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April 23, 2024

How to negotiate a Car Accident Case in New York

These are some of the excerpts from my Book. My Book Available On: Amazon | Google Play | Barnes and Noble

General Disclaimer:

This is a basic outline of how the settlement negotiations are performed. There are thousands of different variables as well as possible steps and factors that go into different types of cases. Many details will be missing or vague. If you have a specific question regarding a particular case, it is highly advisable to discuss that matter with an actual attorney. This is not a rule book or meant as legal advice or instruction manual—just a basic outline.

The Negotiation Process

         This is what you all came to see. How I settle cases. We will bring every core elements I have explained together. These core elements are:

  1. Dealing with clients
  2. Understanding Basic Human Behavior and when someone lies
  3. Valuating a Case
  4. Basic Law Interpretation and Statutes
  5. Establishing Claims
  6. Bio-mechanical and Degenerative Findings Arguments
  7. Arbitrations and Mediations
  8. Injuries and Surgical Procedures
  9. Litigation Process

Here is the secret. It’s not rocket science. Any trained circus monkey can learn to settle a case. In New York State, in particular, you don’t need any kind of formal education, certification, or licensing. What makes me somewhat special is that most settlement negotiators don’t understand the litigation process, and they mostly settle either only soft tissue cases or cases where the settlement value is obvious. What it really comes down to is knowing important stuff such as:

· Knowing or understanding the basic theories of calculating the value of the case and always overshoot demands at least by 5x times. Always keep your demands high!

· Understanding the litigation process and how the courts work: Without these fundamentals, you have no basic knowledge on how to push a case forward.

· Think outside of the box and be dynamic! I can’t even begin to share how many cases I have settled where there was either a huge liability or causality issue where I have managed to figure out a way to overcome those issues.

· Always be on top of your game! Despite popular belief, claims negotiators do not lie. At least I don’t. However, our major strength is to expose the truth or the facts of the case and an ability to push your narrative. I may not lie, but I will also not volunteer information unless it’s beneficial for our client’s case either. Not to mention the determination to fight for our clients.

· Patience is a virtue! Never jump the gun on a case unless there are major issues such as SJM’s, deadlines, etc. I have had quite a few cases where I blatantly didn’t even return back the examiner’s calls for months or even years because I knew it was a waste of time! I either got lowballed or got not offers. Eventually, they would all almost miraculously call and offer something realistic. Example: I had one case where there was a 60-year-old male with two herniation and a moderate impact. No issues with liability. Initially, it was denied on threshold. I didn’t even bother calling the examiner. Nine months later, a new examiner got on file and started offering some money. After many days of milking the examiner, the offer went up to $20k. Tip: They want to get rid of cases as much as you do if not more.

· Statute of Limitations is your friend! This one should technically fall under the patience point. I have had MANY cases where the insurance company denied a claim based on either threshold or liability and in many cases where it wasn’t worth litigating. One of my tricks is to explain to the client the situation and issues with the case. If the client needs to treat, let them treat. Do due diligence on the case. If I get a case and get a denial, I just let it sit there. No point in calling the carrier every few months. I let it sit there until the end of SOL. 6-8 months before the SOL runs out, I would call the examiner and plead with them to offer some kind of a decent offer I could feel confident coming to my client with. Make it clear that SOL is running out, and neither one of us wants to spend money and years litigating “this” case. Often, the examiner will make a business decision and offer money on a case in fear of spending thousands of dollars and years of their time litigating a bullshit case.

· Reverse psychology ALWAYS works with examiners: When I negotiate a case with them, I get so good at it, where I almost always convince the examiner I’m doing THEM a favor by settling the case. Keep in mind… They want to settle the case as much as you do!

· Understanding how to read and interpret the law: In a NYS case, you must know and be able to interpret:

1.      VTL (Vehicle Traffic Laws)

2.      CPLR (Civil Practice Law & Rules)

3.      New York State Serious Injury Laws

4.      Appellate Decisions. More specifically, how appeals courts see threshold, Bio-Mechanical Arguments, and Liability

· Understanding and having an ability to argue liability issues: This requires an over-active imagination. Example: Understanding how to thoroughly read the police report. That includes the citations, points of impact, location, direction, and even any weather or road condition factors. I also use Google Maps as a reference to confirm which directions the street goes, any control signs, and lights.

· Understanding pathophysiology of various injuries, surgical procedures, and testing such as EMGs, as well as discerning the difference between Objective and Subjective complaints. To be more specific, orthopedic and emergency procedures. This includes detailed anatomy, surgery procedures as well as the residual impact of injuries and medical procedures.

