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Arbitrating the uninsured motorist case.

In an effort provide the motoring public and pedestrians with a safety net against uninsured and underinsured tortfeasors, all 50 states have enacted statutes mandating uninsured motorist coverage.

Often, coverage disputes will be resolved in declaratory judgment actions, usually on the issues of law, but sometimes on questions of fact.(1) Once coverage issues are resolved, the insured's attorney should try to settle the claim. If these efforts fail, most policies require the insured to make a demand to resolve the claim by arbitration.

Here are 10 tips to help you improve your batting average when you step up to the plate to arbitrate your client's uninsured motorist claim.

1. Use emotion

Prepare for the arbitration hearing as if you were going to appear before a jury. Do not make the mistake of assuming that the arbitrator will not be moved by your skills as an advocate. And do not allow the arbitrator or your adversary to scare you into paring down the case to a sterile recitation of damages and a listing of exhibits.

It is important to make the arbitrators understand that the hearing is your client's "day in court." The arbitrators should be patient while all the facts necessary to render a fair decision are presented. If you feel the arbitrators are rushing you, explain that the insurance policy your client bought is a bond of trust requiring the insurer to observe its fiduciary duty with the utmost good faith. Tell the arbitrators that the insurance company should not be allowed to break its promise of protection.

Each case has a theme. It is your job to develop that theme and use the tools of passion and persuasion to keep the arbitrators focused on it from opening statement through to summation.

For example, I recently represented an immigrant who had suffered a neck sprain in a fender bender. The theme of the case was "rags to riches to rags." I pointed out that my client came to this country with nothing except the American dream, worked hard to achieve it, and lost a great deal of it because of injuries suffered in the accident. I am convinced that this theme was the key to obtaining adequate compensation for him.

2. Use discovery creatively

Because interrogatories, requests for production of documents, and requests for admissions are usually not allowed in arbitration proceedings, your efforts to discover information helpful to the case may be greatly hampered. On the other hand, the insurer, by enforcing the "duty to cooperate" clause in the policy, is likely to require your client to submit to a swore statement, produce documents and tax returns, and undergo medical examinations.(2)

To even the playing field, you must perform an intensive informal investigation to uncover every possible fact that will enhance proof of liability and damages. If the alleged tortfeasor is uninsured and "judgment proof," consider filing suit against him or her anyway. This will allow you to uncover additional facts by using the judicial process to compel the tortfeasor to be responsive to your formal discovery.

For example, I represented a women who sustained a fractured pelvis when her car was hit broadside as she was pulling out of a private driveway. The driver of the other car refused to talk to me. It was only after I filed suit that I was able to take his deposition and subpoena his medical records for the emergency medical treatment he had on the night of the accident. He denied liability, and the uninsured motorist carrier made no offers.

At the hearing, I said in opening statement that we would prove liability "by the tortfeasor's own admissions." We introduced his medical records in which he admitted "doing 35 mph" in an area with a 25 mph speed limit. The collision happened late at night during heavy rain--conditions requiring reduced speed. At the hearing, the tortfeasor testified that he was doing 20 mph, and we were able to use his medical records to impeach his credibility. Had we not filed suit against him, my client probably would have lost the case on liability.

You should also ask opposing counsel to agree to conduct informal discovery. Often, they, too, will want to play on a level field. For example, Rhode Island has a discovery rule that an adversary must disclose evidence of surveillance intended to be used at trial after the plaintiff's deposition is taken. Although this rule does not apply to cases in arbitration, I have found that many adversaries will agree to produce this evidence because it is the fair thing to do.

Have your client answer a set of interrogatories that a defendant would typically use in an auto accident case. You will be surprised what you will find out about your client. You can use the answers to flush out affirmative defenses your opponent may raise, and you will be better prepared to counter them at the hearing.

3. Select arbitrators carefully

The appointment of arbitrators usually is governed by the terms of insurance policies, and these vary. Some policies allow three-member panels--each side picks one arbitrator and then both sides agree on a third "neutral" one. Other policies use the American Arbitration Association to select an arbitrator or the parties decide on one.

