Having begun my legal career working for large insurance companies defending policy holders in lawsuit, I learned how insurance companies view and handle (adjust)claims made against their policy holders. Now I have “switched sides” and I represent people that have been seriously injured in accidents. That has given me a unique perspective on personal injury claims from both sides of the debate.
Here are some of the most common questions I hear from clients and friends,and some answers:
1. Why is the insurance company treating me like I am a criminal?
Answer: Keep in mind that an insurance company is a business. They do not make money by giving it away. They receive hundreds of thousands (if not more) claims a year. And they have to sift through all of those to figure out which ones are bogus (they are out there) and which ones are legitimate. The adjuster (the employee that is assigned to handle your claim) does not know you and has no reason to trust you. If you sat behind a desk all day and tried to figure out who was telling the truth about their claim, who was exaggerating and who was lying, you would become pretty skeptical too. You cannot take it personally or allow it to upset you. Each client only has one case, and it is very important in their lives. However, the insurance company has hundreds of thousands of claims to handle. That produces some less than sympathetic behavior from insurance companies. And, if someone made a claim against your policy, wouldn’t you expect your insurance company to fully investigate before sending someone a check?
2. Why do lawyers file frivolous lawsuits?
Answer: Some lawsuits are frivolous, and some lawyers file frivolous suits. But, the overwhelming majority of personal injury lawsuits are perfectly legitimate, as are the overwhelming majority of lawyers who file those suits. The biggest problem is the “McDonald’s Coffee” case problem. The public only hears about the outrageous cases, and then assumes that those four or five cases out of the millions of cases that are filed each year are representative of what goes on in the courts. But, as an intelligent discerning individual, you have to remember that for every “crazy” case you see on the news, there are millions of legitimate cases that go unnoticed. Insurance companies have a vested interest in convincing the public that lawyers and claimants are money hungry opportunists (not to mention a very strong lobby in Washington, D.C.). It’s not true, but their message has slowly taken effect.
3. How much money will I get in my case?
Answer: No lawyer can or should tell a client how much money the client will get from a case until the money is in hand. The fact is that the lawyer does not get to make the decision as to how much the client’s claim is worth. The only people who can ultimately make that decision are the adjuster, the jury or sometimes the judge. Most lawyers have enough knowledge and experience to be able to provide a range of possible outcomes. But even those ranges are speculative. Each case is factually unique and each seemingly small fact can influence the amount ultimately received. And, some injured people receive nothing in their case.
4. How long will it take before I get my money?
Answer: First, keep in mind that the facts of your case may not entitle you to money. Not every injury entitles someone to money. The other party has to be legally responsible (“liable”) for the injury for a money recovery to be necessary. The general time line of personal injury case is affected by numerous factors. The most common factors are the length of medical treatment, the complexity of the case, whether a lawsuit has been filed and the pace at which the insurance company responds to your attorneys’ communications. Each case is different and will require its own time line. If you have questions about the pace of your case, talk to your attorney. Remember that the attorney cannot control the insurance company or the court system.
5. Do I need a lawyer to resolve my case?
Answer: No. You can settle your claim with the insurance company by yourself. But, without a lawyer you are more likely to settle the case on terms that are more favorable to the insurance company and less favorable to you. Insurance companies frequently offer you a relatively small amount of money to resolve your claim right after the injury. Be very careful in this situation, because you will be required to release any rights to seek more money in the future if you accept this settlement. Getting a lawyer will help you understand the legal issues, evaluate the potential value of your claim and develop an effective strategy for resolving your claim. Let’s put it this way: I would not let a family member resolve a case without at least talking to a lawyer.
There are many more questions about personal injury claims that I am asked on a regular basis. Hopefully, I can address those in the future. But, these are the most common, and hopefully, they answer some of your questions.
These articles shows that Collaborative Divorce is popular across the United States. The Associated Press article also give some good information on the costs of different ways of resolving the legal issues in divorce.
