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Damages from the Defense Perspective by Laura G. Zois


I have represented defendant drivers, injured plaintiffs and


insurance companies in auto tort cases. From 1995 to 2002, I defended automobile insurance companies such as Allstate, Nationwide, State Farm, The Hartford, MAIF and Bankers Independent Insurance Company. For the past seven years, I have represented clients making claims against these same insurance companies. What did I learn during the first seven years that has been


invaluable knowledge to me in the last seven? That the same mistakes were being made repeatedly. Recognizing this helped me defend insurance company positions and now prevents me from making those mistakes as plaintiff ’s counsel. The best way to increase the value of your case is to avoid these weaknesses to the largest extent possible. The cleaner a case is presented, the better the settlement offer or verdict. This article is not intended to be a hornbook on how to handle an auto tort case. It is my best practices learned from trying these cases for both sides.


Get Your Own Pictures You have heard time and time again that the extent of prop-


erty damage is not related to the extent of plaintiff ’s injuries. Take this knowledge and store it in your basement. You will never convince a jury (or even a judge) of this. Particularly with juries, the scope of the damage to their vehicle focuses their view of the damages to your client. Invest in a good digital camera to preserve photographs of the damage to your client’s vehicle, injuries and the scene of the accident. Obviously, insurance companies seek photographic angles


that minimize the appearance of property damage to the vehicles involved in an accident where the company has exposure. Take your own pictures and choose your own angles. Never count on your client to take quality photographs and do not count on the adverse driver’s insurance company to take photographs of total loss vehicles. The adverse insurance company will always have a beautiful 8X10 glossy of the pristine bumper, but will conveniently misplace or delete the total loss photographs. If you rely on your clients to take photographs of their own


injuries, you will probably end up with pictures that are not very flattering and do not capture the essence of the injury. We have inherited cases where we have not even used the photographs depicting the injury because the fuzzy Polaroid, in bad lighting, with the family dog in the background, was not going to help our cause. In cases where the victim has permanent scarring, we hire a professional photographer to capture the image.


Winter 2009 Trial Reporter


In cases involving a liability dispute, chances are you will go


to trial. It is often helpful to have photographs depicting the roadway for the judge or the jury to put the scene in perspec- tive. Often, parties cannot even agree on the layout of the road at the time of the accident. Roads, intersections, and traffic signals frequently change. It is helpful to have photographs that accurately depict the area where the accident took place. If your case involves a liability dispute, get accurate photographs of the scene before it changes.


Contact Witnesses Early Memories fade. The sooner you know exactly what witnesses


will say, the more prepared you will be. In bigger cases, it is helpful to get a PI to take recorded statements of the witnesses so you can refresh their recollection of events down the road. Additionally, when you represent the injured party who did not cause the collision, random bystanders tend to be more


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