Ep. 39 – Defense Attorney's Perspective || After the Crash Podcast

Jim Roehrdanz:
As a defense lawyer, those times that I’ve been able to accomplish a settlement for my client, that I thought was also fair to the plaintiffs, those cases give you a lot of satisfaction to see both sides go away with a result that you think is really equitable.
David Craig – Host:
I’m attorney Dave Craig, managing partner and one of the founders of the law firm of Craig, Kelley & Faultless. I’ve represented people who’ve been seriously injured, who have had a family member killed in a semi or other big truck wreck for over 30 years. Following the wreck, their lives are chaos. Often, they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After the Crash. Today, we’re very fortunate to have Jim Roehrdanz as our guest. Jim is an attorney who’s practice here in Indianapolis now and was a partner with Kightlinger & Gray for 30 years. Now, he’s of counsel with Kightlinger & Gray. He graduated from Indiana University with a business degree back in 1975, then went to Valparaiso, got his law degree in 1978, as I remember. Started off in Muncie, then went to Hammond, and then joined Kightlinger & Gray and has done civil defense his entire career. He’s done product liability, he’s done auto defense, he’s done insurance type defense, and I didn’t think there was anybody better for average everyday people who happened to find themselves involved in a lawsuit or involved in a personal injury claim to listen to and understand how the defense looks at a case, and how a defense operates, and what they think about, and how insurance companies work. So often, people come to me and say they think of the insurance side as the bad guys and us as the good guys, but the truth is there’s good and bad on both sides. Jim is one of those people who is an extraordinarily a good person, a good attorney, and very civil in the area of civil litigation. So, Jim, thank you so much for being a guest on our podcast.
Jim Roehrdanz:
Well, thank you, David. I appreciate the opportunity to participate in your podcast, and we’ve worked together on cases in the past and it’s always been a pleasure to work with you, and I’ll look forward to discussing many aspects of civil litigation with you here today.
David Craig – Host:
Jim and I have worked together, and I think one of the nice things about it, at least with our firm, we’ve taken the position that we can be worthy adversaries. You can fight extraordinarily hard for your clients on both sides, but that doesn’t mean you have to be a bad human being, and I know that you follow that same principle.
Jim Roehrdanz:
I do, David. In fact, I think the more cooperation that exists and collegiality, if you will, between defense counsel and plaintiffs’ counsel, it works to everyone’s advantage because it facilitates better communication, it allows for the exchange of information, and really helps move the litigation forward in an efficient fashion that moves you toward the end result probably quicker than otherwise would be the case if you are total adversaries, don’t communicate, build a wall that only the court can resolve. Even our judges, when they look at the lawyers involved in a case, appreciate the cooperation between both sides, I think, and it helps the court move a case along efficiently as well. So, it is a very important aspect of what we do to have an opponent who is willing to work with us, provide what we need. There’s no doubt there’s points in litigation where objections are made to production of certain material or to other questioning that might occur, and those objections can be ruled upon, of course, by the court, but to the extent that we’re able to work out those tough issues without the intervention of the court, it benefits both sides, it really does.
David Craig – Host:
Yeah, and I think that, I mean, clearly the goal for the plaintiff lawyer is to maximize the recovery for their client. The role for the defense lawyer is to protect the insurance company’s insured and both of us have a job to do and we’re going to both try to do that. Especially, sometimes I see young lawyers who come into it, who come in feeling like they have to fight on every little issue, and it really doesn’t accomplish anything, and one of the things I’m very fortunate in my career now that I moved up and handle larger cases, I tend to work with more experienced defense lawyers. The experienced defense lawyers, they get great results, but yet at the same time, they work with you in a way that’s cooperative. So, maybe I have a value that I feel like here’s the value of a case and maybe the defense lawyer thinks, “Well, no, I think the value is here,” and we both work extraordinarily hard to get that value. They’re trying to get this value, I’m trying to get that value, and maybe somewhere it gets then resolved before and somewhere in the middle, and I think that’s really important.
Jim Roehrdanz:
Well, I think it is, and as you mentioned a lawyer with experience representing a plaintiff or a defendant, and we probably both fall into that category from the years of doing what we’ve done, you’ve been down that road before and you have an idea what it takes to get there. Also, in terms of the evaluation of a claim with your experience on the plaintiff’s side, the number of cases you’ve handled matching liability in every given case with the damages, you’re able to know going into a mediation or settlement negotiations, what history is out there in terms of settlement of those claims, and that assists you in then working with the mediator or with opposing counsel to try to meet your target. It’s the same thing on the defense side. We’ve seen cases that probably parallel a case that you might be litigating not on the exact facts but an approximation and even beyond what we, as defense lawyers, see those in the insurance industry see an even broader exposure in many jurisdictions, and they’re able to blend all that to try to come to a target value for settlement. As you point out, at the end of the day, it’s usually a compromise of the parties and that’s what keeps a case from ending up, in most instances, in the hands of a jury to evaluate for the parties. Because statistically in today’s world, a very small percentage of cases actually go to trial, most are resolved through either direct negotiations or here in Indiana, by and large by mediation, and that really does benefit the parties because they get to make the final decision rather than having it made by six individuals that they don’t have any idea what those individuals will do when they go back in the jury room. So, the experience of a lawyer does make a difference, and I think the expertise of an experienced lawyer really helps move a case forward to conclusion short of an actual jury trial.
