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But I mean one of the first things that we look at after a catastrophic case is, has the injured party hired a quality lawyer with a good reputation, a good track record, and who knows what they’re doing? I can’t underestimate the difference that a good lawyer makes in the value of a case. It’s important that when people go out and hire counsel to represent them after they’ve been in a tragic accident that they hire the right person.
David Craig – Host:
I’m Attorney David Craig, managing Partner and one of the founders of the law firm of Craig, Kelley, and Faultless. I’ve represented people who have been seriously injured or who have had a family member killed in a semi or other big truck wreck for over 30 years. Following the wreck, their lives are chaos. Often, they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After The Crash.
Meet John Trimble
Welcome to After The Crash, the podcast. Today, we’re going to talk a little bit about how do insurance companies, motor carriers, and other defendants value claims. How do they value catastrophic injury claims and wrongful death cases? Today’s guest is John Trimble, who is a partner with the law firm of Lewis and Wagner. John is nationally known and locally known and recognized as one of the top lawyers in the country. John has defended businesses, transportation companies, insurance companies, and other entities in catastrophic type cases. He’s handled class actions, bad faith, insurance disputes, government liability, business litigation, as well as other areas. He’s also a mediator and does a lot of alternative dispute resolution type cases and has mediated some of the biggest cases in the state of Indiana. He’s handled cases throughout the country. He also handles cases on appeal, and he handles cases in state and federal court.
John has won numerous awards. One of the most recent ones is the 2021 Defense Research Institute Louis B. Potter Lifetime of Professional Service Award. He’s been a Super Lawyer for years. More importantly, he’s been ranked as number one Super Lawyer. He’s been ranked by his peers in the Best Lawyers in America for mediation, insurance law, and defense of personal injury cases. John, more importantly I think, is a father, husband, and grandfather, and when I think of you, John, I think of an excellent attorney, a worthy adversary, but more importantly, I think of you as a passionate, honest leader in our profession and in the community in which we practice. I really appreciate the fact that you agreed to be on the podcast today.
John Trimble:
David, thank you. I feel the same toward you, so I’m really delighted to be here and honored.
David Craig – Host:
I talked a little bit about your background. You’ve won so many awards. Is there anything that sticks out in your mind that you’re extraordinarily proud of that when you think of your accomplishments over the years that you think, “Yeah, that’s something I take a lot of pride in,”?
John Trimble:
Defending the Indiana State Fair after the stage collapse, Bill 70 back in 2011 was probably a highlight of my career. More recently representing the governor of Indiana in a lawsuit against the Indiana legislature over constitutional powers of the governor and taking that to the Indiana Supreme Court is another hallmark, but I’m probably most proud of 41 years of marriage and my daughters. I’ve got a daughter who’s a lawyer and managing partner of a firm out in California. So, those are the things that matter the most probably.
David Craig – Host:
So, you and I both have been doing this for a little while now. Has this played out the way you thought it would when you were in law school over here at IU Indianapolis campus?
John Trimble:
No, no. It’s totally different.
David Craig – Host:
Is that right?
John Trimble:
I’m a small town kid. I didn’t come here with any expectations to end up with a national practice, that’s for sure.
David Craig – Host:
Well, I know you started there at Lewis Wagner back, I think, even when you were in law school, didn’t you?
John Trimble:
I started here as a law student at the end of my first year in law school and stayed on.
David Craig – Host:
Another thing that folks that don’t know, John, is that John’s mentored a lot of lawyers throughout his career and has helped guide a lot of attorneys in the profession and kind of guide them down the path. He’s very actively involved at the IU McKinney Law School as well as your undergraduate school down in Hanover.
Let’s talk a little bit about evaluating cases. I think that this podcast is designed for the average person who finds himself in a situation that’s catastrophic, that someone in their family’s been seriously injured or themselves, and they’re trying to wrestle with this and they’re trying to figure out what to do and how to do it and inform themselves a little bit about the process. I think one of the hardest things, the thing that I hear the most from people, is how in the world do you value these type of cases. How do you evaluate a catastrophic injury case? I think that obviously lawyers, experienced lawyers, look at these things and have to do that. That’s part of what we have to do as well as the insurance companies and the defendant companies. So, I guess start off just with an overview of what you think about, from the defense perspective, how are cases valued?
How Are Catastrophic Cases Evaluated?
