alone to make.  And obviously a case that is truly worth, say, $75,000, may be worth $65,000 to one of my clients today, knowing that it may take another 6-12  months to get the defense insurance company  up to the “true” value of $75,000. 

     One of the most important considerations to keep in mind is to try and have a confident feeling that the insurance company has offered all the money that it intends to.  I always tell my client that this is a very valuable fact to know that the insurance company will not voluntarily agree to pay any more money.  It makes my job easier because I can immediately (usually) advise my client on the relative merits of the offer and what can be reasonably expected if they reject it.  Your lawyer will be able (should be able!!)to make a pretty solid assessment of where the insurance company has drawn the line so to speak.  Some defense lawyers I have worked with will come right out and tell me that what they have offered is the last dollar available.   If we want more, then we will have to try the case and try and convince the jury to give us more.  Of course, the jury will NEVER KNOW that you were ever even were offered money before trial, and therein lies the risk of going to trial.  Juries are forbidden from knowing anything about settlement negotiations that went on before trial!  The last thing I ever want to happen to one of my clients is to turn down  reasonable settlement money, go to trial and get less, and yet the jury thinks that they were very generous in their award.  This has happened I would imagine to every personal injury lawyer at least once, and it is not much fun.  To see the look of disappointment on your client’s face, and then to go talk to the jury and see the excitement on their faces that they believe you should be so happy with what they did! 

     When the settlement offer is in the “range” of what is appropriate for your case, your lawyer’s job is to tell you whether it is a good offer, a terrible offer or a great offer.  Then you can decide whether to wait awhile and see if they will offer more or go to trial.  When you firmly believe that the settlement offer will never go higher, and if it is in at least the “good” range or higher, then taking the money is most likely the right decision.  Certainly, if it is a “terrible offer” or one at the very lowest end of the “range” of settlement, then there may be a compelling reason to push forward and go to trial.  What your lawyer will (SHOULD!!) explain to you if you decide to reject a reasonable settlement offer, is how long it will take to get to trial and the anticipated additional expenses that will be incurred in trying the case.  Certainly, if you think the settlement offer is $10,000.00 too low, yet you are 18 months in time and $15,000 in litigation expenses away from getting to trial, you may want to rethink your decision.  If the jury awards you exactly what you thought your case was worth ( whatever the offer was plus the additional $10,000 you thought the insurance company should have offered), your lawyer will take whatever their fee is, usually one-third, plus the expenses, and you end with less than if you had taken the offer 18 months earlier.  Be reasonable and rationale in your decision making.  Do not let anger, frustration or strong emotions make your decision for you.  Yes, the defendant is wrong and hurt you.  Now, focus on the offer and listen carefully to your very experienced personal injury lawyer.  Although you want a pound of flesh from the person or company that injured or killed you or a loved one, all the law can do is get you money.  Revenge is not part of this negotiation.

     Another point to make, and it is my last one, is to carefully gauge your lawyer’s attitude about the amount of the settlement offer and how hard your lawyer is trying to convince you to accept it or reject it.  It is at that point (actually always!) that your lawyer should be acting with a great deal of professionalism and diplomacy and thoroughly explaining to your complete satisfaction why the settlement offer is reasonable or not and what you can likely expect if you reject the offer and proceed forward.  If your lawyer is suggesting that the offer is at the low end of the range, yet pushing you hard to accept it, I would think that should send up a red flag absent some compelling explanation as to why.  I certainly have clients that accept settlement sums in the “low” end of the range, but that is their decision, not mine.  If an offer is good or better, and my client seems to think that their case is worth a lot more,  I will spend as much time as it takes to explain the strengths and weaknesses of their case and what can be reasonably expected if they reject the offer and push to trial. 

     Here’s hoping that the insurance company is offering you some money, and that it is fair and reasonable.  We are here to help.  Good luck!

     If you underwent hip replacement surgery in the last several years, and if the implant was the Zimmer Durom Cup system, you may be at risk for premature failure!  On July 22, 2008, Zimmer stopped selling its Durom Hip acetabular component including a letter to surgeons and patients suggesting close monitoring of the hip.  It seems Zimmer’s actions are arguable in response to perhaps a letter from a highly respected orthopaedic surgeon in Los Angeles.  On April 22, 2008, Dr. Larry Dorr, a paid Zimmer consultant who has implanted thousands of hip devices over the years wrote to his colleagues at the American Association of Hip  and Knee Surgeons warning of the failures and defects associated with Zimmer’s Durom cup.  Dr. Dorr wrote:

This failure rate has occurred within the first two years.  In the first year the x-rays looked perfect.  We have revised four that did not have any radiolucent lines or migration (and John Moreland revised one).  These early cups fooled us, but the symptoms were so classic for a loose implant that we operated on the patients.  when we hit on the edge of the cup it would just pop free.  As time goes by the cups begin developing radiolucent lines.  We now have one cup at two years that has actually migrated a short distance.  It has tilted into varus.  We do not believe the fixation surface is good on these cups.  Also there is a circular cutting surface on the periphery of the cup that we believe prevents the cup from fully seating.  We stopped using the cup after the first revisions.

     Strikingly, Dr. Dorr’s letter went on to state:

We have notified Zimmer.  The FDA has been notified and we will notifiy them of our continued revisions.  The company [Zimmer] does not believe it should pull the cup from the market so I am notifying all of my colleagues of our failure rate with this cup.  I went through a similar scenario with the Sulzer cup failures where I was the only one experiencing revisions at the beginning and basically it was assumed that it was our technique.  I can assure you that this goes beyond technique.  I learned my lesson in not informing everyone about this magnitude of  failures with the Sulzer cup problem, so it is my obligation to do so with this cup.

