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For most lawyers, a person’s a person, no matter how small

I grew up with Dr. Seuss. My favourite of the Seuss books was the one with the elephant who stood up for the fluff ball. Horton Hear’s A Who is a children’s classic.

An elephant discovers a little world on a speck of dust because his big ears manage to pick up voices of the inhabitants, and then risks life and limb protecting the little world from naysayers.

For as long as I can remember, I’ve been one to root for the little guy.

I wonder if that book had a hand in that.

We have the book in the house, but dozens of other books have gotten in the way of me reading it to my children, the oldest of which will be seven this month.

The story came to life again for me when we took advantage of the dismal and dreary weather last Sunday to see the movie version of Horton Hears a Who in the theatre.

I loved it. I think the kids loved it too but they’d love anything they were propped in front of with a grotesque amount of popcorn.

There may be a number of themes in the movie, and the book, but the one that resonated with me the most, as I watched the movie, was encapsulated in the line repeated several times by Horton— “ a person’s a person, no matter how small.”

I used that line in an email to an insurance adjuster this week. In the email, I had made a bottom line settlement offer on behalf of one of my clients.

It wasn’t a huge offer. The value of the case is at the very lower end of my case load. It’s the kind of case that would make no financial sense for a lawyer to take to trial.

It takes up a lot of a lawyer’s time to prepare for and run a trial.

I would estimate that I log a minimum of $30,000.00 in time. When working on a 1/3 contingency fee arrangement, which is typical for my car crash cases, it only makes financial sense for me to run a trial if there is a likelihood of getting $90,000.00 more for the client at trial than what is being offered by the insurance company in settlement.

On the other hand, the client can be much, much better off by having his or her lawyer run a trial.

The cost to the lawyer is not passed onto the client because the lawyer’s fees are based on a percentage, not how many hours the lawyer logs.

Also, a successful trial entitles the client to thousands of dollars of costs from the insurance company, in addition to the Court’s compensation award.

Because running a trial is financially very poor for the lawyer but can be financially very good for the client, the lawyer and the client are in a serious conflict of interest when the decision of whether to accept the insurance company’s final offer or go to trial is being considered.

The insurance adjusters and insurance defence lawyers know this reality.

As distasteful as it is, I am regularly encouraged during settlement negotiations to look after my own self interests as a business owner rather than look after the best interests of the client.

How’s that for a negotiation tactic. The settlement negotiation I started telling you about included that kind of pressure.

The difference in our settlement positions had been narrowed to less than $5,000.00. My fees of one-third of that small number is an even smaller number: a far cry from the $30,000 worth of time that will be put into litigating this claim.

For any reputable personal injury lawyer, the client’s best interests are the only consideration, and in a relatively small claim like this one, that $5,000 can make the difference between a fair settlement and an unfair settlement.

I will do a follow up posting once the case is concluded, after the insurance company accepts the offer I’ve put forward, or after the conclusion of the trial if my client’s offer is not accepted.

I, and others like me, will continue reminding the insurance company: A person is a person, no matter how small.

Published May 18, 2008 in the Kelowna Capital News

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