David Craig – Host:
There’s a question that I think people when they’re trying to decide who to hire as an attorney, especially the victims of a semi-tractor, trailer or horrific wreck, something with significant injuries. In your opinion, having worked for over 30 years in the insurance industry and the defense side, does it matter? I mean, so does it matter who they hire? Does it make a difference to the insurance company? Does the insurance company look at it differently depending on who the plaintiff lawyer is, who the lawyer is representing the victims?
Jim Roehrdanz:
Well, it certainly does. I think that the experienced plaintiff’s attorney not only has the respect of defense counsel, but you almost get to a point where, and this would not be across the board, but if you encounter an experienced, respected plaintiff’s attorney handling a case, you usually, I think from the defense perspective, feel that that case has merit and is worth the investment of time by that experienced plaintiff’s lawyer, and it does get your attention, and I think that is certainly a factor when we, on the defense side, look at our opponent in a case. I think factors in to the insurance company’s outlook on a particular case if they’ve had past experience with that lawyer, know that that lawyer will pursue his case in a very competent fashion, in an aggressive fashion to the extent he or she needs to be aggressive in order to accomplish the end result. So, 100% experience matters, and in a particular jurisdiction such as Indiana where we’re not California, we’re not a jurisdiction that perhaps from one end of the state to the other, there’s less familiarity with the attorneys, we’re relatively small legal community by comparison, and those lawyers that are experienced and have the expertise in a particular field of practice become well-known to the defense bar and to the insurance claims representatives that handle the cases within Indiana, and I think it makes a big difference.
David Craig – Host:
Along those same lines, I see some lawyers and I’ve been in mediations where I represent somebody that’s in a wreck, and then someone else was injured in the same wreck, and maybe they have a different attorney, and never they do have a different attorney. I know for a fact that that lawyer who’s representing the other person has never been to trial ever in their whole career. I do try cases, our firm tries cases, as you’re absolutely right, the majority of cases settle, but there’s some cases that both that deserve to be tried, both from the defense perspective and from the plaintiff perspective, there are some cases that need to go to trial, but do you think that matters to the insurance industry when they look at a case, if they know a lawyer does try cases, and does so competently or somebody who they know for a fact they’ve never seen them try a case, does that enter into the evaluation?
Jim Roehrdanz:
Well, I think it does. The importance of the capability of taking a case to trial and the willingness to take a case to trial backs up the argument in the contention of an attorney as to what the potential is for that case. Again, if you’ve been there, done that, it’d been before a jury and it’s known that you have the skill and the background to argue the case to a jury, that is a factor to be considered, certainly, and that becomes well-known both among the plaintiff’s bar and the defense bar as to who tries cases and who does not. Whether a case is tried or not is not always a decision of the lawyers, both sides on occasion have a client that, for a variety of reasons, wants to take a case to trial. And so, while lawyers can give their best counsel as to the pros and cons of settling a case and the risks attendant to going to trial, the ultimate decision, of course, whether to settle or to go to trial rests with the litigant. So, in a particular case, if your client absolutely wants to have a jury determine the value of their case, experienced lawyers, such as yourself, have the capability to grant that client’s wishes and take the case to trial. While we obviously don’t know what transpires on the plaintiff’s side in many situations, but there can, I’m sure, be situations where if a plaintiff wants to take a case to trial and they have initially retained a lawyer who never tries cases and ultimately that case is going to go to trial, then what happens? Perhaps another lawyer comes into the case to actually take that case to trial if the initial attorney representing that party simply does not, for whatever reason, take cases to trial. So, that can be a disruptive factor on the plaintiff’s side if you switch counsel midstream. Typically, on the defense side, insurance companies hire lawyers who can take cases to trial, it’s what we do. So, that happens less often perhaps on the defense side because usually when an attorney is approved to represent an insured, they have that capability of taking a case to trial if necessary. That’s not to say that as we’ve discussed, in most instances, their goal is to settle the case, but on occasion, an insurance company may decide that they simply wanted take a case to trial, they’re contesting some aspect of the plaintiff’s case or the value is beyond what their target range is to the point where they can’t live with a settlement, and they’ll tell their defense lawyer to go try it. So, the capability on both sides to take a case to trial from the attorney perspective is very important.
David Craig – Host:
I’ll tell you from having done this for quite a while now, that on the larger cases, and I’ve handled cases in the, well, above 10 million, 15 million, and so when you’re in those numbers, something horrific has happened, and I will tell you, what makes the biggest difference in my room is how they’re treated by the defense. Quite frankly, when I’ve had really skilled defense lawyers who’ve done their job, who’ve minimized the impact to the best they can, but they’ve done it in a polite and courteous way and treated my clients with respect, then those clients, I’ve actually literally had them tell me, “I can’t spend that much money, I would rather just end this.” On the other hand, when I’ve had defense lawyers or insurance to people, adjusters come in and insult my clients and are rude to them and minimize the loss of life, they’re ready to go to trial no matter how much money they’re offered, and that is just part of it, it’s just as human, we’re all humans. I had an experienced defense lawyer come to me and apologize to me for their adjuster, so we practiced. We went the day before, we practiced what to say, and this adjuster could not contain herself, and I am so sorry that this happened. Clearly, we ended up with getting, I believe, more money than we would have because my client was not looking towards going to trial, but she was like, “my goodness, great.” And this is just, I mean, she physically got ill during the mediation process by being attacked by an adjuster when her husband was killed right in front of them.