     Not surprisingly, Zimmer blames the high failure rate on surgeon error in the technique used to install the device, but its decision to stop selling the product seems to suggest otherwise.  In Dr. Dorr’s patient population, apparently 8% of his Zimmer Durom patients needed revision surgery within two years.  It would seem logical to assume that the number of device failures will only increase as time goes by.  Also, it appears that Zimmer’s legal department may be sending legal documents to Durom patients that, if signed, may act as a legal release of liability protecting Zimmer from a future lawsuit!!!

     If you or a loved one have this device in you, it may be in your best interest to call a lawyer you trust to look into this matter.  At Ronaldson & Kuchler, we have experience in suing product manufacturer of failed hip implants.  You need an experienced product liability lawyer with particular knowledge of medical devices on your side.  Feel free to give us a call or submit a confidential inquiry to our office.  You owe it to yourself or your loved one to have an experienced medical device lawyer on your side, because you know in your heart that Zimmer will hire the best lawyers it can find to protect its corporate money!!  Call or email us today!  Good luck!

     If you’ve been involved in an accident, and it’s not your fault, it is very easy to assume that the other person’s insurance company should start paying your bills for the damage to your car as well as your medical bills. Sometimes, they do.  But, more times than not, it seems that they don’t.  You get frustrated (rightfully so) and you call a lawyer (hopefully one that concentrates in handling injury cases!!) and your lawyer seems to be doing all the right things, and yet days turn into weeks, into months and sometimes over a year, and yet no settlement!   What is going on?

     If I had a dime for each time one of my clients asked me when their cases were going to settle, I would be a very happy lawyer.  That is not to say that my clients don’t have a RIGHT to ask me that, and in fact I think it is a very valid question.  It is just an acknowledgment that most victims are wondering why it is seemingly taking so long to get their case settled.  In fact, most cases settle in reasonably short periods of time to the lawyers involved and relative to the individual facts of each  of those cases.   But what accounts for the seeming delay?  Let’s take a look at some of the factors that seemingly delay settlements, or actually do.

     First and foremost, make sure your lawyer is the type of lawyer that only handles injury cases, or in some parts of the country, do that on a regular basis.  In the Chicago-land area, there are many lawyers, like us, that ONLY HANDLE INJURY AND DEATH cases.  If your lawyer only handles an injury case once in a while, they may not be comfortable pushing the case for you because they may be unsure of what they are doing.  Or they lack the confidence due to lack of experience to stay on top of the insurance company to try and get the case settled.  Or if you did hire a good injury lawyer, make sure it’s not one that signs up every case they can get and then let them stagnate in their credenza drawer!!  If your lawyer is not working hard for you, call them and find out why!

     One of the major reasons it takes some time to settle a case is if you are still treating with your doctors, or your medical prognosis is uncertain.  No competent injury lawyer can settle your case unless they know what is medically wrong with you and what the future may hold for you  medically.  It would be disastrous for your lawyer to try and settle your case not knowing that you may need more surgery in a year.  We tell our clients that until they are finished treating, or until we know to a reasonable certainty what their medical prognosis is, it is premature to try and settle the case.  If our client’s need more  medical help in the future, that fact impacts the settlement value of their case. and our goal is to MAXIMIZE our client’s recovery.  To do that, we don’t need for them to be completely better, just along the path enough that we can find out from their doctor what the future will hold for them.  So, if you are still in physical therapy and have follow up appointments scheduled, that may be part of the delay in settling the case.

     Another clog in the wheel of settlement is dealing with recalcitrant insurance companies.  If you unfortunately are dealing with a crummy insurance company, they routinely seem to deny, delay and delay some more.  There is not too much your lawyer can do in those situations.  What we do, is send a letter demanding meaningful settlement discussions within a certain window of time, and if we are ignored, we file suit for our client.   At that point, you get the case away from the insurance company and at least into some defense lawyer’s office. 

     If a lawsuit is filed, delays seem an inevitable part of the process.  Defense lawyers get paid on billable hours, so they want to spend time sending out discovery requests, even though your lawyer already sent their insurance client all your records and bills.  They will want to take depositions of you and all the witnesses, in order to make some money.  None of these tasks in isolation take that much time, but it takes more than you would think because each deposition for instance, requires the coordinated scheduling of each of the lawyers involved, as well as the witness.  In these cases, once our client has been deposed, and we have deposed key witnesses we need, and we have our doctors and other experts lined up, we write to the defense about settlement, and if we are ignore, we file a motion with the court to set the case for trial.  At a minimum, on that court date, the judge will usually force the defense lawyer to articulate what else they need to do and will usually set a trial date, which puts pressure on them to reevaluate their settlement posture.

     Other things that can seem to delay your case is if it is one of those types of cases that usually get tried (see prior blog on this!), then depending on how many cases get filed in your jurisdiction can account for some of it.  In our area, if a case is going to be tried, it is not unusual for it to be pending for 2-4 years depending on the type of case, its complexity, number of witnesses, etc.  Other factors impacting delay is illness and vacation schedules of people involved, other trial commitments of all the lawyers involved, etc.

     Although it just seems to make sense that a case should settle quickly, and although some do, the reality is that the system has delay inherently in place for any number of reasons.  Your lawyers job is to tirelessly push your file to its earliest possible settlement date or earliest possible trial date.  As I tell our clients, we don’t make any money with their file collecting dust in our file cabinets! We push the insurance company pre-suit with demands to settle both by phone call and letter.  If we are ignored or put off, we file suit.  At that point, we broach settlement with the defense lawyer at all appropriate moments.   Defense lawyers rarely on their own call to discuss settlement;  rather, it is usually in response to your lawyer calling or writing to them.  Make sure your lawyer stays on top of your case.  Good luck!