· Thorough understanding of anatomy and knowing how to read and interpret the MRI reports, surgical procedures, and objective tests such as EMG’s

· Be a borderline Sadist: I’m not a sadist, but I’m a professional internet troll. I love to start a controversial topic for discussion, step back, and watch people fight over the topic. This skill comes in handy because I use this skill with examiners when I have multiple defendants. I make them fight over liability and just step back. Sometimes I either interject or throw hints at them.

· How each insurance carrier operates such as Litigation and Negotiation Procedures:

1.      How does the particular carrier respond to a case that has been filed?

2.      What is the process of getting authority to settle?

3.      Does the carrier arbitrate or medicate cases?

4.      How is the settlement package received and processed?

5.      How to reach certain examiners and supervisors.

· Do not trust ANYONE! That includes the examiner, your client, or even your own instinct! Always get every offer in writing and never trust someone else’s notes! I can’t even begin to tell you guys how many times I took over a file and some genius put in notes that there was this offer, but when I finally started discussing the case with the examiner, there was either no offer or a completely different offer!

Best tools for the job to make you more effective:

Excel Spreadsheets: Regardless of how effective or advanced your Case Management System is, nothing beats a properly designed Excel sheet that lays out all of your cases to give you a better situational awareness of what is going on. What I like to do is enter all my cases or preferably run a report of all my cases if the case management system has that option and do a monthly audit of their status. I only use few specific lines of data:

I also like to color-code each case. Red if the case is denied on Threshold and/or Liability, green if there is an offer. Keep it white if the client is still treating and blue if the client has a serious injury or surgery. I generally don’t put any litigation details because that’s not the purpose of the excel sheet. The main purpose is to give me a better situational awareness of the negotiation process.

Calendar: The calendar is probably my most important tool. Yes… Everyone uses a calendar to maintain deadlines, keep follow-up appointments, and such, but I take it to an extra level. Specifically use it to troll examiners. I will get to that later.

All this knowledge doesn’t come overnight and only comes through extensive instruction, research, and OJT (On the Job Training). But let’s say, for argument’s sake, you learned all this practical knowledge overnight and are ready to start negotiating your first soft tissue case. Because your first cases will always be soft tissue. At least until the attorney will start believing in your settlement outcomes. The first step is:

1) Always confirm you have complete RELATED medical records:

That can be done by calling the client and confirming all the treating physicians that the client treated for. I generally don’t go in-depth about their treatment because, for the most part, they have no clue what they did or when, but I do confirm with the treating physicians on all the treatment dates, tests, and any procedures that were done.

2) Request Complete Medical Records to Insurance Carriers:

This part is self-explanatory. Fill out a few HIPAA forms, pay the invoice, and receive the medical records. Once you have confirmed that you have received all the medical records, you send it to the examiner that is assigned to the file. That’s Step 4, and we will get to that later.

3) Write up the file

After all medical records are received, this is where all the hard work really begins. It’s generally not every law firm’s policy to do this, but I like to be prepared when the insurance companies call for possible settlement. Instead of fumbling around through notes and medical records, I create a 1 or 2 pages max cheat sheet that lays everything out. Everything from liability to injuries to policy limits. I would generate a Word Document and write out all the important information:

LIABILITY: This is where I would put the theory of liability

LIABILITY CARRIERS: This is where I would put all liability insurance company details

         Carrier Name:

         Examiner Contact Info:

         Claim #:

         % of Liability:

POSSIBLE Under-Insured and Any Possible Excess Policies: Sometimes you get lucky, and there is an excess policy to go after. Always important to do due diligence to confirm all available Liability and Excess policies.

PD Value: Property Damage Value helps me determine the extent of the impact. Rule of thumb is, if the PD value is less than $2,000, the carriers will consider the case as a minimal impact case.       

ER: Date of Admission

INITIAL COMPLAINTS: This is where you put general parts, which the client confirmed that initially hurt.

MRI Results: MRI Results come in two parts. Detailed Interpretations and Impressions. I generally put the shortened version of impressions.








EMG Testing: EMG (Electromyography) is a nerve test that measures electric activity when it responds to electric stimulation. It helps detect nerve abnormality or damage. For the most part, the most common injury the test will show is called Radiculitis. Radiculitis is pain that radiates along the nerve, which is caused by impingement or inflammation.

