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Straight
Track #19
A Railroader’s First Steps
Toward Recovery Of A Claim
Hoey & Farina
info@felahfd.com
When
representing an injured railroad worker, our office tries to maximize the
client’s recovery in the timeliest manner. Most cases are resolved
without trial and many without the filing of a lawsuit.
In order to
maximize the potential for a timely resolution of a client’s claim, it
is important to present the railroad’s claim agent with a
“three-in-one tool”: a written summary of the facts surrounding the
injury, an analysis of the applicable law with respect to liability and
damages, and a settlement demand.
Many
railroaders, however, say they are unaware of the substance or importance
of this first step toward the recovery of a claim. The reasons for why,
when and how such a written response is presented to the railroad’s
claim agent is the subject of this edition of Straight Track.
The
"Why"
Before the
railroad is willing to make any significant settlement offer, the claim
agent must obtain detailed information concerning the claim. The
comprehensive summary, analysis, and settlement demand is a tool used by
counsel to assist the claim agent in the documentation of the agent’s
file.
As is to be
expected, the railroad is reluctant to pay out any money in settlement.
And as to be expected in any business, the railroad must show a reasonable
basis for its decision to spend the company’s money.
The
claim agent often welcomes any free assistance by counsel that clearly
identifies the issues.
The
summary, analysis, and settlement demand is also an opportunity for the
client’s claim to be presented in a most favorable manner, so that
the agent can request the highest level of settlement authority. The
higher the level of settlement authority given to the claim agent, the
greater the potential for the claim being resolved.
The
"When"
The
comprehensive summary, analysis and settlement demand can only be prepared
after all applicable medical records have been compiled and reviewed, all
wage loss documentation (often including the client’s income tax
returns) have been compiled and reviewed, an inspection of the accident
site has been performed (if necessary), and after a detailed conference
with the client to review the gathered material. Additionally, it may be
necessary to interview witnesses and/or confer with experts (both medical
and technical).
Once
all of this information has been discussed in detail with the client, only
then do we begin to prepare a comprehensive writing to the claim agent.
The compiling of the necessary information, however, is often delayed
until after our representation of the client has been disclosed to the
railroad. For example, we may refrain from ordering medical records out of
concern that our firm’s name may be listed in the records.
This
is just one way our representation may be delayed. Most often, our
representation is delayed as a result of the client’s receipt of
temporary assistance from the railroad. This assistance is always
terminated after the railroad is informed of the client’s representation
by counsel.
The
"How"
While
the writing style of each attorney varies, there are common
characteristics of a well-written summary, analysis, and settlement demand
of which railroaders should be aware.
The
comprehensive summary of facts of the claim must be listed in a precise
and understandable manner.
The
summary of facts is followed by a concise and pointed statement of the
client’s theory of liability. If it is anticipated that the railroad
will argue that the client is partially at fault, the anticipated
arguments should be dealt with directly.
Often
the railroad alleges that the client has violated a safety rule or
operating procedure. It is important to note in the writing when an
alleged rule violation is not applicable and/or should be excused.
Additionally, the railroad’s
violation of its own safety rules or operating procedures should always be
noted and adds a great deal to the client’s theory of liability.
In
most circumstances, the railroad will not make any reasonable offer of
settlement until the claimant has clearly stated a demand. How each
individual claim agent views a settlement demand varies greatly. It is
important to keep in mind that the initial demand may be substantially
higher than what the attorney reasonably expects to recover, although the
settlement demand must have a rational basis.
The
settlement demand must be given with the knowledge that human nature will
most often cause the claim agent to expect that the claim can be resolved
for an amount less than the initial demand.
The
comprehensive summary, analysis and settlement demand presented to the
claim agent is most often the best first step in negotiations leading
towards a maximum recovery for the client and comes as a result of
extensive work of Counsel with the client.
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