John Trimble:
Sure. Well Dave, it’s interesting you mentioned experienced lawyer because I can’t tell you how many times I’ve gotten five or six or eight or ten experienced lawyers around the table and we round table a case either here in my firm or I brought in lawyers from other firms, you’ve probably done the same, and we describe in the sense the facts of the case and have everybody write a number down or range down, and then have everybody turn them over at the same time. It’s always amazing how experienced lawyers been doing it for a long time, turn it over and they’re all within about 10% of each other. There might be one outlier a little higher, one outlier a little lower, but in general they’re all in the same general vicinity.
The thing that happens, of course, the longer you do it, you just kind of look at a case and you can figure out what it’s worth. One of the first things that we look at after a catastrophic case is, has the injured party hired a quality lawyer with a good reputation, a good track record, and who knows what they’re doing. I can’t underestimate the difference that a good lawyer makes in the value of the case compared to somebody who may not be so good, and so it’s important that when people go out and hire counsel to represent them after they’ve been in a tragic accident, that they hire the right person. That’s the starting point.
David Craig – Host:
I don’t know how you feel, but I feel almost relieved when I see the defense hire a really good attorney. Somebody asked me the other day when I was out doing an inspection here recently on a catastrophic semi case and the defense lawyer, the defense firm is not a firm that normally does this, and when he was out there I could just tell he didn’t know what a scanner was, he didn’t know what a total station was, and so I was like, oh no, because I would rather deal with an experienced attorney than an inexperienced attorney.
John Trimble:
Yeah. And I know that an experienced attorney frankly is going to get a greater value for the case than somebody who’s not as well experienced and doesn’t have as good a reputation. It’s just the way it is. There’s a long list of things that go into how we evaluate a case. You can start with what kind of accident is it, how severe is it, and what do the pictures show. Pictures say a thousand words, you’ve heard that before. Are cars all crumpled up or are they only lightly damaged because we all know that the worse something looks probably the worse the injuries are. So that’s important. I want to know where the accident happened because I want to know what county is it going to be tried in or is it going to be in state or federal court and where’s it going to be because in some locations, the jurors put a higher value on cases than they do in other places, and so that’s part of the evaluation.
Is it a clear case of liability on the part of the defendant or not? Is it disputed liability? Does the defendant have defenses? Is the plaintiff at fault for what happened? Is some other party at fault for what happened? Those have a bearing on what the case is worth. Are there any inflammatory facts? Has there been drinking involved on the part of the defendant or the plaintiff, drug use, using a cell phone, texting while driving? I mean, there are all kinds of examples of things that are kind of inflammatory that will either drive up or drive down the value of the case depending on who’s the one who was doing it when the accident happened.
You can’t, of course, exaggerate the importance of the injury. I mean, if somebody walks away from an accident and isn’t treated for two weeks or a month, it’s going to be harder at some point in time later to convince people that they had an injury. Although, we do see cases from time to time where somebody does have an injury but for other reasons, they don’t get it treated or it could be a brain injury that they don’t get treated, but more times than not, we’re looking for immediacy of the treatment. Did this person, did they have to go to hospital in an ambulance or did they have an emergency room visit? That’s important. What is the nature of the injuries? Are the injuries that everybody would’ve realized are painful like burns, severe fractures or are they the kinds of things that people can’t relate to, the soft tissue injury to the back? If you haven’t had that, you may not realize how painful a whiplash is, for example. So, the severity of the injury is important.
The age of the person who suffered the injury is important because if it’s an injury that they’re going to live with for the rest of their life, the younger they are, the more valuable it is, the older they are, perhaps not as valuable. So, that’s an issue. Did they have to have surgery? How long were they pain? What kinds of activities were they unable to do because of the accident? Did they miss work or were they able to continue working? I mean, we look at all kinds of things when you’re trying to really look at the impact that an accident’s had on somebody’s life. Were they able to take vacations within a short period of time or within the year after the accident? What kinds of activities they’re involved in?
I know you and I have talked before about social media, what pops up on Facebook or Instagram or some other social media site where they’re on a vacation somewhere or they’re climbing a mountain or they’re riding a bike or they’re skiing or any number of … dancing, you see things, that has a bearing on value. So, there’s just a whole lot of things of that nature that have a bearing on value.
David Craig – Host:
One of the things I hear clients talk about, or you’ll hear in cases, is pre-existing conditions. Does pre-existing condition, I mean, I suppose it could cut either way depending on what the pre-existing condition is and what the injury from the wreck is?
Pre-Existing Conditions
John Trimble:
Yeah, I mean sometimes we have somebody with a pre-existing condition in a fairly mild wreck and it’s really difficult to determine whether the wreck caused any new injuries or whether it’s simply caused them to focus a little bit more on their pre-existing injuries than they had before the accident, but other times someone may have a preexisting injury and the wreck makes it worse. So, we have claims involving exacerbation of pre-existing injuries and that can be significant.
