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FFP PODCAST: Episode 4 – The Difference Between Litigation & Settlements

Interviewer: You’re listening to the Fine, Farkash & Parlapiano podcast. Today, we have on partner and founder of Fine, Farkash & Parlapiano, Jack Fine. Jack, how are we doing?

Jack: We’re doing great today.

Interviewer: Okay, Jack, I’d like you to follow up on, you know, the differences between litigation and settlements and what type of law firm is maybe more prepared to go to litigation and like to settle cases to kind of move them in and out of the office. Could you expand on that for us, please?

Jack: Sure. You know, it’s hard to generalize as to what a large versus a small law firm can do. There are some large law firms that do a great job with litigating but by and large, the larger law firms want to process the cases, they don’t want to treat the injured parties, the plaintiffs as individuals. It’s a case to be moved, to be done with, to be settled. And there’s something to be said for settlement because not all cases should be litigated.

There’s really two ways to go, two tracks in terms of how a case is handled. In a settlement track, what happens is, there’s an accident, a plaintiff or an injured party would go through the steps that I mentioned earlier. They’d call the police, they’d get an initial assessment medically, they’d take their photographs and they’d hire an attorney. At that point, once the attorney is hired, one way to proceed would be for the attorney to do an investigation, he sends out a letter of representation to the insurance company. He gets the insurance policy and an individual would treat with a doctor until he gets a report from a doctor.

And the reason why you need a final report from a doctor is because under Florida law in auto cases as distinct from other personal injury cases, in auto cases, a doctor needs to say there’s a permanent injury. It could be a chiropractic doctor or a medical doctor. They need to say there’s a permanent injury. If they don’t say there’s permanent injury, you can’t make a claim for your pain and suffering. You can only make a claim for your economic damages, your medical bills, your lost wages. And once the doctor puts it in writing that there’s a permanent injury, the attorney then sends out a demand package to the insurance company, the insurance company responds, they negotiate and they settle the case. If the offer is inadequate, at that point, if the attorney is willing, if the client is willing, you can proceed to litigation.

Now, you can also short circuit the process a little bit and we do that very frequently in our more serious cases by just filing a lawsuit. You don’t have to wait for the doctor to write a final report, it’s obvious there’s going to be a permanent injury. You can get the ball rolling by filing a lawsuit. A lawsuit is drafted by the attorney, which means he writes it up. He files it in the courthouse. He pays a small fee, a moderate fee actually, it’s $400 or $500 to file a lawsuit and you serve it on the other party.

At that point, if the other party is represented by an insurance company, which happens in 99.9% of the cases, the lawyer retained by the insurance company answers the lawsuit, denies everything, even when it’s a perfectly clear rear-end collision, DUI situation, they’ll still deny it because that’s just the way they do it and they will issue written paperwork. We will enter the discovery process, we’ll have to answer written questions which are called interrogatories, we will have to produce documents and eventually the deposition of the plaintiff and other witnesses including the treating physicians, and the defendant will be taken.

After all the discovery process is done, there will be a mediation typically, which is a settlement conference. A trial date will be set and if the case doesn’t settle at mediation, there will be a trial. We have found in our cases that by litigating, by filing the lawsuit, by being aggressive, we double or triple or quadruple the amount of money that is coming to our client. So in hiring a lawyer, it’s really important to ask the lawyer if they have actually tried to verdict similar personal injury cases with similar injuries to those experienced by the injured party, by the plaintiff, by the individual who’s seeking legal representation. Because the lawyer who tries cases who puts fear into the hearts and minds of the insurance company that this may go all the way, that they’re serious about it, they’re going to get the best result for the client. And that’s just the way it is.