Dealing with Defense Team: Insurers, Defense Counsel and Impartial Medical Experts

• Author: Michael J. Morse
• Pages: 441-510

CHAPTER 8

Dealing with Defense Team:

Insurers, Defense Counsel and

Impartial Medical Experts

I. Valuing the Case

A. Introduction

§ 8:10 Elements of Recovery

§ 8:20 Chart: Itemizing Damages

§ 8:30 Checklist

B. Economic Loss

§ 8:40 Overview

§ 8:50 Medical Expenses

§ 8:60 Lost Earnings/Earning Capacity

C. Non-Economic Loss

§ 8:70 Overview

§ 8:80 Types of Pain and Suffering

§ 8:90 Measuring Pain and Suffering

II. The Adjuster

A. Introduction

1. Tactics

§ 8:100 Litigation vs. Claims Adjustment

§ 8:110 Experienced vs. Inexperienced Adjusters

§ 8:120 Tips for Dealing with Adjusters

§ 8:120.1 Form: Letter to Adjuster re Low Impact Injuries

§ 8:130 Checklist for Dealing with Adjusters

2. Role of Case Reserves

§ 8:140 Introduction

§ 8:150 Estimating Case Reserves

B. The Claim

1. Preparing Medical Support

§ 8:160 Treating Physician

§ 8:170 Non-Treating Physicians

§ 8:180 Avoid Unnecessary Special Damages

§ 8:190 Provide Documentary Support

LITIGATING NECK AND BACK INJURIES

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8-2

2. Presenting the Claim

§ 8:200 Introduction

§ 8:210 Demand Letters

§ 8:210.1 Preparing Demand Letter

§ 8:210.2 Anatomy of a Demand Letter

§ 8:210.3 Sample Demand Letter

§ 8:220 Settlement Brochures

§ 8:220.1 Magazine Format

§ 8:220.2 Thematic Format

§ 8:220.3 Sample Cover Letter

§ 8:230 Videos

§ 8:230.1 Day-in-the-Life Video

§ 8:230.2 Settlement Video

3. Special Problems

§ 8:240 Weak Documentation

§ 8:250 Weak Liability

§ 8:260 Damages Exceeding Policy Limits

§ 8:270 Incompetent or Minor Client

C. Settlement

1. Negotiation

§ 8:280 Settlement Mentality

§ 8:290 Dealing With Lowball Offers

§ 8:300 Checklist for Negotiations

2. Closing the Deal

§ 8:310 When to File Suit

§ 8:320 When to Settle

§ 8:330 Checklist

§ 8:331 Enforcing Mediation Agreements and Settlements

§ 8:332 Components of the Mediation/Settlement Document

III. Defense Counsel

A. Introduction

§ 8:340 New Emphasis

§ 8:350 Special Problems

§ 8:351 The Defense Perspective

B. Settlement

1. Introduction

§ 8:360 Settlement vs. Trial

§ 8:370 Negotiating Tactics

§ 8:380 “Reading” Your Opponent

§ 8:381 Sample Mutual Release and Settlement Agreement

2. Structured Settlements

§ 8:390 Introduction

§ 8:400 Advantages and Disadvantages

n DEALING WITH DEFENSE TEAM

8-3

§ 8:410 Selecting the Annuity

§ 8:420 Tax Treatment

§ 8:430 Constructive Receipt

§ 8:440 Explaining Structured Settlements

§ 8:450 Checklist

3. Settlement Fund Management Trust

§ 8:460 Introduction

§ 8:470 Structure

§ 8:480 Associated Risk

§ 8:490 Revocability

§ 8:500 Advantages

4. Tax Strategies

§ 8:510 Introduction

§ 8:520 Inheritance Tax

§ 8:530 Allocating Settlement Funds

§ 8:531 Tax Reporting Requirements for Personal Injury Attorneys

§ 8:540 “Rigging” Settlements

§ 8:541 Avoiding Taxation Problems in Non-Physical Tort Cases

C. Joint Tortfeasors

§ 8:550 Introduction

§ 8:551 Sample Joint Tortfeasor Release

§ 8:560 Comparative Negligence

§ 8:560.1 Types

§ 8:560.2 Strategies

§ 8:570 Joint Tortfeasor Releases

§ 8:580 Mary Carter Agreements

§ 8:590 Effect of Settlement on Co-Defendants

IV. Impartial Medical Experts

§ 8:600 Impartial/Independent/Insurance Medical Experts

§ 8:610 Arranging Examinations

§ 8:610.1 Form: DME Court Order

§ 8:610.2 Form: Letter to Client re DME

§ 8:620 Obtaining Information

§ 8:621 Form: DME Interrogatories

§ 8:630 Providing Information

§ 8:640 Requesting DME Report

§ 8:650 Using DME Bias

§ 8:650.1 Form: Brief in Support of Motion to Compel

Financial Records From DME

§ 8:650.2 Form: Addendum to Deposition Subpoena Duces

Tecum for DME

§ 8:651 Neutralizing the Psychological DME

§ 8.652 Deposing the Psychological DME

§ 8:652.1 Incomplete Records

§ 8:652.2 Testing Methods