Again, that reminds me, I mean, the medical records are really important. I can’t overstate how important they are because doctors and nurses and medical people are trained to try to accurately take down the information that they gather from the patient and they put it down and get it in the record, get it in there accurately, and so, if we get medical records after an accident, we either get them from you or we send a subpoena to the doctor or the hospital and get the records, and the records says the person showed up in the emergency room, they weren’t in any pain, they weren’t suffering any memory loss, they look and feel fine, and that’s going to be recorded in the medical record. If they’re getting physical therapy after an accident and they’re telling the physical therapist that they worked eight hours in their garden the day before or did things, those show up in medical records. So, we’re looking at medical records to see are they consistent with the story that the person is telling about how they’ve been injured and how the accident has affected them. Sometimes they are consistent, sometimes they aren’t.
David Craig – Host:
I think that there’s very few secrets, I guess, in a lawsuit. There may be things that aren’t admissible at trial, but as far as the discovery, a lot of clients will ask me why should I have to give my medical records up, but I mean, it’s almost impossible for the defense to evaluate a case without looking at them. I can’t imagine you could do it.
John Trimble:
You can’t do it, and one of my pet peeves is when I’m dealing with a lawyer on the other side who simply won’t cooperate in getting medical records to us because part of my job as defense counsel is not just to defend the case. I’m not necessarily trying to minimize the damages, as strange as that sounds, I’m just simply trying to verify, and I find that the better defense lawyers are the ones who just simply evaluate the case for what it is rather than straining to try to find little things here and there to criticize the defense. I need the medical records, and then the chips fall where they may. If the records are really good for the plaintiff, well then they’re good for the plaintiff. If they’re good for the defense, they’re good for the defense, but it doesn’t do any good to hide them.
David Craig – Host:
I would think that, I think you touched on it, that part of the defense lawyer’s job is to continue to evaluate this claim as it develops, and I assume as a defense lawyer, you must have to give that information back to the decision makers, to the insurance company, or to the motor carrier, or to the company, the defendant.
John Trimble:
Yes, I do, and one thing people should understand is that the process of getting high authority to settle a case is different than it once was. It used to be that a local claim manager for an insurance company had the personal authority to make a decision up to the policy limits or whatever the policy was, even if it was a million dollars and that has changed. Of course, there really aren’t any local claim managers to speak of anymore. The insurance companies have regional offices now and home offices and we’re not dealing with local people as much as we used to.
But the frontline claim representative typically doesn’t have much settlement authority, if any. Their manager may not have much settlement authority. It may go up to a vice president level or higher to get settlement authority. It may be settlement authority that is extended by virtue of a committee meeting, a committee of high level people who decide what value to place on a case, and that’s time consuming. That’s another point that I try to make to my plaintiff lawyer friends is get us the information, so we can get it to them so they can be evaluating it and get back to us because nothing is as excruciating and waiting and waiting and waiting to get settlement authority because we don’t have everything we need.
David Craig – Host:
I think that’s, I guess, some advice to us, like you said with the plaintiff lawyers, is that, I mean, it should be a process where we’re continuing to update you as we go. I know our firm changed the way we used to do things with respect to medical records and that we supplement them as we get them rather than waiting to be asked, we just continue to supplement them because what we have found is that again, the defense lawyer has to get them, they have to have their office look at them, then they have to figure out what to do with them and how it impacts the case. Like you said, I mean, it cuts either way. I mean, they are what they are. You’re going to get them so why not go ahead and provide them and then we can fight about what they mean down the road.
John Trimble:
Yeah, you’re exactly right. I mean, medical records are challenging, and to your point about people wanting to know why we need their medical records, there are things about the medical records that people don’t think about. They may not realize, for example, that they’re suffering from anxiety and headaches and other things and their medical records actually show that they were suffering from anxiety and headaches before. They may not realize that their medical records demonstrate that they have a life threatening illness that may shorten their life expectancy, and you, when you’re presenting a case to me, say, hey John, I’m representing Joe Smith, he’s 35 years old, he’s got a life expectancy of 40 to 50 years, but the medical records may show that he has a genetic problem, he may have cancer, he may have had heart disease, obesity, any number of things that could affect his life expectancy. So, there’s a lot in the medical records other than just the description of the injuries that are related to the accident.
David Craig – Host:
Can you explain to the folks when we talk about reserves are set, what a reserve is, what that means, and then, does that change during the pendency of the case or does it always stay the same?
What Is a Reserve in a Case?
