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Lifecycle of a Case, Phase 3 & 4: Pre-litigation & Filing suit · Coopers' Code

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  Howdy, and welcome to another episode of Coopers Code Life
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  Cycle of a Case series where we provide tools and tactics for
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  the different phases of a case. We're compiling all of these
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  episodes into a playlist on our YouTube channel, so head on over
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  there if you want to see them all.
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  At the very beginning of the case, there's going to be an
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  opportunity to have a conversation with someone.
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  There are other things that are important during that period.
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  It's going over the representation agreement, going
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  through the conflict waiver. The other documents that are
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  important are general releases. We just have the client
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  questionnaire cover, the form, interrogatories, in that order.
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  So it's easy for us to put in the system some things that we
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  try to obtain as early as we can.
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  Police reports, photographs from any sort of police
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  investigation, body Cam footage, 911 audio, the cab log, computer
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  assisted dispatch log from the agencies that responded,
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  security cameras, bus footage, Geo tagged, social media for
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  medical records, public rec resources.
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  Our third section is pre litigation.
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  Pre litigation. I mentioned that we do a fair
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  number of advice for cases where the injuries likely exceed the
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  policy, almost all of our cases, but for government claims and
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  what is just patently obvious at the outset that is is highly
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  complex going to be going to be heavily litigated.
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  Almost all cases make a stop in pre litigation in our office.
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  The reason for that, that's where we do our best document
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  assembly, meaning getting the medical records, getting all the
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  documents that we talked about in terms of initial
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  investigation and getting all that information together.
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  Getting a lot of that information early on to the
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  insurance company and, and being open and transparent with the
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  insurance company about what this case involves so that they
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  can help get a better sense of things.
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  It's a lot easier for that adjuster to be able to help you
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  help us when they have all the information related to a case.
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  And again, we find that that opening that dialogue and pre
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  litigation is, is very useful on the collectibility side, we send
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  out a letter of representation. It has an injury bullet point.
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  It will immediately demand the defendant's insurance policy
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  limits and in that scenario you're going to want to know if
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  if you're seeing numbers like $100,000 policy limit or a
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  $250,000 policy limit or a $300,000 policy limit.
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  That two 5300 is almost always a break point where there is a
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  umbrella or access policy, we always demand that they disclose
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  all available policies. In California, the carrier is
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  not obligated to turn that policy information over until a
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  lawsuit gets filed. So our usual practice is if the
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  insurance company won't turn it over or if they have an insured
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  who the insured has to consent to it being turned over.
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  If they haven't insured who is refusing to do that, we do an
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  escalating series of letters. It's usually a total of 3
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  letters. The first one is the request
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  with a deadline because adjusters need deadlines in
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  order for them to act. The second is sent immediately
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  after that deadline, which is we don't negotiate with terrorists,
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  you need to join this over or while we'll file suit with a
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  deadline and the third goes immediately after that one.
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  If there's no response, that's a with a copy of the complaint
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  already drafted saying this will be filed on X date.
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  If you do not provide policy with their information.
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  If they continue to refuse to do that, then we do immediately
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  file suit. You don't want to threaten
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  something that you're not going to follow through on.
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  The other pieces on the collectability side that one
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  wants to figure out are the the client's underinsured motorist
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  coverage. Again, this presumes that this
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  incident involves some sort of vehicular incident, but if it's
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  a collision, you want to know how much underinsured motorist
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  coverage does the client have? And then on the creativity side
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  for collectability, you're going to want to be figuring out
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  things like was the defendant possibly working?
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  Were they on their cell phone talking about work?
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  Was the car owned by somebody else?
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  Is there a public entity that needs to be involved because of
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  how this collision happened? We also, if the policy limits
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  tend to be on the lower side relative to the injury, we will
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  do initial asset analysis. We'll do that ourselves without
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  hiring an asset investigator to try and get a gestalt of the of
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  the defendant. If there's not a lot of
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  underinsured motorist coverage and if the injuries are high and
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  there's some indication that that the defendant may have
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  personal assets, then we will sometimes Commission a full
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  asset investigation before we start demanding personal assets
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  so that we know where the money is.
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  Because sometimes once you start talking about personal assets,
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  that money starts moving around. So in that pre litigation phase,
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  the final step of that is putting together demand package.
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  And again, whether we think that these cases are going to resolve
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  in pre litigation or whether they're going to go all the way
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  into litigation, we typically will do a full demand package to
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  send over to the defense adjuster before we file suit.
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  That includes the full story of what happened.
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  It's client images, it's wage loss, including substantiation,
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  its records. It's bills will oftentimes
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  include the running with the bulls bad faith language.
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  If you don't know what that is, Google it.
