Sat | Sep 23, 2017

Cedric Stephens | Pitted against long delays in the justice system

Published:Sunday | April 30, 2017 | 4:00 AM

Question: Is it possible to get information regarding an insurance claim that one makes through a lawyer? I was involved in a motor vehicle accident in November 2015. As a result, I suffered what doctors call a whiplash injury. Each time that I ask a representative from the legal firm, they tell me that they are awaiting a court date. In the meantime, I have been hearing some very discouraging things into the firm. Can you please give me some insights about the process of getting compensation?

javanreid8@gmail.com

Answer: Last week's article - 'Alcohol, drug use factors in motor vehicle crashes' elicited a 168-word response from one reader. He wondered if it was part of "an organised campaign ... to try and demonise ganja." The number of questions that he posed was another feature of his email. Who are the sponsors behind the column? Was I employed by the National Council on Drug Abuse or the National Road Safety Council, or the Ministry of Health, or the Jamaica Constabulary Force? Where has he been during the last 20 years? For the record, this column's mission is to offer, free, independent information and advice about the management of risks and insurance. The ideas that are expressed are the products of research. They represent my views and not those of any organissation.

Your two questions have more to do with our legal system and less with insurance. They should be handled by a lawyer. I am not a lawyer. However, I see similarities between the way you have approached your problem with the legal firm and how many persons deal with problems with their insurers or brokers. They close the stable door after the horse has bolted. In other words, you should have checked out the legal firm before you retained them. This is especially because of the negative publicity surrounding some members of this profession.

 

SLOW SYSTEM

 

Our legal system moves very, very slowly. In a paper dated April 22, 1994, titled 'Delays in the Justice System: Civil Jurisdiction', attorney-at-law (now High Court judge) David Batts summarised the situation in the courts from the perspective of a client this way: "Mr Batts, when this matter started, I was 38 years old. I am now 43. By the time I get my money, I will have grey hairs" A November 2016 JIS report said that the Ministry of Justice does not have an accurate estimate of the number of cases in the court system. Some persons say that the backlog numbers some 400,000 cases.

Since the accident in which you were injured occurred about 18 months ago, the wait for it to get on the list for trial does not appear to be unreasonable.

The legal firm that you have retained is not viewed favourably by insurers. This may or may not be a good thing from your point of view. On the negative side, it could result in the insurance company deciding to play hardball and allowing the case to go to trial sometime in the distant future instead of agreeing to a quick out-of-court settlement.

Some local personal-injury attorneys operate on a contingency fee basis. This means that payment for legal services is dependent upon there being some recovery or award in the case. The fee is a percentage of the amount recovered such as 25 per cent if the matter is settled out of court or 30 per cent if it is settled during trial. My suspicion is that your legal firm is operating on this basis.

Another unknown is the state of the injuries that you suffered. According to my research, most doctors find it extremely difficult to give accurate estimates as to when persons who suffer whiplash injuries are likely to recover. Insurance companies, on the other hand, hate these types of claims. They create opportunities for dishonest persons to exaggerate the extent of their injuries with the ultimate goal of getting bigger settlements.

Given the information that you have furnished, the long delays in the court system, and the nature of the injuries that you suffered, the outcome of your claim is, unfortunately, very uncertain. The less-than-satisfactory service that you are receiving is probably a function of the fact that the legal firm is funding the cost of litigation from its own resources.

- Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to aegis@flowja.com.