Operative Reports: Most attorneys would argue that Operative Reports should be on top of the list, but I prefer to keep it on the bottom because just because someone had surgery doesn’t automatically mean that they will get a million dollars. I like to read through initial complaints, objective testing, treatment, and severity of impact to see what leads to the surgery. More specifically, find the causal agent. After all, I still must prove that the injury is the direct result of the car accident.

Liens: Liens is when the client owes money to someone. Whether it’s the treating physician, Medicaid/Medicare, Cash Advance, Workers Compensation, and so forth. You can’t settle a case until all liens are accounted for and resolved (Paid, Reduced, or Eliminated)!

Step 4.) Send complete medical records to Examiners:

Note: Settlement negotiators usually do not send Letter of Representation to insurance carriers. This step is based on the assumption that a Liability Claim has already been established, an examiner is assigned, and you know what the policy limits are.

         I argue about this step with attorneys all the time. For some strange reason, many firms have a specific extensive process on the “proper” way to send medical records.

         Most major firms want you to do a complete writeup of the file on a cover letter with all the medical records. Theory of Liability, Injuries, Treatment, Demands, etc. It’s a complete waste of time. Examiners don’t even read most of that junk, and worst of all, if you laid out all your cards, especially with the demand, you would have very little to use during the negotiation process. On top of that, if you make a really high demand, the examiner may not even call you back. All my cover letters, that’s even if I send one, states nothing more than:

“Attached are complete medical records for your review for possible settlement. After you have reviewed the file, kindly get back to me so that we could resolve the matter amicably.”

Aside from the cover letters, most firms would want you to organize the settlement package in a very specific way. ER records go on top, surgical report goes on the bottom or sometimes visa-versa, depending on what their procedure is, MRI’s go next, followed by any testing and then followed by positive IME’s. Physical therapy records and any unpaid medical bills go on the bottom. More specifically, any liens. Plus, anything else that may be pertinent to the case. Personally, I think it’s all a waste of time, and I don’t do any of that. I like to annoy examiners and deliberately mix everything up. The reason being that I like to annoy them and bother them weeks after on whether they reviewed the file or not for possible settlement even though I know in most cases they haven’t because they’re still trying to organize everything. It puts more pressure on them to speed up, and I usually hope that they will miss something in their writeup and put more delays on thoroughly evaluating the file, and if they don’t writeup a file in time, the supervisors will be on their asses and put pressure on them as well. But I will get to that part later.

Note: Especially if it’s a motor vehicle accident, I generally send medical records to ALL Parties. Even though they may not be liable because a lot of examiners may offer some kind of nescience value settlement offer, especially if the case is in litigation.

Step 5.) The settlement negotiations begin

Building a Relationship

Building a positive and productive relationship with examiners is crucial. I can’t even begin to emphasize the importance of building a good relationship with an examiner. Not so much with an attorney because they never have any authority to settle, at least for the most part, but an examiner is someone you will be working with on a single case for months and even years. With many examiners, I have a really tight relationship. I even know the kids’ names and birthdays of some of them.

Expectations Vs. Reality

For the most part, it usually takes an examiner no more than 30 days to evaluate the file for possible settlement. At least enough to get the ball rolling because, in reality, there is no specific time frame on how long it takes to settle a case or to even get that initial offer. A case can be settled in as fast as few weeks to as long as three to five years if it’s in litigation. Depending on the carrier and complexity of the case. Examiners may also be super busy and may not always be the first ones to call unless it’s an easy case to settle. If the injuries and/or liability are clear, and the injuries may be more severe than what the policy limits are, the examiner may do a quick tender instead of needlessly fight it as well. If the examiner is familiar with you and knows you will not make any outrageous demands, they may try to prioritize to settle with you as well. Unfortunately, sometimes you may end up with an examiner, who you have to call weekly for months to get them to come back even with an initial offer.  And guess who’s at fault when a case doesn’t settle? You are. Lol. Because every client wants to settle their damn case YESTERDAY!

The starting point! Let the Games Begin!

         Once I submit medical records to the examiner, the first thing I do is put the case on the calendar two weeks out to call for status. More Specifically, I like to schedule my calls Mondays through Thursdays between 9:30 am until 12 pm. I know very well that two weeks isn’t enough time to review all the medical records, especially when I send them the settlement package in a mess, but it initiates a situation where I put them under a lot of pressure by annoying the crap out of them.

