Why Settle for Less?

9 Good Reasons to Bump Up Your Settlement Demand Midway Through the Case!

Peter Kolp, Esq., Trial Attorney, Kolplaw

9/25/2024

“Come on, you cant do that, you made a demand already. You are just going to piss off the adjuster.” – Defense Attorney

“We have good reasons”

Far too often, we receive cases from firms with low demands, and we find ourselves in the position of informing the judge and defense counsel that, since we’ve taken over, we are raising the demand.

Raising settlement demands midway through a personal injury case can be a strategic move for plaintiff counsel based on a number of factors. Here are some compelling reasons why plaintiff counsel might increase their demands:

1. Discovery of New Evidence

• Additional Medical Evidence: If new medical reports or expert testimony reveal that the plaintiff’s injuries are more severe or permanent than initially thought, this could warrant an increased demand. For example, discovering long-term complications or disabilities might drastically increase the value of the case.

• Witness Testimony: Depositions or witness statements obtained during discovery might strengthen the plaintiff’s case, showing more clear-cut liability or greater damages.

• Surveillance Footage or Documents: If new evidence, such as surveillance video or internal documents from the defendant, establishes stronger liability, this can increase the case’s value.

2. Worsening of the Plaintiff’s Condition – “THE ‘AFTER AFTER’ ”

• If the plaintiff’s health deteriorates over the course of the case, with new medical treatment, surgeries, or long-term care becoming necessary, the settlement demand would naturally rise. This is particularly relevant if the initial prognosis was optimistic and later findings show the injuries to be more debilitating or permanent.

3. New Economic Losses

• Increased Medical Bills: If ongoing medical treatment becomes more extensive or costly than originally projected, raising settlement demands to account for the additional expenses is warranted.

• Lost Wages or Diminished Earning Capacity: If the plaintiff cannot return to work or has a diminished earning capacity, this can significantly increase damages for future lost wages, justifying a higher demand.

• Future Medical Expenses: Expert opinions may indicate that future care (e.g., surgeries, therapy) will be needed, increasing the overall compensation required.

4. Liability Becomes Clearer –

• Defendant’s Admission of Fault: If, during depositions or discovery, the defendant admits to some form of liability, the plaintiff’s position becomes stronger, and it makes sense to demand more compensation.

• Incriminating Evidence: If key evidence, such as internal safety violations or prior similar incidents, emerges, demonstrating clear negligence on the part of the defendant, the value of the case may increase.

5. Defendant’s Bad Faith or Legal Missteps

• Defense’s Delay or Obstruction: If the defense engages in delay tactics or fails to comply with court orders, the plaintiff may raise their demands to account for the increased costs and time incurred.

• Insurance Company Bad Faith: If it becomes apparent that the defendant’s insurance company is acting in bad faith or intentionally delaying settlement, plaintiff counsel may raise demands to leverage a stronger position for future negotiations.

6. New Expert Testimony

• Stronger Expert Opinions: The introduction of expert testimony, such as from a medical expert, life care planner, or vocational expert, could show the plaintiff’s damages are much higher than initially projected.

• Economic Expert Analysis: The use of an economist to project long-term financial impact, such as future medical costs or lost earning potential, could also justify raising settlement demands.

7. Publicity or Risk of Trial

• Increased Publicity: If the case garners media attention or public interest, the plaintiff’s attorney may raise demands knowing that the defendant may want to avoid negative publicity or the uncertainty of a public trial.

• Defendant’s Risk at Trial: If it becomes apparent that the defendant may face a large jury verdict, plaintiff counsel might increase demands to reflect the greater risk for the defense.

8. New Legal Precedents or Similar Case Settlements

• Comparable Settlements or Verdicts: If recent verdicts or settlements in similar cases indicate higher awards, plaintiff counsel may adjust the demand to reflect current trends.

• Changes in Law: If there is a new legal precedent or statute that enhances the plaintiff’s position, counsel may raise demands accordingly.

9. Insurance Coverage Disputes

• If discovery reveals that the defendant has excess or higher insurance policy limits than originally thought, or if there are additional policies that could apply, the plaintiff may raise their demand to reflect the increased coverage available.

Raising settlement demands strategically aligns with stronger liability or a clearer picture of the full extent of damages. If the defense perceives that the case has grown stronger for the plaintiff, they may be more inclined to settle at the increased amount.

Don’t settle for less, take that case to trial . . .

What to Do after a Car Accident?

Please call Kolplaw at 646-801-7850 or 917-601-4589
or email us in our contact page 

September 19, 2024 – Here’s a clear, non-legal summary of the steps to take after a serious car accident in NYC, including dealing with the insurance company:

Immediate Steps After the Accident

• Ensure Safety & Call 911
  • Prioritize your safety and the safety of others. Move to a safe spot if possible.
  • Call 911 for emergency medical help and to report the accident.
  • The police will create a report that can serve as important evidence.
• Exchange Information
  • Collect contact and insurance details from the other driver(s), including name, license plate number, and insurance policy number.
  • Obtain witness contact information, if possible.
• Document the Scene
  • Take photos of the accident scene, vehicle damage, injuries, and any relevant road conditions.
  • Jot down important details like the time, weather conditions, and location of the accident.
• Seek Medical Attention
  • Even if you feel fine, it’s crucial to get a medical evaluation to rule out any hidden injuries.
  • Keep records of your medical visits and treatment.