Jim Roehrdanz:
Well, you raise a good point, and through my years of a defense practitioner, and I’ve handled an occasional plaintiff’s case through the years, but obviously by and large my practice has been on the defense side, I’ve had the very good fortune of working for insurance companies and their insurers as well, but the insurance companies I’ve represented by and large have been very respectful of litigant, of a plaintiff in a case, and those times where we’ve gone to mediation and met face-to-face with a plaintiff, very respectful in terms of the interaction. From an attorney’s perspective, I think it’s extremely important in a deposition or in a mediation to be respectful of the parties. After all, we know the system, we know how things work, we go step by step through litigation, and we become very used to what we do similar to a medical provider who’s providing a critical medical procedure to a patient, we’re doing the same thing with our clients in the litigation arena. So, for the most part, when you represent a plaintiff, that plaintiff, this is their one exposure to the litigation process, and many times they’ve sustained a very traumatic experience that they’re dealing with in addition to the stresses and the pressure of litigation and making decisions. So, all that comes together when they’re called upon to participate in a deposition, in a mediation or any other, a settlement conference, for instance, if you’re in federal court. So, the pressure is substantial on a plaintiff to make decisions and many times all they really know of the defense side is the demeanor of the attorney who’s interacting with them in the course of the proceeding of a deposition or a mediation. So, I always try to be cordial, if you will, with a person that I’m deposing, I try to be respectful of their interests. And yes, we get into situations where things can become somewhat contested, or if there are instances where a party will not answer a very obvious question and you have to press or push a bit to get the answer that you need to really adequately represent your client and develop the information that you think you need, but to do that in a respectful fashion I think gets a better result. Just like the aspects we talked about with lawyers cooperating to the extent you can gain the confidence of a witness that you’re asking questions that are legitimate, that are not intended to any way offend them is very important, and it once again helps move the case along. So, respect is a very important element of what we do.
David Craig – Host:
I think that’s important. I mean, I’ve never had a client come in and hire me on a catastrophic case and ask me in the beginning what the value of the case is. They’re not thinking about the money, they’re just thinking about how are they going to survive, how are they going to get their bills paid. They’re very fundamental, how do I get past today? And at the end, they’re also not thinking. And I give my advice, my recommendation on value, but I tell my clients, “I’m not going to force you to settle, but I’m also not going to force you to go to trial. And you can take a value lower than what I think because it’s your case, I work for you.” And so, from the plaintiff’s side, we have a little bit more, I think, at least some room there that I may say, I just did one here recently, that I valued a significantly higher. But my client was, once you get into the millions, she was like, “Look, David, I’m older”, I respect that. “Thank you so much for fighting hard for me, but I’m really comfortable in the range they’re giving,” and she goes, “I don’t want it, but I’ll go to trial if you want me to,” and I’m like, “That’s not my job. My job is to make you happy, and if you’re comfortable, then it’s your case and nobody knows exactly what a jury going to do.” But in those kinds of cases, a lot of the cases that I work on, there’s really not a downside. I mean, we know that they’re so catastrophic that they’re going to get a certain value, but the difference is, okay, this is what value we think. The defense lawyer was cooperative, was polite, was courteous, made the process as easy as possible on the client, was very apologetic for the loss of her husband, and that makes such huge difference on legitimate horrific cases. I’m not talking about some of the other stuff that you run into, but just on the legitimate, horrific, extraordinarily valuable cases. I had a client, defense lawyer brought the truck driver in who killed a client, a family member, and the truck driver was in tears and apologized and said, “I’ve never driven a truck, I can’t even drive a car.” They asked permission to talk, and we said, yeah. The healing part of that was significant, and both the defense lawyer and myself thought, “Oh, my gosh, so much more is going to come out of this day than the money.” I think sometimes we lose sight of that.
Jim Roehrdanz:
Right. There are intangibles there that in the example you gave, that was probably a healing process for the defendant truck driver as well.
David Craig – Host:
Yep, absolutely.
Jim Roehrdanz:
Again, that scenario only comes about through experienced lawyers. I shouldn’t say only, but more times than not, only comes about through experienced lawyers who get a sense of what really needs to be done in order to resolve a case in a fashion that’s palatable to both sides. If you have a case on the plaintiff’s side where there’s a disrespect and a very cold approach from the defense side, that may alter the initial goal of your client to get a case resolved pre-trial, and it may elevate the expectations as well. So, I think it is important that you take each case on its own and you do what you think is appropriate in that particular situation to bring the parties together. Going back to the issue of experience, if a plaintiff’s lawyer grossly overvalues a case and sets an initial demand out there for a variety of motivations to try to intimidate the defense, to panic the defense, if there’s been any disagreement with the insurance company leading up to the litigation, if they have other motivations for making a demand that’s not realistic of the value of the case, and then the client, the plaintiff is aware of that number, it becomes more difficult to settle the case because they have expectations that are unreasonable. So, when the plaintiff’s attorney is experienced, has litigated cases of that type and knows in an even keel fashion what to demand initially, it really benefits everyone. Again, that harkens back to the number of cases you’ve seen through the years such as your situation, litigating cases, not only in Indiana but other jurisdictions with high dollar value at risk, your initial evaluation, you’re going to factor in what your client’s expectations are and not try to overestimate those expectations, but match your opening demand with those expectations in a fashion that you think you can ultimately bring the case to a conclusion based on what you’ve initially set out there for the insurance company and the defense to consider.
