Craig Robinson ()
In the mostly uncertain world of personal injury law, one thing is for sure: There is no such thing as having seen it all. The seemingly straightforward rear-end motor vehicle accident will inevitably lead us on twists and turns we never expected. Our clients and other witnesses will never testify as expected. We will often be caught off-guard by the unknown crimen falsi conviction, the undisclosed prior injury or the neutral witness who contradicts our client’s testimony. The client who we thought would be likeable before a trier of fact will often say something on the stand that we never expected, constantly testing our patience and abilities. Whether we have been practicing law for five years or 50, the ability to adjust on the fly will always be crucial.
We never have 100 percent control and we are always learning as lawyers. Yet we are considered the experts. We are considered by our clients as professionals who have seen everything and know how to handle every situation. Representing those who have been less than honest with us, the same clients who trust us the most, can add stress to our daily routine that we will struggle to overcome. I started in this field, like most of you, by having my guard up. I was always on the defensive in my first few years in practice, taking every possible opportunity to argue every point that seemed to be in my favor.
As attorneys, we earn our living through hard work, but like any other professional field, we make mistakes. I was recently in an arbitration that taught me a lesson regarding the necessity of concessions that I will remember and use in future cases.
I represented a man who was blindsided in an intersectional accident. My client had a green light. The defendant was drunk and high on marijuana, leaving him without the inhibition to recognize a red light. He T-boned my client, spinning his vehicle several times and leaving him with a fractured clavicle that left a visibly noticeable non-union. The defendant was underinsured. My client had his own underinsured coverage but was bound by the limited-tort threshold.
The anonymous insurance company defended the case on what I believed to be a limited-tort defense during litigation. It took the case to arbitration, offering a measly settlement in advance. My client chose not to have a recommended invasive surgery to potentially correct the non-union.
At the arbitration, the defense attorney argued that my client, despite having a green light, did not look carefully enough prior to entering an intersection while having the right of way. This was preceded by the attorney cross-examining my client, mainly regarding liability, while barely covering his limitations in support of the limited-tort defense.
Somehow, the attorney attempted to persuade the arbitrators that the accident was not completely the fault of the intoxicated man who is now imprisoned for his actions. The arbitrators rendered a favorable award to my client. Despite a reasonable limited-tort defense, the attorney for the insurance company chose to argue every defense possible, including a weak defense that my client was comparatively negligent for not looking both ways before entering a seemingly safe intersection. His argument on negligence weakened his argument on limited tort, and I believe it may have lost the case.
When handling a case from the first meeting with a client, I first think of all of the possible arguments I could make to increase the overall damages suffered by my client, no matter how weak the arguments might initially appear. Even though I might have a position that can be argued, that does not mean it should be argued.
By arguing comparative negligence in the above example, the opposing attorney lost credibility with the arbitrators.
Concession builds credibility. By addressing the weaknesses of a case at the outset, the trier of fact will immediately give an edge to the attorney when the attorney makes arguments in court. The same principle applies when dealing with adjusters and opposing counsel.
By admitting to the weaker arguments of our case and not belaboring them, generally the opposition will feel more convinced that the strong arguments could be damaging to the opposing position and potentially expose their client to a loss.
Had opposing counsel in my arbitration stipulated that negligence was not disputed and defended the case on the grounds that my client did not suffer a serious impairment of a body function or a serious disfigurement, I believe the outcome might have been different.
The art of concession can be even more effective in front of a jury. Given the reputation of personal injury attorneys, it has been said that from the minute we walk into a courtroom and before we even speak one word, the majority of the jury pool does not trust us. By addressing our own case weaknesses rather than trying to turn them into strengths, we can gain a psychological edge with the jury and perhaps have them trust our words when deliberating.
I recently sat as an arbitrator for a case involving a motor vehicle accident with a pro se defendant and a plaintiff who was on a bicycle at the time of the accident. During the cross-examination of the plaintiff by the pro se defendant, the defendant emphatically asked only one question of the plaintiff: “Why you lyin’?” During her brief closing argument, she made it a point to tell the arbitrators that she was sorry that she hit the plaintiff and that she should have been more careful. She then made an effective argument that his injuries were minimal and that he “looks fine now.”
Some attorneys representing this woman might have defended the case on negligence, but I truly was swayed by her argument that the plaintiff made a good recovery and had minimal damages, so the award was small and fair. Her admission that she was at fault truly affected my position as an arbitrator, which worked in her favor. She proved a point that the art of concession is not just a tool that you learn in law school and in legal practice.
Craig Robinson graduated from Villanova University School of Law in 2008 and began his career representing plaintiffs in personal injury actions. He is an associate with Lundy Law and is on the board of directors of Stop CAID Now, a nonprofit that raises awareness for children with childhood auto-inflammatory diseases.