A new generation of Wusses. That's right. That is what we have become. If you visit the Davidson County Courthouse any given day of the week and check out the 8 Circuit Court Rooms there, you will find nearly every door is locked most days of the week. The sounds you hear instead of a gavel and arguments being made... Crickets.
These rooms are empty as a result over the years of increased dispute resolution, arbitration, and mandatory mediation. Despite the repeated mantra espoused by the US Chamber of Commerce that lawsuits are "out of control" and an increasing problem, anyone that is tied to jurisprudence in Tennessee knows that the opposite is true. Over the last decade, civil jury trials are DOWN over 60%. Since the Tennessee Civil Justice Act of 2011 clamped down on the amount of non-economic damages that can be awarded, and severely limited a plaintiff's ability to bring about a "Health Care Liability" action, the number of cases has drastically fallen. As a result of less cases being tried, less lawyers are in the courtroom. Sometimes they never are.
To Settle or Not Settle : That is the Question!
Your client has hired you for their personal injury case, thinking that you can go the distance. As the case goes on... your client comes to you and asks you THE question: "I'm not really happy about the insurance company offer. It is not fair. What should we do from here?"
You know the client is the boss. Ultimately, the acceptance of any offer is their decision. However, it is important for the client to be fully informed of ALL aspects of their case before you give your recommendation. In order to do that, you need a true gut check and evaluate yourself, and the realities of settling. If you have been practicing law more than just a couple of years, then you need to evaluate the following:
- Do you have a conflict of interest with your client? Law practice is not cheap. Like any business, monthly capital is imperative. Do you want to settle quickly and cheaply so you can make payroll, get back your case expenses, pay for mortgages and vacations? Or do you have the opposite problem and have a zest for trial putting your own aspirations above your client's best interests when it could possibly fail both of you? Do you have any outside reasons that are driving you to steer the client one way for your own personal fears or desires that are not directly tied to the client's best interests?
- Are You Competent To Try This Case? It is amazing the vast majority of lawyers who refer to themselves as "Personal Injury Trial Lawyers" but have never, I mean EVER, won a jury trial. Do you know that you can just start up a web site and with your law degree, call yourself about anything that you want to? The fact is, these types are SCARED TO DEATH to go to trial before a jury. They talk to their clients about what a great job they have done to get a low ball offer for you on your case, and then proceed to scare the hell out of you into taking that crap insurance company offer and packing up and going home. To you guys out there that do this (and you know who you are) you need to ask yourself these questions:
a- Don't you ethically owe it to your clients to tell them that you never ever plan on taking your client's case to trial?
b- Don't you owe them the explanation that you will do everything you can to cram the insurance company's last offer down your client's throat because you realize you are at the end of the road and there is nothing else you know to do?
c- Don't you owe it to your client to tell them that any examples that you pluck out of the Tennessee Jury Verdict Reporter are some of the very worst examples of similar cases you could find so you could purposefully scare the hell out of your client?
I wish it were a requirement that you were required to go to court and try two jury trials a year minimum in order to call yourself a "Trial lawyer" or a "Personal Injury" lawyer. So many lawyers refuse to try their cases because of fear and incompetence. The end result is that we are letting the insurance companies dumb down our cases and, more importantly, case settlement values.
Be as honest as you can in examining your client's best interests. If the case needs to settle for legitimate, non-selfish, non-cowardly reasons, then by all means... Git R Done! BUT... don't be afraid of avoiding the risk of losing at trial. The threat of trial is your biggest bargaining chip. By deciding you are never going to go to trial, you have sold out your client. If I were so inclined, I could scare every single one of my clients into settling their case, but I would hope that I would have the decency to be honest with my clients and refer to myself as an "attorney mediator with insurance companies." Anything else is a lie.
Your clients think they have hired a real trial lawyer. DO NOT cheat them of that chance of success. The insurance company knows you, and they know if you will not ever go to trial. They know who tries cases, and who does not. Great lawyers like Gerry Spence and Moe Levine would be so disappointed in a majority of "trial lawyers" today. Not disappointed... Disgusted.
If you feel incompetent or scared to try your client's case, CALL ME. At the very least, call someone who has the guts to try and do what is right and obtain justice for your client.