Some personal injury cases are an uphill battle. Our law firm takes the hard cases.
There is a saying among lawyers that “when the facts are against you, argue the law; when the law is against you, argue the facts; when both the law and the facts are against you, just argue.” There is a lot of wisdom in this saying. First, it illustrates the importance of having accurate facts. When a lawyer renders an opinion, it is based on the facts as they are presently understood. If a critical assumed fact turns out to be wrong, that can change an opinion previously given. The saying also shows the importance of having a thorough understanding of the law as applied to the facts of the case. Finally, the saying is reflective of the lawyers’ duty to his or her client. The rules of professional conduct require a lawyer to advocate their client’s position “zealously.” The adage “just argue” may apply more in the criminal law field than to personal injury. In representing a criminal defendant, a lawyer often finds that both the facts and the law are very unfavorable.
Despite the fact that many clients think their lawyer can work a miracle, in the civil law field, which is anything other than criminal, the lawyer always has two big obstacles to overcome: the judge and opposing counsel. If there is a problem with the facts or the law in your case, you can count on opposing counsel to point out those deficiencies. A judge will know your case is weak if there is a problem with either the facts or the law.
What makes a personal injury case more difficult?
I have always said that it is much more difficult to be a plaintiff’s lawyer than a defense lawyer. Representing the plaintiff, you have to be right about everything. A defense lawyer only needs to be right about the one hole in your case, whether it happens to be a critical factual dispute or a legal ambiguity.
That said, there is rarely a perfect case from the plaintiff’s point of view. Witness stories will vary leading to a dispute over a critical fact. Conflicting decisions from different courts may result in an ambiguity in the law. There is nearly always a dispute over the extent of injuries, or the impact of those injuries on the plaintiff’s life. The critical element is having the experience to know which deficiencies in a case can be overcome, and which will result in a dismissal. Of course, no lawyer can ever be 100% accurate in their opinions. There is another adage that every litigator will attest to, which is that “I have won cases that I expected to lose and I have lost cases that I expected to win.”
Many lawyers shy away from what appears to be a difficult case. Some law firms only want you as a client if you were rear-ended while stopped at a red light. At Bernard Stuczynski & Barnett, we pride ourselves on being able to analyze cases that have very difficult facts. We have a track record of succeeding many times with cases that have been rejected by other law firms.I will discuss a few specific examples.
Example One: Obtaining Workers’ Compensation for an injured Horse Jockey
Although all of these cases are a matter of the public record, the specific facts have been changed in order to protect the identity of the client. One case that comes to mind is that of a female exercise rider at the local horse racetrack. Exercise riders typically are freelancers, meaning that they may ride for several different trainers. We represented an exercise rider who was seriously injured when thrown by a horse. Ordinarily, an independent contractor is not entitled to workers’ compensation benefits. However, under the law, if facts can be developed showing that the relationship is more of an employer-employee one, then it may be possible to collect workers’ compensation benefits. In this case, we were able to develop that the exercise rider worked on a regular basis for the same trainer, the trainer provided specific instructions as to how to exercise the horse and generally exerted control over the rider. Through thorough legal research we also located an obscure workers’ compensation decision that awarded benefits to an exercise rider. On top of all the difficulties of the case, the trainer was uninsured. As a result of properly developing the facts and the law, we were successful in obtaining benefits from the Uninsured Employer Guaranty Fund.
Example Two: Workers’ Compensation and Personal Injury Settlements for Trucker that hit a Farm Animal
In another memorable case, we represented a truck driver who struck a bridge abutment. He was very seriously injured and there was no question that he was entitled to workers’ compensation. The collision was caused by our client striking a cow that was loose on the road. With this seemingly impossible set of facts, not the least of which was whether or not our client should have been able to see and avoid the cow, we were able to obtain a substantial recovery for him. We did this through an exhaustive investigation which, among other things, developed that the owner of the animal had neglected to close the pasture gate on the evening of the collision. Ordinarily, when a worker obtains a settlement from a third party, the workers’ compensation insurer is entitled to their money back. However, in this case, we were able to negotiate a substantial settlement from both the farmer’s liability insurance and the workers’ compensation carrier.
Example Three: Settlement for Slip-and-Fall in a Grocery Store
In another case with difficult facts, we represented a woman who slipped and fell on a broken jar of pickles at a grocery store. A grocery store is not liable for such an occurrence unless the plaintiff can establish that the store had notice of the hazard and had ample time to clean it up. While many law firms would summarily reject such a case, we were able to develop evidence that another customer had actually reported the hazard several hours before the injury. We were able then to negotiate a very good settlement for our client.
Our law firm takes the hard cases that other firms reject.
When a lawyer chooses to accept or reject a case, it is simply a matter of opinion. If we reject a case, we feel we are actually benefiting the client by saving them the agony of pursuing an unsuccessful claim. However, we do take seriously our ethical obligation to not lightly reject a client’s case. At Bernard Stuczynski & Barnett, we are always happy to provide a free case review—no matter how difficult the case may first appear. Even if you have been turned down by another lawyer, we may be able to help. We treat clients the way that we would like to be treated if we were the client.