The selection of the neutral or sole arbitrator is crucial and is analogous to the selection of a jury. The most compelling uninsured motorist case can be destroyed by a biased or unqualified arbitrator.

I find that it is generally favorable to propose names to opposing counsel before they have a chance to propose names to me because it puts the burden of rejecting prospective appointees on the opponent. If opposing counsel does propose an arbitrator, find out as much as you can about him or her. Avoid wild cards. Ask your colleagues about the arbitrator's reputation, and do a search in Martindale-Hubble. Key questions to ask include--

* What kind of relationship does the arbitrator have with opposing counsel and the insurer?

* Is he or she too conservative? Does he or she have a tendency to undervalue claims or grant low awards?

* Is the arbitrator on every defense lawyer's list?

* Does he or she make a living at this?

* Does the arbitrator have the requisite experience and background in tort law and understand the rules of evidence?

* What cases has the arbitrator tried?

Some carriers or their attorneys delay agreeing to a "neutral" arbitrator in the hopes of eventually getting you to agree to someone with a history of returning awards insurers can live with. In cases where delay has dragged on inexcusably for months, I have had to ask the court to select an arbitrator.

After an arbitrator is selected, make sure potential conflicts of interest are disclosed. Once, on the date of hearing, I learned that the neutral arbitrator had represented another company in a workers' compensation case against my client six years earlier. Recusal was necessary, and we had to go home, only to go through the selection and preparation process all over again later.

4. Prepare an arbitration notebook

Before the hearing, prepare a notebook --preferably a three-ring binder--that includes all exhibits relating to liability and damages, numbered in the order in which you plan to introduce them. These notebooks are inexpensive to prepare and will help you gain control over the hearing by giving you a systematic order of proof. This, in turn, helps arbitrators understand a case.

Some arbitration formats allow for a preliminary exchange of exhibits before the hearing. In my practice, I do not include in this exchange materials or exhibits whose admissibility may be in dispute. For example, although I may introduce a policy, I generally excise any information about its limits, as I believe this information is prejudicial. Sometimes, it is advisable to call an adversary to try to resolve evidentiary problems in advance. If there is an impasse, a conference with the arbitrators may help.

Often, I supplement the notebook with a statement of the case or an arbitration brief. If there are unsettled questions of law and evidence that relate to proof of damages, liability, and affirmative defenses, a brief on applicable case law can help keep the hearing from getting bogged down in evidentiary and procedural issues. Stipulations and agreements regarding the offset of any prior medical payments should be worked out in advance and properly documented in the notebook so that the arbitrators can avoid any ambiguity in their decision and award.

Arbitrators often take the position that documents exchanged before the hearing are deemed authenticated unless there is notice of objection. Nevertheless, I provide the proper foundation and authenticity for every exhibit.

For example, I make sure that all medical bills and reports are supported by an affidavit of the treating physician or the medical records keeper. This meets the evidentiary requirements of the hearsay exception for medical and business records. Arbitrators usually appreciate this extra effort, which indicates a dedication to professional standards.

The notebook should have an index of exhibits, and all exhibits regarding out-of-pocket damages for medical bills and lost wages should be clearly summarized.

Each arbitrator should have a notebook at the hearing. I allow clients to review the notebooks as well, so they can gain a greater understanding of their claims and how the exhibits relate to the theme of the case.

5. Prepare your client for both direct and cross examination

You cannot conduct thorough direct examinations unless you know clients well. Therefore, you should meet with them several times before hearings--to give you a chance to get to know them and to give them a chance to prepare for the hearings.

During these sessions, ask clients to tell you about themselves--their backgrounds and daily activities before the accident. Also, ask them to describe the accident and the trauma they experienced at the scene and afterward. Get them to discuss the medical treatment they received and how their injuries have affected earning capacity, daily activity, and quality and enjoyment of life.