John Trimble:
Well, the insurance companies are obligated by statute to put aside an amount of money from the money they have on hand to settle claims and to settle cases, and so, they have to use a formula that reasonably represents what they have to pay on the case when everything’s said and done. That’s where we get involved in supplying the information they need to try to set a reserve, but typically they can’t settle beyond that reserve, and so, if they’re not getting the information they need to set a proper reserve, then they’re not going to be able to get the kind of authority they need to settle the case.
So, every company has its own procedure for how it sets an initial reserve. They take into consideration a projection of what they think the cost is going to be to, first of all, defend the case, and we defense lawyers on every case have to prepare a budget. Literally within the first 30 days after we get the case, we send out a budget. We have to update that budget periodically and that allows them to update the reserves. Then as they get more information, they can adjust the reserve upward as they get more information about liability and damages and what the exposure is.
David Craig – Host:
Go ahead.
John Trimble:
Very rarely do they ask us to tell them what their reserve should be. Earlier in my legal career they would ask us, what do you recommend as a reserve on this, but they don’t do that anymore.
David Craig – Host:
I think on the catastrophic cases, the really significant cases, I assume it’s not easy to change reserves, I assume that it takes time. I think you touched on that it takes time to change the value to get it up to speed. It’s not just one person who typically is making that decision. Is that correct?
John Trimble:
That’s correct, and there’s one factor that a lot of people don’t think about. Almost every insurance company of any size has what is called reinsurance and I won’t put you to sleep talking about it, but a small to medium sized insurance company, if they have a policy that they’ve written with a million dollar limit, chances are their company only has the first $250,000 of that and their reinsurer above them is responsible for the next $750,000, and it varies from company to company. So, when it comes to settling the case, they don’t have to get the permission of the reinsurer. The reinsurer doesn’t take any control over what the company does, but they do have to document their file. So, if they’re going to pay an amount of money that is above their own retention and into the reinsurance layer, there’s got to be an explanation in their file sufficient to explain why they paid money that went into the reinsurance level.
David Craig – Host:
Okay. I had a case down in Kentucky that was a very significant case and the attorney right before trial literally flew to New York and had to meet with a whole committee because in his opinion on the value had changed, it had gone up. I remember him coming back talking to me and saying this is not an easy process to do that and there was a lot of people involved. I mean, this is in the millions, tens of millions, but it sounded like from his thing that it was a big deal and it was not an easy decision, and in fairness to him, it takes time to educate people.
John Trimble:
Well, if you have multiple layers of insurance, if one company has the first million and the next company has the next five and the next company has the next 10 and the next company has the next 25, then you’ve got to convince every layer that the exposure goes into their layer, and you want to do that as early as possible. You want to make sure the excess carriers are notified as early as possible, that they have an open file, and that they’re gathering information to evaluate their exposure because it makes it terribly difficult to settle a case if you’re going to have to get into a higher level of insurance and they’re not ready.
David Craig – Host:
And today, we’ll talk a little bit about mediations, but most jurisdictions that I practice in, mediations are either required or encouraged. Mediations are a fantastic tool for my clients because they get to be involved in the process, especially on bigger cases, than the defense is involved and the decision makers typically are involved. How much time before a mediation is set does the information have to be given to the decision makers for it to actually even be relevant to them?
How Much Time Before a Mediation Does the Information Have to Be Given?
John Trimble:
I would say with the majority of the insurance companies I represent, 30 days. They will want a report from me at least 30 days before mediation because they then have to write up their own report and it has to go through channels, people have to meet, and so, a minimum of 30 days.
David Craig – Host:
What role does the defense lawyer, how big a role do you play, and I would imagine it depends. My clients rely upon me almost completely because they have no knowledge of the value or what cases settle for or what their verdicts are, but you are obviously dealing with sophisticated folks that do this for a living.
John Trimble:
Yeah, that’s a really interesting question. If I have a pet peeve with my clients, it is sometimes I’ll come to mediation not knowing what they’re prepared to pay, and when that happens, I can’t be very helpful in making recommendations to them about okay, we should offer this much now, we should make this much on our second move and so on, if they don’t tell me. On the other hand, if they do tell me, then I can come in with the understanding of, okay, this is how much they’re willing to pay, what can we do to either get there or not go beyond what they want to pay.
I mean, I would say the reality is they don’t want me to put in writing what I think the case is worth. They don’t want that in their file because if things go badly, they don’t want that in there. On the other hand, I want it in there because I want to be on record that I told them what I think the case is worth, and so I do find a way in making sure that my clients have some idea of what I think the range of the exposure is in a case, and usually it’s conversations, these days it’s Zoom meetings. It’s not unusual to have five or six people on a Zoom meeting where I provided a report and they ask questions about it, then we talk, and then I get off and they meet.
