Staying Objective Is Not Always Easy

Nobody ever calls me because something good happened. That’s an unfortunate reality for lawyers in my line of work. Every time the phone rings, it is because something bad happened. At best, the bad thing is a totaled car and a painful, but treatable, injury. At worst, the bad thing is a catastrophic injury or the death of a loved one. Empathy is an emotional quality that is a job requirement for personal injury lawyers. If I can’t imagine myself in my client’s shoes, how can I hope to tell their story to a jury in a compelling, persuasive way? I don’t think I could.

Of course, I also need to retain my objectivity so that I am able to give my client sound, well-reasoned legal advice. Decisions such as whether to settle (or for how much) or to press on to trial should not be clouded by being too close to the case. That’s why it is a bad idea for lawyers to represent close friends or family members. I have been doing this kind of work for a long time, and I think I am generally able to balance the right amounts of empathy and objectivity to get the best results for my clients.

Sometimes that is easier than others. Right now I am working on a wrongful death case against an insurance company. The victim was hit by a car that was being driven by a DWI driver. The driver left the scene and tried to cover up the crime by having his car repaired, but was eventually caught by the police. The victim’s family brought a claim and settled with the driver’s insurance company for the policy limit, which was the state minimum at the time. But the victim was covered by underinsured motorist insurance with a higher limit, so there are additional insurance benefits available to cover the damages. The deceased’s family made a claim for the additional insurance benefits. The insurance company denied the claim- it says that the victim’s death was his own fault, so it is not responsible for paying the claim because under Maryland law the victim was contributorily negligent.

I spent a whole day in depositions on this case earlier in the week. The widow testified that on the day of the crash, she had picked up their daughter (2 years old at the time) from her father. She said that the little girl sprinted right up to Mommy, the way excited little kids do. She was so excited to see her Mom that she forgot to give her Dad a hug goodbye. Mom, of course, did what good Moms do- she sent her daughter back to give Daddy a hug and a kiss. That was the last time the little girl ever saw her Dad.

After five and a half hours of this kind of heart-wrenching testimony, my work day was finally over and I went home to my family. The first thing I saw while I was going up the walkway to my house was my own beautiful 18 month old daughter running down the hallway to hug Daddy. I had a hard time getting to sleep that night. Every time I think about this case, I see my own little girl. Sometimes my job is hard, but I know I am on the right side.

One Response to Staying Objective Is Not Always Easy

  • Bill Wilson says:

    This is a nice article, though not easy to read through. It’s odd how I will read things like this, see news events, or hear about something and all I want to do is look forward to hugging my little boy when I pick him after work.

    Hopefully the insurer here will do the right thing. We had a case in our area (not prosecuted by us) where a student sued a school system after being molested by a teacher. The school system filed a contributory negligence affirmative defense. Plaintiff’s counsel filed a motion to strike on the grounds it was scandalous–the idea that the school was going to argue the student seduced the teacher or otherwise invited the abuse was simply ridiculous. Somehow the media got wind and covered the hearing. Not long after the story broke the defendants’ attorneys withdrew the affirmative defense.

    The idea that a victim of a drunk driver could be contributorily negligent in most cases is absurd. It’d be one thing if the victim got in the car with the drunk driver, for example, or if the victim was intoxicated himself and staggering in the middle of the traffic lane.

    Lawyers representing insurers ought to use a little bit of common sense when picking affirmative defenses–how will a jury react when it sees the accusation that it’s the victim’s fault but there’s no evidence of it?

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