Collaborative Law may be new to you, but it is not new to lawyers. It is a tested and established structure for domestic legal issues.
One of the most prominent myths that new client bring to an initial meeting is that getting divorced means going to court. That is not true. In North Carolina, it is entirely possible to get a divorce and resolve the related legal issues of a divorce without ever stepping foot in a courthouse. While only a judge can divorce a couple in North Carolina, the legal issues surrounding a divorce (financial support, property division, co-parenting) can be resolved in at least six different ways.
Couples can resolve these issues through direct negotiation, Collaborative Law, attorney negotiation, mediation, arbitration or litigation.
I have listed these options in descending order of client control; that is, the client has the most control over the outcome in direct negotiation with their spouse/ex-spouse and the Collaborative process, and the least control over the outcome in arbitration and litigation.
Direct negotiation occurs when the parties simply try to resolve their legal issues themselves without the help of attorneys, judges or other third parties. Most couples are unable to do this effectively because of the emotions involved and the lack of substantive knowledge about the issues at hand. Even couples that are able to effectively negotiate with each other face legal traps that can present problems. Direct negotiation has the advantage of placing control over the outcome the parties’ hands. But, its disadvantages typically make it impractical or impossible.
Collaborative Law is very similar to direct negotiation in that is places almost all of the control over the outcome in the hands of the parties. But, it has distinct advantages in that it involves attorneys and other experts that have the substantive knowledge of the law, finances, taxes and other areas necessary to fully address the issues. And, the Collaborative process provides a structure for the negotiations so that the parties can communicate more effectively. In addition, Collaborative Law is generally less expensive than the other options. Perhaps most importantly, the Collaborative process teaches the parties to communicate in a productive, respectful and reasoned manner. This benefit cannot be overestimated, especially for clients that will be co-parenting children in the future.
One of the most historically popular means of resolving a case is through attorney negotiation. In this process, each party hires an attorney to negotiate for them. The lines of communication between the parties is broken by the attorneys. Each party provides directives to their attorney. The attorneys then negotiate with each other on behalf of their clients. Because the attorneys are communicating, and not the clients, the parties lose some control over the end product. Tone, emphasis and other important aspects of the clients communication get lost by the time it reaches the opposing attorney’s ears. And, because attorneys are involved, the cost of each email, letter and phone call increases the cost to the parties. Further, this process does not teach the parties to communicate effectively because they are using their attorneys to communicate for them.
Mediation was the first attempt to reduce the amount of litigation in family law and divorce cases. This process remains very popular today, and is mandatory for many cases filed in North Carolina. Mediation involves a conference in which the parties and their attorneys meet with a “mediator” to try to reach a resolution of the legal issues. The mediator is typically another independent attorney. Mediation places most of the control over the resolution in the hands of the party. In fact, no one is required to agree to anything at mediation. However, typically, the attorneys and the mediator conduct most of the negotiation at mediation. The mediator’s role is to help encourage the parties to resolve the legal issues by pointing out the benefits of a settlement and by pointing out the strengths and weaknesses of the parties’ arguments. The mediator does not and cannot decide anything for the parties. While mediation is a vast improvement over litigation, it still involves indirect communication between the parties. Therefore, it does not teach the parties to communicate with each other. While mediation can and frequently does solve the immediate legal issues, it does not lay the foundation for productive future communication between the parties. In fact, mediation typically involves the kind of strong arm negotiating tactics that create bitterness and resentment.
Arbitration is essentially an informal trial. Instead of a judge, a neutral third party (usually an attorney selected by the parties) makes decisions for the parties. This process is designed to save a lot of the time and expense involved in a formal court case. Arbitration is a good option when the parties are totally unable to communicate, but do not want to spend the time and money that a court battle requires. However, arbitration take control over the resolution out of the parties’ hands, and places it in the hands of the arbitrator. The arbitrator does not know the parties, their children, their history, their personalities or any of the other things that should be considered in resolving family disputes. The arbitrator only knows the facts that are presented in the hearing. Like litigation, a stranger makes decisions for the parties and their families.