David Craig – Host:
I would assume that if a company’s hiring someone like yourself who has a really good reputation, who’s been doing this for a long time and has a very good success rate, I would assume that they hire you and are paying you to listen to you. So, I would hope that at least that’s happening.
John Trimble:
That’s my hope too.
David Craig – Host:
Nowadays, I’ll be honest, I’ve had cases, I had another one down in Kentucky recently, which was a horrible death case involving a semi, and it was through the negotiation process. We mediated the case, and all the other plaintiff lawyers settled except for me and I was going towards trial, and all of a sudden, they completely shifted law firms. So, the law firm who I thought was providing all the information, who I actually thought I was worried about because it was a local lawyer, president of the bar association, I mean, a really good likable person, all of a sudden, they removed them and brought in a trial firm from out of state to come in and try the case against me. I thought, boy, that’s strange. In my world, I don’t typically bring in a trial lawyers to try the case for me.
John Trimble:
Well-
David Craig – Host:
Is that unusual?
John Trimble:
It’s not that unusual. We get called in regularly to take over cases where the company’s not happy with the defense counsel they have or they lack confidence in them. So, it happens, and I wouldn’t be honest with you if I didn’t tell you it’s happened to me before where I, particularly in ones where I’ve been too insistent with the company as to what I think the case is worth, they didn’t agree with me and wanted somebody else.
Now, I mean, we get together and laugh about it because I can think of one lawyer here in Indianapolis where he’s come in and taken over a case from me or from my partner, Tom, who you know, and a month later, some other company comes in and takes the case away from him and gives it to us. So, it’s one of those things, the first time it happens to you, somebody takes the case away, you’re upset about it, and then before long you’re thinking, no, I’m relieved because they weren’t listening to me. It’s just as well that they work with somebody else. So, I don’t lose any sleep about it if it happens, but it’s not any fun to take over a case from somebody else and have to get up to speed on short notice.
David Craig – Host:
Yeah.
John Trimble:
It does happen.
David Craig – Host:
One of the things that I do with my clients when we’re talking value is that I try to keep up on jury verdicts. I try to look and see, I look at my own stuff but I also look and see what’s happening out there in the world around us. How important are jury verdicts to the defense?
How Important Are Jury Verdicts to the Defense?
John Trimble:
They’re very important if they involve a jurisdiction where the case is pending. To give you an example, and we have clients all the time who want us to do jury verdict research, but if I’m handling a case here in Indiana and they’re trying to compare the case to something that was tried in Chicago or Los Angeles or Miami or someplace else, that’s not comparable, but I’ve got a comparable case from Kentucky or central Illinois or central Ohio, some other place where in general the jury verdicts aren’t a lot different than this area, then yeah, we’ll look at those verdicts. The ones that are most important and we do look at them are the ones here Indiana.
David Craig – Host:
I think that’s a great point. Unfortunately, sometimes, I talk to plaintiff lawyers and they don’t really take that into consideration is that before I file a lawsuit we look and discuss where can we file this lawsuit. In fact, I mean, I have a trucking case out in Iowa and I focus grouped it before I ever file it because there’s a unique issue in that case. I have three, I got three different places, I can file it in Georgia, I can file it in Iowa, I can file … and so not only just certain jurisdictions within Georgia, certain ones within Iowa, certain ones in Illinois, and so we take it and we’ll focus group that issue just so I can hear what people in those jurisdictions think of that issue because it makes a big decision because the value of the verdicts are definitely different in each one of my things. Sometimes people just file suit where the wreck happens without giving a whole lot of thought, but it sounds like it from the defense side, you do look at the jurisdiction.
John Trimble:
We definitely look at the jurisdiction because sometimes a lawyer will file something somewhere where we think, okay, we need to move this someplace else or we want to stay right where we are, and so it’s not the least bit unusual for us to do the same thing you’re doing, either a focus group or I call a local lawyer friend in that community and say, here are the issues, how are the judges for this case? I just did this last week where I’m looking at deciding between Louisville in state court or federal court in Louisville for this particular issue that I’ve got a file and we do it all the time.
David Craig – Host:
Yeah. With respect to mediations, and I know you’re a mediator so you’re probably a little biased but talk to the folks that are listening to this about the role that mediation plays and getting cases resolved and how it can impact the plaintiffs.
How Can Mediation Impact the Plaintiffs?