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  The rallies did a fantastic job with a book on how to not force
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  your client into trial. Ironic that trailers of that
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  that caliber are talking about why it is bad for a client to be
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  in trial. We agree with it's really hard
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  for a client to be in trial. And so this, this bad faith
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  language that helps motivate the insured, the defendant to lean
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  on their carrier to pay is, is, is brilliant and it is something
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  that we insert into our, our letters on a regular basis.
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  We may also include some experts or expert reports.
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  If there is an issue about the say it's a knee injury and there
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  may be a future knee replacement that needs to be done.
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  It may be beneficial to have an expert write a report so that
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  the adjuster can defend their position on that without having
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  to go into to full scope litigation to have the client
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  examined. There are some cases where you
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  don't need a full demand package where a client has $300,000 in
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  Med medical, paid medical and you know that the sum total of
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  available insurance is 100 and that's never going to change and
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  there's no personal collectibility.
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  Then getting the bills and doing a cover letter is is oftentimes
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  enough just to get that going. You don't want to rush a case.
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  At the same time, clients don't benefit from cases taking an
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  undue amount of time, so if there is a way to efficiently
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  resolve a case for a client without leaving money on the
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  table without doing a disservice to them, then it is best to get
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  that case done. That's where a simple demand
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  package, so printouts of an EO of EO BS, knowing that they far
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  exceed the policy is, is one way to be able to tie that up for
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  them. Those are also the types of
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  cases where absent the lean being highly, highly, highly
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  tricky, where one might consider doing a fee reduction because
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  the the work that was necessary to get that done is not
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  necessarily the same as doing the more detailed work in, in
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  some of the cases. A few words about underinsured
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  motors coverage. And this is something that I
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  think most people know, but not everyone because it doesn't
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  always come up in people's cases.
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  It exists after the third party kits resolves.
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  So what that means it is easier to use an example and a one
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  example is a $15,000 policy for the defendant, the driver and
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  then say $100,000 UIM coverage for the cyclist who got hit.
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  You can demand the $15,000 policy.
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  You can then resolve the liens with that policy.
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  So you can oftentimes reduce those liens.
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  A common way of of that being done by the the carrier is
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  thirds. So even if there's a a hundred
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  $500 million lien, reducing that down to $5000, the client gets
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  5, the attorney gets 5. That's the thirds method.
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  Sometimes in the scenarios, the lien carrier will waive their
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  lien if they understand the attorney is waiving their fee.
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  That's something that one can do on kind of a case by case basis.
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  It's all strategic in terms of wiping out liens.
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  The second phase then when you have underinsured motorist is
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  you then have to demand the underinsured motors policy.
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  So if the 15 gets paid in California, underinsured
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  motorist coverage does not stack.
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  What does that mean? It means that if 15 gets paid by
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  the defendant driver, there's only 85 available for the
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  underinsured motors coverage for a total of 100.
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  So when you're submitting that demand packages to the UIM
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  carrier, you need to demonstrate that you exhausted the policy.
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  So you oftentimes need the declaration page from the
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  defendant driver as well as the settlement agreement, sometimes
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  a copy of the check from the the $15,000 insurance carrier.
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  Then you demand the policy limits if the UIM carrier is
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  being difficult. The path forward there is
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  through arbitration, meaning there is no jury trial for
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  underinsured motors coverage. If you file suit, there's a
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  longer period of time for notice.
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  It's just best not to get into an argument about whether they
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  had timely notice or not, which is why letting them know right
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  off the bat that it appears that there may not be enough
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  insurance. And consider this notice that
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  the insured will be making a UIM claim.
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  Government claims in California, there is a six month statute of
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  limitations and if the agency has their own claim form, one
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  has to use that claim form that there are all sorts of ways that
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  the governmental agencies make these difficult.
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  There are still some agencies out there who will make it so
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  that the form is not available online, meaning you have to go
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  to an office or you have to demand that it be sent.
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  The best thing if you think you have a government claim is to be
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  as proactive as you possibly can, meaning get it filled out
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  and submitted way before the six month period.
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  Other traps for the unwary in the government claim department
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  are hospital districts, fairs. Those are often times quasi
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  governmental entities and sometimes they are a
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  governmental entity that has appeared on the the roster
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  public agencies. That's the official list of of
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  places that are public entities. The other area where it can be
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  tricky are roads where you think it is a say San Francisco Rd.
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  but it actually turns out to be a Caltrans managed Rd.
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  Examples Lombard and Van Ness are at various points part of
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  the 101 and can be Co managed by Caltrans.
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  So you want to make sure and even adjacent to that if you get
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  hurt in the Brazidio, the Brazidio is it falls under
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  federal domain and so that is a federal tort claim act if you
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  have a road design issue there. So that six months government
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  window super important to meet. There are some ways to try to
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  get around failing to meet the six months standard, but they
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  are challenging and it is better not to have to be in that fight
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  in the 1st place. The Resort Claims Act is a 2
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  year window so it's different, but the the fees are capped at
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  25% with FTCA claims and there's no jury trial.