David Craig – Host:
Let’s talk a little bit about the process. So, a lot of these folks who, again, the first time and probably the only time they’re going to be in the civil litigation process, a horrific event has happened, they’ve been injured, or there’s been a wrongful death case, a wrongful death. So now, the event happens. So, what happens on the insurance industry side? I assume the insurance company has put on notice of the wreck probably when the wreck happens. So walk me through, from the insurance perspective, what happens?
Jim Roehrdanz:
Well, there’s a couple ways cases can go in the investigation process. The more common approach would be for the insurance company to handle the initial investigation internally. The claims representative would obviously, from an administrative standpoint, everything that goes on to open a file, assign a claim number, all those administrative details take place, and then they start gathering information for their claim file, whether they reach out directly to the person involved in the accident or whether they try to do a work around by doing other investigation, police reports, that type of thing. That’s one approach that then they build upon perhaps with correspondence trying to get the cooperation of the individual if they’ve not hired counsel and obtained medical records through authorizations and that type of thing. Now, that’s one way that a case can go and it would be a more routine case. Let’s look on the other side of the coin though. You handle a large volume of trucking cases. Those cases quite often have potentially significant exposures simply due to the type of accident which has occurred. So in that instance, when an insurance company gains notice of an accident, they may retain experts that they have on staff, not on staff, but that they normally retain independent experts as you do as well on the plaintiff’s side, to go out to a scene of an accident and immediately gather up as much information as possible. They may, in that instance, also have counsel at hand that goes out to the scene on short notice if that’s feasible in any given accident. If it’s not feasible at the time of the accident, as soon as possible after the accident occurs, those experts and lawyers are retained in the pre-suit process to investigate the accident, to build as much information as they possibly can about what has occurred. All of that is done usually as quickly as time allows once the dust settles, once the vehicles reach a particular location where they can be inspected, and information downloaded from the vehicles and that type of thing. In those situations with catastrophic type accidents, very often plaintiff’s counsel is retained very early on after an accident, whether that be through the advertising process, whether it be through the reputation process. I mean, let’s take your situation. You have a reputation that you’ve gained from many years of handling these trucking accidents such that there’s a network of folks that know of you and would perhaps refer an injured party or someone who’s a relative of an injured party or a decedent to you early on in the process. So, we have cases or claims where in the pre-suit process, your office is working with the insurance company and their lawyers very early on to gather up all the information even before we ever reached that point where a lawsuit might be filed, because of course in Indiana we have a two-year statute of limitations for personal injury or wrongful death claims. So, that period of time is quite long, but there needs to be a lot of investigation done very early on. So, there are cases where it’s lawyer to lawyer long before that deadline comes about to actually file a lawsuit. Now, in some instances, the lawsuit needs to be filed as you know, sooner rather than later simply to gain access to certain information on one side or the other that you couldn’t otherwise get voluntarily. There has to be a lawsuit, there has to be a subpoena or court order issued in order to obtain that information. So, it may require a lawsuit to be filed relatively early in the process in some cases, but that’s a side of investigation by insurance companies where lawyers are very active early on. I would say across the board in the entire realm of cases or claims that insurance companies handle only those very serious cases. For the most part, are the ones where the lawyers and the experts are in there right away. A routine case that perhaps only involves minimal damages, certainly property damage cases or those cases where there’s not, at least at first blush, a great exposure on the defense side, those claims are handled in a very efficient fashion, but not with an eye toward immediately going out there and retaining experts and lawyers to handle the claim. Now of course, we have the rule about those matters prepared in anticipation of litigation that may be subject to privilege from disclosure to the other side. So, insurance companies will look at that aspect of it in terms of if they think there are things they need to do in a very confidential fashion to help them evaluate a case. Internal communications and what have you, they may set up the file and retain counsel to assist them so that certain aspects of what they’ve done are protected by virtue of the work product doctrine or prepared in anticipation of litigation.
David Craig – Host:
Well, and I think on your side of the equation, the defense side, insurance companies oftentimes work with the same lawyers or the same law firm. I think that the insurance industry, on the catastrophic cases, they have a little bit of an advantage in that they are more of an educated purchaser of services. They know who tries cases, they know who has transportation experience, who has commercial motor vehicle experience, they know who knows the Federal Motor Carrier Safety Regulations, the CDLs, the industry standards. They know which lawyers to pick, and on catastrophic cases, they’re not going to pick somebody who’s just starting off as the defense lawyer and hasn’t had any experience where the victims oftentimes have no idea. As a matter of fact, I’m currently writing a book that it’s never been easier to pick the wrong lawyer because of all this stuff that’s out there now that may lead you to believe that this person really is a good lawyer, but they’ve never walked into a courtroom. But the defense doesn’t have that, the defense has the research, they have the knowledge, they have usually prior dealings with a firm. I know you’ve worked for certain carriers for years, talk a little bit about that.
