Litigation is expensive. Speaking from the plaintiff’s perspective, costs related to a personal injury claim are steep. Plaintiff’s attorneys do not relish spending money; but the fact of the matter is that in order to prove (or disprove) a case, the parties must hire expert witnesses. Expert witnesses command fees in the thousands of dollars. Costs are driven by simple supply and demand.
Experts are pivotal in proving cases alleging medical malpractice, products liability, slip and fall, or negligent operation of a vehicle including cars, trucks, trains, motorcycles or airplanes. When an issue involves any matter outside of the ken of the average juror, like, stopping distances, the standard of care of a health care provider, or the defective nature of a product like a medical device or piece of machinery, a plaintiff is required to provide expert testimony supporting the cause of action. In the absence of such testimony the case will likely be dismissed well before trial and the plaintiff will get nothing.
Any personal injury case demands medical experts, from treating physicians to retained experts, who provide the testimony necessary to support the plaintiff’s claims for damages. A doctor who treated the plaintiff may testify to the nature of her injuries, but she may need to hire an expert to render an opinion on the likelihood of long term limitations, reduced life expectancy or future medical intervention necessary. Without such expert testimony the plaintiff may not even be allowed to ask the jury for an award of money damages to compensate him for the full extent of his injuries.
There is a direct correlation between compelling expert testimony from a qualified, convincing expert in the field and a jury verdict awarding full and fair compensation to the plaintiff. While the price tag is high, it is money well spent, and the plaintiff does not have to pay unless we win. Plaintiff’s attorneys willingly accept the risk as demonstrable evidence of their commitment to their client’s case.
Attorney Laird M. Ozmon
Beware of a recent study conducted by the biased U.S. Chamber Institute for Legal Reform claiming the costs and compensation paid for the U.S. tort system totaled $429 billion for 2016. In an effort to incite public outcry it implies it is scandalous that plaintiffs receive only 57 cents on every dollar paid in compensation.
In all of its hyperbole, the headlines ignore what the study does not reveal. First, let’s deal with the alleged amount of money that goes into plaintiffs’ pockets: 57%, leaving 43% for attorneys’ fees and litigation costs.
Plaintiff’s attorneys work on a contingency fee basis which ensures all citizens, not just the rich ones, have access to our justice system. The typical fee is 33% of the amount recovered plus costs of litigation. For complicated cases, the fee could be up to 40%. This means litigation costs, i.e. expert witness fees, transcripts, record production costs, account for the last 3-10% that did not go to plaintiffs. The figure appears to include insurance costs, which would include defense costs, including defendant’s attorney’s fees.
Remember, contingency fees provide that plaintiff’s attorneys get zero if the plaintiff does not recover any money, defense attorneys get paid by the hour, win or lose. In other words, the 57 cent figure, even if it is true, is deceptive.
Those who seek legal reform unfairly seek to marginalize plaintiff’s attorneys and ignore other significant facts. For instance, medical error is the third leading cause of the death in the U.S. The ability to sue health care providers who commit negligence has created a reasonable standard of care. While mistakes are not wholly unexpected, health care providers know the stakes are high in their profession. With life and limb on the line, if they make a mistake, that is what insurance is for (a $1.2 trillion industry according to 2017 statistics).
The public derives tremendous benefit from our current tort system that is rooted in our constitutional rights, including freedom of speech and unfettered access to a civil jury trial. Major corporations and health care providers wield tremendous power. They are for-profit entities concerned with the bottom line. Our tort system creates a necessary tension between serving the bottom line and serving the patient or consumer, while giving access to all, not just the rich and powerful.
Critics always ignore the successes, the demonstrable evidence the system works. For example, if it weren’t for our current system, companies would still be putting asbestos into buildings despite evidence that established they knew five decades ago it was detrimental to human health. It wasn’t until people suffering from a specific form of cancer started suing that the practices changed. There are countless incidents of litigation that resulted in positive change for the public.
Maybe legal reformers should be looking to the potential perpetrators, demanding proactivity, transparency, even apologies and swift action when they discover a defective product or professional negligence. Accountability is the key to lowering tort related costs. Through this lens, Plaintiff’s attorneys are the human equivalent of the body camera, exposing wrongs, and seeking justice for injured victims.