It is only through this process that you can really learn how an injury has affected a client. If you have not done this, you will not be able to ask the questions needed in direct examination to allow a client to tell the arbitrators how much the accident and injuries have affected his or her life. Be careful, however, not to overprepare clients as this may desensitize them to their own emotions.

It is also important to prepare clients for cross-examination. Tell them about the weak elements of their case, and explain how to answer leading questions.

In one of my cases, I had a client who had received treatment from a physician every month for six months and then stopped seeing the physician for four months. I realized that on cross opposing counsel was likely to ask, "Isn't is true, Mrs. Smith, that there came a time when you did not go to the doctor for four months?"

She could have simply said "Yes," but because we anticipated this question, she knew to answer "Yes, but you see, during the four-month period my husband died, and I was very depressed. I didn't leave the house, even though I wanted to go to the doctor, because I was in so much pain."

Finally, always go to the scene of the collision with clients before they give depositions or sworn statements or testify at a hearing. Then, have clients draw diagrams of how the accident happened. If your client is asked to draw a diagram at the deposition or hearing, your prior visit to the accident scene and client preparation regarding distances, times, speeds, and direction will allow the client to effectively respond to questions regarding liability.

6. Call lay witnesses and experts to testify

Many attorneys assume that because arbitrators are professional fact finders who can make inferences from written statements or exhibits, it is not necessary to call lay witnesses or experts to testify at the hearing. This is a mistake.

It is important to call lay witnesses to testify about the observable effects of the client's injury. A coworker, a friend from the bowling league, a maid of honor at a long-ago wedding--any of these would make good witnesses to buttress the client's damages claim.

When you meet with these witnesses, don't ask them to wear the advocate's hat. Simply ask them to "tell the truth" to help your client "get treated fairly." And remember to prepare them to be cross-examined about matters that represent weaknesses in the case.

Prepare experts for arbitration as if you were preparing them for trial. In most cases, it will be sufficient to call the treating physician, and, if the case warrants, a vocational expert for an evaluation and an economist for proof of damages.

Meet with experts before the hearing to explain the burden of proof and the concept of reasonable medical certainty. The physician must be familiar with the client's employment duties and how the injuries have affected the client's ability to do that work. Many times a busy doctor will have only limited knowledge of the client's occupational duties, so be sure to properly educate the expert in this respect.

When you meet with an expert, bring some demonstrative evidence with you to show how it can be used to persuade the trier of fact. Gather articles from authoritative medical literature to which the expert can refer on direct examination to show that his or her opinions have support in the medical community. Use these articles to impeach your adversary's expert on cross-examination as well.

Have the expert's curriculum vitae prepared as an exhibit, and take time to qualify him or her at the arbitration. But first make sure everything in the curriculum vitae is accurate.

Be sure to review the client's pre-accident medical history with the expert, so he or she can credibly testify that earlier injuries have either been aggravated since the accident or that they are unrelated to any of the damages alleged.

Send the treating physician copies of all medical records made before, during, and after the client's treatment. Be sure, too, to make all experts aware of any medical reports prepared by physicians hired by the defense so your medical expert may see where and how his or her opinions may be attacked. Always review your expert's entire file before he or she testifies.

7. Know the medicine

You should understand the medical literature relating to your client's injury. This will help you understand your client's symptoms and interpret medical reports and test results. You will also be able to handle direct and cross-examination more competently.

Search the medical literature, and use it to your advantage. I recently represented a woman who was injured in a car accident when she was six months' pregnant. I knew that the defense would argue that her complaints of low back pain radiating into the left leg were caused by the increased upper body weight of the pregnancy. We ran a Medline search on the words "trauma" and "pregnancy" and found several articles that supported the proposition that radiating pain into the lower extremity is not common in pregnancy but suggested a different etiology. I was able to use these articles to support our expert's testimony that the client's radiating pain was caused by the accident and not the pregnancy.

It's also a good idea to review articles and books that were written by defense experts as well as copies of depositions that they have given. These can come in handy as impeachment ammunition.

