The goal of every plaintiff’s attorney is to obtain total compensation for the client and the case’s full value. Very few attorneys prefer to try a case before a jury rather than settle the claim before trial. A good settlement is almost always better than a good verdict. A settlement eliminates all of the uncertainties associated with litigation. The attorney and client retain some control over the case’s outcome as long as settlement negotiations continue. As a general rule, the Defendant and the insurance carrier would also prefer to settle the case. Thus, maximizing the opportunities for settlement as a case progresses is essential. One of those opportunities is how the Plaintiff’s claim is submitted to the Defendant and insurance carrier.
The Purpose of a Settlement Brochure
1. Present The Plaintiff’s Case
There are three primary goals when creating a settlement brochure in a brain injury case. First, the Plaintiff’s case should be presented in the best possible light and maximize the potential recovery. Second, to provide the Defendant or insurance carrier with the information they need to justify the payment that the Plaintiff believes is appropriate. Too often, the Plaintiff’s attorneys concentrate on the first goal and ignore the second consideration altogether.
Providing the information necessary to present the strengths of the Plaintiff’s case does not necessarily provide the Defendant with the information it needs to evaluate the claim or the information an adjuster needs to document their file. The authority of every claims adjuster is limited in some way. At some point, the adjuster must explain why they handled the claim as they did. They must be able to justify whatever payment they make to the Plaintiff. This is particularly true for independent adjusters.
2. Provide Enough Information To Evaluate The Claim
In evaluating a brain injury claim, the Defendant must not only consider the strength of the Plaintiff’s evidence- it must also be able to evaluate any possible defenses. Therefore, it is essential to provide enough information about Plaintiff to enable Defendant to evaluate the claim entirely.
For example, in mild to moderate brain injury cases involving brief or no loss of consciousness, claims adjusters and defense attorneys are being taught to carefully review all of the Plaintiff’s past medical records to look for symptoms of a post-concussive syndrome that were present before the injury. They are also learning to look for other psycho-social stressors that may account for depression or impaired work performance. The carrier will not offer a significant sum in settlement of such a claim until they have satisfied that there is no alternative explanation for the Plaintiff’s symptoms. Therefore, it is a good idea to include past medical and employment records in the settlement brochure, even if they are not necessary to prove the Plaintiff’s claim.
3. Demonstrate Capability of The Plaintiff’s Attorney
The third purpose of a settlement brochure is to demonstrate to the Defendant or carrier that the Plaintiff’s attorney has the ability, knowledge, and competence to try a brain injury case before a jury properly. One factor insurance carriers consider when evaluating a claim is the track record of the Plaintiff’s counsel in similar cases. The carrier will evaluate the plaintiff’s attorney while they evaluate the case. The settlement brochure is often the first opportunity the carrier will have to assess the performance of the Plaintiff’s attorney.
Types of Settlement Brochures
There are three general types of settlement brochures. The type of brochure used in any particular case depends on several factors.
1. Written Brochure
The most common method of presenting a claim is through a written brochure. This has been the traditional method of presenting claims to insurance carriers. Many attorneys prefer a “demand letter” format in which the case and damages are summarized in a letter to the insurance adjuster.
2. Video Brochure
The second type is the video brochure. Video settlement brochures began as an extension of traditional “day in the life” films. Attorneys began to add case and demand summaries to the day in the life film after seeing the tremendous impact that day in the life film can have in a case. Gradually, these extended days in the life films evolved into video brochures. Now, it is not uncommon for a case to be presented in a video format, even when day-in-the-life segments are not included.
3. Multimedia Brochure
The third type of settlement brochure is a multimedia brochure. A new trend is now emerging as technology and computers continue to improve at a rapid pace. That is the use of multi-media brochures, including text, images, video clips, and sound. They offer several advantages over other forms: first, all of the information about a case can be presented in one compact package that can easily be reproduced or edited. Second, unlike video brochures, a multimedia brochure allows the claims representative to review the material at their own pace and concentrate on the areas they are most interested in. Third, it preserves the visual impact of video brochures while offering more information and flexibility in how the information is structured.
