Claim Variable #1 – You

Posted on behalf of RizkLaw on Nov 15, 2015 in Personal Injury

This is the first post in my weekly blog series: Personal Injury Claim Value: Key Variables. During the past 25 years I have quantified claims big and small – as a large loss claims analyst (1996-2000), an insurance defense attorney (1990-1996) and since 2000 as a plaintiff personal injury attorney. I dedicate the series to my past clients, adversaries and their insurers whose now resolved disputes laid a pattern of lessons learned.

When it comes to personal injury claims ultimately there is really only one question: “How much is my claim worth?”

The short, quick answer is a simple number. A number answer is understandable, plentiful at cocktail parties and easily generated from online injury calculators. The downside to quick injury claim quantification is huge – quick quantification is usually wrong.

In reality, claim value depends on several key variables. Notice the word “variable”. Just a tiny variable tweak can bring huge differences. Hold that thought. Now consider this. Variables constantly change and differ from place to place. Jurisdictions differ; each fact pattern has nuisance. Thus, this blog series is potentially infinite.

To make sense of this mess, each blog post focuses on one key variable only. I start with the most important variable of all—YOU. Your injury claim is all about you, or more accurately perceptions about you. You are NOT the person you are perceived as.

Perception of YOU

You are a trustworthy, hardworking person who was seriously injured by someone else’s mistake. But you won’t get a dime if the decision maker (however unreasonable) sees you as a cheater, slacker or injury faker.

In the personal injury claim context, “who you are perceived as” is more important than who you really are. Mindfulness of other lenses of perception is crucial to successful injury claim resolution.  The best you can, clear your mind of your point of view. Then ask yourself: “How might others view me, my injuries, my story my actions in the context of this injury claim?”  Your honest answers will lead toward better decisions and more effective testimony.

Decision makers spontaneously and unconsciously pre-judge based on individual life experience, attitudes and beliefs. During jury selection jurors will reveal personal experiences. Listening carefully will provide useful clues to juror paradigms.  To add a sour twist, some jurors consciously conceal true biases during jury selection. Your lawyer should ferret out potential jurors with life experiences that may cause prejudgment of you.

You will never know exactly how the decision maker perceives you. You don’t need to. Instead, aim for increased awareness of perspectives that differ from yours.  Also, keep in mind that unlike a judge, a jury is not of one mind but several.  Each juror holds a unique point of view molded by personal experience. Studies show that jurors try to fit your story into the juror’s own world view. This effect is known as confirmation bias.

Of course, prejudice based on racial, religious and sex-orientation is still very real. As we first learned watching or reading To Kill a Mockingbird by Harper Lee, American Justice is NOT blind. Jurors, Judges and Arbitrators are human beings with individual biases, prejudices and preferences. It’s up to your attorney to recommend the best forum and decision maker(s) considering suspected prejudices.

Although each human has unique preferences and dislikes, studies show near universal bias against obesity and smoking. Always present as a clean and fit as possible. Do not smoke, eat or fidget anywhere a decision maker might see. Jurors and judges also use parking lots and cafés. While at any court ordered event, assume the decision maker is watching. If your injury is subject to dispute, you may even be secretly filmed in public places.

Modern American culture is obsessed with appearance. The power of first impression can not be overstated.  In a 2015 paper titled Perceptions and Price Stanford Business School researchers present evidence that investors form strong, lasting impressions of CEO’s competence, trustworthiness, and attractiveness within the first 30 seconds! (E. Blakenspoor May 30, 2015). In a courtroom setting, the jury or judge’s first impression is likely to be a visual impression with focus on your eyes, facial expression, body language, dress and dress.

Each human face tells a story. Knowing will help you appreciate perceptions of others. I suggest Amazing Face Reading by Mac Fuller. This illustrated book studies faces and provides surprisingly accurate and useful insights. What story does your face project? You should also learn more about what you may be unconsciously saying through body language and expression. I suggest reading or listening to The Power of Body Language by  Ex-FBI agent Joe Navarro.

Don’t be blind, but have faith  in your case, your lawyer and the judicial system. You become what you think:  Be positive, genuine and trusting and the decision maker will reciprocate. Don’t change who you are. Instead, act and present yourself in a way most people favor. How?

a. Be One of Them

Be the person who helps the vulnerable and downtrodden. Deciders will more likely help you when the “shoe is on the other foot.” Nurses, teachers, firemen, charitable volunteers, police officers, counselors and others in “helping professions” generally enjoy more generous awards for this reason.

Decision makers see value in fairly compensating integral members of the community. Jurors, in particular, instinctively protect their own— especially vulnerable community members such as children and respected elders. On the other hand, convicted felons, professional victims, complainers, the entitled, privileged and bullies are perceived as societal outsiders not deserving of significant compensation.

b. Act injured

You can drastically increase the value of your claim by promptly seeking treatment, testing and counseling from experts who can independently collaborate and document what you are experiencing in real time.

A reasonable seriously injured person:

• Accepts ambulance rides
• Seeks treatment by medical doctors as soon as possible;
• Promptly informs treating medical providers of each injured body part;
• Follows advise for follow up care;
• Seeks out a medical specialists when appropriate;
• Seeks treatment for each injury;
• Actively participates in recommended therapies; and,
• Is authorized time off work or school by his or her primary care doctor

A reasonable seriously injured person does not:

• Go on vacation after significant injury;
• Regularly post on social media;
• Work or attend school if unable;
• Drink alcohol;
• Smoke cigarettes;
• Engage in vigorous activity;
• Ride in the rodeo, ski, snowboard, motocross etc… or,
• Go “out on the town”

c. Look Injured

Obvious injuries usually yield more than injuries requiring explaining. Explanations diffuse perception of injury severity. Explanations of one’s own injury can be perceived as complaining. Expert injury explanations are sometimes dismissed as too complicated or inconsistent with the decision maker’s own experiences.

d. Be Calm & Focused

Your cogent, credible and prepared testimony increases probability of a favorable settlement or good result at trial. Like Goldilocks’ porridge, your testimony should be “just the right temperature” for the case presented.

Maintain good eye contact with the questioner. Listen carefully, pause, think…then answer. Let body language demonstrate confidence tempered by respect. Think of your deposition is a dress rehearsal for trial.

d. Present Well Online

For purposes of claim effective resolution, the cyber you can be more important than the real you. Insurance companies, lawyers– even jurors and judges regularly research personal injury plaintiffs online. How we think others perceive online posts and profiles is never the same as how others do. Pare down, edit and shape your online presence with consideration of the opinions of other diverse friends with consideration of the issues in your particular case.

Never discuss your injury in a social media forum. Should your matter proceed to litigation, lawyers will wield subpoena power. Assume anything you say online will be discovered.