Personal injury lawyers have a duty to advocate zealously for their clients. However, they must balance pursuing maximum personal injury settlements with ethical considerations. A top personal injury lawyer must understand when aggressive negotiation tactics cross the line into ethical violations.
Negotiating a personal injury settlement is a delicate balance between advocacy and ethics. While it’s essential to fight for maximum compensation, personal injury attorneys must do so within the bounds of professional responsibility. Using ethical tactics not only builds credibility but also helps ensure long-term success in reaching fair settlements for injured clients.
Model Rules of Professional Conduct for Attorneys
Model Rule 4.1 governs an attorney’s actions with persons other than their clients. The rule states that an attorney cannot make a false statement of material fact or law to a third person. The attorney shall not knowingly fail to disclose a material fact to a third party when failing to disclose the information could assist a client in committing a fraudulent or criminal act.
For example, it would be unethical for an attorney to intentionally misrepresent a client’s ability to work. If the attorney knows the client can return to work but has chosen not to do so, it would be unethical to claim future lost wages based on an “impairment” that does not exist. Likewise, it would be unethical to state the maximum insurance coverage is $50,000 when it is $100,000.
Ethical Strategies for Obtaining Fair Settlements in Personal Injury Cases
An attorney cannot lie to win a settlement. However, they can use effective and ethical negotiating strategies.
Examples of negotiating strategies in personal injury cases include:
Recognizing Insurance Company Tactics for Claims
It is crucial for an attorney to understand the various tactics used by insurance companies to undervalue and deny claims.
Common insurance tactics to undermine claims include:
- Manipulating and misrepresenting communications to imply contributory fault or downplay non-economic damages (i.e., pain and suffering)
- Aggressive attempts to pressure victims into accepting quick settlements
- Questioning the validity of medical treatments and costs
- Minimizing the severity of a victim’s injuries
- Pressuring victims to provide recorded statements after an accident or injury
- Downplaying the importance of a thorough assessment for long-term impacts
Attorneys should discuss insurance tactics and bad faith practices with their clients to reduce the risk of clients making mistakes that can hurt their settlements. Clients need to know they should not talk with insurance adjusters or other parties about their case. Instead, they should direct all contact to their attorney.
Responding Effectively to Initial Settlement Offers
An attorney recognizes that initial settlement offers seldom represent the actual value of damages. Therefore, they are prepared to respond to the initial settlement offer with documented evidence proving the value of damages.
An attorney prepares a response that outlines the victim’s economic and non-economic damages. The response is a comprehensive explanation of the value of the case. A detailed analysis of damages gives the insurance company a better understanding of the amount necessary for a fair settlement.
Emphasize Immediate and Long-Term Impacts
A personal injury claim includes past and future damages. An ethical negotiating tactic is to emphasize both types of damages. Hiring expert witnesses can give credibility to claims for future damages.
Medical specialists and vocational experts testify regarding the work restrictions caused by the victim’s impairments. Financial professionals calculate the value of future lost wages and diminished earning capacity to maximize recovery for future financial losses.
However, economic damages are only one of the long-term impacts. When a person sustains a disabling injury, their quality of life may significantly decrease. Emphasizing the ongoing pain and suffering damages can increase a settlement offer.
Leverage Precedents in Similar Cases
An attorney cannot predict what a jury may decide in a case. However, they can leverage the outcomes in similar cases to strengthen their position for settlement. Pointing to outcomes favoring the victim with large verdicts for damages can encourage an insurance company to increase the settlement offer to avoid going to trial.
Use the Law to Your Favor
Citing relevant case law and statutes strengthens your position for a fair settlement. A skilled trial lawyer combines effective legal arguments with compelling narratives of pain and suffering. The insurance company may be more willing to negotiate a favorable settlement because it recognizes that your attorney is ready to take your case to trial and has a compelling legal and emotional argument for increased damages.
Striking the Right Balance Between Advocacy and Integrity
Winning a fair personal injury settlement requires more than aggressive tactics—it demands integrity, preparation, and ethical judgment. By following the rules of professional conduct and using honest, strategic approaches, attorneys can effectively advocate for their clients while maintaining credibility and professionalism. Ethical negotiation not only upholds the standards of the legal profession but also leads to more sustainable and just outcomes for injured victims.