Jim Roehrdanz:
Well, you’re absolutely right. Insurance companies, I think, select their attorneys based on what they know about their experience and their area of specialty. An insurance company who needs a medical malpractice panel counsel will look to that lawyer’s experience in litigating that type of case, same way with employment litigation. So we have become, on the defense side, very much matching the expertise of the lawyer to the type of case that’s handled. That, again, works to everyone’s advantage because they’ve been there, done that. Now on the plaintiff’s side, it’s interesting because when you and I started practicing, lawyer advertising really was not in the forefront in any way, shape, or form, and that has greatly changed through the years, obviously. Those people who need to select a lawyer are faced with a multitude of choices based on billboards, TV advertising, social media advertising, print advertising. So, I think just looking at it from the defense perspective, if the claimant who may become a plaintiff selects a lawyer who’s experienced in that particular field and well-matched to that particular area in which they’re going to assert a claim, it’s just obvious they’re going to be better served in the long run, and the value of their case will be enhanced as opposed to selecting a lawyer who has to learn the field of law that they’re tackling in the case that they’re representing for that particular individual. So, once again, we harken back to experience does matter. For instance, in my practice through the years, I don’t tackle employment cases, I don’t venture into the realm of medical malpractice. My area of practice through the years has been third-party defense, as you pointed out the beginning of our discussion here today, in motor vehicle cases, premises liability cases, products liability cases. In all those areas of practice, I usually know whether my opponent has some experience in that type of case. So, if I have a trucking accident that I’m defending, I know the lawyers such as you that have the experience in that field of litigation, and so, it does make a difference.
David Craig – Host:
The worst thing in the world from my perspective is people pick a lawyer, I mean, there are some good lawyers who advertise and I’m not, but just because they advertise doesn’t mean they’re good. So, I don’t paint with a broad brush, and also I would be a terrible medical malpractice lawyer because I don’t do medical malpractice. Now, could I learn it? Maybe, but at the same time, I’ve spent all these years in a particular area. So, the worst thing is when I get a case referred to me, which a lot of my practice comes from referrals, from a lot of other lawyers throughout the country, and I get a case that someone’s held onto and not done anything with it, and evidence is gone, I can’t do certain things. I had a lawyer just call me, I shouldn’t probably say this, but just said it was a rear-end collision. I said, “So did you do a download of the semi?” “No, this is a rear-end collision.” “Well, did you check the cell phone?” “No, it’s just a rear-end collision.” “But you’re telling me your client’s hurt catastrophically and you did nothing.” “Well, because it’s a rear-end collision.” And I’m like, “Well, but we want to know why the driver did this.” We get cases that lawyers who don’t have experience, I mean, certain logs only have to be kept a certain period of time, certain files only have to be kept a certain period of time. I mean, ECMs and the trucking industry wants to get their trucks back on the road legitimately. I mean, some want to just hide evidence, but the majority of them just want to get their equipment back on the road so they can make money. Yet that evidence is gone, and so then I get the file and it’s like, “Oh, my goodness. Now what?” So, the defense doesn’t have that, the defense hires people who already know what they’re doing and know what they should get.
Jim Roehrdanz:
Right. Well, time is of the essence in motor vehicle accidents, whether it be a trucking accident or an ordinary motor vehicle. Because of the technology we have today, most of these modern automobiles have data that can be downloaded. And so, we certainly, in those cases where there is a significant exposure, want to track down those vehicles as soon as possible. Most of the time, if they’ve been disabled and the collision is significant enough, they’re in a salvage yard and they’re preserved hopefully by the insurance company so that experts can get out there, plug in their equipment and download what they need.
In the trucking case, if the vehicle has been disabled, then obviously that option’s there, but if not, then both sides have to get there as quickly as possible and in order to do what they need to do to download the information. But it’s a technical world today where there is quite a bit of information out there, but it has to be acquired and preserved as soon as possible so that everyone can take a look at that as the claim proceeds or if you get into litigation, it’s usually one of the first things that’s requested.
David Craig – Host:
So, when you’re working for the insurance industry and the insurance side, I assume that part of your job is to help them value a case. And so, from my client’s standpoint, a lot of times they want to know, “Well, why do they want this? Why do they want that?” So maybe you can talk about, as a defense lawyer, what is your role? How do you help the insurance industry or insurance carrier? How do you help them value cases? How do you gather information?
Jim Roehrdanz:
Well, when we go through the process, a case usually comes to a defense attorney, aside from those cases that we’ve discussed, where they become involved pre-suit with the investigation. Most of the cases we see that come in have been handled initially by the insurance company and some information is gathered up. Maybe there’s even been a settlement demand package, which I’m sure you’ve prepared many times, submitted to the claims representative that we’re asked to review perhaps for an early evaluation and settlement if the case has been well document. But usually in the process, there’s additional information that needs to be gathered. So, when a claim file comes into us, we review the claim file and decide what discovery needs to be done.
