Jamie Smith

What Lawyers Don’t Advertise on TV

We have all seen them: flashy TV commercials pageanting personal injury attorneys and the high-figure settlements their client received after being injured in an automobile accident. Whether they focus on the attorney’s heroic feats, client testimonials, or endorsements by B-List celebrities, these advertisements almost always share a common denominator–they are visually distracting. Next time you tune in to your local network, pay careful attention to these commercials and you’ll see that they are always moving. Background reenactments, slideshows of mangled vehicles, and numbers and words zooming on and off of the screen are just a few of the ways these broadcasts keep your eyes busy. And while gaudy commercials are effective marketing tools for law firms–many of us know the names and numbers of these attorneys by heart–they may be effective for troubling reasons.

South Carolina’s Rules of Professional Conduct require attorneys who choose to broadcast their settlement figures must “clearly and conspicuously” disclaim that the results a lawyer or law firm achieve on behalf of one client does not necessarily indicate that similar results can be obtained for other clients. But thinking back over the braggadocios clips reminding you of who to call when you’re in a crash and need your cash, do you remember ever seeing this disclaimer? Probably not. If you watch very carefully, the disclaimers are there–they are just easily overlooked when your mind and eyes are dazzled by the perpetual motion in the ads. Unfortunately, the resulting effect can mislead viewers into thinking that all car accident victims will be entitled to five, six, and seven figure verdicts when, in reality, that is simply not the case.

The intent of this article is not to discount the credibility or success of law firms with animated commercials–the attorneys that fit the bill in my mind are all well-qualified to handle a personal injury claim successfully. Instead, what I hope to accomplish is to inform readers as to why settlement and verdict results vary significantly in personal injury claims, and why you most likely will not walk away from a fender-bender with a windfall. In realistically assessing the value of a personal injury case, there are many factors that come into consideration when assessing the value of a personal injury claim:

1. The Nature and Severity of the Injury. Often, victims of car accidents sustain what are referred to as “soft tissue” injuries, and these injuries are usually impermanent and undetected by CT scans, X-Rays and MRIs. In most cases of soft tissue injury, subject of course to other variables, including those described below, settlements or verdicts will generally cover the victim’s medical bills plus some additional money for pain and suffering. After paying medical providers and attorney fees, it is often the case that drivers who sustain soft tissue injuries will not take home a huge pot of money after resolving a claim.

So how, then, do attorneys achieve the six-figure resolutions advertised on TV? The reality is that, in most cases, the accidents resulting in these settlement amounts also result in permanent injury, catastrophic injury, or fatality to those involved in the accident. These victims may have to endure joint replacements, spinal or plastic surgery, broken bones, chronic pain, bodily disfigurement, and/or permanent impairment of the body. Clients receiving these offers usually will need future medical care, and the money is intended for that purpose; some receive the money in a futile effort to make them “whole” after the loss of a child, spouse, or loved one. Thus, while it is possible to earn significant settlements and verdicts for clients involved in an automobile accident, these results are unlikely absent devastating circumstances and, in those cases, no amount of money truly will restore the victim from the injuries they’ve sustained.

2. Insurance Coverage. A second probable determinant of what a settlement offer may be is the amount of insurance coverage available. Say you have $100,000.00 in medical bills from an automobile accident, and the at-fault driver carried $25,000.00 in coverage. Unless you carry underinsured motorist insurance, there is only $25,000.00 available to you. Can you sue the driver for additional money? Sure. However, most individuals do not have the assets to pay any additional monies, and so it is rare that an at-fault driver is sued for funds in excess of the insurance policy limits. Even if the court issues a judgement against that driver, there is only a slim chance of that judgment being satisfied; in other words, one could spend a lot of money on litigation that results in essentially a worthless piece of paper. On the other hand, if a victim has significant injuries and there is substantial insurance money available, that individual may be able to recover one of the large verdicts like those advertised on television.

3. Visible Property Damage. Though it is not necessarily a reliable way of measuring a person’s injuries, insurance companies and juries will often look at the property damage a vehicle sustained in a collision to determine whether the impact caused by the at-fault driver was sufficient enough to cause the injuries claimed. This is a theory that Plaintiffs’ attorneys fight hard to debunk, but currently it is the case that factfinders generally tend to correlate visible property damage to bodily injury. Thus, if there is very little visible property damage to a vehicle after an accident, the victim may have a long battle ahead to establish that the accident caused bodily injury.

4. Preexisting Conditions and Gaps in Treatment. Like property damage, juries and insurance adjusters may try to dispute that a victim experienced bodily injury from an accident if they experienced similar symptoms prior to or at the time of the accident, or if the victim did not receive treatment for a significant period of time after the accident. Plaintiffs’ attorneys advocate against these notions, but ultimately, proving causation is far more difficult in cases where a client has a preexisting condition aggravated by the accident, or where a client has not received medical treatment for his or her injuries for a period about two weeks or more after being in a motor vehicle accident. Thus, cases in this category often see lower settlement offers and are more likely to wind up in litigation or trial.

5. Where the Accident Happened. Perhaps one of the most surprising factors that insurance adjusters consider when making an offer is location. In a lawsuit involving a motor vehicle accident, the suit may only be filed in the county where the accident occurred or where the at-fault driver lives. Attorneys and adjusters know that a Plaintiff may obtain a great verdict in certain counties and a meager verdict in others. This is determined based on whether the county’s residents–and thus its jury pool–are primarily conservative or liberal. The more conservative a county is, the lower your settlement offer or verdict will probably be.

6. Who Caused the Accident. The party at fault in a motor vehicle accident may have some bearing over what a settlement offer or jury verdict may look like. Drivers hit by a tractor trailer often receive a higher payment than they would if they sustained the same injuries in an accident with a non-commercial driver. This is attributable to the fear that potential jurors have of tractor-trailers, and the extensive rules that apply to these drivers. Or, if a victim is hit by a drunk driver, he or she may potentially be awarded punitive damages which are not meant to make the injured party whole, but to make an example of the consequences of driving under the influence. In that instance, a person with only minor injuries may be awarded a significant sum of money like the settlements flashing across your television screen.

So, what’s the verdict? The answer is that the settlement figures boasted in attorneys’ television advertisements are, most likely, not reflective of what the victim of a typical motor vehicle accident should actually expect to receive. A surprising weight is given to factors that have nothing to do with the injuries sustained in an accident when calculating what a “fair” offer should look like, and the cases that land a spot in prime time television most likely involved a number of the factors above leaning in the victim’s favor.

The system is not necessarily a fair one for Plaintiffs, and it is important to understand why when you’ve been in a motor vehicle accident–especially when advertisements paint an unrealistic image of what to expect when you’re in an accident. Knowledge can help victims better navigate the system, understand when an insurance company is not extending a fair offer, and eventually create a system that is more just. That said, if you or someone you know has been in a car accident, the Mike Kelly Law Group encourages you to contact an attorney with questions about these factors, and others, weighing into insurance companies’ decision-making when extending settlement offers.