The disadvantage of multimedia is that there are still many people who are uncomfortable with computers and thus may need help accessing the information. It is also important to ensure the carrier has the software and hardware necessary to view the completed brochure. Software compatibility is becoming less of a problem as more and more programs can view documents prepared in other formats.
The format best suited for any particular case depends on several factors. The cost will be the primary factor in many cases. A comprehensive video settlement brochure can easily cost $8-10,000 to produce. A video brochure should be strongly considered if the Plaintiff has visible injuries or if their injuries have left them with obvious impairments. Conversely, if the Plaintiff’s injuries are not readily apparent, a video brochure that only includes a brief interview with the Plaintiff may not give an accurate indication of their impairments in a mild brain injury case. Therefore, care must be taken to ensure that the finished product accurately portrays the Plaintiff’s current condition and level of functioning.
In cases where liability is an issue, video brochures can be very helpful in determining claims. Video footage of the accident scene or computer animations of how the accident occurred can conclusively establish the Defendant’s negligence. It can also be used to refute the Defendant’s contentions about how the accident occurred.
Content a Settlement Brochure Needs
Because claims of mild brain injury have become more common in recent years, they have come under much closer scrutiny by liability insurance carriers. In many instances, insurers treat claims of mild brain injury with the same level of skepticism that they treat soft tissue injury claims. “If you can’t see or show it by an objective test, it does not exist.” The attorney must be prepared to clearly establish that the Plaintiff has suffered a physical injury to the brain that is real and that it is not simply a collection of subjective complaints that exist only in the mind of the Plaintiff.
The settlement brochure in whatever form should compare and contrast the client’s level of functioning before and after the injury. It should include:
- Accident reports.
- Ambulance call report.
- Initial ER records
- Complete hospital records and follow up notes from any physicians who have treated the client.
- Reports of any abnormal diagnostic tests including MRIs, CT scans, EEGs, etc.
- A summary of the client’s medical treatment.
- The identity of all lay witnesses and a summary of their testimony regarding the clients behavior.
- The Curriculum Vitae and a brief summary of the experience of the diagnosing physician. If applicable, information about the person who performed the vocational assessment.
- Photographs of any obvious signs of trauma, such as lacerations, bruising or swelling.
- Documentation of any lost earnings or lost earning capacity.
- Analysis of lost future earning capacity.
- Grade transcripts, standardized test results from any educational institutions attended by the client both before and after the injury.
- Military service records.
- Employee records or personnel files.
- Information that compares and contrasts the client’s medical condition, cognitive functioning and performance in life, before and after injury.
- A credible settlement demand.
- Photographs of vehicles involved or accident scene.
- Curriculum Vitae and summary of the anticipated testimony of expert witnesses if the case is not settled.
- Curriculum Vitae and list of results obtained in other similar cases by Plaintiff’s counsel.
- “Day in the Life” film.
- Abstracts or other medical literature about acquired brain injury.
Additional Materials
While brain injury claims have become more common, there are still very few adjusters who fully understand this complex injury. Therefore, I typically include a series of articles I have collected over the years about the diagnosis and effects of brain injury so that the adjuster can conduct their own “research” to verify that the symptoms the Plaintiff is experiencing result from a brain injury.
I also include portions of selected jury instructions, particularly the damage instructions. I use the jury instructions as an outline to summarize each element of damages sustained by the client. It is very effective to summarize each element of damage in the brochure separately. Keep in mind that a brain injury will affect the Plaintiff differently as they age and move through various life stages. This is particularly true for persons who suffer brain injury at a young age. Therefore, the amount of the Plaintiff’s general damages will vary as they age. One effective technique for summarizing general damages in a brain injury case is to use a per diem amount for general damages. That is how the Plaintiff must live with their injury–hour by hour, day by day, and year by year. The daily or hourly amount changes based on the impact the injury would have on the Plaintiff at various life stages.
Conclusion
Settlement brochures provide a terrific opportunity to demonstrate the attorney’s knowledge, expertise, and preparation to the insurance carrier while at the same time maximizing the potential recovery in the case. Many attorneys believe the best way to settle a claim is to prepare for trial. A well-prepared brochure that carefully documents the Plaintiff’s injuries will not only aid in settlement but will provide a solid foundation for a trial notebook if the case is not settled.