Usually the initial discovery, as you know, that is exchanged between the parties is pretty basic interrogatories, requests or production of documents that gathers up the basic information that both sides need to know either about the liability side of the case, but probably more importantly the damage side of the case, if the case is one where we’re going to go down the road of getting medical records and that type of thing. So, that initial paper discovery when your client answers that information with the assistance of your office is then used by the defense to usually go out and get any medical records, employment records. If there’s a question about loss wages or impairment of the ability to go forward and continue to earn money due to the injuries, those records are sought by way of subpoena usually and what we call non-party requests. And we go out and get those records in order to try to build a complete picture, not only of what the injuries are and what the prognosis is for the party if it’s a personal injury case, but what their medical history is. I know on occasion plaintiffs say, “Well, why do they need this information?” Well, because a lot of times the medical issues are complicated due to preexisting conditions. And so, the burden is on the defense to sort that out and determine what actually flows from the accident in terms of any residual injury or impairment versus what may have existed prior to the accident in the way of a medical history. So it’s, on occasion, a pretty broad-based acquisition of records. In the case of an unfortunate wrongful death, there’s always a question of, again, medical history of the decedent, did they have any health issues that would have reduced their life expectancy from the standpoint of earning capacity, which is a very large element of a wrongful death claim. It’s important to go out and get all the employment records of that particular individual compensation records, tax returns, things that really build a profile of what they were earning prior to their unfortunate demise in the accident. So, those are the things that need to be acquired in the discovery process for the defense to evaluate a case, and then proceed to either negotiation or mediation. Blending with that, once all those records are gathered up and there’s a summary prepared usually, and I’m sure your office does the same thing, of the records that are gathered because it could become very cumbersome just to have all these electronic records without some type of summary. Once we’re confident we have all the records and we’ve summarized those, then usually a deposition of your client is scheduled and we get a chance to meet face-to-face, fill in the gaps, ask them questions about both the accident itself as well as their post-accident recuperation period, what limitations they may claim to have at the present time and what limitations they may claim to have going forward in terms of what they can or can’t do. So, that process is time-consuming. Sometimes litigants get frustrated by that, and I’m sure certainly on the plaintiff’s side there can be some question about why is it taking this long, but it usually takes a period of time in order to gather all that up. Of course, on the defense side, the insurance companies understand that because they do it every day in order to fully build a profile of the claim. So, 9 times out of 10, there’s not perhaps the impatience on the defense side with the insurance representative as there might be on the plaintiff’s side where they want things to move faster and don’t understand why this has to be acquired or why they need to take that step before they can determine what the case is worth.
David Craig – Host:
So from your side, on the defense side, insurance company side, you’re trying to gather as much information as possible so that you can make an educated guess on if a case did go to trial, what would happen, and so you want to know background, you want to know pre-existing, you want to know how it affects somebody. So you gather all these medical records, then you go in and you meet the clients face-to-face, and you get to talk to them and see how they interact or how they answer questions. One of the things that I’ve seen certainly done on some cases that the insurance does is they use surveillance as well to try to see if the behavior matches what the records show. I guess you’re the right guy to talk to because the case that the law at Indiana was your case. So maybe you can talk a little bit about surveillance and why in the world my clients look at it and say, “I can’t believe they put me under surveillance.” It’s certainly something that I talk to my clients about is to be alert and be aware not for them to change their behavior, but just to understand what’s happening. So, maybe you can tell us a little bit about surveillance from the insurance industry side.
Jim Roehrdanz:
Well, yes, and the case you referenced as a case from some time back that involved, the name of the case is Pioneer Lumber v. Bartels, and that was a case in which we did not turn over some surveillance video that we had of the plaintiff, and the case went up on appeal. And ultimately, the court held that in Indiana, you don’t need to disclose surveillance on a party until you’ve had an opportunity to depose them, and then only if you intend to use that surveillance at trial. So, that case is often cited in the course of discovery in the state of Indiana. It may be an exemplary case in other jurisdictions where the question comes up, but of course, since Pioneer Lumber was decided, we’ve gone past just video surveillance and now we have out there everything that’s posted by parties on social media. So, staying within the realm of surveillance for a moment and then moving to the social media realm, I think the prospect of surveillance may be triggered when a plaintiff appears to exaggerate, to embellish. Of course, everyone who gives a deposition takes an oath to tell the truth, and we certainly believe on the defense side that people do tell the truth, they have the best of intentions. So, we don’t go into a deposition with the idea that someone is not going to tell the truth, and we don’t really find that to be the case very often. What we find, however, on occasion, is that there’s an embellishment or an exaggeration of what perhaps the effect of an accident has been. Even then I think it’s not commonplace, and certainly in the more catastrophic accidents where there’s a clear disability, this really does not come into play. But it’s those marginal cases where perhaps someone does have an objective injury but they’ve recovered well, but they say they can no longer do any physical activity, and yet the medical records may contradict that. So, this is the situation where perhaps video surveillance of their day-to-day activities might be something that would be considered on the defense side. Not an invasion of privacy type situation where you prod into personal activities of a plaintiff, but out in areas where are they playing golf when they say they can’t engage in any sport activity whatsoever, are they running in a half-marathon when they say the best they can do is walk around the block a couple of times? Again, there may be that moment in a deposition where they exaggerate the effect such that it does trigger some suspicions on the defense side, which they think need to be verified one way or another. I can think of a couple examples that I can give of cases where I had a case where a plaintiff said that they could not do any type of physical activity, and we found them out with some surveillance doing construction work. I had another case where a plaintiff said that, and it was a serious accident, it was a rollover dump truck case, the plaintiff indicated that his career as a truck driver was completely over, had not engaged in it since the accident. Surveillance indicated completely the opposite. When that evidence is developed, it deflates naturally the value of a case because not only have you disproven the particular point that’s been testified to, but you’ve deflated or damaged the credibility of the individual on other points, which may be perfectly truthful. Then if that case goes before a jury, they say, “Well, if we can’t believe them on this, how can we believe them on this point?” So, moral of the story is we think litigants adhere to their oath, but it’s important not to embellish, not to exaggerate. Again, in those cases that are catastrophic, injury cases less likely for that to be an issue, but it’s something that certainly in the marginal case is a tool that’s used by the defense. Again, not to invade privacy or anything of that type, but simply to verify or refute a contention. Now, social media today, the things that are posted out there are researched by the defense, and this is well-known by the plaintiff’s bar as well. So, when a litigant has posted things about their activities out there on social media, that’s something that is quite often captured, and that can be used in lieu of any active surveillance to either verify or refute what an individual says about the effect of a particular injury on their life. So, it’s a tool that, on the defense side, I think is used carefully and not in an invasive fashion because if that information is ever provided to a jury, the defense wants the jury to consider the merits of what’s been developed and not the manner in which it was obtained. So, we don’t want it to be an offensive invasion of the privacy of a litigant.
