On the Therapeutic Benefits of Being a Plaintiff

therapeutic benefits

Take a Stand – It May Help Your Recovery

For a victim of cyber-abuse, harassment, discrimination, or sexual assault, there may be therapeutic benefits in just standing up and fighting for justice through the law.

[T]he very act of being a plaintiff in a tort suit has the potential to provide therapeutic benefits.

The act of being a plaintiff in a tort suit also can aid specifically in the healing process for victims of violence.

Victims of violence usually desire redress for the injustice inflicted on them, and the quest for compensation can be an important part of the victim’s recovery.

Camille Carey, Domestic Violence Torts: Righting a Civil Wrong, 62 Kansas L. Rev. 695, 742 (2014).

Simply put, there can be mental and emotional benefits from standing up and fighting for justice when you have been a victim.

If you’re ready to stand up and fight, we can help.

Contact us now.

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Understanding The Auto Insurance Company

What the insurance company sells

An auto liability insurance company is engaged in the business of selling responsibility.

To be more clear, an insurer sells responsibility for having to clean up the mess should something scary happen.

Something scary like a cracked windshield.  Something scary like a fender-bender.

Something scary like a lawsuit.  

Since life can be scary, the insurance company exchanges cash for responsibility.

Or, if you prefer, you could say the insurer is in the business of buying problems.

For the low, low price of $79.99 (a month), the customer can sleep easy, knowing that this month if her Toyota Highlander ends up in a wreck, it will not be her responsibility.  Nope, this month—well, assuming she paid on time . . . or, if she didn’t, assuming there was no effective Cancellation—this month, that will be the insurance company’s problem.

How the insurance company makes money

Since auto liability insurance is a business, the insurance company is interested in making money.  And insurers obtain money by selling, as noted above, Responsibility.

At first glance, you may think their sales pitch: “You give me a little money now, and, in exchange, I’ll give you big money later” does not seem like much of a business.

You’d be wrong.

But, to be fair, the very nature of the company’s product means that making a profit can be tricky. . . .

The quick and dirty:

Step One: The insurance company must carefully decide what risks to take on, and how much to charge for taking on those risks.  

Risks, here, refers to the ways you could get hurt and your car could get damaged.

And, just to be extra clear: One of the ways you can get injured in a car accident is by getting sued.

The insurer determines the risks for which it is willing to assume responsibility.  In exchange for doing so, it charges a particular policyholder, a particular price—referred to as a premium.  The premium is closely tied to the type and size of the risks the insurer takes on: The bigger the risk, the bigger the premium.

But the premiums alone do not bring the insurance company a profit.

Step Two: The insurer must be fruitful and multiply.

The insurer must then multiply the cash (premiums) it obtained in Step One, by investing it in money-generating stuff.  Stocks, bonds, and other fancy financial things.

If it does this well, the insurance company will make enough to have money left over (i.e., profits) after Step Three.

Step Three: The insurer must give back to its policyholders what they purchased, and only what they purchased.

In this step, the insurance company is the 7-11® store manager making sure those darn juvenile delinquents don’t run out with fistfuls of slushies and Funyans.

As briefly mentioned, the insurance company decided how much to charge for its product based on a Formula™—it took a highly educated guess as to the likelihood that the scary event might happen to a particular policyholder. Then, it took a highly educated as to how much, if it happened, the scary event would likely cost.

Then it charged that much. 

 

Well, that much, or more. Preferably more.

If the insurer does its job right, the money generated in Step One (from all of its policyholders), and the money paid out in Step Three (in all of its claims) will just about balance each other out.

Therefore, in terms of generating profit, an insurance company is only as good as how well it performs Step Two.

Simply put, the insurance company is not getting rich from premiums.

And, despite what you may hear, the insurer cannot get rich by holding on to money and refusing to pay valid claims.  

To the contrary, insurance is a highly-regulated industry. That means the government is all up in their business.

So, as you will see later, many laws assist policyholders in recovering all to which they are entitled and penalize insurance companies for purposely dragging their feet, playing games, or even just moving too slowly.

So, ultimately, an insurance company’s profitability really hinges on Step Two: its financial investments. To make money, the insurance company’s investments must make money between the time they leave the customers’ hands (as premiums) and the time they return to the customers’ hands (as paid claims).

Yep, an insurance company is basically your Uncle Alvin borrowing cash to fund his casino habit.  When ol’ Al borrows cash, he only ends up ahead if his luck at the casino outpaces the 38% interest you will be tacking on each day.  Likewise, an insurer succeeds only if the cash in its hands grows faster than the rate at which it must pay it back.