Litigation takes control of both the resolution and the process out of the parties hands and places it in the hands of another stranger, a judge. No matter how well educated, experienced or well meaning a judge, the judge is still a complete stranger to the parties and their family. Further, the judge’s main concern is fairness, as opposed to what works best for a particular problem. A judge has at most a few days to learn everything they can about a family before making a decision. In my experience, even the “winners” in these cases leave the courtroom unhappy because of the inconvenience and disruption that a judge’s decision creates. The only benefit to litigation is that a decision is made and the process (usually) comes to an end. Litigation leaves attorneys wealthy, clients poor and families unhappy.
A very small percentage of my clients choose litigation or arbitration to resolve their family law issues when they are presented with the above options. Most choose attorney negotiation or mediation. However, a growing number of people across the country are choosing Collaborative Law, and reaping the long term benefits of their decision.
Others around the country are writing about Collaborative Law, here is just a sampling:
In my last post I explained a few of the benefits of effective communication in divorce and other family law matters. In a recent discussion with our pastor on this topic, he made a great point: If a couple could communicate effectively, then they likely would not need a divorce in the first place.
That one had me stumped for a bit.
But, as I thought about the conundrum, I realized that his statement assumes that effective communication is like your vertical leap; you either have it or you don’t. The truth is that effective communication is more like your jump-shot; anyone can develop it with dedication and practice. (I apologize for the basketball metaphors, but with UNC in the Final Four they are coming naturally).
In fact, even if a lack of effective communication contributed to the end of the marriage, it does not have to contribute to problems with co-parenting, the resolution of legal issues in divorce or the future relationship between the parties.
The natural question is how two people that have been communicating in a deficient manner for years suddenly learn to discuss issues in a productive manner. The answer, to a large extent, is that their attorneys can teach them the communication skills that they will need.
Many attorneys will not do this either due to a lack of their own communication skills or a belief that fighting is somehow more productive than cooperating. However, I strongly believe that one of the roles of an attorney in a family law dispute is to teach their client how to communicate effectively.
Obviously, this will involve some direct discussion of the best ways to communicate effectively. But, it also involves modeling effective communication for the client. If an attorney communicates with opposing counsel in a hostile, position based, threatening manner, then the client assumes that this is the most productive technique. In fact, it is not. No matter how contentious the case, threats, position based negotiations and aggressive postures rarely move the parties closer to a resolution, and almost always push the parties further from their goals. Thus, attorneys can head off a lot of wasted time, money and emotional fatigue by teaching clients how to effectively communicate.
So, the answer to our pastor’s conundrum is that past communication techniques do not have to continue. New, more effective techniques can be learned and used to resolve the legal issues in divorce. Attorneys can and should play a large role in that process.
In this article, I am picking back up on the discussion of the importance of communication in divorce matters. In the last post, I discussed the problems that poor communication causes and described the communication techniques that best promote effective communication. The next logical topic is how parties actually benefit from learning to communicate effectively.
The short answer is that effective communication saves time, money, energy and potentially a lifetime of conflict with your ex-spouse.
Most importantly, however, is that effective communication significantly raises the odds that the parties will reach an agreement at all. Many cases are forced to litigation when the parties’ lack of effective communication torpedoes settlement negotiations. People that want to avoid litigation need to learn to communicate with each other.
In addition, when people communicate effectively, they reach agreements faster. This is usually because tangential issues, emotional roadblocks and counter productive negotiations are avoided. This effect can lead to agreements that are reached in weeks or months as opposed to years.