David Craig – Host:
I think that you and I both started, when we started, there wasn’t any social media.
Jim Roehrdanz:
That’s right.
David Craig – Host:
Now, we have to take that into consideration, but also, I mean, there’s all this stuff. I mean, when I get a case, quite frankly, as soon as I know who the trucking company is, as soon as I know who the truck driver is, we look and see what’s public, I mean, immediately. I have an investigator in my office who then copies their entire website. So, if it’s a trucking company, they may have all types of things about how safe they are, how great they are, blah, blah, blah, blah. So we copy it that day, and that way we can use it later in a deposition if they contradict it, if they say no or whatever, then we use that. Same way with the truck driver, if the truck driver posts something on the day of the wreck or the day after the wreck that shows that he’s not or she’s not remorseful, but then they try to come up and play something like, “Oh, my gosh, I’m not driving or this or that.” Then, you find out the week later they’re in a different city driving a truck, whatever it is. So, we do the same thing maybe to a little lesser degree, but we lock it in. From my perspective, social media is tricky from the plaintiff’s perspective because my clients, people don’t typically post on social media them in pain, they don’t typically post pictures of them frowning or sad. People mostly picture themselves smiling.
Jim Roehrdanz:
Happy thoughts, right?
David Craig – Host:
Yeah, or they’re on a trip. Now, they may be in miserable pain the entire trip, but yet they take a picture with their family of them smiling, but you don’t know that they sat in the hotel room. So, it can be misconstrued, but I think the key lesson is to be honest, to tell people and to not say, “I don’t ever smile. I don’t ever have a good day. I don’t ever have a good moment.” Because we prepare our clients for depositions and we look at all of our clients’ social media. You have to tell the whole story, and if you try to not even intentionally embellish, but you minimize or you don’t talk about the full story, it can come back to hurt you. I’ve seen that more often now with social media, especially with the young people that that’s coming back and that’s playing a bigger role than what it ever has.
Jim Roehrdanz:
Right, and I think the defense is always careful not to overemphasize one particular event, one particular posting because that doesn’t tell the whole story. So, from the defense side, we’re looking for a trend if there’s either social media posting, or in the surveillance realm, if someone bends over to pick a weed out of their garden and that’s depicted on film and that’s all you have, and you try to make too much of that, obviously we know that will not serve the defense well. If they’ve mowed their lawn every week for three months in the summer when they’ve said that they can’t do any yard work or their yard work is absolutely minimal, then it’s a different story for both plaintiff and defendant.
David Craig – Host:
Jim, I know that you’re now a civil mediator. You’ve gone through the training and you now do civil mediation as part of your practice. Again, I think from a plaintiff lawyer’s perspective, people who are victims, I would tell them it’s always good to go to an experienced mediator, someone who’s actually handled cases, somebody who’s handled defense cases, who’s tried cases because the more that you try cases, the more that you realize that sometimes we don’t know everything. And the whole goal of mediation is to try to bring a case to an amicable resolution. So tell me a little bit about how you’re enjoying doing mediations, and then tell us a little bit about what the goal of mediation is.
Jim Roehrdanz:
Well, I really enjoyed doing mediations. Took the training to become a registered civil mediator many years ago, and through the years, continued to litigate, but then more recently have tried to move more toward the mediation realm. It’s very enjoyable to take the years of experience of litigation and the knowledge of the plaintiff’s bar and the defense bar and all the issues that we have litigated and meld all those things together into trying to achieve a result for parties when you come into a mediation. So for those of your clients that might wonder about the mediation process, it’s basically condensed down many times to one day, even less than one day, as opposed to when you and I started practicing and we’d have to pick up the phone or write a letter to our opponent with settlement demand, settlement offer, and the process would take a very extended period of time.
Now we condense all that down, and so the parties on both sides, once they feel they’re ready to go to mediation, the lawyers will confer, and usually by agreement, select a mediator, and then get the mediation scheduled. Prior to the mediation, both sides, or if there are multiple parties on one or both sides, all the parties will submit their summary of the case, it’s a confidential mediation submission. Everything that transpires in the mediation is confidential on both sides unless there’s authorization to disclose it to the other side. So, each party presents the best aspects of their case and hopefully also a recognition of the weaker side of their case to the mediator. Usually, most good advocates will emphasize naturally the strong side of their case. So, the mediator goes into the process with submissions on both sides and really has a pretty good idea going in.
