Archive for the ‘FAQs’ Category

Insurance Investigators and Your Claim: The Case of the Irritating Investigator

A Typical Insurer's Private Investigator (no, I'm just joking . . . )

A LETTER FROM THE INTERNET: I’m often asked about the role of ‘private investigators’ in personal injury claims.  In response, here’s a letter that I responded to on, a web-based attorney information service that I participate in, that might interest readers:


i was involve in a car accident. i know that sometimes insurance companies hire private investigator if they think that there is a fraud or the case amount is high. i was wondering what is high amount?



Here’s my answer to Emmy’s letter:

Dear Emmy,

Sorry for your accident. Of course, my naturally suspicious mind is driven to this question: why are you worrying about an investigator? In the words of most defense attorneys and insurance adjusters: ‘Do you have something to hide’?

WHAT A PRIVATE INVESTIGATOR DOES: To answer your question more seriously: having worked as both a defense lawyer, representing insurers, and as a plaintiff lawyer representing injured persons, I can tell you with some measure of certainty that there is no ‘high amount’ that triggers an investigation. The insurance adjusters will deploy investigators when a claim ‘looks’ suspect (for an extreme and somewhat exaggerated example, a person with a sprained pinkie saying that they’re disabled for life will likely be subject to surveillance if there’s an ongoing claim). The decision to send out someone to follow a claimant and see how they’re spending their time in real life is based on subjective criteria, and, in my experience, is often left to the adjuster’s discretion.

DOES “SIZE MATTER”: Of course, if a claimant is seeking minimal compensation, an insurer may decide that it’s not cost efficient to spend $2,000 – $3,000 to deploy an investigator, and might decide to settle the claim at a low level rather than incur that cost on top of the settlement cost. However, increasingly insurers seek to ‘send a message’ to claimants by aggressively investigating what they feel are suspect claims.

These ‘investigators’ are an annoyance. They’re hired to develop evidence, whether by observation or often by photograph or video, that a person isn’t as badly injured as they claim. In my practice, from both sides of the aisle, I’ve rarely seen an investigator hired by an insurer who was an accurate, independent, direct and honest reporter of what they observe.

THE INSIDER’S GUIDE TO INVESTIGATORS: More often, in my experience, these ‘investigators’ (really, paid spies) recognize who’s paying the bill, and rather than acting as independent witnesses, they turn themselves into advocacy witnesses to try to help the insurance companies or defense firms who pay for their services. These ‘investigators’ (sometimes retired adjusters; often, retired or disabled former law enforcement or private security officers) often hide or selectively record evidence of a claimant’s activity in an effort to try to ‘amplify’ the actions of an allegedly injured person. In other words, when the person looks healthy, they start the video recorder; when they look injured, they turn the recorder off. Not only that, but insurers and defendants, under the rubric of ‘work product’, try to hide the existence of such ‘spies’ and their videos until the eve of trial (a process I’m very critical of, and which I believe is based on old and discredited practice).

MALIS|LAW PUTS THEIR INVESTIGATORS TO WORK — FOR YOU!: I’ve developed several pre-trial techniques for ‘smoking the investigator out’, and if your attorney is savvy, he or she will know what to do to make sure that there are no rude surprises as you approach trial or settlement of your case.  The good news is that often these investigators can be discredited by good, aggressive cross-examination in discovery or at trial; their bias exposed; and their opinions weakened. Even better, their ‘spying’ sometimes proves disability, rather than disprove it.

In many of my larger cases, I’ve been able to take this investigative evidence and use it to coerce the insurer to pay more for the claim, by showing that the ‘paid spy’ actually learned that my client was more severely injured than even the insurer thought.  MALIS|LAW bloggers can see an example of this in practice in my December, 2009 post about a construction accident case that we settled for $900,000 in total benefits that we already published in this blog, “The Case of the Deleted Defect” .

HONESTY IS THE BEST POLICY; YOU HAVE NOTHING TO HIDE: Despite this pernicious practice, although in my experience these investigators may occasionally disclose someone working when they claim to be disabled, it’s never happened to me or my clients. As I advise clients and others often, an injured person’s best weapon in personal injury litigation is their honesty.  If you can perform an activity, admit it.  If you can’t, tell your lawyer what you can’t do and why.  Ultimately, frank and honest disclosure of the extent of your injury is always to your benefit, and will generally help your lawyer obtain a fair and full settlement for you.