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  So you're going to be trying that to a a federal bench
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  officer if you have a a federal government claim.
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  But a certain point in the case comes the time where one gets
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  the joy of filing suit. That's the opportunity to to
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  file the complaint and make sure that the other side is is
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  actually formally brought into a lawsuit and into litigation.
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  Challenges here beyond the just typical ones of of making sure
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  one does things right are making sure that one is included all
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  claims. Why do I bother to reference
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  this on occasion where one has say a family member or a spouse
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  has the potential to be part of the case car collision.
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  Say 2 cars where one has a family involved in and say that
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  the the driver is the one who's most injured might include the
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  driver, the spouse for a loss of consortium and for bystander and
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  then a couple of kids in the back for bystander claims as
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  well, presuming the those folks aren't injured.
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  So making sure that you you have I dotted crossed T's to get
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  everyone involved in in the case to the extent they need to be
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  involved. Same is true with the
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  defendants. Making sure that that all the
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  potential defendant entities have been named in the case and
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  and these can be fairly straightforward in you know,
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  your standard auto case. It may be the defendant driver
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  and may be the owner of the car if that's separate, and maybe a
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  company if the driver was working for a company.
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  In the the rideshare cases, it can get way more complicated
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  because there are entities within entities within entities
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  that you want to make sure that you you name all of them
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  properly because those names change from time to time.
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  I'm not going to go into to that here.
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  Just know that if you're doing rideshare, you want to make sure
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  that you're you're getting the right people as defendants in
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  the case. Other areas where this can be
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  tricky are shopping malls and hotels.
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  And the reason I bring these up specifically is that these are
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  areas where there may be multiple entities who own or
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  control things. Hotels are notorious for having
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  the hotel be owned by 1 entity, the management being done by
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  another entity. And so you, you may find that
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  you have two different defendants or you thought you
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  only had one. These are areas where again,
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  just making sure you have all the right defendants involved
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  when you file suit. The other piece that is
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  important to consider is whether there is a chance of publicity
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  related to the filing of the lawsuit.
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  And, and I don't mean that for lawyer gain, I mean that for
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  downside risk for a client, I'll use an example.
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  We tend to be very proactive and and and aware of what might
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  happen in various cases. We had a case years and years
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  ago that we filed on behalf of a young woman.
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  She was hit down near the ballpark by an SUV and we filed
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  suit and lo and behold, TMZ got interested in the case because
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  the vehicle that had struck our individual were part of an
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  entourage for some noted music stars who are on their way to
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  perform at the stadium. So TMZ all of a sudden was all
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  over this case in a way that we had not expected.
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  So when I say be mindful of publicity, if there is the
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  chance that there may be some publicity, make sure that your
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  client is prepared for that so that they are not caught off
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  guard, so they know what to do if the media calls and so that
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  one is is properly prepared. An additional point on this,
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  because the media tends to be overworked and underpaid like so
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  many entities these days, it can be helpful in your complaint if
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  in the general allegations before you get into the causes
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  of action, you have something that is just a very clear, very
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  digestible almost press release E description of what happened
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  in the case. Because if you think that there
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  may be any sort of traction in the case, that's an area where
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  the media will quickly go to just cut and paste from.
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  And it is a great way to spin spoon feed it to them so that it
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  is told in the way that you would like it to be told after
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  filing suit and serving the complaint because that's part of
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  the process. The complaint needs to be
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  formally served on the defendants in the case unless
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  the insurance company or the defense counsel are willing to
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  accept service on their behalf, which doesn't happen with great
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  frequency, but but counter on occasion happen after the
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  lawsuit has been filed, service has been made, The defense then
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  has an opportunity to either answer file an answer to the
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  lawsuit. That's the most common thing.
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  Sometimes you'll get various pleading battles.
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  These are motions to strike Demers, other things that say
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  that the the complaint is inadequate or that the claims
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  cannot go forward the way that they are pled.
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  Because this used to be a delaying tactic by the defense,
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  the court now requires the defense to meet and confer over
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  Demers and motions to strike before they're brought.
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  They're not as common an issue as they used to be back in the
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  day. They almost always will be
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  brought if there is a punitive damage or exemplary damage
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  allegation involved and getting through that initial hurdle for
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  exemplary damages, one usually can survive that.
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  It might be a pain in the ass in terms of going through the
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  pleading battles, but I would say because the way the defense
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  is structured, they feel obligated to go ahead and do
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  those even if they think they're going to lose on motions to
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  strike and demurrage related to period damages.
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  Thank you for tuning in. If you enjoyed this, check out
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  Be hunting.