John Trimble:
Sure. Well, the first thing is as a starting point, it generally requires everybody to be ready. It’s one of those things where no matter which side of the case you’re on, you can’t evaluate the case and settle it unless you know what your risk is. So, that means you need to have enough facts to know whether a jury’s going to go high with this case or whether a jury’s going to go low with this case, and so, you’ve got to be ready for mediation. That’s the first point.
The second point is that in mediation, it’s really what you do the entire day in either room is that you’re talking about, okay, what’s our risk? What’s our risk of turning down an offer that’s being made to the plaintiff and then the plaintiff having to spend a bunch of money on expert witnesses and trial depositions and exhibits, time away from work and family, and going to trial and getting less or bringing the same amount of money that they were offered but having spent money so that they pocket less?
From the defendant’s perspective, what’s our risk of turning down an offer from you and spending all the money and time going to trial and paying more? So, that’s what the mediator does is to have that conversation in both rooms, and it’s also a time where the mediator is able to talk in both rooms about difficult subjects because sometimes, and I wouldn’t say this is true of you because I know you so well, there’s certainly some plaintiff’s lawyers who are friends of mine who don’t have the courage, just for example, to tell their client, Joe, I hate to tell you this, but you’re not going to be a likable witness in trial. The jury’s just not going to like you. You’re a good, great person, and you were injured, but that’s a factor that could have bearing on value.
But a mediator can have that conversation. A mediator can talk to an insurance company person and really question the position they’re taking and why they’re evaluating the way they are and maybe draw more money out of them that way. I mean, so it’s helpful for that mediator to really be able to talk to both sides and help each side recognize what their risk is so they come to a number that both parties can live with.
David Craig – Host:
One of the things that I’ve utilized, and I think even with cases with you, are videos that kind of show some of the witnesses that I’ll be putting on the stand, how they come off. Sometimes I interview doctors to provide information, and I think you touched on it a little bit earlier, in that photographs, visual things might help. How helpful, if at all, do you think that videos, settlement type videos, are for the decision makers?
Are Videos Helpful to the Decision-Makers?
John Trimble:
I think they’re very helpful. The only challenge that we have at times is, for better or for worse, the actual decision maker is not in the room with me when I come to mediation on behalf of the defendant. It depends on the gravity of the case, if I have a really severe case, then the company’s going to send a much higher level person, but if it was not terribly severe, they’re going to send a lower level person who may have round tabled this with more senior people, and so it doesn’t do a lot of good to show that low level person that video on the day of the mediation because even if they’re convinced by what they see, they’re not in a position to communicate it to the people upstairs. So, sometimes having that information in advance is appreciated.
You’ve seen it happen too where we go to mediation and the low level person sees the video, realizes they don’t have enough authority and then after a while we adjourn the mediation and come back so they can share that information with the people upstairs. I’ve done that many times, where I’ve said, hey, can I show this to other people? They need to see this personally.
David Craig – Host:
We’ve done that many times, and I kind of had the position and I think I was wrong, my wife will tell you I’m wrong a lot of the times and occasionally I’m even brave enough to admit it, but my position always has been, on a bigger cases, let the other side value the case and get their value and then go into mediation not with the intent to settle but with the intent to inform them that the case has a higher value than probably what they set and using the video or other things to try to do that.
Now, when COVID hit, I couldn’t do things the way I used to do it, and so, now we were presented with people all over the country and they could participate and we could play the video and probably because you previously told me that it doesn’t do any much good to show it right there on the spot, I’m now of the opinion that we try to provide it 30 days ahead of time, if we can, with limitations and we still put some restrictions on it. I think that it sounds like for it to have the most impact, it needs to be given to the decision makers, the attorneys, so the attorney can give it to the decision makers, 30 days before the mediation. Would you agree with that?
John Trimble:
I would agree completely, and I can think of a couple of cases I’ve had recently where getting a video in the hands of the decision makers was really impactful and made a difference in how they saw the case. I know you videotape a lot of depositions, but these days the insurance industry doesn’t always want to spend money on video, they’re shortsighted, but they don’t get to see the plaintiff. They have to rely upon our statement, this person makes a good appearance or this person is an average witness or this person is a really bad witness, and so I’d prefer to have a video of the deposition for them to see it themselves, but getting to see a video of a good witness, good family members, witnesses, doctors, and people around them, can be really impactful.
David Craig – Host:
One of the things that we do, my firm, we video every deposition, and I would prefer to eat the cost if I need to at the end. That’s the great thing about being the plaintiff’s side of it, is that I can just write off the expenses and eat it and I’d rather err on the side of preserving something. I’d never want to be in a deposition where I wish I had videotaped it and I hadn’t. Many times, I videotape a deposition and think, well, that wasn’t necessary, but I would much rather have that, err on the side of being cautious.
