Peter Montgomery: Hello and welcome to a podcast of Brody Hardoon Perkins and Kesten.
My name is Peter Montgomery, and I’m here with attorney Rick Brody, one of the founding partners of Brody Hardoon Perkins and Kesten, to talk about personal injury claims. To begin, Mr. Brody, tell us what is a personal injury claim.
Rick Brody: A personal injury claim is, as it says, when you have been injured by a third party, or because someone has done something which injures you or someone close to you in your family. Every case involves, actually, many, many aspects, but the two major things you need to think about are what’s called “liability.”
That is, did someone do something wrong or fail to do something right where they had a duty to do something right, and as a result of having done that, did you receive any damages? Then, from there, you have to go and determine what the damages are.
Peter: What kind of personal injury claims are there?
Rick: There are as many as there are people in the world.
There are personal injury claims that begin in a motor vehicle case, some form of transportation, airplane, train disaster, walking across the street and being hit by a car, someone doing something, failing to comply with a code, a building code or a health code, that causes you damage.
There is just a plethora of types of injuries. The question is, that most people are interested in, in personal injury claims, “What is my claim worth?”
Peter: How do you evaluate what a claim is worth?
Rick: There are many, many different criteria and aspects of a personal injury claim. First of all, they have to determine what kind of claim it is.
Is it a landlord‑tenant basis, or is it a basis in a product liability defect? Is it somehow in violation of a statutory scheme? Assuming that you’ve been injured, the question then becomes “What are my damages?”
Peter: Why does it matter what type of claim you’re attempting to assert?
Rick: Depending upon the claim, there are some remedies available for certain kinds of claims that are not available for others.
Peter: Like what?
Rick: For example, there are certain statutory schemes in landlord‑tenant disputes or products cases, where certain parts of the law don’t apply. For example, in a warranty or products liability case, the negligence of the plaintiff is irrelevant.
In certain kinds of landlord‑tenant disputes, depending upon the violation, you can get multiple damages for your claim. Sometimes, you can even get your attorney’s fees paid for by the other side, depending upon the violation.
Peter: Do I ever have to pay for my attorney’s fees?
Rick: That all depends upon the deal or the agreement that you come to with your attorney. We do not charge our clients any fees unless we recover an amount from the defendant. It’s called “contingency fee agreement.”
Other people charge their clients by the hour, and certain contingency fee agreements require the client to pay their costs as they are incurred. We usually don’t do that either.
Peter: Do I have to have a lawyer to sue in Massachusetts?
Rick: No, you don’t. You can appear what’s called “pro se,” by yourself, but the danger of doing that is that someone who’s not trained in the law or does this on a regular basis won’t know all of what’s basically a very intricate statutory scheme that either helps you or harms you when it comes to bringing a lawsuit, very basically, the rules of evidence.
Just because something happened and you have a witness who’s willing to say X, Y, or Z doesn’t mean it’s going to be admissible in court. It has to be done according to the rules of evidence.
Peter: What if I think that I’ve got a particularly strong case and I don’t think that it will ever go to a trial? Why would I need a lawyer if the case, I think, can be settled.
Rick: Unfortunately, that’s not the way it works in the real world. Most cases are defended through insurance companies, and most insurance companies are more than happy to see you represent yourself, because for the most part, you don’t know what you’re doing.
In fact, there are many insurers who are more or less likely to settle cases depending upon who the attorney is, their reputation in the field, whether or not they will go to trial. There are many attorneys who hold themselves out as litigators, who ultimately will not go to trial. When a trial is on the horizon, they will either shift it to someone else, or see if they can get someone to accommodate them, to try the case for them.
Peter: Speaking of reputations, for how long have you been in practice?
Rick: Been in practice since 1975.
Peter: For how long has Brody Hardoon Perkins and Kesten been representing people in personal injury claims?
Rick: The firm formed from a number of other firms in 1995, and we’ve been doing that since that time. We are almost exclusively a litigation firm. We do primarily trials. We represent lots of entities, cities, towns, people in employment disputes, and also a great deal of personal injury cases as well.
Peter: How do I go about determining whether or not a case is worth pursuing?
Rick: You should go see a lawyer. Depending upon the lawyer’s breadth of experience, they will be able to tell you where on the long continuum your case falls. Someone who’s seen many, many cases can determine where it falls in the worst and the least worst case that they’ve seen.
Evaluating a case is not really a function of science. It’s really an art. The more cases you’ve seen, the more cases you’ve litigated, the more cases you’ve read about, the more likely you are to come up with a reasonable number that will approximate what the defendants also believe the case is worth.
Making wild requests usually does you no good at the beginning of the case, because the people on the other side will discount whether or not that you actually know what you’re doing.
Peter: What type of damages might I be able to recover in a personal injury claim?
