Who is really in the driver's seat?
About a month ago, I had to take the deposition of a driver that had caused an accident. I really ticked off his attorney when I asked him the following questions:
Q: Are you aware that, after the accident, my client had blood in his urine for a few days?
Q: Are you aware that, as a result of the accident, my client missed several weeks of work?
Q: Are you aware that my client is claiming medical bills of approximately $7,500?
Q: Are you aware that my client is claiming lost wages of about $3,000?
Q: Based on my math, my client is claiming $10,500 just for his lost wages and medical bills, not including the weeks of pain he had to endure. Are you aware that your insurance company has only offered my client $8,000 to settle his claim?
A: What can I do about that?
Of course, I am paraphrasing and omitting the interruptions by the other attorney who was objecting, instructing his client not to answer, and my discussion with him about why his client should answer (which he eventually allowed, after making many more objections).
First, I should tell you that I genuinely liked his client and felt that, when he took full responsibility for the accident in his deposition, he was trying to do the right thing. But why then, was he being sued? True, he had made a mistake and hurt my client. But he had insurance to cover that and we tried to settle the claim for his medicals, lost wages, and what we believed a jury would agree to be his pain and suffering for the type of injuries he incurred.
The answer lies with who is in the driver's seat. At least, who is driving his defense. What is obvious from the exchange above is that the defendant did not know my client's injuries or his demands. But it's his case. It's his name as the defendant in the law suit. It's his credit that will be dinged by a judgment. It's his life that's interrupted by this lawsuit. But the insurance company and their lawyers don't really care about that. The lawyer is supposed to have a duty to the client, but there is an inherent conflict when the company you work for is paying your bills. Sure, the other lawyer is supposed to represent his client, but if his client wants to settle but the people paying his check do not, who does he choose? The ethics guidelines say it should be his client's choice, but how can the client choose what he isn't even aware of?
Unfortunately, almost all defendants in a car accident have the same involvement – almost none. If you are ever a defendant, read your policy (it may allow you to choose your lawyer) and stay involved.