What Is a ‘Herniated Disk’ — The Case of the Damaged Disk

A PAIN IN THE BACK: I’m not a doctor — I’m an attorney who represents injury victims.  However, for many, many years, first as an attorney for an insurance company, now for victims of negligence, I’ve dealt with the anatomy of the back, and particularly with an ongoing problem — the bulging or herniated disk (what some people call a ‘pinched nerve’ in their back.)   Here’s a working explanation of what happens:

A CLOSER LOOK: Take a look at this anatomic diagram, which shows the structures of the spine and spinal column from the side, or profile view, as well as from a cut-through view from the top of the spine, looking down.

Here's a view of a spine with a herniated disk shown from the side and in a cutaway view for illustration.

UNDERSTANDING THE ANATOMY: The spine is made up of bony segments, or vertebrae, which house and shield the spinal column, a bundle of nerves which conducts sensation and motor signals to various parts of the body.  This particular section is the lumbar spine, or the low back (the ‘bottom’ portion of the spine).  Everyone (with certain very limited exceptions) has the same number of vertebrae, occurring in the same order.  Each vertebral is numbered so that doctors can keep track.

THE DISK’S ROLE: The disks are jelly-filled spongy shock absorbers between the vertebrae that cushion the spinal column as you move and are jarred.  (In the diagram, they’re the greyish, rounded objects between the vertebrae).  Among other purposes, they prevent the spine from crushing the ‘nerve roots’, which are the branches that come off the spinal column, out through the spine openings, and radiate out to various parts of the body.

HOW A DISK HERNIATES, OR ‘BULGES’: When a person suffers an impact or trauma, they can wrench or compress their back, causing the disk  (think shock absorber) to ‘squish’ outward or inward.  Since the outer surface of the disk is fibrous and tough, the disk can generally handle that and spring back.  However, sometimes the twisting or compression is so forceful that the disk’s outer fibers tear, and the inner ‘jelly’ escapes outward.  The disk will appear out of round and deformed, or ‘herniated’.  Depending on which physician you talk to, the terms ‘protruding disk’ and ‘herniating disk’ may be used alternately.

GETTING THE WHOLE PICTURE: The diagram shows a disc herniation at the space below the L5 vertebra.  You can see, in the right hand drawing, that the disk is protruding, or bulging outward.  In the cutaway view, (the middle picture on the right side) you can see that the disk has broken out of its round shape and is pushing forward.  Since the spine is closely ‘engineered’, there’s not a lot of room for this bulge, so that when the disk pushes out of its normal shape, or ‘herniates’, it can press on the nerve roots.  The results:  a distorted signal is sent back to the brain, resulting in the body experiencing pain, numbness, tingling or weakness in the area that the nerve root ‘feeds’ signals to.  (In the case of the L5 herniation shown here, the person experiencing the herniation would also tend to feel pain radiating down the back of their leg.  The side that experiences the herniation will likely experience the pain (a right sided herniation could produce pain or symptoms in the right leg; a left sided, the left leg).  With a lumbar herniation, this experience is often called ‘sciatica’, since the nerve that radiates out from this area is called the sciatic nerve.

This is an overly simplified explanation; there’s lots more that goes into diagnosing, assessing and treating spinal injury. The body’s natural degeneration over time, or spinal abnormalities which you’re born with but which don’t surface until you’re older, can also cause this phenomenon, for example, and many people walk around their whole lives with protruding disks that, because of their own particular anatomy, don’t trouble them at all.   But it’s a useful one, and I hope that it helps your understanding of what’s involved in a disk herniation, and how it can affect you.

The Case of the Prior Pain — The Fact and Fiction of Earlier Injuries

Many insurers (and, sometimes, even lawyers who represent injury victims) would have you believe that if you’ve had a prior injury or case, it will severely harm your present case, or limit or eliminate your damages. In my experience, in the hands of a good trial attorney, that ‘weakness’ can often be turned into a ‘strength’.

If you take the right steps, reveal your history to your lawyer, and retain a properly skilled and diligent trial attorney, you can reverse the myth and maximize your recovery.

