Your Best Damages: Telling Your Story

What are your real damages from a car wreck? How do you make the insurance company, lawyer or jury listen? Sometimes the most important question really is: which insurance company?  How do you best tell your story of pain and  suffering, lost wages, medical bills incurred, and all the hassles of the injured by someone else’s wrong doing so that you are properly compensated rather than ignored? Use an experienced story teller. In my more than 25 years of practicing law I have found that we don’t want to talk about every little thing that bothers us, hurts us, or interferes with our lives after an injury. Therefore I rely on the ones closest to you to tell complete story; how long did you avoid working in the yard, picking up children, walking up stairs, exercising, or even typical driving. I like to get short written statements from a husband about how a car wreck affected a wife and vice versa. I have an adult son or daughter write about how a parent was different after car wreck, and for how long. Every lawyer is different. Some were simply send medical records with a short letter stating there was an accident  and sets an amount. I’m different. I know that I have to tell your story to someone else the moment that you walk in my office. A good lawyer needs to start to compose your story in their head from the moment you walk in the door, in a series of phone calls and letters through depositions, mediation and even trial. How your story is told makes a big difference in whether you receive enough compensation to settle or even have to file a lawsuit to receive adequate damages. Be ready to work with your lawyer from the first visit.

Every mediation has obvious issues-  and there can be other important underlying issues. To settle some cases, the parties and the mediator might need to keep in mind the advice of a famous General turned President.

Sometimes the underlying issues are the most important obstacles to settlement. Everything else seems to revolve around them. The parties and the mediator have to be careful and selective as to how and when they address the underlying and emotional issues. Sometimes it is best to just react when a party brings up the issue.
If handled properly, the underlying or emotional issue can give one or more party the chance to feel like they are having “their day in court” by disclosing and discussing it without really getting into proof that would be allowed in court. In a typical personal-injury case the underlying issues could be as simple as being treated unfairly about car repairs or a car rental bill. In more complicated family matters the relationships, how one party feels about another, have to be addressed with all the other factual and legal issues to get all involved ready to settle.

This is where Eisenhower’s famous statement that “plans are nothing; planning is everything” really applies. A party and it’s attorney must plan to address underlying issues and have a plan, but be able to adjust if the emotional issue all of a sudden comes out in a totally unexpected way, such as during the opening statement when all eyes turn to you or your client.  The mediator must also have a plan. The reaction is key, and you can’t be prepared to react without a plan.

Factors used to successfully deal with these issues are often respect, understanding, and a “bite your tongue” attitude. Since mediation is confidential, it really doesn’t matter how you feel about what is said. What does matter is how the other party feels about resolving the case once your client or you hear them out and say something – or do not say anything – in response. Make a plan and be ready to adjust it. Sometimes no reaction or a limited reaction is the best reaction. Let someone have their say, let them feel like others are listening to how they feel, and the parties can then get back to the issues that will be addressed in court and on which where compromise can be had. Then a settlement is much more likely to be reached.
Sometimes just acknowledging the issue exists is important. It gives credibility, even self worth, to at least one party and can go a long way toward you gaining their respect.   The mediator can then do what he/she needs to do best; ask tough questions. The answers given are often times more conducive to settlement once the emotional, underlying issue becomes part of the mediation process, even if it would not be part of the legal process.

Make dealing with the emotional, underlying issues part of your mediation plan.

Worker’s Compensation in South Carolina is a no-fault system except in very limited circumstances. A person must be able to prove that an accident happened on the job and caused injury. The worker is then entitled to medical treatment, paid for by the employer through a worker’s compensation insurance carrier, temporary total or temporary partial benefits of 2/3 the worker’s average weekly wage, and an award of money if their is permanent injury.

Many times clients ask about compensation for pain and suffering. Unfortunately, there is none. Worker’s Compensation is basically a trade-off. A worker does not have to prove the injury was caused by the employer or otheer employees, but benefits are limited. There is no compensation for pain and suffering caused by an injury.

However, pain is an important consideration. Persistent pain is an indication of permanent injury. Permanent injury is measured by doctors who determine an impairment rating, and then a Worker’s Compensation Commissioner can consider that rating and other factors in deciding the disability rating, how the injury has affected the worker’s ability to earn wages and function normally. Pain, measured as objectively as possible through tests and exercises and the like, helps indicate the severity of any permanent injury. A worker is not paid for pain and suffering, but pain that decreases the ability of one to earn wages is considered by the doctor and the Commissioner.

Probate law was established to administer assets after death. Lawyers help protect a person’s assets to help ensure they end up with the persons or organizations one desires. Litigation can occur when someone believes the decedent’s real wishes are not contained in the documents presented – like a new will. Or when ownership of the assets changed in the last few months or years of life, such as when bank accounts become joint accounts with one particular person to the exclusion of others, or a Power of Attorney is used to benefit someone or several people but no other family members. This can lead to litigation based on Undue Influence, Lack of Capacity, and Mistake among other causes of action.

Here is one simple tip that may help you as you look at these situations. If you want to help protect a loved one from being improperly influenced and assets ending up in the wrong hands, keep in close touch with your loved one. If your access is limited, keep a log of attempts to call or visit in person with as much information as possible on it, such as date, time, and reason given for no access. Quote the other person’s reasons stated for you not being able to see or even talk to your loved one. You may choose to keep a calendar of visits and attempts.

Be vigilant and supportive. And if you think your loved one has a reduced or diminished capacity, or is too weak to overcome the influence of a care giver or someone in charge of them or their affairs, see a lawyer about being appointed Guardian or Conservator. It’s better to take steps before the loss of your loved one than find yourself after the loss wishing you had done something earlier.