Words of Wisdom from an Insurance Defence Lawyer: What every injury claimant must know!

Andrew P. Laviolette is an insurance defence lawyer practicing with Brown & Partners LLP

Andrew P. Laviolette is an insurance defence lawyer practicing with Brown & Partners LLP

 

 

 

 

 

 

 

 

 

Lawbubble.com  is privileged to present our recent interview with Andrew P. Laviolette, a brilliant legal mind blazing a trail in the world of insurance defence.  For those considering starting a lawsuit for a personal injury matter, this interview will provide you with critical insight from the perspective of the insurance defence lawyer. Mr. Laviolette says it like it is so take note and prepare to be informed:

1. How would you explain the role of a defence lawyer?

The role of a defence lawyer is complex. Most plaintiff’s come to think of them as the villain of the piece, but ultimately the role is the same as that as the plaintiff’s own lawyer: we are there to advise the client.

I tend to see my role as more two fold. First, I am there to present my client (the insurance company) with my legal opinion of the case in terms of both whether it should be paid at all and how much should be paid. This role tends to be the overarching role for the duration of the case: I will continually assess and reassess a plaintiff’s file as the case progresses and new information becomes available. In the end, I endeavor to give my client a genuine assessment of what the case might be worth as determined by a jury.

My other role, is more conflict driven. It is the plaintiff’s job to prove his or her case. End of story. If they cannot or will not do that, my role is to advance the interests of my clients, which is to say, have the plaintiff’s case dismissed. Now, there are various levels of conflict – my client may simply want more information, for example, but in the end my clients want value for any monies we pay to a plaintiff – if the claim is bogus or exaggerated, my client is more inclined to pay me to fight the plaintiff’s allegations than they are to pay. If worse does come to worse, I will be up in court arguing that the plaintiff is exaggerating the injury or lying on some issue or other.

2. What are some things someone should be mindful of before bringing a personal injury claim?

The best answer I can give here is simply this: if you’re bringing a claim for injuries MAKE SURE YOU ARE ACTUALLY INJURED. All too often we, as defence lawyers come across a case where a person has been involved in a very minor accident of some sort. They went to the hospital or a doctor on one occasion and got better. However, because of our litigious society, we have people who tell these newly injured folks that “I had an aunt/uncle/friend/neighbour who got hurt like you and he got X number of dollars, you should do the same thing and retire early”.

There are any number of things wrong with the above approach, but there are two big ones. First, the point of a personal injury claim is not to cash-in, if that’s your sole motivation, you’re in for a long, hard fight. The role of a personal injury claim is to as best as possible put a person in the position they would have been in had the accident or injury not occurred. While this is done in dollars and cents in our system, a wise mediator is fond of saying “money is a poor substitute for health” and that’s something every plaintiff should take to heart.

My second major issue with the cash-in mentality is that, although defence lawyers may look slow, we do pay attention to the information in front of us. If you say you broke your arm, we’ll check. If you say you hit your chest on a car dashboard, but you were wearing a functioning seatbelt, we won’t believe you. If you make claims that you can’t prove, we won’t like you very much. In fact, since our legal system says that the loser pays the winner’s legal bills at the end of the day, my clients have become keener and keener to make fake plaintiff’s pay my legal tab at the end of the day.

3. What is the most severe injury you have seen someone claim for as a Defence lawyer?

The most severe injuries I tend to deal with on any sort of a regular basis are brain injuries.

The physical injuries to the neck, back and extremities are by far the most common, but they are also the ones that people most often pursue in that “pay-day scenario” I described above. Brain injuries, however are often tragic. A normal, functioning human being has been hobbled, usually in an invisible way – something that made that person THAT person was lost due to an injury.

4. What are some risks a Plaintiff may run when bringing a personal injury claim?

 Well, as I said before, every person in litigation runs the risk of being forced to pay legal costs, which can sometimes range into the hundreds of thousands of dollars. Plaintiffs should be mindful that if they have assets (houses, cars, cottages) and lose in court, some or all of those assets could be seized to pay the winner.

Apart from the financial there is also the psychological and time factors involved in litigation. Often what I find is that plaintiffs get obsessed over their court case, often when they have only very minor injuries. This becomes a self-feeding cycle – a person who is initially injured engages a court case and is then told that they will only see a payout if they continue to be injured. The person begins to obsess over their case and they can make themselves FEEL injured or in pain even when the physical injury has resolved itself. The person makes their whole life about the case and they can end up getting very very depressed.

Cases have a lifespan of 2-4 years generally. Plaintiff’s who are looking to litigation for short-term pay cheques really should consider looking elsewhere.

5. Will insurance companies pay nuisance money to make a claim just go away or no?

 The short answer is yes. But lately the “price” of a nuisance claim has escalated and insurance companies are now in the process of tightening the belt, as it were. In future, there are likely to be fewer and fewer of the “high” nuisance value settlements.

6. What are the types of things you look at when assessing the value of a claim?

 First and foremost I look at a plaintiff’s medical history and a person’s candour. If they were complaining of a busted shoulder the day before an accident and are now saying that the accident busted their shoulder then they’re… well… busted. There need to be clear links between the mechanism of the injury and the injuries described – I won’t believe someone who had a door cut their leg who tells me they now have migraines because of their injury.

The basic premise is that if you’re honest with me and your records back you up, usually there can be an agreement between the parties. If you try to exaggerate or make things up I won’t believe you, my client won’t believe you and you’ll be looking at 2-3 years of litigation with the possibility of a trial and losing a house.

Never forget that it’s the plaintiff’s case to prove and “Be honest, Be brief, Be gone” when dealing with the defence lawyer. These are my humble suggestions.

7. In your experience, what kinds of actions need to generally be taken early on by a claimant to increase the value of their case?

If you try to “enhance your case” you’re going to fail. If you can work but don’t, simply because you’re trying to build up your loss of income, defence lawyers will find you out.

The best way to help your case is to help yourself. Get the treatments your doctor recommends for you. If you can’t work the job you had before but you can do something else that pays less – do it! An injured person is legally obligated to do everything they can to offset their losses. If people have the ability to minimize their loss but don’t – defence counsel and clients take a very dim view on that.

 8. Often times, the lawyer for the claimant will obtain a medical report in support of their client’s case. At the same time, the Defence lawyer’s medical expert will assess the same client but arrive at a completely different medical conclusion. Is this common and why does this happen?

This is very very common and there is usually one simple, although cynical reason for it: a medical expert is paid for his opinion. A medical expert who doesn’t provide an opinion that is favorable to the person won’t tend to get a lot of repeat business.

There are, obviously, other reasons that this can occur as well – for example, when one medical expert has been provided additional documents that weren’t available to the other expert when he or she wrote their report. Occasionally it can come down to something as simple as experience – a more experienced doctor may have a different explanation for a symptom or problem than a younger expert might, simply because he or she has seen more of these types of cases.

9. What is your billable hourly rate, and are you really worth that much?

 I’m not going to tell you that. But yes, I am worth every penny 🙂

10. Any last piece of Insurance Defence Lawyer Information you can give the Lawbubble Nation (without charging Lawbubble your astronomical rates?)

I’ll just reiterate: Be Honest. Be Brief. Be Gone.