On Mar 31, 7:52 am, b...@nyx.net (Barry Gold) wrote:
> Giuditta <jnotma...@giudiittaspeedworks.com> wrote:
>
> [OP's friend's baby ate some pesticide that was left by a pest control co.]
>
> >Should she seek an attorney or just take getting the medical bills paid
> That's a no-brainer. *Of course* she should see an attorney. Even if
> the attorney says to just take the offer, she won't be out any money
> (although going to see the atty will take some time.)
I agree it's a no-brainer. The time it will take to have a 1/2 hour consult with a PI atty with offices close to her home (I doubt there is anywhere in USA big enough to have pest control service that _doesn't_ have an experienced PI atty within a 15 minute drive) is minimal compared to the potential downside if she just takes the initial TINY offer and sells her baby short. As parent, she is responsible to make decisions in the best interests of the child, and how can she do that if she doesn't have all the facts, and know what the law requires? The atty can help her find those facts, inform her of the relevant legal framework, and give her the tools to make that decision.
> One caution: Swernowsky's first and second laws apply:
>
> 1. You won't get what you want unless you ask for it.
> 2. You won't get what you want if you don't know what you want.
Absolutely. Knowledge, of both the _complete_ facts (including expert opinon about what is likely to happen in the future) and the applicable law, is the key to being able to make a rational decision between reasonable choices. If the mom does anything else it is simply shooting in the dark and while she _may_ hit the mark of fair compensation, she is far more likely to be _way_ off.
> She should figure out, in advance, what she really wants out of this.
Now, I think Barry and I may have a divergence of opinion on this. How can she figure out what she really wants if she doesn't even know yet what the reasonably available options _are_? I agree she should have some preliminary thoughts in mind before consulting an atty, but IMO it would be not only a waste of time but even counterproductive to have her sit down and calculate in detail "what she wants" at this stage. However, it would be a good idea for her to at least bring along copies of all the pest-company documents, all the medical bills, and medical reports too if she has them, to show the atty when they first meet, and perhaps to have prepared a summary sheet listing the med bills (by date and provider) as well as her hours missed from work and adding them up... that will be a helpful first step for her meeting with the atty.
> Just the baby's medical bills? How about compensation for the time
> off work? Is there danger of the baby being permanently damaged? If
> so, what would it take to compensate for that? (Extra child care,
> special private schooling, a trust fund for the child?)
She should certainly consider the possibility of all the above, and more -- we're not just talking about a child needing extra care until adulthood, but a future adult who may have functional deficits and/or a reduced wage-earning capacity (due to limited aptitudes) over what that child _would_ have been able to accomplish if she had not been poisoned. As an example, a Baltimore City Circuit Court jury this week awarded a verdict over 2 million dollars to a middle school child who had been poisoned as a toddler by ingesting flakes of lead paint in her rental apt., even though the child was an active and successful student council member, etc. and had a 110 I.Q., because her brother and sister (who were a few years older when they lived in that apt., and did _not_ have lead poisoning) both had an I.Q. 20-30 points higher and had successful careers. I am _not_ suggesting that OP's friend's baby necessarily has a case worth that amount, but merely to suggest that things are not always as they appear at first glance to the untrained eye and that OP's friend needs to know a lot more (with the help of her atty) before she can even begin to make a fair decision about settlement.
But I can almost certainly tell you that the company's first offer (of the child's initial medical expenses) is their knee-jerk attempt to get off the hook quickly for a tiny fraction of the possible damage award the child might be able to win from a fair jury. That doesn't mean OP's friend and her child would necessarily have to go to trial to get it, but it does mean they would need to negotiate from a position of knowledge and strength through an experienced PI atty who the insurance adjuster would know he could not pull the wool over his eyes with a ridiculously low offer.
> She should start out with some idea, consult the baby's doctor on the
> likelyhood of permanent damage, then talk to an attorney.
I would recommend talking to the atty FIRST, then following his advice, before doing her own initial investigation. What if her family doctor doesn't believe in, or hasn't heard of, the latest scientific data about long-term effects of pesticide ingestion? Her atty can help find the true facts by retaining and consulting experts in the field who can better predict the long-term costs and deficits the child might face. And if there is a negative opinion in the file from the family doc, which the doc really didn't know anything about and wouldn't have said anything about except for mom trying to play investigator, that could wind up shooting herself in the foot and badly hurting baby's chances of a fair financial recovery.
> Contrary to what big-name PI lawyers think, the object isn't to get
> the most money you can.
