Four Do’s (and don’ts) for Arbitration in a Limited Tort Case

Whenever possible, it’s best to avoid the Arbitration Center in a limited tort case. Compulsory Arbitration is a death sentence for most limited tort cases. The three-headed Arb Panel monster – mostly consisting of defense lawyers or non-injury lawyers that have never heard the phrase limited tort – is likely to send your case on one of two (2) paths: i) decide that your client doesn’t pierce limited tort and issue a defense award or ii) issue an undervalued “split the baby” award hoping that neither side will appeal. Despite the best intentions of the panel, both paths usually result in a de novo appeal. Even worse, with an appeal, defense counsel has now been given yet another opportunity to interrogate and scrutinize your client without any resolution of the case. The path of least resistance for any limited tort case would therefore be the Major Jury track.

Unfortunately however, we all end up at the Arb Center in a limited tort case one way or another; whether via the court issuing sua sponte remands or otherwise. To make the best of a bad situation, you can follow these four “Dos” and “Don’ts” of the limited tort arbitration and hopefully avoid some of the inherent consequences set forth above:

1. DO PROVIDE THE PANEL WITH A MEMORANDUM ON LIMITED TORT

You cannot assume that every member of your Arbitration panel will fully understand limited tort. Although the panel consists of lawyers, many of them will not have ever handled a personal injury case in their careers. Remember, at the hearing they are not lawyers. They are your jury. They need to be educated on the “serious impairment” standard and why your client meets it. Provide them with the statute and the caselaw, much of which can be favorable to your client. Supplement your medicals packet with a brief memorandum outlining not only the legal standard for limited tort, but why your limited tort client breaches. The panel wants something to hang their hats on and, as lawyers, will appreciate the legal memo.

2. DON’T ALLOW DEFENSE COUNSEL TO “DEPOSE” YOUR CLIENT

The Arbitration hearing is not a deposition. Unfortunately, many insurance company lawyers seem to think otherwise. The more verbal statements they can take from your client, the more opportunities they have to find inconsistencies to use against her. So, knowing of the likely appeal, they will use this opportunity as a free spin of the wheel to “depose” your client, interrogating the plaintiff in a way that would never fly in the Courtroom. They will often even bring their own court reporter. Remember, the same Rules of Evidence apply at an Arbitration hearing as would in the Courtroom in front of the Judge. It’s not a free-for-all. Don’t let defense counsel take advantage of the informal arbitration setting. Demand that the panel put a stop to any improper questioning.

3. DO MAKE A CLAIM FOR OUTSTANDING AND/OR FUTURE MEDICAL BILLS

Despite the informal setting, the Arbitration hearing can still be a great opportunity to show an adjustor what your case is made of. With this opportunity at your fingertips, it’s imperative that you put your best case forward and make all the claims you would in front of a Judge and jury. Show the defense lawyer, and the adjustor, how well developed your case is. They just might remember that on the Courthouse steps six (6) months down the road. The Arb Center isn’t a place to phone in your case. It’s an opportunity that must be seized. Take the time to gather your client’s excess, and future potential, boardable medical bills. At the very least, you’ve shown the defense lawyer what’s coming at trial. At best, you’ve given the panel a numerical foundation upon which they can build an award in your client’s favor.

4. DON’T “PUNT” THE DIRECT EXAMINATION OF YOUR CLIENT

“Punting the arb” – that is, putting on a bare bones case to avoid exposing your client to the hearing – is a wasted opportunity. Even if you’re in the Arb Center against your will, you might as well make the best of the situation. By developing an effective direct examination of your client, you can show the insurance company lawyer just how good a witness she will be at trial. Ultimately, even after the inevitable de novo appeal, the adjustor will know how well your client will present on the stand. There’s no reason to hide a good client. You might just give the carrier a reason to make a fair settlement offer.

Compulsory Arbitration is never the ideal venue for a limited tort case. But, if you end up there, don’t just sit in the corner sulking about it. Take advantage of the opportunity before you – to show the carrier the very best of your case as if the jury is sitting before you. You may just be surprised by the outcome.