For most carriers, examiners have a policy that they are required to call you back within two hours. If they don’t, you can contact their supervisor to complain, and believe me, I do! It creates a funny situation where once they tell me that they haven’t had a chance to review the file, I tell them that it’s “ok,” and I will just call back later in two weeks and move up the settlement call two weeks out on the same day. I’ll keep calling every two weeks until the examiner either gives me an initial offer or denial if that is the situation. If the examiner starts to complain about why I’m calling them so frequently, I will blame it on my boss that he’s the one making me do it, and if I don’t, I’ll get in trouble. I’ll sometimes even give him a sob story on how much I really hate this job.

Receiving Initial Offer!

         For the most part, most initial offers are low-ball offers. Examiners know that these offers will be rejected, but the secret of getting a realistic offer is figuring out what the examiner’s maximum authority is. What the insurance companies do is to have these weekly circle jerk meetings where they put authority on each file. There are two problems with this entire stupid process:

1.      If the authority is too low of a value because the supervisor overlooked or underestimated a case value, it is very difficult for the settlement negotiator to convince the examiner to come back to the supervisor to get more authority. Just think about it. Most supervisors are assholes, stupid, or arrogant, just like most of my bosses are, and I’m stuck in between three assholes trying to resolve the matter. The third asshole is the client.

2.      If the supervisor refuses to give more authority, the case needlessly winds up in litigation. Because of stupid insurance carriers supervisors, the entire court system is clogged up with stupid soft tissue cases that should have or could have been settled.

On the initial offer, the conversation may go like this:

Examiner: Hello, I reviewed the file, and here are my concerns. The liability is an issue (some carriers may completely deny liability even if your client is only partially at fault), as well as injuries. We consider this to be a minimal impact case, so that means that the injury, which your client is claiming, is unrelated, but we are willing to offer you $x.

Me: Offer seems ridiculously low. As far as liability is concerned, why are you denying the case when our client is only minimally at fault? As far as the impact is concerned, we both know that it’s a moot argument. Ever heard of Man Vs. 1000 argument in court? By law, I am required to take this offer to my client, and I know what my client is going to say. The client will laugh at me and outright reject the offer. While I take the offer to my client, I highly suggest you re-evaluate the file and come back with a more reasonable offer.

Examiner: How about you talk to your client first (this is when they are stalling…), and we will take it from there.

Me: Very well. But I still need the offer in writing because our firm has a policy to present all offers in writing to mitigate any confusion.

I never jump the gun… I try to be as methodical is I possibly can be. If the offer is too little, I may stop calling the examiner and make the examiner call me first. In fact, I may even ignore the examiner for months if I know that the examiner will keep low-balling offers. But if the examiner keeps low-balling the offer, I may just decide to file the case. The sooner, the better, because I don’t like any unnecessary delays. For the most part, I never threaten or make any promises that I will file the case either. I generally like to surprise them. To go even further with that, when they call and complain, which for the most part they do, I pretend to act surprised as well and blame it on my boss’ decision. That way, the examiners will still maintain a good relationship with me.

Filing a Lawsuit – The Basic Checklist.

I have a basic checklist on whether I should file a case to mitigate any possible risks or bombshells arising during the discovery process or any other issues. Especially the Depositions.


•        What county does the plaintiff live? (Will use NYC as an example since this is where I live and work)

•        Bronx and Kings are one of the most unorganized Supreme Court counties in NYS. Bronx County is an utter nightmare. If you have to take a case to trial in either county, you will be waiting 5 to 10 years.

•        Is the client a good witness? At some point, your client would have to testify, and these important factors could be an issue if there are significant flaws in the case, such as liability or threshold issues:

a.) Education: Education goes a long way in testimony. If the client is not articulate in their story, and the case must go to trial, the jury will not like them. Especially if it’s in a conservative county like Nassau County. I have witnessed a lot of cases with terrible verdict results because the Nassau County jurors do not like “Street People,” which is an irony in itself. Many of them are well educated and successful but, for the most part, are under alcohol or drug substance abuse.

b.) Employment: Money is usually a motivating factor to push further with a case. Jurors see employment to judge the plaintiff’s motivation. If the plaintiff is employed and has a career, chances are it’s not only about the money. If the plaintiff has no job and is living in their parents’ basement playing video games, they will assume it’s about the money and make a judgment call on whether a person like that really needs all that money.

c.) Criminal History: This shouldn’t play any role in a case. The plaintiff can be a serial killer, but if an injury is caused by someone’s negligence, by law, they deserve equal rights and protections.

d.) Mental Health Issues: I have mentioned mental health issues numerous times throughout the book. But serious mental health issues are rampant in New York. People are hyper-aggressive, paranoid, delusional, detached from objective reality, and live in their own world. Projection is another form of psychological, mental health issue. They would create a situation or exhibit bad behavior and then claim that you committed that action. Or say something and claim that you said it. People like that are always “fun” to depose. Ideally, it’s not a good idea to litigate a case and face depositions if your client exhibits any kind of serious mental health issues. On the other hand, if the liability and the injuries are there, just because your client is crazy doesn’t mean that they are not entitled to any type of compensation for pain and suffering. Therefore, we have the law to provide equal protection.