Attorney Laird M. Ozmon
Recent news events have highlighted the importance of being a compelling witness on your own behalf. The quality of witness’s presentation both superficially and substantively directly impacts one’s ability to make a case. In the context of a personal injury claim, if the plaintiff’s case is populated by credible, quality witnesses, the likelihood of recovery and the value of the case increase substantially. In my experience, when a plaintiff makes an excellent presentation on deposition, I can expect an offer of settlement to come soon thereafter.
There is a lesson in how the witnesses have comported themselves at the Congressional hearings that have recently riveted the nation. Balancing thoughtful, thorough preparation with instilling the confidence in the witness to be authentically themselves takes the supreme skill and experience of a trial lawyer.
First, appearance matters. Well-groomed, appropriately dressed people exude confidence. Looking unkempt or wearing something extremely informal, or even too formal (picture an evening gown at a backyard BBQ) gives the appearance of being out of one’s element—the proverbial fish out of water.
Demeanor is key. Employ coping strategies tore main calm. It is key to tell your story clearly and concisely. Use tips to keep yourself from appearing too anxious, speaking quickly or without thinking, such as counting to three or taking deep breaths. If you find yourself so focused on the answer that you’ve stopped listening to the question, stop and reset, or ask for a break.
Confidence naturally flows from preparation. An excellent trial lawyer will patiently take a witness through the impending proceeding telling her what to expect, reviewing the facts, documents, proffering sample questions and practicing common scenarios, i.e. what to do when there is an objection, how not to guess.
Your attorney should discuss any potential weaknesses. You will strategize about how to respond truthfully while minimizing the shortcomings. A strategy common among defense attorneys is to trot out the complaint and go through each allegation with the plaintiff at a deposition. This is designed to undermine the credibility of claim if she is not prepared and/or hasn’t seen the document.
Being a good witness doesn’t come naturally topmost. This is a team effort, a plaintiff’s attorney cannot testify for his client, but he can give her the tools to be her most compelling advocate.
Attorney Laird M. Ozmon
gavel and stethescope on white background
My blogs this summer have touched on a recurring theme, how a plaintiff’s contributory negligence can diminish or defeat her case. As the best time of year to be in Chicago comes to a close, I have to bring this discussion full circle with one final observation I see in the great outdoors—the survival instinct is dying. And this evolutionary change will be judged in a courtroom.
You know what I’m talking about, it’s everywhere. Bikers wearing headphones, pedestrians looking at their phones oblivious to their surroundings, drivers texting, no one in the roadway using signals. I admit, I’m a student of the “old school” that taught engaging the human senses as a matter of life and death. “Stop. Look. Listen.” “Look both ways when you cross the street.” This is not just the stuff of Darwin, it’s what we learn in kindergarten. So why are people so willing to render themselves, deaf, dumb and blind and blithely entrust their well-being to the rest of the population?
While this cultural phenomenon did not start with the Smartphone (remember the Walkman?), it has proliferated in that tiny, powerful technological device. Studies have shown accidents due to distraction are on the rise: https://www.usatoday.com/story/money/cars/2018/02/28/pedestrian-fatalities/376802002/. Those who are so dependent on it, so addicted to it or the magnitude of distraction it provides, that they cannot tear themselves away need to . . . “step away from the phone.”
Illinois law does not allow you to relinquish responsibility for yourself and your own safety; thus the contributory negligence defense. For instance, if you are so busy looking at or talking on your phone that you enter an intersection without looking both ways or obeying a traffic control device, you will likely be found more negligent than the driver who hit you. Your mobile phone is no longer your closest confidante, it is a storage device for potential evidence against you, i.e. the time you sent or read a text, when you were on a call, etc. After being struck on your bicycle in the middle of the street, if you are found wearing earbuds or headphones (the noise-cancelling ones are really just insane), the driver who honked his horn as he was properly approaching when you made a sudden lane change may not be held responsible. All of this means you may not recover for your injuries because you were contributorily negligent.
So here’s my pitch, as a father, not a plaintiff’s attorney: reengage your senses.
STOP! Take in the world around you. LOOK! Use your eyes, not only to protect you from imminent danger, but to see that smiling stranger, carefree dog, or sunset. LISTEN! Use your ears, to hear warning signs or vehicles approaching, and the talented street musician, or old friend calling from across the street or train platform. I would be happy knowing you took this advice so you never needed my legal advice.
Attorney Laird M. Ozmon