Verdicts & Settlements

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For as long as I have represented limited tort victims, I have pleaded with my fellow plaintiff lawyers to avoid Compulsory Arbitration in limited tort cases. While less expensive and less time-consuming, the Arbitration program is nothing more than a dead-end for limited tort plaintiffs. It simply gives the carrier a free spin of the wheel to cross-examine your client and get a hap-hazard evaluation of your case, justifying any low-ball settlement offer. Without the threat of a jury, the insurance companies have no risk and no pressure to offer fair value before going in front of the arbitration panel. This is especially true in the limited tort context.

Nevertheless, we all unavoidably end up in the Arbitration center for one reason or another. And, upon the inevitable Arb appeal, we all get the same offer from the carriers to “go 1311” “Going 1311” refers to Pa. R.C.P. 1311.1, an Arbitration appeal rule which allows the plaintiff to save time and money by submitting expert evidence through a written report instead of live or video-taped expert testimony for the jury. In exchange, we would have to agree to cap any verdict at $25,000. On its face, this rule seems like a fair give-and-take for both sides. But, before making a 1311 election, beware of these three (3) dangers of “doing it on the papers.”

1. Rule 1311.1 Alleviates ALL Risk for the Insurance Companies

If you walk into the Courtroom on the day of your 1311 trial expecting some sort of “Courthouse steps
settlement offer, think again. Once you elect 1311, you’ve alleviated any risk for the insurance company to suffer a runaway verdict. If a defense verdict is entered, the insurance company wins. If a plaintiff’s verdict is entered, it’s capped or molded to $25,000, an amount likely within policy limits. Any fear of an excess verdict and subsequent bad faith claim is gone. Even if the carrier has a $15,000 policy, the risk is minimal. They have no incentive to settle the case, certainly not for any substantial value. By agreeing to try your case “on the papers”, you’ve given up any leverage you once had for a fair resolution.

And what do you get in return for agreeing to a 1311 trial and a damages cap of $25,000? Marginal cost savings to video your doctor and go to trial; costs which you should be willing to spend in any case you take on. It doesn’t seem like such a fair deal after all.

2. Rule 1311.1 Casts Doubt Upon Your Case

By agreeing to try your case “on the papers”, you are telling the insurance company that your case isn’t valuable enough to spend more time and money going through the full “real” jury trial. Even worse, you are saying that you, the plaintiff’s lawyer, no longer believe in your case. That it’s time to cut your losses, waive the white flag and go home to nurse your wounds. You’ve admitted defeat. You know it and the insurance company knows it. Soon enough, the jury will know it too. Jurors are smart. They want to see, hear, feel and believe the evidence before them. Unless your expert witnesses are there to communicate directly with the jury, they will have every reason to doubt your evidence. And he defense lawyers at the table next to you will remind them to do so over and over again.

3. Rule 1311.1 Excludes The Plaintiff’s Key Advocates

When you spend less time and money in preparing your case for trial, it shows. It is our jobs as plaintiffs’ lawyers to advocate aggressively and unconditionally for our clients. But, in a rule 1311.1 trial, we elect NOT to provide the jury with all possible advocates for our client. 1311 allows us to proceed to trial without our expert doctor – the STAR WITNESS in a limited tort jury trial. He or she is the one person that can provide objective medical testimony as to the seriousness of our client’s injury. The one witness that can objectively empower the jury to enter a verdict in your client’s favor. Presenting expert evidence “on the papers” takes that empowerment from the jury. All that is left is your limited tort client to fend for herself against the big bad insurance company. When was the last time your case got worse after your expert doctor testified?
To be successful in the personal injury world, we plaintiffs’ lawyers must be risk accepting. Every time we sign up a new case, file a lawsuit, hire an expert and pick a jury, we’re betting on ourselves to win. We expect to win every case we take on and we’re willing to go to the end; to a jury verdict, for every client. “Going 1311” has the exact adverse effect. It’s tantamount to admitting that you made a bad bet and cutting your losses. It shows a lack of advocacy for your client and casts doubt about your case among jurors. Our clients deserve better.

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