Does the client have any serious injuries? More importantly, does the client pierce threshold?

I have a huge problem with this issue. I honestly do, but I do not know how I feel about filing a soft tissue case. Especially if it’s a case where it’s on the borderline between piercing or not piercing threshold. For the most part, most of my bosses file cases whether the case does pierce or doesn’t pierce threshold, and I understand where they are coming from. They want the carriers to take them more seriously if they show that they are willing to litigate a case until the end of time. So, the ultimate question is… what are the chances of us surviving a threshold motion?

Were there any prior, subsequent accidents or pre-existing conditions?

Most clients lie. They will lie about being involved in any prior or subsequent accident. By the time the negotiation process kicks in, the examiner most likely ran an ISO Search to see if there were any prior or subsequent accidents. Some examiners are assholes, and they hide this information from you and don’t bring it up until deposition. This creates a huge clusterfuck, as you can imagine. Especially with relevant pre-existing conditions such as arthritis or scoliosis. The main motivating factor for clients lying is money, of course.

What are the Policy Limits?

Policy Limits are important. For the most part, it’s a terrible idea to litigate a case when the policy limits are only $25,000 in New York because between all the hard work litigating the case, filing fees, and the time spent on the case, both the firm and the client will see very little.  But if the carrier significantly low-balls a case, we have no choice.

What are the Liability Issues?

For the most part, liability is usually rarely an issue because, for the most part, it’s not hard to raise question of fact. Even on rear-end cases. All we need to do is prove that the defendant is at least 1% at fault.

The actual filing of a lawsuit!

Once I have determined that the case is worthy enough for getting filed and then file the case, I immediately send an eFiled courtesy copy of the summons and complaint to the examiner. Once that’s done, three things can happen:

1)      The carrier may request a larger and hopefully more realistic offer

2)      The case may get re-assigned to a more senior examiner, who has a much bigger authority to settle

3)      They can get pissed off and rescind the offer. But that’s rare.

This is the part that confuses me the most. If the examiners know that a firm will file and litigate a case until doomsday, why the hell do they not make a realistic offer since day one? For the most part, once you file a case, the insurance company will want to complete the discovery process, which means that they will want all authorization for medical records, film reviews, peer reviews, depositions, and more IME’s. The entire process will take at least a year or two.

Re-negotiating the case one litigation step at a time:

Throughout the litigation process, I still try to settle the case at every stage of the litigation process. I still call the examiners on a regular basis, but I extend the calls to every 30 days or, in some cases, until or before we reach each next step of the litigation process. For the most part, examiners want to complete the discovery process. It would be a waste of my time to call every two weeks. But when I do get someone on the phone, I would generally try to ask a basic question or bring up an important point about the case just to initiate some sort of a response that can lead somewhere positive in the negotiation process. This is when I try to keep the communication channels open and, at the very least, nickel and dime the case to ensure that any offer that was made is still on the table. Not so much as to just get more money. I generally do not threaten with each step such as “we’ll depose your defendant” either but do discuss procedural issues as well as throw in random requests for more money to keep the case moving in a positive direction.

         In the event the case doesn’t move forward in a positive direction, meaning they don’t make significant or realistic offers, I just wait for the next step in the litigation process until I begin to start asking for more money. Throughout the negotiation process and litigation process, I also try to find new information, facts, better interpretation of the injuries, and etiology of the injuries to bring up in every new conversation. I generally try to find every excuse possible to call an examiner. Even if it’s a trivial issue. If I find new facts I can argue every other day, I will call every other day. I don’t just make shallow requests for money without any basis like most attorneys do. This is actually one of my secrets on how I get more money on cases than most aside from figuring out the top-dollar of the examiner’s maximum authority and tapping into their reserves. That never gets anywhere. An examiner will think that you’re not only annoying but also stupid, especially when you get a tantrum on the phone. Negotiation is an art form of sort. You can’t show any sign of emotion when negotiating a case. It shows poor mental control. If I could compare myself to any character on TV when I negotiate a case, I would compare myself to Spock from Star Trek. Focused, to the point, no exposure of any verbal emotion but yet finding that fine balance of sounding human.