John Trimble:
Yeah, definitely. Definitely. I mean, as you well know, these days the things we can do with depositions where you can line up the transcript with the deposition and you can show clips in court with the person testifying, answering the question with the typed answer underneath it at the same time they’re answering it, can be really impactful too. So, there’s a lot of good use for depositions and videos for that. We can’t always sell that, but we try.
David Craig – Host:
So, the plaintiff’s side, I know at least with my firm, I use focus groups pretty regularly, and I actually do focus groups just to determine how do I change the value of a certain condition, for example. So maybe I have a traumatic brain injury with no bleed and no positive CT scan, and so I look at those and say, well, I want to educate myself and what people think about those. So, I may do a whole series of focus groups, not on a particular case but on a particular issue, and then, we try to learn from that so that I can do a better job communicating to jurors and that helps my value. I find that we do a better job when I listen to jurors or get a big enough sample size.
Does the defense do focus groups, and a focus group for those people listening are when you get a group of people from the community, a similar community to which your case is, and then you present the facts or issues and then let them help you and tell you what kind of problems they have with it or what their thoughts are? Does the defense use those? I know certainly my firm and some plaintiff firms do.
Focus Groups and the Defense
John Trimble:
We do. We absolutely do. I mean, if we got a big case where we have an issue or two or three where we’re just not really sure how well that issue’s going to go over, it’s really important, and we’re not always that focused on what dollar figure the group comes up with. We just want to know how they see it and whether they would find for us or against us on the issue. We like the mock jury trial where we give them witnesses, give them evidence, give them argument, put them in a jury room and we can watch through a camera or through a glass window, a mirrored window, and listen to the deliberations. We learn a lot from that, and I have lawyers here in my firm who actually have a practice where they’re available for hire to go do mock jury trials for people who want to have a mock jury trial. Our guys will get up to speed and go play the role of the plaintiff and play the role of the defendant and help do a mock jury trial.
David Craig – Host:
I agree. I mean, we do those as well, and I don’t rely on the value that they give us, but I do think it has an impact on my thought of the value based upon the issues that are there, whether it’s a bigger issue than I thought or a smaller issue than I thought.
John Trimble:
Well, I had a case recently where we really thought that we had a decent liability defense. We put it to a mock jury, we had originally, I think, 20 people listen to all the evidence and looked at everything. We divided it into two groups of 10, both groups found liability. We knew then, okay, this is a case of liability. Of course, the person who we thought was at fault for what happened to him died as a result of it. So, I mean, it was a big case, but our liability defenses did not persuade anybody.
David Craig – Host:
Well, one last thing. From the plaintiff’s perspective, a lot of times we look at these cases and we believe that defense is dragging a case on, that they want to keep the money as long as they can, hold onto it and not give it to our clients, or certainly our clients suspect that. Is that really the way that it works on the defense side?
Understanding Metrics in Cases
John Trimble:
Well, I mean, the reality is it’s not. There’s an interesting concept, it’s called metrics, and whether you realize it or not, when you drive through Arby’s, from the time you order at the drive up until you get your food at the window, Arby’s is measuring the time between the order and the time that they take your money, and they’re doing that by store, they’re doing it by each person who works the drive up window, and they’re doing it by order type. McDonald’s does the same thing. Starbucks does the same thing. You may not realize it when you go in a doctor’s office, the doctor walks in and these days they turn to a laptop computer and they log in what time you came in, they log in what time they went out and they measure how long they spent with you. They measure that by age of client and by type of diagnosis.
Well, in our business, I have metrics and they measure my cases by how long the case is open, how much money I spend per case, how much time I spend at the beginning of the case gathering the information, how quickly I get it to the point to be ready for settlement. There are 360 measures of the performance of defense firms and defense lawyers, and our repeat business is dependent upon having better metrics than the guy down the street. So, we’re incentivized actually to get in and get out, and the insurance industry realizes that the longer the case stays around, the more expensive it gets. So, it’s really not true. Now, I won’t tell you that aren’t some little defense firms out there with a lawyer who doesn’t have enough to do, that wants to run up a bill and get paid before they let go of the case, but those people don’t survive very long in this market.
David Craig – Host:
Yeah, and I saw that, I mean, in the trucking world. I mean, I do a lot of trucking cases throughout the country but mainly the Midwest, and I’ve seen smaller firms sneak into the market, grab a bunch of business, and all of a sudden, I’ll see them and they’ll have … I’ll go do an inspection, for example, and there’ll be two defense lawyers there. It’s not unusual to see one, but it’s very unusual to see two, and then you start seeing delay, delay. I’ve seen them within a year and a half get their files pulled and then see other firms that I know that are good trucking defense firms take over the business. I assume that has to do with the metrics? I assume that has to do with that?
