by Stuart A. Carpey
Plaintiffs’ attorneys can make all sorts of mistakes in presenting the best evidence to the insurance adjuster in a personal injury case. Some of my colleagues have asked me to write about what some of the common errors attorneys make. This is an ongoing series on the issue. Here are just a few mistakes that I have seen plaintiffs attorneys make that can be detrimental to their clients’ cases.
Long specials letters that do not provide meaningful information
The specials package is the collection of medical records and wage loss items that form the basis of the injured plaintiff’s damage claim. Insurance adjusters evaluate specials packages for a living, and base their negotiations on the items received in the specials package.
Over the years, I’ve seen, and utilized myself, all sorts of specials letters. Short letter, long letters, letters designed to be fed into Colossus and other computer driven case evaluation systems. I’ve stuck to two basic forms. One is a relatively short letter designed to get the basic information on my client’s claim to the adjuster and one that is quite a bit longer. Both are formatted in my office so that, for the most part, my client specials go out in one of these two forms.
The shorter form provides the basic information on my client, his or her current medical and injury recovery status, an itemization of lost earnings a listing of the medical providers, treatment periods and medically billings, and lien information, (workers compensation lien, Medicare lien, DPW Iien, healthcare lien, etc). I use this shorter letter when I have shared information with the opposing insurance adjuster already and have spoken to the adjuster and he or she is familiar with the claim.
The longer form can be 4-5 pages in length and goes into quite a bit more detail on my client’s treatment, medical testing and procedures as well as an explanation of the surgery performed on my client, if any. A thorough evaluation of my client’s wage loss and lost earning capacity is also discussed, as is the status of any liens involved in the case. Liability, even if admitted, is discussed. If liability is disputed, I generally have proofs to establish my client’s right to his or her claim showing that I will win on liability, and I share them at this point with the adjuster. Diagrams, photos and other demonstrative evidence is made part of the letter. I also attach witness statements and any other proofs that help my client’s case. In a sense, I am providing the discoverable documentation that I would otherwise have to provide once litigation is commenced.
It is by and large a judgment call on my part as to which letter to use. It is dependent on the status of the case, timing of the settlement negotiations in terms of how close we are to having to file suit, and a host of other factors. The goal in both types of letters, however, is to provide meaningful and useful information to the other side so that the adjuster assigned to the case can evaluate the claim and respond to any settlement demands that I have made. Fluff and hyperbole is a complete waste and will ultimately damage my client’s case and my negotiation position. All specials letters should be organized, key points in medical records should be flagged and highlighted for easy access and viewing, with sections of the letter separated for easy reading.
Sending CD’s with information in a format that is not compatible with the insurance company’s system or that the adjuster cannot otherwise open
A plaintiff’s attorney may have very good intentions of sending medical records, bills, wage loss documentation and photos to an adjuster in CD format; perhaps as an addendum to a previously forwarded specials letter. But if it can’t be read by the adjuster it’s useless.