If the carrier gives an option for mediation, I would most certainly push for that as early as possible. But for the most part, the carriers do not give that as an option until the discovery is complete. But once it does become an option, I jump on the opportunity because 8 out of 10 times, the case gets resolved for a really good amount. Arbitrations are not so desirable unless the policy limits are no more than $50,000. It’s a hit or miss with arbitrations, regardless of how strong the case is.

Good Cop Vs. Bad Cop:

Playing good cop vs. bad cop helps if you get stuck on settlement negotiations! If I get stuck on a settlement, which I kind of need to settle in a relatively short time for whatever reason, I may ask someone else to call on the case for me. In fact, the person I ask to call, I ask them to play dumb. That person would make a higher demand, claim that I never put any notes into the file, and demand that the negotiations begin from square one. This annoyed the examiners to hell. But they do the same shit to us as well, so who cares!? With large carriers, they switch examiners every six months to a year if the case doesn’t settle. This tactic usually helps because the examiner doesn’t want to beat a dead horse and start from square one and many times, magically comes back with a bigger authority.

The issue with the Note of Issue (Certification for Trial):

In the event the case doesn’t settle throughout the litigation process, filing the Note of Issue gives the negotiation process a boost, and here’s why. Once you file the note of issue, the case goes on the actual trial calendar. Even though it may take another year or two to take the case to trial after filing the Note of Issue, the insurance companies start scrambling more and start taking a closer look into the case because they begin to see that we are taking this case more seriously. The case may also be re-assigned to an actual trial attorney to take the case to trial. Most of the previous litigation cases were most likely handled either by per-diem attorneys who do temp work or other in-house attorneys who just make appearances. The good news for the plaintiff side is that defense attorney firms have no idea what the other hand is doing. They don’t even know at what point the negotiations are. They don’t even call the examiner and advise on whether the case should be settled or not. At least for the most part. This is why when a case reaches this last stage in litigation before the actual jury selection, I usually maintain my demands high because, at this point, we might as well take the case to trial and get a good jury verdict.

At some point, the judges will also try to intervene and may force mediation or a settlement conference pre-trial if it’s a case that should be or could be settled. That’s all fine and dandy, but the defense attorney firms are so over-booked that they usually send a per-diem or an attorney with no clue what the case is about to try to settle it. Not to mention, they have virtually no real authority to even settle. Something that could have been easily fixed by a single call to the examiner, which never happens.

What happens if you’re stuck and the case HAS to get settled?

         I am stuck with this dilemma almost daily, and there are few recourse actions you can take to somehow push a case forward with settlement if the examiner stagnates with an offer or is stuck on denial. But you first need to know and understand one thing about how insurance companies operate. Here are three quick key factors to remember:

1)      Insurance companies are fiduciaries: Their main purpose in life is to protect their insured from any possible personal loss and exposure to personal assets. If an examiner low-balls a case, they are forcing unnecessary exposure of their clients and thus not providing adequate protection—a reminder to the examiner of their contractual obligations help in negotiation process.

2)      Insurance companies are defense attorneys’ clients: Most people do not know this, but insurance companies are the clients of defense attorneys. Defense attorneys’ jobs are to advise their clients (insurance companies) on what to do, defend the policyholder, and settle the case if possible because they don’t want to expose the policyholder.

3)      Acting in bad faith: There will be many instances where the examiner may negotiate based on bad faith. Aside from low-balling, they may try to use tactics, which may seem outrageous even if they are somewhat entitled to certain procedures or demands.

4)      Basic example: Examiner may offer a low-ball offer and be adamant about not offering more money only if we provide authorizations for something that is completely irrelevant to the case.

The fix: Write an extensive bad faith letter explaining in detail how the accident happened (theory of liability), injuries, causality, economic loss, where and why the negotiations went wrong, and why the negotiations were based on bad faith.

If the negotiations go sour, I go balls to the wall with examiners. I try to reach the supervisor and complain, and I also send out a bad faith letter. In conjunction with all that, I will try to sweet-talk the defense attorney to call up the examiner and convince the examiner to settle the case for X amount of dollars. That helps a lot because the defense attorneys, for the most part, are honest with their examiners, and they don’t want to do extra work on a soft tissue case, which most cases are in litigation. Essentially, I try to circumvent the examiner from every angle. In many cases, it may create a circle jerk between the examiner, supervisor, the defense attorney, but that’s fine. What I like to do is initiate some kind of a serious discussion, step back and let them fight over it. This brings me to my next point and one of my favorite things to do because I find this situation extremely funny.