Rick: Damages break down into two groups. One is special damages and the other is general damages.
Peter: What are special damages?
Rick: Special damages are out‑of pockets case, numbers that…damages upon which you can place a number. For example, things like medical expenses, present, past and future medical expenses.
Lawyers can determine what the future expenses are by enlisting the aid of a number of experts that they will be using. Things like lost wages, past lost wages, future lost wages, whether or not you’re partially or totally disabled. Things that you had to pay in order to get to where you are, your out‑of‑pockets.
General damages are less specific. That is the famous pain and suffering. What is that worth? What’s a scar worth? The only one who’s going to be able to tell you what that’s worth ultimately is a jury. But since most cases don’t go to trial, both defendants and plaintiffs have some sense based upon their experience as to what those general damages are.
Lots of insurers use formulas. For example, they’ll take the special damages and multiply it by three or four times and come up with what your pain and suffering is, and then they’ll add that all up and they’ll come to a damage figure. Other people use higher numbers. Obviously, the higher the number used to multiply it, the less likely you are to settle a case with an insurer who uses a lower number.
One of the other things that you should also remember is, where is this case going to be brought? That is, there are a lot of counties in the state, and each of them have a different reputation for being more or less plaintiff‑friendly, and that will affect the amount of money that you will recover, at least the amount of money that an insurer will offer you.
Who’s the judge? What kind of makeup does your jury have? Who are you? How do you as a client appear to a jury also is important. They look at you, they evaluate you, and they see whether or not they like you.
Peter: Mr. Brody, you said a moment ago that most cases that are filed in the superior courts settle. Can you tell us why you think that is, and does that affect the evaluation of a case?
Rick: Certainly. Most cases settle, and I think that the statistics show that approximately 98 percent of all civil cases filed in Massachusetts ultimately settle without a trial. The reason for that is that the people who are paying the money, primarily insurance companies or regular companies, don’t like uncertainty.
No matter what the claim may or may not appear to be, once you give the case to the jury, you’re giving it to 12 people who know little about the case except what’s gone on through the rules of evidence at court. That uncertainty is unsettling to people with money. Similarly, in plaintiffs, when they are offered a reasonable amount of money, it’s always, not always, but oftentimes better to take a bird in the hand than giving your future to 12 people you don’t know either.
Most cases in Massachusetts now go through what’s called a mediation process. The mediation process is non‑binding and it’s confidential in order to try to get the parties to be frank with each other. The parties are represented by attorneys.
Depending upon the investigation and preparation that went on prior to the mediation, a well‑prepared attorney who really wants to try and get his client the best result he can will put forward his case at a mediation very similar to what he would have done at a trial.
He will do the preparation. He will do the investigation. He will get his experts. He will get all the witnesses, pictures, all the stuff that you would do at a trial, at the mediation. Similarly, a good defense attorney will do the same thing. There will be a mediator who is unbiased, has no dog in the hunt, who will assist the parties to come to some kind of reasonable accommodation and hopefully the case will settle.
Peter: If I’m looking for a personal injury lawyer in Boston or in Massachusetts to represent me, that lawyer you’re telling me is going to evaluate that case for me. Is there somebody on the other side evaluating the case on behalf of perhaps the liable party?
Rick: Oh, absolutely. If the liable party is insured, they will have a professional group of people in the insurance company evaluating the case. If it goes into litigation it will send it to a lawyer whom they trust, and who also is someone who is very experienced, and he will independently evaluate the case. They will have a number in their mind just as your lawyer will have a number in his mind, her mind.
The question is, how close are you? If you’re close enough, through negotiation and through the discovery process, the case will probably settle. But the insurer always has to know that your lawyer’s willing to try the case. There are people who are not going to do that. If the insurer knows that, knows the reputation, then it’s less likely that you’ll receive much money as you might otherwise.
Peter: Based on the years of experience that you have as a personal injury attorney in Boston, how well do you know the other attorneys on the other sides of these cases?
Rick: There are many, many lawyers in Boston. However, the lawyers who try cases on a regular basis or who have been somewhat successful on a regular basis know each other.
Peter: How familiar are you with the judges in Massachusetts?
Rick: Very familiar. Massachusetts is a small place. I was in the system district attorney and many of the people I worked with, now judges.
Similarly, many of my partners worked for the various agencies in the state prior to going to the private sector, and they also know many of the judges. Not to say that it’s going to make a difference other than you know what their particular idiosyncrasies are, the manner in which they like evidence to be presented, and the kinds of things they like to be submitted to them in writing.
Peter: You’re not suggesting that lawyers do you favors, but it helps to know the judge, is that fair?
Rick: It helps to know a judge and it’s very helpful to know the clerks.
Peter: Mr. Brody, thank you for your time.
Rick: It’s my pleasure, thank you.