Preparation for the Negotiations
As a personal injury attorney in San Francisco, I have seen parties attempt to exaggerate their claim or their injuries. This usually ends up poorly for the attorney and the client.
One of the biggest problems regarding personal injury settlements is when a claim is presented to the insurance company somewhat inaccurately. These tactics are rarely, if ever, effective. More often than not the insurance company will cease to engage in talks once they believe that a party is not being completely forthright.
Many attorneys and Plaintiffs mistakenly believe that the so-called “litigation privilege” insulates them from liability for exaggerated statements pre-litigation. That is not the case. A statement is protected by the “litigation privilege” before a lawsuit is filed only if the statement is made “in good faith and under serious consideration [of litigation].” Action Apartment Ass'n, Inc. v. City of Santa Monica (2007) 41 Cal. 4th 1232. Essentially that means that if a statement has no basis in law or fact the “litigation privilege” will not attach, such as an exaggeration of an injury.
Statements Made During Negotiations
It is also important to note that any statements made during settlement are generally not admissible at trial. However, these same statements may be used against a party at a malicious prosecution trial. The court has stated that the litigation privilege does not act to bar the admittance of these statements. Specifically, the Court wrote, “when allegations of misconduct properly put an individual's intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent.” Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal. 3d 1157, 1168. Be careful of what you say.
The first party to act at a settlement negotiation is clear. It is either going to be your attorney or yourself. If you are acting as your own attorney, which is not always advisable, you should treat the opposing party with respect and act professional. Keep in mind that the person who you are speaking with is in charge of making the decision as to the amount of money you will receive. It would be unwise to speak down to them or treat them disrespectfully.
The initial settlement discussions will be not with an attorney but an insurance adjuster. This person’s identity will be known immediately. Generally, this information is made available upon the filing of a claim with the insurance company. Occasionally, a new adjuster may be reassigned. Regardless, you or your attorney will be dealing with a claims adjuster until a lawsuit is filed.
During the next course of the pre-negotiation period, you and your attorney should begin evidence gathering and investigation. The investigation for most cases that will settle is fairly simple. The first step is to obtain the police report. While a police report is generally not admissible at trial, it is a tool that can help and hurt a negotiation. Do not worry if the police report is not entirely favorable to you – the claim may still be settled without the benefit of a favorable police report. It is just going to require that the attorney be tenacious in your defense. I have seen cases resolve where the police report is entirely unfavorable to my client.
The next step is the fact gathering. Here you or your attorney will need to obtain all information and records that are relevant to your claim. This information will include medical reports and records, medical bills, wage statements, disability reports, supporting documentation from your employer, etc. Once this information is available, then a demand is drafted.
You or your attorney will generally begin the opening round of negotiations. As mentioned prior, it is important that your claim is presented in a straightforward fashion. No exaggerations or misrepresentations should be made and a reasonable should be presented.
While there is no hard and fast rule for an opening number, I have found it helpful to do a jury verdict search on similar accidents with similar injuries. That way I have something hard and fast I can point to when I am negotiating. If the adjuster asks me why I think the case is valued at such a number, I can provide the adjuster with jury verdicts to support my position.
For more information, please contact the attorneys at Allegiance Law.From the author: San Francisco Personal Injury Attorney