Here’s two great examples of how we can deal with medical history and complications here at MALIS|LAW, from past cases:

1. The Classic ‘Bad Back Made Worse” — I had a client who was injured on a construction site, who’d had a bad back that was so troublesome that he was seeing a chiropractor and orthopedic surgeon on a monthly basis before he had the fall that led him to hire me.

At trial, we demonstrated graphically with before-and-after Xrays and MRIs that his fall had tremendously accelerated the rate of deterioration of his spine. His treating doctor testified that his pre-existing degenerative condition made his spine far more vulnerable to trauma like that caused by his fall. His wife testified that while he had given up many of his favorite sports activities, his one source of pride as a man was his ability to work and earn, and that this accident was, literally, the ‘straw that broke the camel’s back’.

A jury awarded him well over a million dollars for his claim.

2. Drug Addiction — Insurers love to put an injured person’s illegal drug use in front of a jury to ‘tar’ a claimant. In one case in my office, however, we were able to turn that potential weakness into a strength:

A client came to my office with an awful injury. During his recovery from surgery, his need to take opiate pain killers to deaden his pain brought back an old ‘street’ addiction to illegal narcotics. Eventually, his family had to have him hospitalized to rehabilitate. Massachusetts law, however, prevents admitting evidence of addiction or illegal narcotic use as damages.

We were still able to use my client’s dramatic story, however, to underscore the extent of his damages. I was able to demonstrate, through family and physician testimony, the depths of his pain; the complications from his addiction; and the completeness of his rehabiltation, and the help he received from his wife ad his family. Even though we couldn’t introduce evidence of accident related addiction, we still retained an expert in the field of addiction who would be prepared to testify that his accident related opiate use ‘triggered his addiction’. This presented the insurers with a dilemma; if THEY introduced the evidence of my client’s drug addiction to lessen my client’s reputation with the jury, they faced potential admissibility of his addiction as a damage.

Despite this potentially ‘lethal’ complication in my client’s treatment, the case settled for many millions of dollars (and, I’m pleased to say, the client has successfully warded off his addiction).

Here’s a few general rules of how to deal with your medical history in YOUR case . . .


Disclose your prior medical history in detail to your lawyer when you hire them. Don’t hold back information because you think it will discourage the attorney, or prevent them from working hard for you. The lawyer’s worst enemy in a personal injury case is an undisclosed prior injury. However, if you disclose your past history, the lawyer may well find ways to maximize your recovery, as you’ll see below.


The law in virtually every state will compensate an injury victim for the extent that an injury worsens a prior condition, even if the nature of the trauma wouldn’t have ordinarily injured a hale and healthy ‘victim’. The law ‘takes victims as they find them’. For example, if a prior trauma worsened a kneecap so much that another trauma, even if light, fractured it, the victim’s entitled to recover for damages for the fractured knee. However, in awarding or assessing damages the jury (or insurer) can take into account the fact that the knee was already not 100% to begin with.


Just as with your attorneys, don’t hold back details from your medical doctors. Most physicians will tell you that ‘patient history’ during interviews is a critical diagnostic and treatment tool. Just as with your attorneys, your doctors need to know about your past to give accurate appraisals of your present and future condition. If something troubled you before the accident, even if it was previously resolved, let your doctor know (even if they don’t come out and asked). If you had an ongoing problem, make sure the doctor knows about it, and also knows whether it’s different or worsened now. A full and accurate medical history will help you get the maximum recovery from medical treatment (which should always be your goal, as no personal injury settlement will make up for your loss of health).


Obviously, the first question about a prior injury or claim is: are they not at all related? A prior knee injury will likely have nothing to do with hurting your shoulder. A chronic problem with your finger has little effect on a brain trauma. While these are obvious exaggerations, they still can be used by a skilfull defense lawyer to hurt your credibility if they aren’t disclosed up front. This might seem counter-logical — why create a record that could hurt your case? However, understand that insurers conduct thorough investigations of claimants, through attorneys and, during litigation, using the formal tools of discovery. Assume that the insurer will not find out, and trust me, they will, and will use your non-disclosure as an excuse for not paying you fairly for your injury. Assume that they will, and you take this weapon away from them, and allow your lawyer to tell the story that benefits you best from the real facts at hand.


