DAVID KRONEMYER: The other driver made an unsafe lane change at an intersection, and basically wiped out half of my car. Fortunately, both of us were wearing seatbelts; no bones were broken, nobody was thrown through the windshield, nobody ended up on the pavement . I got out of my car pretty much as soon as it came to a screeching halt. She already was out of hers, and on her mobile telephone, calling her daughter. When daughter arrived, I asked her how mother was doing, and she said, “fine.” Being a careful driver, I chalked the whole thing up to bad luck – being at the wrong place at the wrong time.
Imagine my surprise when, a couple of months later, I got a summons in the mail. She was suing me, alleging that she had sustained serious injuries. This was perplexing, seeing as how she was the one who ran into me; I thought that the other person had to be at fault, in order for you to sue. The accident occurred on a Saturday and it turned out that by Monday, daughter already had hired a personal injury lawyer.
What happened next is a strange saga. Mom had a shoulder injury of long-standing duration, and had been seeing the same chiropractor about it for over 20 years. The personal injury lawyer made her stop seeing that person, and had her start seeing somebody else. She didn’t have to pay any money for these new visits; the chiropractor would work on a contingency. When we looked at the chiropractor’s invoices, it appeared he was charging about twice the going rate, as well as billing for services that even she admitted never were performed, e.g. “whirlpool bath therapy.”
Same thing with a doctor. Her old doctor – abandoned. In his place – a new doctor, who conveniently diagnosed her with multiple traumatic injuries, running up a five-figure bill in the process. At some point another doctor entered the picture, for a “second opinion.” As before, she didn’t have to pay any of it, as both also were working on contingency. Under the court’s rules, you have to pay the other side’s doctor, in order to get them to testify. This was an expensive proposition – it cost well into four figures to get what shouldn’t have cost more than a couple of hundred dollars. She also changed lawyers at least twice, at least, the names on the pieces of paper (which were plentiful) changed; each of the former lawyers send out notice that they had a “lien” on any recovery she obtained.
All of this seemed pretty unreal. About half-way through, though, I figured out what was going on. The plaintiff hadn’t sustained or incurred any real damages. Rather, what they were doing was manufacturing damages, under the guise of treating/advising her, on a contingent fee basis. She wouldn’t have to pay them unless she won the case, and then they would come out of any recovery before she saw a dime. It was entirely possible that, if the award wasn’t high enough, she wouldn’t get paid anything at all. In a very real sense, they were working for themselves, and not for her. They all were part of a mutually-referring, self-perpetuating, back-scratching network. I can just imagine them telling the last lawyer left standing, “go out and take one for the team; unless you win, none of us will make anything!”
Conceptually, I couldn’t see – and still don’t see – how these “fake” expenses could count as actual damages. Because they hadn’t actually been paid or incurred, and wouldn’t occur, unless she won the case – but she had to show that she had sustained economic loss, in order to do so. The argument, in other words, was circular, and it seemed like they were boot-strapping their way into a recovery. It would be OK if she was unconditionally liable to pay, but that actual payment was deferred until some later point. Then, they would count as damages. It was the contingency feature of the arrangement that migrated them from actual damages to nothing at all. Compare the personal injury lawyer, who also works for a contingent fee, but measured as a percentage of the damages that otherwise are proven at trial. The lawyer can’t add in his prospective fee as a measure of the damages, and then argue that it also should be compensated.
Fortunately I had insurance that covered everything, including hiring a lawyer to defend the case. The plaintiff wanted some astronomical amount of money in order to settle. After all, all of these contingent fee people had to get paid. Finally my insurance company lawyers said, “the hell with it, let’s just take the case to trial.”
And that’s what we did. It took several (uncompensated) days out of my life. The truth came out and we won. But, having your fate, as it were, in the hands of a jury, was unnerving. Furthermore, it’s easy to see a dozen ways in which you might have lost, even if you were in the right and the other side was in the wrong.
The plaintiff basically was inarticulate and couldn’t really describe what had happened, or how she had been damaged. In fact, her lawyer called me as a witness in order to establish basic facts about the accident. He was really obnoxious, calling me names, suggesting I had fabricated my testimony. Your worst vision of an ambulance chaser, come true. Whatever prejudices one might have about personal injury lawyers were entirely validated.
I think that what the plaintiff was thinking (or at least daughter was thinking) was that society has a built-in obligation to support her, and the issue of comparative fault is irrelevant; being a plaintiff in a personal injury case in Los Angeles was kind of like winning the lottery, in that you were randomly selected for an opportunity to receive a lot of money. So you might as well go for it, right?
I finally realized, too, why my lawyers were happy to take the case to trial (in addition to the fact that I was the one who had been wronged, not the plaintiff). Their philosophy was – we need to send these personal injury lawyers a message, one case at a time. That message is, “don’t screw around with us.” The most effective way to communicate that message is by winning case after case. It stands to reason that, if enough personal injury lawyers lost enough cases, and told their friends, then they would come to realize that the insurance company isn’t to be trifled with, and be more reluctant to file cases, especially if liability wasn’t clear. This procedure may be inefficient, because it lacks scalability. Nonetheless, it presents the most effective environment for experiential learning … and one gets the impression that you really need to dumb it down as much as possible in order for them to understand the message that’s being conveyed.
In addition to a senior lawyer, I also was assigned a junior lawyer, who worked under the senior lawyer’s direction and supervision. The junior lawyer handled a lot of small details about the case, and was there at the trial. I now see that cases like mine – that actually get out of the chute and go to trial – present a good training opportunity, so the junior lawyer gets some experience in a real-world context. So, in a way, it also was to my law firm’s advantage that the case didn’t settle.
All in all, while I definitely was happy about the outcome, the whole experience was distasteful. The plaintiff got her day in court. I just hope I don’t have to repeat it again!