Multi-Car Pile Ups

Establishing who is at fault on a multi-car pileup case can be extremely difficult. The key may arise based on how many impacts the client felt. If the client felt only one impact, chances are, it’s mostly the last vehicle in the chain that caused the accident. If the client felt two impacts, chances are it’s the vehicle either directly behind them or closely after the vehicle behind them. In situations like this, I send settlement packages to ALL the vehicles, and through deductive logical reasoning, I find the vehicle that is LEAST at fault and come up with a ridiculous liability theory and put the complete blame on the vehicle that is least at fault. This creates confusion and a trickledown effect. I would generally bother only that examiner for the largest portion of settlement, and that forces that examiner to start fighting with other examiners to fork out more money. Remember, all I need is 1% liability, and the examiners know this. In effect, two things happen. The examiner does the work for me by convincing other examiners to fork out more money because I don’t have to make a hundred calls a day to all these examiners, and I get a contribution from other vehicles involved. I once settled a case for $40,000 on a two bulge case on a six car pileup case using this tactic.

Negotiating Soft Tissue Cases:

         Negotiating soft tissue or cases that have barely any injuries is probably the hardest thing to settle, but here is a fun fact. 80% of all personal injury cases for most firms are soft tissue cases. These are the bread and butter cases for most firms. There is very little to go after or what I like to affectionally call “to bite on.” But at the end of the day, the only things you can possibly use to argue are:

–        Medical proof that shows significant limitations, such as Range of Motion testing.

–        Note: Some carriers are funny with this. Some may require manual, and some may require computerized range of motion testing.

–        Economic loss such as lost wages that last more than 90 days

–        Positive IME’s if by some miracle you get positive IME’s on a soft tissue case. That would be like winning the Lotto.

–        Significant impact, where the photos show significant dents or more in the vehicles.

Negotiating ICO (Infant Compromise Cases):

         I love ICO Cases. Infant compromise cases yield the best results because the judge is involved in making sure that the offer is fair and reasonable. With ICO cases, I always demand much higher because both I and the examiner or the defense attorney with whom I’m negotiating the case know that if they offer too little, the judge may not approve the settlement. I always tell the examiners the same thing:

“Our client’s parent(s) is not interested in settling. They are committed to litigating this case because the client won’t see the money until the child turns 18 anyways.”

Examiners usually fork out more money after they realize that the client is committed.

Pro Tip: If the client is at least around the age of 16, it may be best to wait until the client turns 18 to save time and money with the ICO Process.

Municipal cases – Specifically NYC and NYC transit cases

If I ever hated any type of case, municipal cases are at the top of the list. Negotiating or even pushing the case forward for possible settlement is a pure nightmare that lasts for years. Here’s why: After the 50H (sworn statement) is complete, we will have an “opportunity” to send a settlement package to the ESU (Early Settlement Unit). Conveniently, no one ever picks up the phone and there is no general email. I personally have some representatives’ emails and that’s how I manage to send some settlement packages through, but for the most part, unless you have those contacts saved, there is virtually no way. If I do manage to reach someone on the phone, and manage to get a contact at the Early Settlement Unit, and manage to send the settlement package to the correct examiner, that examiner will want you to send him a settlement package directly. Once you have done that, that examiner will claim that he sent the settlement package to the comptroller’s office for authority to settle. After months of following up, that examiner may get reassigned or go MIA. The new examiner will want you to send them the settlement package because the examiner will claim that the file is empty. This can go on for years.

If the case is in litigation, good luck reaching the attorney that’s actually assigned to the case because chances are, that attorney will have no clue what’s going on with the case because all he does is sign off on the pleadings and there is a separate attorney that can negotiate the case. Just like the examiners, the settlement attorneys also randomly rotate; even though they may claim that they are the head attorney for whatever county the case is in. For the most part, unless it’s a problematic case or a soft-tissue case that’s not worth litigating, I generally leave these cases alone and wait until they call me. I refuse to spend months or years on a circlejerk with NYC.

Even if you do manage to settle the case with the city, it takes another 90 days at least to even get the settlement check. That’s if you filled out the 15-page closing documents they have prepared for you, which you also had to wait at least a month to receive. This is what happens when democrats run anything. Nothing works the way it should.

Wrongful Death or if a client dies during the case process:

This is a very complex issue and will not dive into it. But in the event that someone dies due to someone’s negligence or during the course of the case by natural causes or any other means, the Surrogates court must be involved to establish an Estate. The eventual settlement or award for the case would be made out to the Estate and the party or parties, who are assigned as the administrator(s) of the estate.