When clients are dealing with their attorneys, there is one cardinal rule: Time is money. Thus, the reduction in the time it takes to reach an agreement provides significant savings for clients in legal fees. The money that clients save when they learn to communicate effectively can go to their retirement funds, monthly cash flow, rainy day fund or to their kids. As I tell clients: You can either put my kids through college, or you can put your kids through college. In fact, the number one thing that clients can do to reduce legal bills is to learn to communicate effectively with their spouse or ex-spouse.
One of the most underrated benefits to effectively communicating in a divorce matter is the reduction of emotional trauma to the parties and their families. Everyone has heard the horror stories about ugly divorces and their affect on children, relatives, friendships, careers, etc…People rarely realize that an ugly divorce takes a huge emotional toll on them until it is too late. No divorce is pleasant. But, every divorce need not be emotionally devastating. Effective communication can greatly reduce the emotional toll of divorce. This emotional toll is often the difference between people who bounce back after a divorce and go on to live their lives to the fullest, and the people who never seem to recover from a divorce.
Lastly, and perhaps most importantly, divorcing parents have an obligation to learn how to communicate effectively for the sake of their children. Co-parenting children requires effective communication for a happily married couple living in the same house. Communication becomes even more important for divorced parents trying to co-parent from different households. Raising children of any age requires dozens of decisions each day. Many of those require the input of both parents. If the parents cannot put aside emotional issues between themselves and communicate effectively, their children will suffer the consequences. I have seen children miss out on extracurricular and other great opportunities simply because the parents could not stop fighting long enough to discuss the issue.
Divorced parents often ignore the long term affects of ineffective communication on the lives of their children and their own lives. Parenting does not end when a child turns 18. Parents will be involved in graduations, birthdays, holidays, weddings, the birth of grandchildren, etc…More than likely, both parents will want to be involved in these events. That means that parents will be tied to each other, and will have to see each other for the rest of their lives . Or, they will force their children to choose which parent gets to participate in the events of their lives. This being the case, the only reasonable long term solution is for parents to learn to get along. The biggest part of that is learning to communicate effectively.
There are countless benefits to effective communication between divorcing or divorced parties; far too many to address here. They impact every part of a client’s life: financial, emotional and even physical health. More importantly, the ability to effectively communicate affects the lives of children, friends and family. Divorcing parties owe it to themselves and everybody that they care about to learn to communicate effectively when ending their marriage.
In my next post, I will address a great point made by my pastor recently: “If people could communicate effectively, they would not get divorced in the first place.”
Each month an Auto Torts Section member responds to a few questions regarding their practice and experience, growth and changes in the auto torts practice area. This month, the “Interrogatories” spotlight is focused on Randolph (Tre’) Morgan III with Nicholls & Crampton, P.A. I, on behalf of Auto Torts Section members, would like to send a huge thank you to Tre’ for his excellent article. Enjoy!
Randolph “Tre'” Morgan III graduated from the University of North Carolina at Chapel Hill with a Bachelor of Arts in Psychology. He received his juris doctorate from the University of North Carolina at Chapel Hill School of Law, where he served on the staff of the North Carolina Journal of International Law and Commercial Regulation for two years. He began his career working for several years in insurance defense. In 2004 he joined the plaintiff’s bar and practices at Nicholls & Crampton, P.A., 3700 Glenwood Avenue, Suite 500, Raleigh, North Carolina 27612
His contact information is: Telephone: (919) 781-1311, Fax: (919) 782-0465, Email: firstname.lastname@example.org
1) What was your first trial and how did it go?
I tried my first case solo eight months out of law school. My insured was a convicted crack cocaine dealer with a slight credibility problem (and the plaintiff made sure the jury knew it). It was a minor impact soft tissue case with thorough chiropractic treatment. The adjuster handling the case was the unit manager, and a close personal friend of my senior partner. The carrier picked this case as their test case for “MIST” cases in Mecklenburg County. The adjuster attended the trial. During the lunch break, he grilled me on questions, strategy, etc…Fortunately we obtained a zero damages verdict from the jury. But, it took some days off of my life.
2) What did you learn most from mentoring lawyers when you started?