Dealing with Insurance Companies

• Notify Your Insurance Company
  • Report the accident to your insurance provider as soon as possible, ideally within 24 hours.
  • Provide them with basic details but avoid giving a detailed statement until you fully understand your injuries and damages.
• File a Claim
  • In New York, the no-fault insurance law allows you to file a claim with your insurance company for medical expenses, regardless of fault.
  • Your insurance may cover your medical bills, lost wages, and other expenses up to a certain limit.
• Property Damage Claim
  • For vehicle repairs, you may need to file a separate claim with the at-fault driver’s insurance (or your own, depending on your policy).
• Cooperate with the Adjuster
  • The insurance adjuster may ask for evidence, documentation, or statements. Provide the necessary information but avoid admitting fault.

Key Clauses and Obligations

• Time Limits (Statute of Limitations)
  • In NYC, you generally have three years to file a personal injury lawsuit after a car accident.
  • For no-fault insurance claims, the deadline is much shorter—30 days to file for benefits.
• Medical Documentation
  • You are obligated to provide accurate medical documentation to support your claim.
  • Failure to seek immediate medical attention or follow-up care can hurt your claim.
• Mitigate Damages
  • You must take reasonable steps to reduce further damages, like getting prompt medical care or securing your vehicle.

Potential Risks

• Insurance Disputes
  • If the insurance company disputes the claim or offers a low settlement, you may need to negotiate or even consider hiring an attorney.
• Diminished Value of Your Car
  • Even after repairs, your car may lose value. Be aware that some insurance policies may cover this “diminished value.”
• Hidden Injuries
  • Some injuries may not show up immediately. Delaying medical treatment could weaken your injury claim.
• Comparative Negligence
  • If you are found partially at fault, your compensation may be reduced. New York follows a comparative negligence rule, meaning your damages could be reduced by your percentage of fault.

By following these steps and understanding your rights and obligations, you can protect yourself and your potential claims after a serious car accident in NYC.

Please call Kolplaw at 646-801-7850 or 917-601-4589 or email us in our contact page.

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Excluding Biomechanist Testimony in NY 

Sept 13, 2024

In New York, the exclusion of biomechanist testimony in legal cases, especially in personal injury or negligence litigation, is governed by various legal principles and case law. Here’s an overview of the key considerations and legal authority related to excluding biomechanist testimony:

Key Principles and Authority

1. Admissibility of Expert Testimony:

–  Frye Standard (Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]) : In New York, the admissibility of expert testimony was traditionally governed by the Frye standard, which requires that the scientific principles or methodologies underlying the testimony be generally accepted within the relevant scientific community. This standard focuses on the general acceptance of the methodology used by the expert rather than the expert’s qualifications.

–  Daubert Standard (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [1993]) : Although the Daubert standard, which emphasizes the trial judge’s role as a gatekeeper to assess the reliability and relevance of expert testimony, is not the standard in New York, federal courts and some states may follow it.

2.  New York Rule:

–  People v. Wesley, 83 N.Y.2d 417, 611 N.E.2d 117, 611 N.Y.S.2d 97 (1994) : This case clarified that in New York, expert testimony must be relevant and based on a reliable scientific foundation. Expert testimony must assist the trier of fact in understanding the evidence or determining a fact in issue.

3.  Exclusion of Biomechanist Testimony:

–  Richey v. State Farm Mutual Auto Insurance Co., 262 A.D.2d 335, 692 N.Y.S.2d 815 (2d Dep’t 1999) : In this case, biomechanist testimony was excluded because the expert’s opinion was deemed speculative and not sufficiently grounded in reliable scientific methods.

–  Brady v. General Electric Co., 78 A.D.3d 1312, 911 N.Y.S.2d 439 (4th Dep’t 2010) : The court ruled that biomechanist testimony was properly excluded where the testimony lacked a proper foundation and did not meet the standards for expert evidence under New York law.

4.  Expert Testimony in Personal Injury Cases:

–  N.Y. C.P.L.R. 4515 : This rule provides that expert testimony is admissible if it is relevant and based on sufficient facts or data. Biomechanist testimony must meet these criteria to be admissible.

Factors Leading to Exclusion

1.  Lack of Foundation:  Biomechanist testimony may be excluded if it lacks a proper scientific foundation or fails to demonstrate that the expert’s methods are generally accepted in the scientific community.

2.  Speculative Nature:  Testimony that is speculative or lacks a direct connection to the facts of the case may be excluded. For example, if a biomechanist’s conclusions are not supported by concrete data or specific analysis related to the case, the testimony may be challenged.

3.  Relevance:  The testimony must be relevant to the issues in the case. If the biomechanist’s opinion does not assist the trier of fact in understanding the evidence or determining an issue, it may be excluded.

Practical Considerations

–  Pre-Trial Motions:  Parties seeking to exclude biomechanist testimony may file a pre-trial motion in limine to challenge the admissibility of the testimony based on its reliability, relevance, or scientific foundation.

–  Expert Qualifications:  Ensure that the biomechanist’s qualifications and methodologies are thoroughly examined and challenged if necessary. This can include scrutinizing their education, experience, and the methodologies used in their analysis.

–  Case Law and Precedents:  Review relevant case law to understand how New York courts have handled similar expert testimony and use this information to argue for or against the inclusion of biomechanist testimony.

By understanding these principles and relevant case law, you can better navigate the admissibility of biomechanist testimony in New York courts. For specific legal advice and strategy, consulting with an attorney who specializes in expert testimony and personal injury law would be advisable.

– Pete