Except, when a policyholder demands payment, mere excuses won’t cut it—unlike ol’ Uncle Al, the insurance company must ante up. Ok, it’s just like your Uncle Al.

It’s all about control

Since the insurer does not make big money through premiums, to keep its situation running smoothly, the insurer must control what it can.

Control Risks

Starting with Step One, the insurer must carefully agree only to take responsibility for true risks.

This is because insurance company can only predict the odds of true risks.

True risks are a product of pure chance.  

By only agreeing in Step One to take on responsibility for events that are the pure product of chance, an insurance company can more closely calculate how much it will later have to pay out overall, in Step Three.

It’s like a coin toss.  The outcome of a single coin toss cannot really be predicted.  But, the overall outcome of a million coin tosses can be pretty well estimated.

As long as no funny business is going on (ahem, cheating), out of a million coin tosses, you can be pretty sure that will end up with somewhere in the neighborhood of 500,000 heads. And probably around 500,000 tails.

Try it and see.

By only taking on true risks, the insurance  company can make sure it charges each policyholder a premium that makes sense.

Control Investments

For Step Two, the only control the insurer has is to hire stellar money pros to hedge its bets and increase the likelihood that its investments will pay dividends.

But, the insurer only has so much control here. Just like any investor, an insurance company is subject to the ebb and flow of the economy and the financial markets.

Control Claims 

Finally, when it comes to Step Three the insurer must make sure that it pays only for the risks it agreed to take on in the first place.

Remember, to avoid losing money, but not quite to make money, the insurer exchanged cash for those true risks it took on—it was betting on those risks, and no other.

So, to make money, the insurance company must pay only what those risks are really worth.

This is where the process of claims settlement come in and where understanding how an insurer views and assess those claims helps make the difference when it comes time to negotiate.

But more on that later.

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Understanding Auto Liability Insurance

An insurance policy is a contract. 

That’s all. 

It’s a contract between a person and her insurance company.  

So, insurance being a contract, the buyer gets what she paid for—no more, no less.

What she would have paid for—for purposes of this discussion—is one or both of the following flavors of auto insurance: Liability or Uninsured Motorists (UM).

The first type, Liability Insurance, is not optional.

All—yes all—auto insurance policies provide Liability Insurance.  It is the basic form of car insurance that jurisdictions (Georgia being one) require cars to carry.

UM, on the other hand, is different: The buyer has this type of insurance only if she wanted it. (Or, more likely, only if she did not notice she was agreeing to buy it…)  So, only some—yes some—auto insurance policies provide UM Insurance.

Liability Insurance

Time for a quick refresher.

The universe of auto insurance can be divided into two types: Liability and UM.

  • All insured cars carry Liability Insurance.
  • Some insured cars also carry UM Insurance.

Right.

But what is auto Liability Insurance?

Liability Insurance is the defendant’s insurance. That is to say, it is the type of insurance that protects a person when they are defending a lawsuit (i.e., when somebody else sued them).

Liability insurance guards against blame; it kicks in to rescue its people (its insureds) when someone tries to blame them for an accident or tries to sue them for money.

In a lawsuit, liability insurance protects the defendant.

It is “Liability” insurance because it cloaks the insured with protection against having to pay a judgment out of their own assets—it protects them against liability.

Depending on the number and nature of the auto insurance policies that a defendant, or people connected to a defendant, may have taken out, the defendant can find himself protected by multiple cloaks of Liability Insurance.

So Liability Insurance protects the defendant. But how?

Well, in a few ways.

But to understand how, you have to start by accepting as a general proposition, that in our system of civil justice, a defendant is liable for a judgment entered against him.

Liable

By liable I mean if a person is sued and a judgment is entered against him—whether by a default judgment or following a trial, or even by agreement of the parties—his assets can will be used to pay that judgment.

So, in a plain ole suit for money damages from a car accident, (in Georgia) a plaintiff does not sue the insurance company.

This bears repeating.

In Georgia, the plaintiff does not sue the defendant’s insurer.  
The plaintiff sues the person or business 
he claims caused his injuries.

If Plaintiff wins, a judgment is then entered against Defendant.

And, legally the defendant is the one responsible for the judgment; technically, he’s the one on the hook for making sure the judgment is paid. Even if that means his personal assets (savings, paycheck, kids’ college funds) are tapped.

Stated differently, the defendant is personally liable.

And if you have taken nothing else away from this, just remember: there is no “judge” in judgment.

j•u•d•g•m•e•n•t

Moving on…

In personam v. In rem judgment

What the what? Yes, I’m taking it there. . . .