I learned a good deal about legal marketing from my first position. The insurance defense business is highly competitive, and marketing is the life blood of a lot of firms. I also gained invaluable courtroom experience. Most importantly, I learned that I was not afraid of the courtroom.
3) What would you share with a young lawyer now?
First, your area of practice will not be nearly as important to your career satisfaction as the people you practice with and against. Secondly, that a good legal assistant is worth his/her weight in gold, and should be treated accordingly. And lastly, don’t let anybody tell you that practicing law is not a business, or that it is just a business.
4) How has the insurance defense bar changed?
I left the insurance defense bar in 2004. At that time, the carriers were really tightening the reins on defense firm billing. There were already strict coding requirement for invoices and time entry. But, I spent hours each week on the phone with various carriers trying to justify time that was already being billed at very low hourly rates. Paralegals hired by the carriers slashed bills and then forced firms to appeal those decisions to get paid. Some carriers were also requiring firms to adopt flat rate billing structures for cases with certain litigation events triggering new payment levels. By the time I left, some carriers were refusing to pay for travel time, which is brutal for regional defense firms that have cases all over the state.
5) What is the state of the auto practice in North Carolina?
I think that there is too little respect between the two sides of the practice. I was constantly surprised by the personal enmity that adjusters and defense attorneys displayed towards plaintiffs and the plaintiffs’ bar. When I switched sides, I was equally surprised by the enmity of some members of the plaintiffs’ bar towards adjusters. What I’ve learned from being on both sides is that adjusters and attorneys on both sides are generally good people trying to do the best job that they can on a particular case.
6) Who was the first client who touched you and why?
One of my first clients was an elderly lady that was scared to death when she was sued. She was very sweet, but very intimidated by the entire process. When we resolved her case, she sent me a handwritten card saying that she thanked God that I had been sent to her to watch over her through the process. I still keep that card as a reminder that there are clients that truly appreciate my help.
I am going to take a slight detour from the series of posts on Collaborative Law to talk about the importance of communication skills for parties in divorce cases. Collaborative Law depends on the parties’ ability to learn and use effective communication skills to resolve their disputes. However, most clients severely underestimate the importance of their communication skills during and after the divorce process.
Effective communication, in my mind, requires three essential components: The ability to listen to the other party for content, instead of tone; the ability to formulate responses based on logic instead of emotion; and the ability to focus on interests instead of bargaining positions.
The vast majority of domestic clients find it very difficult to hear the content of the other party’s statements because they are offended by the tone. Correspondingly, many attorneys and parties fail to understand that the content of their message can easily be lost when an overly aggressive or combative tone is used. In order to effectively communicate and resolve domestic disputes, all parties must be able to sift through the tone to find the substance of the communication. They must also be mindful of the tone of their own communications. If the parties cannot get past the tone of the message or control the tone of their own message, then communication between the parties becomes at best unproductive, and at worst harmful.
One of the worst effects of poor tone in communications between parties in a domestic legal matter is that poor tone elicits emotional responses. Many lawyers and clients believe that you have to “fight fire with fire.” That is a fine strategy if your intent is to lengthen the process and spend more money in legal fees. However, if the actual goal is to resolve the conflict and move on with life, then the attorneys and clients have to learn to respond with logical and practical proposals and solutions, instead of with fire. The fact is that no one can win a battle of emotion. There is no prize for the “toughest” or angriest person. But, there are large rewards for the most logical and effective communicators.
The best way to structure communication to avoid the above pitfalls is to focus communication on interests instead of positions. The difference between interests and positions is subtle but important. Some of you may have read Getting to Yes in the course of your education or careers. Getting to Yes is essentially a manual for learning how to communicate based on interests instead of positions. The difference between positions and interests is the difference between saying “I want sole custody of the kids” and “I want to make sure that my relationship with the kids does not suffer because of the divorce.” “I want sole custody of the kids” is a position. “I want to make sure that my relationship with the kids does not suffer” is an interest. People adopt positions based on their interests. The problem is that the position may not be, and often is not, the best way to meet their interests. Taking positions in negotiations reduces the possible number of ways to resolve a problem; expressing interests keeps all solutions in play. The more clients and attorneys focus on positions, the more options are removed from the table. Eventually, as is common, the parties unwittingly destroy the middle ground, and litigation ensues.