Other Type of Cases:

Even though Motor vehicle cases are the bread and butter of most personal injury firms, I still don’t want to leave out other cases as well and briefly go over them as well. These cases are General Negligence, Slip & Falls, Trip & Falls, Municipal, and so forth. For the most part, the procedures for other types of negligent cases are similar aside from Municipal Street Trip and Fall cases, where you need a prior written notice to establish liability and on-the-scene first responder report or video evidence. You would basically establish a claim with the insurance company and begin the negotiation process similar to what I outlined in this chapter. Since these types of claims have many more factors involved and can be more complex, it’s best to discuss the details with an attorney on specific of each case.

MVAIC (Motor Vehicle Accident Indemnification Corporation) cases

MVAIC is a carrier that is run by New York State. I’m not sure if there are equivalent agencies in other states, but in New York we thankfully have MVAIC. MVAIC pays for motor vehicle accidents when the injured victim was either hit by a hit-and-run Vehicle that fled the scene or there are no other valid insurance policies to go after. MVAIC cases are the second worst cases. Unless someone dies, you’re only going to be able to settle the case for no more than $25,000. If someone does die, the maximum settlement would be $50,000. What makes MVAIC the worst is that you can’t just sue MVAIC if the settlement goes south. You need the court’s permission to even sue MVAIC. To compound the problem, even if you have a serious injury, the carrier will often not offer the full policy because they know that you or the client will not waste thousands of dollars of expenses to get the full policy. Fortunately for me, I have been doing very well with MVAIC and managed to Tender full policies on most of my serious cases that I have. They’ve been really good and fair with me lately.

Getting an Updated Offer(s):

Periodically, whether it’s the settlement negotiator or the examiner or the defense attorney who initiates a follow-up settlement negotiator after the initial demands are rejected, a new offer may be relayed.

Finalizing Settlement and Settling a Case:

Finalizing settlement is not as easy as it sounds. Just because you finally received a really good offer from the carrier, it’s too early to celebrate. Before settling the case, you should always confirm with the client about all expenses and possible liens before accepting the offer from the carrier. I have had numerous instances where the offer was fair, but the liens were a huge chunk of the client’s settlement, and the client gave me a lot of shit about that situation. There is very little you can do other than to keep litigating the case if the case is in litigation. You can’t accept any offer from a carrier until the client is explained all the expenses and liens, if there are any, and the client gives the OK to settle.

         Once the settlement is confirmed with the client and the carrier, the final closing documents are requested with the last top offer. The closing documents are signed, and if the case was in litigation, a Stipulation of Discontinuance is also filed with the courts to formalize the settlement with the courts.

My Mistakes:

         I didn’t become a decent settlement negotiator without making any mistakes. Fortunately for me, I figured out how to fix those mistakes on the fly, and I had no real repercussions. Here are some mistakes that I have made and how I fixed them by some miracle.

Mixing up cases and giving the client the wrong offer amount:

         In a high-volume firm, this happens regularly. Especially when you have clients with the same first names or similar last names or when you have multiple cases open on whatever system you are using. The worst thing that ever happened to me was when I gave one client an offer over the phone and asked him to come into the office to sign closing documents. I didn’t realize what I was doing. The guy walked into the office, happy as a 5-year-old kid on Christmas. He asked to see me. I asked him for his name, looked up his file, and noticed that he had a shit case, and I was about to drop his case because he barely treated. I had a lot of explaining to do, and I was fortunate enough that we dropped his case shortly after. This sort of thing happened to me a number of times, but I was always fortunate enough to have some clients who were understanding in the mistake. These days, I am much more careful when I’m relaying any offers. I always make sure that I never relay any verbal offer and always ask for any official offer in writing before I relay it.

Not confirming liens:

         This rarely happens, but there were instances where a random lien would pop up that was not entered into the system or put in the file. Most commonly, it’s either some kind of child support lien, social services lien, or cash advance lien. The worst situation I have had was when I settled a case that we received from another attorney, and the prior attorney never put anything into the file that it was a Workers Compensation case. The case was long after the client finished treating, and the PT office said there were no liens. After the case was settled, the Workers Compensation Board calls up asking for their money. The lien was minimal, Thank God, and I managed to negotiate with them to reduce it. You can not settle a personal injury case without the Workers Compensation Board’s approval. I have made other trivial mistakes, but for the most part, I have managed to resolve them either through quick thinking, research, or assistance from other team members. Teamwork is crucial.