Often, orthopedic injuries heal in a relatively short time. Sometimes, they don’t, presenting nagging injuries that last for years. In either case, the insurer’s best strategy is to get an injured person to distort or lie about their past, ‘trying the lie’. Since a jury tends to distrust injured persons seeking compensation anyhow, the insurers and their attorneys try to make the injured person less credible, suggesting that a misstatement about something years ago amounts to a lie being told today. The best way to frustrate that strategy is to look back, honestly, at your injury ‘past’, and make sure your attorney knows about it. Review the records with them when he or she obtains them, and refresh your memory about the prior history, especially prior to answering interrogatories (questions under oath) or to giving a deposition (a sworn statement under oath).


So you’ve injured the same part of your body twice. Any orthopedic doctor would tell you that a prior trauma to an area creates a greater likelihood that a second trauma will cause more or worsened damage. It makes sense — if you’ve damaged ligaments or tendons, these injuries can weaken the support structure so that another trauma rips far more. Think about how differently a healthy tree and a damage tree weather a storm. So reflect a little bit about your medical condition before describing your history to your attorney. Were you truly fully recovered, or did you have a residual twinge that’s now out of control? Let him or her know.


In this process, you aren’t required to remember every detail of your past; no one’s that smart, or lives their life as a notetaker. Disclose everything as best you can, but don’t get so tied up in dates or times that you come off as ‘scripted’. Give your best, honest recount of your medical history, and rely on your lawyer to help you over any factual bumps.


Since few of us escape life without getting nicked up, almost all of us would have to deal with a prior injury as part of our medical history, and as part of presenting the claim. The area of ‘prior claims history’ or injury history is probably the greatest reason that your lawyer will add value to your claim. They’ll scour your record and, if reasonably skilled, will try to either minimize the effect of a prior injury by distinguishing it; demonstrating that it had already been well resolved; or, even better, using it to explain how the trauma of your current accident created so much damage to you or your life.

The Case of the Girlfriend’s Grief — What Should a Client Worry About When an Accident Happens?

Boyfriend Hit Someone Crossing Against the Light

My boyfriend who is on my insurance hit a woman crossing against the light. Two witnesses verified that she was crossing against the light on the police report. She was able to get up and walk, but how bad is this going to be for us?

Daniel Malis Says:

Dear ‘Chicago’,

While I’m not a licensed attorney in Illinois, you’ve posed a common general question, so here goes:

1) The bad news: As to your boyfriend’s responsibility for the accident, while it is helpful that the woman was crossing against the light, it’s not determinative of her or your boyfriend’s relative fault for the accident. I don’t know of any state where crossing against the light provides an automatic defense for a driver to striking a pedestrian; or, phrased another way, it’s never lawful to strike a pedestrian who’s crossing a road. However, the pedestrian’s failure to comply with traffic laws by crossing against the light may be a factor a jury or judge would consider in apportioning blame, either by finding your boyfriend not responsible or by allocating a share of the blame to the pedestrian. Other factors will play a part; such as, had the pedestrian just stepped off into the curb or was she well across the street and in plain view of your boyfriend when he struck her? Was she running or walking at a normal pace? Were there obstructions to your boyfriend’s view that might have prevented him from seeing her before it’s too late?

2) The good news: the reason you carry insurance on your car is for circumstances like these. Your insurer will investigate the accident and the injury, and provide you and your boyfriend with an attorney to present your defenses. Hopefully, if her injury is not severe and your coverage adequate, this will be only an inconvenience as to your time, and will not be ‘bad’ at all. The vast majority of these cases settle without anybody but the insurer paying, and well before any trial of the case occurs.

3) As a personal injury attorney who does much more work for injured parties than for negligent parties, I can tell you that it is very rare for a plaintiff (the injured person) to seek or obtain judgments for damages beyond insurance coverage limits of the driver and owner of the vehicle. Such ‘private’ judgments are time consuming, delay payment of insurance proceeds unduly, and difficult to enforce.

You can learn more about how these factors play out in your case by discussing these issues with the adjuster whom the insurer selects to handle your case, and, if necessary, Make sure that the insurer has all of your information so that it can start your investigation.