Now, you may vaguely recall hearing mention of these in law school.

For now, suffice it to say that the type of judgment we are talking about here—i.e., the kind that makes a defendant personally liable—is an in personam judgment.

This tidbit matters because, as stated earlier, the defendant must be personally liable—or, at the very least, must be at risk of being personally liable—in order for Liability Insurance to kick in.

For now, just remember this: To hold a defendant personally liable—and, by extension, to ensure that Liability Insurance will come into play—the plaintiff must secure an in personam judgment against the defendant.

In personam judgment requires personal service of process.

Tuck this away in spare part of your brain—you’ll need it later when it comes time to think about serving the Complaint.

Back to Liability Insurance.

So, the defendant is facing personal liability in the form of an actual or threatened in personam judgment against him.

How does Liability Insurance come into play?

Liability Insurance is used to pay the judgment.

Let’s assume the defendant—back before the accident, lawsuit, and all this messy business got started—purchased car insurance.

As you know, the car insurance policy provides Liability Insurance.  Always.

This notion—that is, the concept of Liability Insurance—is really just shorthand for “The insurance company agrees to take care of its people if they sued for a car accident.

So, the Liability Insurer will pay an in personam judgment entered against its people.

Up to a certain point.

That certain point is determined by the amount of coverage the defendant bought.

Liability Insurance pays the judgment up to the coverage limit.

If the defendant purchased $25,000 in liability coverage, then the liability carrier must pay the judgment; but only up to $25,000.

If, under this same scenario, the defendant ends up with a judgment against him in the amount of $25,000.01, then that additional penny is not the responsibility of the Liability Insurer.

By default, therefore, that penny remains the defendant’s problem.

Because (remember) the defendant is the one who is personally liable for the judgment.

Liability Insurance supplies a lawyer.

Rewind.

Remember that insurance policy the defendant bought back before the accident happened?  By the terms of that contract, in addition to agreeing to pay the judgment (up to the policy limits), the insurance company also agreed to supply a lawyer to defend its insured (the defendant) in the lawsuit.

That was part of the product that the Insurer sold.

That’s right.  An auto policy is, in part, like a contract for pre-paid legal services.

So, by issuing a policy to the defendant (or someone connected in the right way to the defendant) the Liability Insurer agreed to defend the defendant against a lawsuit. . . .

. . . AND it agreed to pay the judgment (up to the policy limits).

Not bad, huh?

But this, of course, assumes the defendant is, in fact, covered by the auto insurance policy.

Hmmm.. Is the Defendant covered by the Liability Insurance policy?

That’s a good thing to find out because figuring out whether a defendant is ‘covered’ by liability insurance is a two-for-one. As we just discussed, it will tell you:

  • Whether the insurer will supply a lawyer to defend him.
AND
  • (here’s the one you really care about) Whether the Liability Insurer will pay a judgment on his behalf.

Well, it will tell you that most of the time. . . .

Sometimes it kinda won’t. Because sometimes the Liability Insurer will issue what’s called a Reservation of Rights.

A Reservation of Rights means “We’ll defend, but we might not pay.

When a defendant is sued—or faces the threat of being sued—a Liability Insurer must move quickly.

As you already know, investigating, gathering evidence, and filing pleadings often starts soon after an accident; and doing these things on time can make or break a case.

As such, oftentimes a Liability Insurer cannot spend too long trying to determine whether the defendant is really covered under a policy.  The Insurer must often move first—and ask questions later.

In these situations, the Liability Insurer may be willing to supply a lawyer to immediately get to work protecting the defendant, but may first send the defendant a ‘Reservation of Rights’ letter.

The letter strikes a deal with the defendant.  What a Reservation of Rights letter says is that the Liability Insurer is willing, for now, to assume that the defendant is entitled to Liability Insurance protection, but it needs to look into it some more—so even though it is stepping up and putting up a defense for the defendant, it is nonetheless reserving the right not to pay the judgment.

If the defendant agrees to this deal, wha he is saying is: “Yes, yes, we can battle that question out later, whatever! But for now, please, PLEASE help me…!”

You are now probably thinking: “What does this mean for me?”

The answer: Probably nothing.

Knowing this, however, enables you to understand what may be going on behind the scenes, should it crop up in conversation.

Plus rarely, maybe even very rarely, it may come to affect you in that you may succeed in getting a judgment against a defendant . . . only to find that the Liability Insurer—who had been defending the insured until this point—is now refusing to pay the judgment on behalf of its insured.

But more on that later.