John Trimble:
It sure is.
David Craig – Host:
Was there anything else that you think that the folks that have been injured, seriously injured, should know about how the defense values these cases? What the plaintiff lawyers should be doing differently to help the defense lawyers to value cases? It’s kind of funny that when I talk to clients is that I have the utmost respect for most defense lawyers. I actually think that they’re doing a really good job. We both have a job to do, but I find most defense lawyers, I have a lot of friends on the defense side probably more on the defense side because I spend more time with them than I do the plaintiff side, except for conferences and those type of things where I’m on the boards or whatever, but it’s not a hate and it doesn’t have to be a situation where your adversaries in a nasty or non-professional way. I think sometimes clients don’t see that because this is the first time they’ve had it, but is there anything else that you think that they should know about the value or how to value cases or how to get value?
John Trimble:
I mean, I would say this, because of the internet age that we live in and because of the cable news age that we live in, if you turn on cable news, if you get on the internet, you’re going to see big verdicts here, big verdicts there, you see all kinds of reports of things, but they don’t necessarily represent what’s going on where you are. So, we all live in a news cycle where we judge what’s going on in the world by what’s on TV and what’s on the internet, where what’s going on close to home is totally different.
So, I tell people, hire a lawyer who you trust and respect and listen to them and listen to their advice because they know what’s going on locally. They evaluate cases for a living, and yeah, somebody may have got a million dollars for a similar case in New Mexico or Texas, but that may not be what the law is in Indiana, what would happen in Indiana. So, don’t spend a bunch of time going online trying to figure out what your case is worth. Trust a lawyer to help you figure out what your case is worth.
David Craig – Host:
One last thing I’ve always been curious about is, my firm, I don’t force my clients to settle and I don’t force my clients to go to trial. I just give my advice and then I’m happy to do what they want. Does it make a difference on the defense side, on the insurance company side, if there’s a law firm … not all law firms go to trial. We do, we just finished the trial, but does it make a difference at all when an insurance company’s evaluating a case whether a case firm actually goes to trial or not?
John Trimble:
It absolutely makes a difference. No question.
David Craig – Host:
So, if somebody’s seriously injured, they ought to at least ask that question, do you go to trial? When was the last time you went to trial, I would suspect?
John Trimble:
Yes, because I won’t name any names here, but I know some firms who are very high profile because you see their name every day and who don’t try cases. Now, in the trucking arena, everybody wants truck cases. So, everybody’s out there looking for truck cases because trucks can cause bad injuries, but you got to know how to try a truck case, and there are people out there soliciting truck cases who’ve never tried a truck case.
David Craig – Host:
Yeah, and I’ve seen that, and certainly with truck cases they’re so much more complicated. You guys have a whole division of attorneys that handle truck cases. My firm, we handle truck cases. I just took my lawyers out to Montana to drive semis, and so they were all out driving semis because quite frankly, I don’t think all truck drivers are bad. I think most of them are really good human beings that are trying to make a living and protect their family. There are a few bad ones, just like there are a few bad attorneys. Those few bad ones unfortunately can cause a lot of harm.
The greatest thing was we went out to Montana and spent time with truck drivers and drove around trucks on the highway and you learn to respect people, and I think that that’s true with anybody. You try to learn to respect and listen and learn from the other side. I see too many, I mean, just the insurance coverages on trucking cases are so much more complicated than a car case. Who ensures a trailer? Is there a shipper? I mean so many different parties could be involved that I would certainly think that having a lawyer who knows that stuff adds value versus someone who doesn’t.
John Trimble:
No question.
David Craig – Host:
John, any last remarks that you would like to make?
John Trimble:
No.
David Craig – Host:
Alright.
John Trimble:
Thanks for inviting me. It’s always a pleasure, and I hope that we’ve shared some information today that people will find helpful because we want our profession to be as transparent as possible. We want people to have confidence in it, and the only way to have confidence in it is to trust the people who are part of it.
David Craig – Host:
I agree. Thank you very much for being on the podcast. Thanks, John.
John Trimble:
You’re welcome.
David Craig – Host:
This is David Craig and you’ve been listening to After the Crash. If you’d like more information about me or my law firm, please go to our website, ckflaw.com or if you’d like to talk to me, you can call 1-800-AskDavid. If you would like a guide on what to do after a truck wreck, then pick up my book, Semitruck Wreck, A Guide for Victims and Their Families. It’s available on Amazon or you can download it for free on our website, ckflaw.com.
