A creative way to resolve a difficult case
May 25, 2011 Leave a comment
Phillip Thomas recently commented that it was bad form to blog about your own cases, but I am going against the grain on this one.
Not long ago, a case presented unusually bad facts. My client wanted to file suit against a man that killed her son in a drunk driving wreck. The killer sat in jail after pleading guilty to DUI-manslaughter and would be there for the next 10+ years. You often hear people on TV say “it isn’t about the money.” Sometimes that is true and sometimes it isn’t. It wasn’t about the money for my client. That being said, no amount of money would bring her son back. So what exactly did my client want? After numerous conversations with her I understood that she had no intentions of settling the case for the killer’s insurance policy limits of $25,000.
Many readers will pause right there and say “I thought it wasn’t about the money!” It wasn’t. She wanted someone, whether it be a judge or jury, to acknowledge that her son’s life was worth more than $25,000. If she had accepted $25,000 and walked away, she felt that it was an admission that his life was worthless.
Now to the realities of litigation. Trials cost money. If we went to trial rather than settle, what could we hope to obtain against a penniless drunk that will be in jail for the foreseeable future? Costs of a full trial, a paper judgment and the $25,000 proceeds of his insurance policy. I call it a paper judgment because there would be no source from which to collect the money. Due to the costs of trial (numerous experts, depositions, etc.), my client would have actually received less from a trial that she would from a quick settlement.
So why go to trial? Because a judgment would provide something that money would not. A judgment would prove that her son’s life had value, that it had meaning and that he was a valuable member of society. If you are still reading this you have probably forgotten that the title is “A creative way to resolve a difficult case.” Going to trial will certainly help resolve a case, but it isn’t creative and it isn’t cheap.
So what were we to do? Make an offer to accept a judgment in excess of policy limits. One of the purposes of trial is to obtain a judgment. If we could get the killer to offer a significant judgment it would serve two distinct purposes.
- A judgment would be entered that recognized the value of my client’s deceased son; and
- Avoid the costs of a trial.
I spoke with one of the defense counsel and relayed the idea. At first, this was met with scepticism. Why? Because defense counsel have a duty to their clients to minimize damages. It is simply not normal for a defense lawyer to advise a client to accept an excess judgment. In this situation, defense counsel’s initial scepticism eventually gave way to acceptance.
At the end of the day, my client received a judgment of $5,000,000 and avoided the costs of trial. She collected the same $25,000.00 of insurance money that was offered to her a year earlier. The only difference was that she holds a judgment acknowledging that her son’s life was worth something.
As a side note, when the case was finished one of the defense lawyers looked at me and asked “Randy was this just some stunt to pad your resume? You aren’t getting any more money one way or the other.” I responded “It ain’t about me, it’s about my client.” If the defense lawyer has never felt the tragic loss of burying a loved one killed by a drunk driver, she probably doesn’t understand. But then again, maybe she does.