Sleep easy, and good luck.

The Case of the Indignant Insured — Does an Uninsured Driver Have a Right to Sue?

Does an insured driver have to pay for the damage of an uninsured if I was hit from the rear.

I was charged with failing to yield. I stopped at the stop sign and then preceded to merge into the median when I was hit. The driver of the other car was only charged with no insurance.
I do no see how I failded to yield when I did stop and make sure there was nothing coming. The other driver had to be driving too fast or was doing something other than looking not to be able to see me. Both of us was taken to the hospital and I was told at the hospital that I was charged with failure to yield. Will I be responsibe to pay for the other drivers damages? This happened in South Carolina.

Daniel Malis Says:

The short answer is that your, or the other driver’s, insurance status does not dictate whether or not you are legally responsible for causing damage to another’s car. Your liability is not dependent upon insurance, but upon whether or not you (and the other driver) drove your car with care appropriate for the circumstances (otherwise called ‘reasonable care’ or, when not shown, ‘negligence’).

Fortunately for you, you are covered, which means that your property damage will be paid for; you will receive an attorney to defend you paid by the insurer; they will present your defenses (and, from your recounting, it’s clear that you feel that you have some); and, if your defenses do not prevail, will pay for the damages suffered by the other party up to the limits of your insurance policy.

If you haven’t done so already, put your insurer ‘on notice’ of this accident by contacting them. They’ll take the lead from there.

The Case of the Drunkard’s Damages — What Goes Into a Settlement?

I was hit from behind by a drunk driver in his company car was totaled and my arm and back was injured.

what is the minimum amount of settlement i should expect?

Daniel Malis Says:

Dear Shreveport,

I’m sorry for your injury and the pain and change of lifestyle you’re probably already experiencing. While it’s a business to myself and my brethren, it’s important for us to remember that for you this is not first an economic issue but one of irreplaceable health.

You’d be surprised how often I hear this question, or the equally important question: ‘what’s my case worth’?

My joking answer, which of course is based in reality, is ‘the maximum amount that an insurer will offer you, and not a penny more.’ The actual answer is far more complex and can’t be answered simply, There are many factors that enter into the value of a case, some obvious, some not.

The obvious ones: you are entitled, in a case of clear liability such as the one you’ve posed, to reimbursement for your past and likely future medical expenses; your past and likely future lost earnings; and out of pocket monetary losses.

You are also entitled to reimbursement for ‘hedonic’ damages, such as the impact the pain of your injury and any resulting temporary or permanent disability and restrictions impose on your lifestyle. You are entitled to the value of services others must render for you if you are unable to carry them out. You are also entitled to receive an award for ‘pain and suffering’, the impossible-to-specifically-calculate value of what you’ve gone through and can expect to go through. The ‘price’ of these items is very difficult to specifically quantify, and will depend upon the extent of your injury; the permanency of your injury and limitations; the objective or subjective medical evidence of your injury (how ‘provable’ your condition is); the relative state of your health before the accident, as compared to after; the kind of work you do, and whether this injury will temporarily or permanently disrupt that work; and many, many other factors.

Having said that there’s no way to quantify these things, experienced trial lawyers do value these claims all the time once the information’s collected, based upon verdict reports; past settlement history; amount of insurance coverage available to pay for your injury; and their own past settlement and trial experience. Valuing a case is awfully tricky business, but a good trial lawyer develops a ‘nose’ for these things, and for emphasizing strengths and weaknesses of your and your opponents’ cases that can be developed, emphasized, or turned to your advantage.

Ultimately, ‘case valuation’ is the ultimate reason why, from a historical perspective, lawyers add far more to the value of a case than their contingency fee reduces your recovery. Get yourself a smart, skilled trial attorney who will advocate your interest and develop this evidence.

Another point to emphasize; if it’s early in the case, there’s almost no way any competent lawyer can ‘value’ your injury in the way you seek, and it’s often counterproductive for you and your life to do so. Often clients ‘suspend’ their life awaiting a big verdict or settlement that may never arrive. Focus your energies not on your expectant settlement, but on treating consistently with your medical providers and getting as recovered as you can, because no settlement can make up for your health.