A lot of times there’s a demand, there may or may not be an offer from the defense before the mediation begins. They know where the parties are at the time they’re headed in there, and then the job of the mediator is to try to bring them to a mutually satisfactory conclusion in the course, as I say, of maybe a day or less. Now, since when we first started mediations, as you know, basically there was a preference for everyone to be there in-person. Plaintiff, defense, usually the claims representative would come in as well. Now, as a trend accelerated by COVID, many mediations are done now by virtual attendance through Zoom or otherwise, such as just like we’re doing our podcast here today, but the efficiency of the process, I think remains. There are those cases where perhaps a personal appearance by all the parties is very important, particularly in a catastrophic type case where you think that a personal appearance will help with that healing process for the claimant and the plaintiff involved, but then there may or may not be an opening session where all the parties get together, and again, that can be done virtually or it can be done certainly if you’re in-person, everybody gathers in the same conference room to exchange initial greetings and to discuss the merits of their case. One very important factor I think out there these days is from the defense perspective, when I’m a litigator, I don’t go in and face-to-face tell the plaintiff every weak point of their case. I can tell that to the mediator, and the mediator can filter that for presentation to your client. By the same token, you as the plaintiff’s lawyer know that you’ve got, in many situations, a fairly sophisticated claims representative on the other side so you’ll emphasize the strong points of your case, and you won’t try to cover up the weak points because they’ll already know about those. And so, you’ll do your best job to emphasize those points that you think are the weakest from the defense perspective, and you’ll present that information either directly in the opening statement, but more often than not these days through the mediator if there’s not a joint opening session. And then the negotiation process starts back and forth with the mediator going to the rooms either virtually or in-person and exchanging demand and offer until hopefully the parties reach a compromise. So, it’s a very efficient way to resolve a case, it’s usually done after the parties are fully prepared. Sometimes not, but usually after they’ve gone through the discovery process and it serves both sides well to try to condense those discussions down to a single session in order to get a case resolved. On occasion, the parties will negotiate to a stalemate and they’ll say, “Well, we have to go get this information before we can make any additional offers.” And then the parties will adjourn, perhaps come back for a second mediation, or the lawyers may get together, they’ve moved close enough that they can resolve the case through negotiation without coming back to the mediator. But I enjoy that process, as a mediator, I think I learned it well from all my years in litigation and participating as an advocate for my client, but it’s enjoyable to try to come in on any given day and bring two sides together. And not everybody is always going to be happy with the results, but if you feel that you’ve allowed people to reach a conclusion with, again, not having to present a case to a jury panel, it’s a feeling of accomplishment for the mediator.
David Craig – Host:
Well, Jim, we’re out of time. I think the problem with two experienced litigators is we could sit and talk all day.
Jim Roehrdanz:
We could. We could. I’ve enjoyed it, David.
David Craig – Host:
You’ve been practicing since 1978, and I love being a lawyer. I mean, honestly, I love it. I mean, I hear people bad mouth it, and I love it, and a lot of my friends are on the defense side because I spend more time with the defense lawyers than I do the plaintiff lawyers. But I love what we do, and obviously you’ve been doing it for a while. How do you feel about the practice being a lawyer? How important? What has it been like for you?
Jim Roehrdanz:
Well, it’s been a great experience. A lot of times when I’m out in a social setting, there’s something factually that reminds me of a case that I had, a story. I find, as I’m sure you do as well, we don’t disclose client confidences, that type of thing, but generally, we can talk about the fact situation that we litigated. Through the years, all the different things that we experienced as lawyers are things that both good and bad, we see many tragic situations, but we see other situations where we say, “Oh, my goodness, how could that happen?” No one imagines that type of accident or that type of scenario. I think it’s been, for me, a very rewarding experience, as a defense lawyer, those times that I’ve been able to accomplish a settlement for my client that I thought was also fair to the plaintiff. Those cases give you a lot of satisfaction to see both sides go away with a result that you think is really equitable. I think another large part of the experience is just the collegiality that I mentioned at the beginning of our discussion and getting to know so many lawyers around the state of Indiana. As you mentioned, I started in Muncie, I moved to Hammond when the practice of law was a little bit more regional by lawyers, sometimes we’d go out and get local counsel in certain situations. Now it’s a very broad exposure where not only, in your situation, you practice state of Indiana, but you practice in other jurisdictions as well, but you get to know so many lawyers and experts as well in different fields, medical experts, reconstruction experts. So, it is a community of people that makes what we do very rewarding, I think.
David Craig – Host:
Well, Jim, thank you so much for being a guest on After the Crash. I really appreciate you taking the time with us.
Jim Roehrdanz:
David, thank you as well. It’s been very enjoyable today.
David Craig – Host:
This is David Craig, and you’ve been listening to After the Crash. If you’d like more information about me or my law firm, please go to our website, ckflaw.com, or if you’d like to talk to me, you can call 1-800-ASK-DAVID. If you would a guide on what to do after a truck, then pick up my book, Semitruck Wreck: A Guide for Victims and Their Families, which is available on Amazon, or you can download it for free on our website, ckflaw.com.