Read now about UM (Uninsured Motorists) Insurance

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Preparing for Mediation When You Have No Lawyer

preparing for mediation

Mediation is a process in which the parties to a lawsuit (or potential lawsuit) meet with a neutral third-person and attempt to reach an agreement to settle or resolve the matter.  Preparing for mediation when you have no lawyer may be tricky.  But it can be done.  Here are some tips to keep in mind.

Pick a good mediator.

If you have a choice as to which mediator to use, invest some time in research. Ask attorneys for recommendations. If you already have a mediator assigned, what do you know about her? How much experience does she have in these types of cases? If he used to practice law, did he represent plaintiffs or lawyers? If the other side suggested him, find out why.

Your goal here is to find a mediator that is well-experienced in achieving compromise in cases like yours.  You also want to find out how your mediator will likely view your case, so you can focus your energy on speaking his language.

Prepare as though it were a trial.

Mediation is not therapy – it is not a place for merely discussing your point of view.

Focus on what you can prove.

Mediation is your chance to show the other side why you believe you will win at trial — and why they are better off settling with you today. To that end, you must prepare your case as you would for trial.

Bring every single document supporting your position. Do not wait to produce them at later time — the time is now.

Mentally prepare yourself to reach a deal.

Many people go into mediation with the idea that there is only one amount or outcome that they will accept. That is a surefire way to waste everyone’s time and, potentially, set yourself up to lose your case entirely.

If your case is about money, it is better to go into it with the idea of a range that you would consider.

Don’t tell yourself “I will accept only $25,000 and not a penny less” because what if the other side offers $24,995? What if they offer $24,750? Would you walk away and take the chance of losing at trial over $250?

The correct answer is: “I would not walk away; I would consider the offer.” If this is not your answer, then you are not ready for mediation.

Understand that neither side will get everything they want.

Nor should they. That is the whole point of mediation.

Don’t bother attending a mediation unless you understand that what this is, is your opportunity to prevent a zero sum result (i.e., one in which only one side wins and the other side completely loses).

Zero-sum results are what trials are for.

If you go to trial, no matter how strong you think your case is, no matter how right you believe you are, a judge or a jury may see it differently. And you can lose.

Here, at mediation, is your opportunity to at least have some say in which parts you win, and which parts you lose…

Mentally prepare yourself not to reach a deal.

The side that cannot afford to walk away from mediation, is that side that loses.

Be open to and, indeed, make it your goal to strike a deal. But assume, from the outset that you will walk away from mediation with no deal reached. So, in the time leading up to mediation, don’t conduct your affairs in such a way that the outcome will affect your livelihood.

In other words, aim for a deal; but don’t need one.

Identify your non-negotiables.

Rather than drawing a line at the minimum you will accept, think about what it is that really really matters to you.

If your concern is money for future expenses that may arise, tally up those likely costs ahead of the mediation. If having your kids on their birthdays and Rosh Hashanah is essential, then recognize that perhaps having them on Halloween is not a deal-breaker.

Organize your documents.

Get your materials together at least a week before your mediation. Print out anything you would rely on to prove your case at trial: documents, emails, text messages, photographs.  Prepare a spreadsheet showing the figures that establish your damages. Bring a draft settlement agreement and release.

Your goal should be to have what you need at your fingertips the second you need them so that the mediator is armed with ammo in your support each time she goes to the other side’s room.

Consider retaining a day-rate lawyer.

Even if you are representing yourself in the underlying dispute/litigation, consider retaining a lawyer just to attend the mediation with you.  What you need is someone who can keep you thinking rationally and who can alert you when you may be getting off-track.

In the alternative, consider bringing the most cool-headed person you know; make sure it is someone who has no connection to the case.  The last thing you need is someone who will be talking you higher up the ledge.

Leave your ego at home

Righteous indignation will not help you succeed at mediation. Save the tantrums and outrage for your loved-ones.

The other side already gets that you believe in your position.

Focus, for now, on showing them why.

Remember: It’s not over until it’s over.

Many cases settle after the parties leave mediation.

If there is a final offer on the table at the close of mediation and you don’t feel prepared to accept it, just ask for time to think about it. Don’t close the door on negotiations.

And remember, there is no shame in appearing reasonable (See Leave Your Ego at Home, above).

If you are the side who has left an offer on the table, don’t give up hope — a good mediator will often continue interacting with both parties in order to reach a deal even after you leave.

On the road to reaching a settlement, it’s not over until a judge/jury returns a verdict.


If the stakes are high, preparing for mediation should likely involve hiring an experienced lawyer to represent you.

Additional resource: State-by-State Directory of Mediators – National Academy of Distinguished Neutrals

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