Best of luck.

Ten Commandments of Personal Injury

These are posted on my website, but it never hurts to repeat ‘em . . .



When you’ve been hurt, you need to take a second to appraise your injury. Stabilize yourself; look around at your surroundings; check to see what hurts, and how badly. You may be embarrassed, or feel the need, if you’re at work, to ‘get back to it’. Before you obey that impulse; make sure you know how badly you’re hurt and what happened to you.


While you’re catching your breath, look around the accident scene. If you’ve fallen, see what caused your fall. Look for conditions that are out of order, things that don’t fit or don’t belong. Make an effort to remember what you’ve seen, and, more important, who you’ve seen.


Make it a point to get the names of people who saw your injury or the aftermath. Not just first names, but names and phone numbers, preferably addresses if you can. (This applies specifically to construction workers, who know everyone’s first name and no one’s last!) Since writing might be difficult, use your cell phone to save numbers and names if you can. If you can’t type, call yourself and leave yourself a voicemail.


If you’re on the job, let your supervisor, shop steward, general foreman, and general contractor’s safety persons (as they apply) know that you were hurt and how. If you’re on someone else’s property, like a store, parking lot, or other area, tell the owner if identifiable, or at a large property, let security know. If it’s a car accident, call the police and have them come to the scene. If you’re on a work site, and there’s a dangerous condition, on a union job let your steward know and ask him or her to document the condition; that’s part of their job. If not, and you need emergency treatment, ask a co-worker to let people know what’s happened and document conditions.


If you can, photograph the scene of the accident (a lot of cell phones have cameras); if you can’t, ask someone else nearby if they can take pictures or notes, with their own phones, cameras, or just a pad of paper. Write down what you remember about the accident as soon as possible, or leave yourself a voicemail (again, think of your cell phone as a portable data storage device).


If there’s a mechanical malfunction or failed product involved somehow in the accident, make sure someone, if possible, gets it from the scene and retains it. If it’s a product you use in the home, resist the temptation to throw the injuring product as far down a hole as you can, and save it, preferably with its packaging if you still have it, and hold onto sales slips. If it’s a broken part on a car or work site, at least photograph it, or have someone do it; even better, grab the thing if you can and hold onto it.


If you’re in pain, no matter how insignificant you think the injury is initially, get to the emergency room or a doctor’s office promptly. You may be in shock, and don’t know the full extent of your injury. Many sprains, strains and musculo-skeletal injuries ‘stiffen up’ within 24 to 48 hours, so don’t be surprised if you don’t feel pain initially. Statistics show that the quicker medical intervention occurs, the quicker you’ll get or feel better. And, follow your doctor’s instructions about follow up care.


Human psychology is funny; people who get hurt often want to deny the accident happened, or deny how badly they feel, out of embarrassment or a need to ‘put the incident behind them’. This doesn’t serve the injured person; it only serves the person or company which caused the injury. Pain is the body’s ‘messenger’ and warning system, so if something hurts you, stop and don’t do it.


The first thing that defendants want to do is get statements. So, unless it’s a police officer or your boss, don’t comment. Speak only to your lawyer. You might have to report how an accident happened in a work environment; that’s a job obligation, and you have to do it. Otherwise, though, wait until you speak with an attorney before giving any other statements (ESPECIALLY RECORDED ONES!)


Call a lawyer who understands and specializes in personal injury litigation as soon as possible after your accident. At the initial stage of an injury, you truly don’t know how bad it will get, and valuable evidence is eroding daily, while the party that caused your injury, with notice of your potential claim, is scurrying to develop defenses, perhaps destroying critical evidence as they do so. Experienced personal injury lawyers know how to make sure that this doesn’t happen, and can only do so if we’re involved early.

More cases are won (and lost) in the week or so after the accident than at any other time. Your real estate or probate attorney won’t know how to investigate a worksite accident (you wouldn’t have a plumber fix your electrical wiring). That’s not what they do. This is what I do.

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FAQs, Interesting News and Law-Related Rants

Daniel Malis uses this blog to publish answers to frequently asked questions, convey interesting news and make the occasional law-related rant. If you have any questions or want to contact Daniel Malis, please see the Contact page of the MALIS|LAW Website.