March 2015

A Little Hassle Might Be Worth it

This scene from Tommy Boy came to mind recently while I was shopping for car insurance. Periodically, I shop around just to make sure I am not paying too much. 15 minutes or less right? Well, not really. After submitting your information to multiple different companies and looking at your 6 month quotes, you then become inundated with phone calls, emails and even snail mail all trying to get you to switch to a ‘better’ insurance. For me it all comes down to price. I understand what I am paying for and what the insurance company is obligated to do. It’s a contract. I pay x, you will pay y if I am involved in an accident. It should be that simple. But with over 500 billion dollars at stake worldwide, the auto insurance industry is anything but simple.

So one of the selling points of one of the companies I spoke with was that I would be satisfied with my claim. In fact, it was guaranteed. Never mind that they quoted me more than double the 6 month premium of a national auto insurance company. Doesn’t matter that the quote was hundreds more than my current insurance State Farm, which I am more than happy with. (just want to make sure I’m not paying too much) Didn’t I care about my potential claim experience? Didn’t I want a guarantee that I would be happy with it? No. Let me explain.

At that point I was fed up. They called me, asked me all the info they already had (I submitted it online), wanted to know how much I was currently paying, and then kept trying to sell me their services without giving me a quote. They drive a hard selling technique. So, I responded in kind. I told him I knew he didn’t want to waste his or my time. I didn’t care about the fluff or frills of the policy. If they didn’t hold up their end of the bargain, well, I was an attorney and I would sue them. So, just tell me how much it costs. Too much. Now I knew why he was selling the ease of making a claim with them rather than the price point.

But that got me thinking, are people willing to pay more just so they don’t have as much of a hassle when making a claim with their car insurance? Clearly, some people might. Is that a good thing? Not according to research done by insurance companies. What do you mean Mr. FitzPatrick? Well, according to the results of a 1999 study from the Insurance Research Council, on average those represented by an attorney received 3.5 times more in auto accident settlements. Im not the only lawyer who knows this. When do people get an attorney involved? Usually when its a hassle to get a payout. Based on the study, if my claim experience isn’t satisfactory, and I hire a lawyer, it’s more likely that I will get a larger settlement? So, really, shouldn’t I pay less to have a hassle free claims experience? I wish I had thought of that when I was on the phone.

So, I say get the insurance that makes it really difficult for you to have a positive claim experience. Maybe it is a little self interested, because then you will give a lawyer like me a call. But maybe its in your best interest because then you might get an attorney, and, on average, you are then more likely to get a larger settlement.

Let It Go?

While this song took youngsters and their parents by storm over the past few years, its message is nothing new. Turn the other cheek. Let bygones be bygones. Keep the past in the past. The words are different but the sentiment is the same. It is a sentiment that many of us have. Humans have a tendency to let things go and forget about them. (Although there are some who seem to never let things go.) And even if you don’t forget about it, most people have a tendency to not want to start a lawsuit. For good reasons: it takes time, costs money, afraid of their own past coming out to haunt them, potential for losing, and just the overall hassle of a confrontation. But let me give you a personal example where I decided not to sue and have lived to regret it.

When I was in high school, my club soccer team was pretty good. We regularly played up in age and one time in particular we played a group of college age players in an indoor soccer game. I was about 16 and had been fortunate to have a nice growth spurt. I was fast, and had good ball skills. This particular game I dribbled by the other teams defense and instead of shooting, decided to dribble by the goal keeper. I did, but as I went by, he reached out and grabbed my leg, bringing me to the ground. A penalty was called and we scored the point. But I was still upset and accused the goalie of not being able to play fair. One of the other players on the goalie’s team got in my face and reminded me I was in high school. Thinking I was clever, I reminded him he was losing to a high schooler.

The next play I went to the ground trying to reach the ball with my foot (it was a little too far), my right arm outstretched to support me. As I was getting up, that same player who was in my face, came up behind me and swung his leg, kicking me right behind my elbow. Leg vs Elbow, leg wins. My elbow bent the other way. Kind of like this. My scream echoed of the walls of the indoor soccer dome. I went to the ER and was put under so they could put it back in place. But anyone who has had a joint injury can tell you; it’s never the same.

People had asked me if I wanted to sue, and I didn’t have much interest. I was depressed, my first serious sports injury, unable to play again for months. Besides what good would suing do? It wouldn’t fix my elbow. Worst part was some people even said I probably deserved it because of the trash talk exchange before it happened. Maybe those people would end up on my jury if my attorney didn’t do a proper voir dire.

Here I am 14 years later. Not only does my elbow creak and crack, but my wrist and shoulder have developed pain due to years of compensating. One arm is slightly bigger than the other due to the tendons not re-attaching right. I could go get it evaluated and potentially have some improvement, but that is time and money. And guess what? The statute of limitations is long passed. Who is going to pay for all that?

My story probably reminds you of some stories that you have. Or maybe it is your friend or a family member that has been hurt and hasn’t done anything. Talk to a lawyer. If it is your friend, encourage them to talk to a lawyer. Sometimes it just takes that little push to get someone going. It doesn’t mean that there needs to be a lawsuit, in fact in many cases it might not be worth filing the lawsuit. But wouldn’t you rather know now? Not 20 years from now.

So, before you let it go, talk to someone who can tell you your rights and options. Your injury might not heal right. Things could get complicated. If you wait, the statute of limitations might prohibit you from filing a lawsuit and ever being compensated.