I have to disagree with Barry there in 2 ways. As one of those PI lawyers, although not (yet) a household name like the ones that advertise on TV, my goal is to get _fair_ compensation for my client, for _all_ of her (and/or her child's) compensable injuries. Not only is it statistically true that the vast majority of claims that are handled by an atty settle before trial, generally for a compromise amount that is less than the maximum that could have been gained from a jury verdict, but also the system would not be able to function if it were any other way. The insurers as well as victim's lawyers would be spending far too much of their time trying cases that really didn't need to be tried instead of negotiating cases amicably, and the courts would be overwhelmed by the volume of additional demands on their time and personnel.
And every PI lawyer knows that a fair settlement is always a good result for the client and is preferable to the risk of going to trial: "a bird in the hand" and all that. Plus, just in case you might think the attys' own interests would conflict with that goal and mandate them recommending trial instead of settlement to maximize recovery, keep in mind that it is far more productive for the lead atty to spend a few hours total (plus many more hours invested by his associates and paralegal staff rooting out the facts, preparing pleadings, and arguing pre-trial motions) negotiating a fair settlement at perhaps 1/2 to 2/3 of the full estimated potential value of the case than to spend a week, or a month, trying the case and getting perhaps 50% or so more (with a risk of getting less, or even getting nothing if the jury says the defense wins on the liability question). Thus, we certainly don't insist on trying every case to reach for the maximum recovery every time, and in fact the "big name" PI lawyers (the TV advertisers, with their extremely high overhead as well as high volume generated by their advertising) are far LESS likely to recommend to a client that their case is worth enough more than the insurer's offer to risk taking it to trial. The really high-volume "plaintiff mills" try cases rarely or never; if the client won't agree to their recommendation to accept a lowball settlement offer, they may just "fire" the client (reject the case), leaving the client on her own to find a new atty. I get quite a lot of new cases that way, thanks to insurer's tendency to make ridiculously lowball offers and the "big-name" guys' tendency to suggest taking them. In all cases, though, I only hope to be able to provide the client with the factual and legal understanding it takes to make the settle-or-go-to-trial choice with her eyes open rather than blindly and foolishly accept a lowball offer.
> The object is to get what _you_ think will be
> fair compensation (after talking to the atty) with the minimum of
> hassle.
Now we're back in agreement. The final decision on accepting a settlement always belongs to the client, and the atty must follow the client's instructions, even if he thinks she is selling her claim short. But a wise client would also follow her atty's advice as long as she trusts him to be acting in her (and her child's) best interests. If she no longer does, it may be time to get a new atty.
> If you can get that compensation by negotiation without going
> to court, you are ahead of the game. [Believe me. Unless you really
> enjoy litigation, you aren't going to want to go through a full civil
> trial if you can help it.]
Very true. In fact the _worst_ kind of clients to have are the ones who seem to enjoy litigation for its own sake, or who "want to teach a lesson" or "uphold a principle" and say "it isn't about the money." While that may be great if you are a pro bono civil liberties litigant, it's just plain wrong in a personal injury case. The only thing the legal system can do to right a wrong for a negligently injured person is to enter a judgment ordering the defendant to pay the plaintiff victim money as compensation for the harm done. While it is difficult and for many, distasteful to parse things like pain and suffering and mental anguish into dollars and cents, that is the only thing the law can do, so if you don't feel that money is a fair thing to ask for, you shouldn't be bringing a civil personal injury claim in the first place.
Unfortunately, insurance company propaganda has made many people feel that somehow it is _not_ fair to ask for compensation for intangible wrongs, like pain and suffering, and that claimants should be limited to recovering their medical bills and lost wages. This isn't the thread to argue that issue, but obviously, I disagree. The law lists the elements of damages that are legally compensable for a personal injury, and it _is_ possible for ordinary people to rationally and fairly evaluate non-economic damages and reach a verdict awarding them.
As my final word, I would suggest the second-worst kind of clients are the ones who have a pie-in-the-sky inflated concept of what their case is worth, based on reading about multimillion dollar verdicts in the paper or on the net, and thinking, if that other person could get that much, why can't I?? No 2 cases are exactly alike, and no 2 juries are alike, that's why, but sometimes it's just impossible to get such a client to see reason and accept what may be a very good offer based on _her_ actual situation. I hope the OP's friend does _not_ take my mention of the recent $2m Baltimore case to mean that _her_ case is definitely worth that much: she should consult an atty and follow his advice.
<snipped Barry's good suggestions about how to find an atty>
--
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Mike Jacobs
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