David G. Smith
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Victory From Defeat

Provided by Oakland Personal Injury Lawyer, David G. Smith

Successes From "Take it or Leave it" Offers: In these days of the "take no prisoners" attitude of the insurance companies, the unrepresented plaintiff is at an extreme competitive disadvantage.

Unrepresented plaintiffs do not know how the insurance claims process works, they do not know what is important and what is not, they do not know when to pick their fights, they do not know how to get a personal injury claim in the best posture to resolve, and they do not know what a case is worth. Not only does the insurance adjuster know all these things the unrepresented plaintiff does not know, more importantly, the adjuster knows the unrepresented plaintiff is in the dark and most certainly uses that to his or her advantage.

One of the big hurdles that an injured plaintiff must get over is their own unfamiliarity and distrust of lawyers and the legal system in general. Every lawyer knew when starting out that the public, generally, isn't particularly fond of lawyers. For more than 30 years I have been representing injured plaintiffs, and I am convinced that I and the vast majority of my colleagues do a workmanlike, professional job with a real compassion for our injured clients. We fight a fight on behalf of those not powerful enough to take on the insurance companies to the best of our ability.

With the preceding as my introduction, I want to talk about three recent cases that we were able to resolve successfully. They are not untypical injury claims and other plaintiff injury lawyers can tell you similar stories.

CASE ONE:
An otherwise healthy 56-year-old woman came to me after having various conversations with the defendant's insurance adjuster for nearly two years. She had been involved in an extremely low impact rear end collision. At the time she was struck she was stopped at a rather unusual intersection which required that she lean forward and look over her steering wheel to make sure it was safe before proceeding. She had a fairly significant amount of medical treatment for a neck injury and she had given the insurance company an authorization to obtain the medical records which they had done. After all the conversations and review the insurance company offered a "take it or leave it" $780.

Since the statute was about to run, we filed suit immediately and served it on the defendant. We went through discovery, non binding arbitration (we got an award of approximately $6,000 which we rejected) and settled the case on the eve of trial for $40,000.

CASE TWO:
A father of a five-year-old girl came to me after having dealt with an insurance company for approximately two years. His daughter and his wife had been at a retail store one day and the little girl got out of the mother's sight for a short period of time and in the process had come too close to a clothing rack and had sustained an approximate three-inch laceration above her left eye. We felt that the rack in question had an outward edge that was probably sharper and more dangerous that it should have been and since this happened in the children's department we felt there was negligence on the part of the store. For her injuries she went to the emergency room and her laceration was sutured and about 10 days later the sutures were removed. She was left with a scar which certainly was not horribly disfiguring, but she was definitely self conscious about it. In all the negotiations with the insurance company the father received an offer of $2,000 "take it or leave it."

I attempted to resolve the case with the adjuster but when she refused to go past $10,000 we filed suit, got through discovery, got through a failed mediation and settled on the eve of trial for $25,000.

CASE THREE:
A 55-year-old woman came to me with a history of a serious accident three years before. The defendant in the case had only a $25,000 policy and that was paid to her quickly. She had $25,000 in medical payments coverage under her policy and she had underinsured motorist coverage of $100,000. Grudgingly the insurance company had paid the $25,000 in medical payments coverage and they had also advanced her an additional $5,000 from her underinsured motorist coverage.

In underinsured coverage the insurance carrier gets a credit for any amount paid by the at fault defendant, so preliminarily, the maximum available would be $75,000. From that they would be able to deduct the $5,000 advance. If the total value of the case were $100,000 or less, they could also deduct the medical payments of $25,000 so when I took the case over we were looking at a maximum recovery of $70,000. Prior to my involvement they had offered $15,000 "new money," had sent the case to their lawyers and had told her the $15,000 was "take it or leave it." We settled the case in less than 90 days for the $70,000 maximum.

While these certainly are stories about snatching victory from the jaws of defeat, more importantly I would likely have done as well or better had they come to me right after these injuries occurred. But they were forced to wait years for justice!

I believe the two most prevalent attitudes of the unrepresented plaintiff are their beliefs that the insurance company will treat them fairly when they absolutely will not and that they just do not want to have to hire a lawyer. 

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David G. Smith, Attorney At Law
2201 Broadway
Suite 506
Oakland, CA 94612

Phone: 925-308-6484
Fax: 510-893-2701
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