Do Lawyers Literally Fight for You?

A common phrase by lawyers promoting their services is that they will “fight for you.” It could be a figure of speech, but in a case from 1992 out of Texas, the lawyers almost came to blows during a deposition. Click the short video to watch it happen.

Maybe that is just how Texans try cases? But there also is some truth in the phrase to ‘fight for your client’. It is an adversarial system after all. And it is not just plaintiff/prosecution vs the defense. Sometimes, you might have to fight the judge too and it might get caught on camera like it did with this public defender in Florida.

Ok, so there are a few exceptions where lawyers and judges get out of control and resort to fisticuffs, but that doesn’t mean all lawyers are brimming with testosterone itching for a fight, right? Right, in fact, studies have shown that lawyers who have higher levels of testosterone (men and women) are, you guessed it, trial lawyers! On a measurable, physiological level, trial lawyers are different.

Now, a correlation doesn’t prove causation. Maybe these individuals already had high testosterone levels and thats why they became trial lawyers. Or, maybe, there is some unknown factor that selects for trial lawyers with high testosterone. The classic example of correlation does not equal causation is the correlation between sexual assault rates and ice cream sales. They both rise at the same time…in the summer. At this point, we can’t say eating ice cream causes sexual assaults just as we can’t say being a trial lawyer causes increased testosterone.

What I can say is that when you are face to face with someone and they are alleging you have done something wrong, or that you didn’t follow the rules, your heart gets pumping. If you don’t have years of practice managing your emotions, you might be inclined to become incensed and lose your composure. But if you can develop your skill for composure and thinking on your feet, you can take the wind out of an opponents sails. Let me offer an example.

A little background, when I was a prosecutor, there was a defense attorney known for coming right up to the line of harassing a witness during their interview statements. (Think of the video at the top) This statement was no different. After about an hour, the witness had enough and left despite defense claiming they did not finish their questions. The defense made a motion to exclude the witness because they couldn’t complete the statement and during the hearing, alleged my witness smelled of marijuana during the witness statement. I can honestly say I did not smell marijuana and relayed that to the court. Defense response was that I either was not familiar with the smell or that I was being disingenuous (lying) to the court. Instead of becoming upset that I was basically called a liar in open court, I reiterated that I didn’t smell anything, but, perhaps, was not as familiar with the smell of marijuana as the defense attorney was. The judge laughed and denied defense’s motion.

Now an attorney needs to know their audience, and this response might not work with the Supreme Court, but then again, you probably wouldn’t be called a liar by a fellow attorney in the Supreme Court unless there was some pretty good evidence for it. In retrospect, that older attorney was probably trying to get a rise out of me, but it backfired. The only way I was able to keep my calm despite the surging testosterone, was because I had felt that surge before in numerous other hearings and learned how to handle it. In this particular situation the best option was not to fight, but deflect.

So do you want a lawyer who fights or who deflects? Both. You want an attorney who can decide when it is time to push and when it is time to step back and let the opposing side whiff. So be careful of those who want to ‘sue the pants off’ someone else. Overzealous litigation can not only be the wrong approach, but also end up running up the legal bills. Then it might be the client who ends up feeling like the one with their pants down.

Do You Have Attention Deficit Disorder?

Watch the Video and see if you can keep track of how many times the ball is passed before you read on.

What was the result? Not what you expected? Maybe you have seen this video before. But if you haven’t, what a powerful lesson about the unreliability of our own senses the video conveys. If someone told you there was gorilla in the video, you would have said no way. If you were the one who saw it and tried to convince a group of people about what you saw, would you be able to? You might say, “Sure I would, I know what I saw”.

But studies suggest you would probably go with the flow and say there was no gorilla. In the well studied Asch conformity tests, participants were placed in a room with other ‘participants’ who were not really participants but confederates of the researchers. The group was given a line of a given length and then told to identify from a selection of other lines, which one resembled the original line most closely in length. Without going into too much detail, when the group of confederates gave the wrong answer, the participate went along with it most of the time! Even though they could clearly see with their own eyes that the line was not the same length. Does that make you think about what you would do if you think you saw a gorilla, but 11 other people say the didn’t?

What does this have to do with law? Everything. There is the obvious connection to recent research that eyewitness testimony is unreliable. It shows how if a jury focuses on one issue (the bouncing ball) they might completely miss the critical fact that proves your case (the gorilla). But perhaps most importantly it shows how even when presented with evidence beyond a reasonable doubt, a juror might agree with the group and vote against that evidence.

Think of it this way, in any sport there are a thousand different distractions that an athlete could be thinking about. Sometimes you can see those distractions take over when the 5 year old runs off to chase a butterfly instead of playing the game. A trial is no different than a sporting event. Ask anyone who has done one, its mentally and physically exhausting. I speak from experience when I say that a trial exhaustion increases exponentially when it spans over a few days. And when you’re exhausted, your judgment suffers.

The same goes for jurors. They have to listen to witnesses drone on and judges read lengthy, monotonous, technical instructions about something that doesn’t personally affect them instead of being out working or relaxing.

So make sure your attorney doesn’t contribute to the distraction. Find an attorney who can separate the important from the unimportant. Whether they have learned how to do that through experience, or maybe they have a natural ability. What you want is someone who doesn’t put up with any monkey business.