In my next post, I will discuss the benefits of effective communication between the parties in a domestic legal dispute.
All to often, the parties involved in a divorce emerge from the legal process financially and emotionally devastated. Families and lives are destroyed in the process of ending a marriage. I have had cases where I honestly feared that the grief and stress from the process was going to kill my client.
Some of the negative effects of a divorce cannot be avoided. Grieving for a lost relationship is natural, and will be a part of any divorce. Some degree of financial loss is unavoidable because it costs more to run two households than it does to run one. Divorce is difficult for children of any age because of the unavoidable changes in their lives.
But, contrary to popular belief, divorce does not have to be nasty, ugly and combative. The parties do not have to “jump into the mud” or “take the low road” in order to effectively advocate for their interests and resolve the issues that arise in a divorce.
Over the last few decades, lawyers that had grown weary of seeing clients devastated by the legal process of ending marriages developed a new process for resolving the legal issues that arise in a divorce. That process was based on spouses working together, or collaboratively, to resolve the issues of property distribution, financial support, and the parenting and financial support of children. That process became known as Collaborative Law.
Through the next series of posts, I will describe the structure and process of Collaborative Law. I will also explain the tremendous benefits of the Collaborative Process. Hopefully, by the end of the series, I will have shed some light on this process so that more divorcing couples will explore this option before waging war on each other.
In my next post, I will provide an overview of the actual structure and mechanics of the collaborative process.
In the last installment of this series, I will address the issue of child safety. In one of my recent custody trials, the father had allowed a child under the age of 3 to ride a four wheeler and a dirt bike. The mother argued that this behavior was very dangerous for the child and that the child was far too young to ride these types of vehicles. She further argued that allowing the child to ride these vehicles at such an early age demonstrated poor judgment and poor parenting on the father’s part.
The father countered by arguing that the child had only ridden these vehicles a few times each; that the child had always worn full safety gear; that the child had always been closely supervised while riding; that the father had held a kill switch while the child was riding; that the child only rode the vehicles in an enclosed yard; and that the child had never been hurt, or in danger of being hurt while riding the vehicles.
The judge decided that the child was too young for four wheelers and dirt bikes. The judge ordered that the child not be allowed to ride four wheelers or dirt bikes until the age of 10. My feeling was that the judge did think that allowing such a young child to ride those vehicles was poor judgment, and did place the child at risk of injury. While the precautions taken by the father may have helped, the judge seemed to ultimately decide that no precautions were sufficient to eliminate the risk.
The lesson here is twofold: First, that a judge may have a very different view of what is “safe” and “acceptable” for a child than a parent. The father in this case never saw a problem with allowing his child to ride these vehicles. The judge obviously felt differently. Perhaps the judge never rode four wheelers and dirt bikes growing up, whereas these vehicles were a part of everyday life for the father’s family.
The second lesson is broader: Allowing a judge to literally sit in judgment over you and your parenting of your child is risky. A judge may have been raised in a totally different environment than you and your child. What seems perfectly natural to you may seem totally abnormal to a judge. What seems perfectly safe to you may seem highly dangerous to a judge. Taking your custody case to court opens both parents up to scrutiny by someone who does not know you, your background, your family, your child or the other parent. For this reason, many attorneys recommend trying to negotiate a custody agreement before taking the first opportunity to go to court.
In the next post, I will provide an introduction to Collaborative Law, a relatively new and highly beneficial process for resolving divorce, property division, custody and financial support issues.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENT STATE OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.