Develop a working knowledge of the AMA Guides to the Evaluation of Permanent Impairment, and prepare your experts to use the guides at the hearing to demonstrate permanency and specific limitations on bodily functions and daily living activities.

8. Use demonstrative evidence

Use aids that tell something about the client's personality and accomplishments. These include diplomas, certificates of achievement at work, citations of merit, and photos of the client participating in hobbies and family activities. These aids can help arbitrators get to know your client on a personal level.

Anatomical models and X-rays can be powerful demonstrations of an injury. In a recent case, I represented a woman who lost her two upper front teeth when her mouth struck the steering wheel after her car was rear-ended. At the hearing, we held up the two missing teeth in a baby food jar as she explained that she was no longer able to bite into an apple. This simple evidence proved to be both compelling and convincing.

Videotapes can also be effective aids. I have used them in the early stages of soft-tissue injury cases to record limited range of motion, inability to ambulate, contusion, expressions of facial pain, and other anatomical abnormalities that may not exist months or years later when the matter comes to hearing.

Have life and work-life expectancy charts and tables from the AMA Guides blown up, and use them as aids in direct examination of experts and in summation to emphasize the devastating effects of a permanent injury on a person's life.

9. Do not assume the arbitrators will know or follow the law

Just as jurors sometimes ignore the judge's instructions in reaching a decision, some arbitrators ignore the law or, even worse, don't know it.

For example, I once represented a young man who sustained a scar for which he sought disfigurement damages. As we began to develop testimony about the scar, the arbitrator cut us offend said, "I can see the scar. Let's move on."

I then referred the arbitrator to case law in our jurisdiction indicating that subjective, not objective, evidence of a disfiguring injury--in my client's case, the humiliation, fright, embarrassment, and anxiety he felt as a result of the scar--was necessary to prove damages.

Be prepared to argue that the frequently relaxed standards of admissibility of evidence at an arbitration hearing do not apply to the burden of proof of affirmative defenses. Insist that your opponents meet their burden of proof on every affirmative defense.

Research federal and state case law that supports your theories of damages, and be prepared to cite relevant rules of evidence. Ask yourself, "What will the arbitrators need at the hearing to decide this case?" Then be sure you know the law and have the evidence ready.

10. Prepare an itemized list of damages

Justice Oliver Wendell Holmes once said, "A page of history is worth a volume of logic." A properly prepared document itemizing damages can serve as both.

Itemize the client's medical bills, and be prepared to prove that all services were necessary. Have the proper evidentiary foundation laid for the cost of future medical care. Similarly, prepare a specific list of special damages for future and past loss of earnings.

General damages for pain and suffering, emotional distress, disfigurement, and loss of the quality and enjoyment of life should each be assigned a monetary value or a range of value.

Don't make your final argument a routine reading of numbers. Prepare a compassionate summation with a credible amount of emotion. Emphasize what your client can no longer do-engage in hobbies, participate in clubs, go on vacation. Whatever the loss may be, it may strike a chord with an arbitrator.

Note, too, that your itemized damages must withstand the attack of affirmative defenses. Anticipate these defenses, show their weaknesses, and attack each as if you were arguing a motion for summary judgment.

Other damages issues must be carefully considered. Know the law on loss of consortium claims.(3) Know the law in your jurisdiction on the arbitrators' authority to award statutory interest beyond the policy's limits.(4) Know how to handle liens, medical payment offsets, workers' compensation offsets,(5) and subrogation claims to minimize their effect on your client's claim.

Final analysis

View the arbitration as a trial, and marshal all your advocacy skills to ensure that you represent your clients effectively.

I hope that the various tips that I have outlined in this article will allow you to look into the arbitrators' eyes during summation at your next arbitration hearing and say, "Ask not what you can do for the company, but what the company can do for my client."


(1.) See Bush v. Nationwide Mut. Ins. Co., 448A 2d 782 (R.I. 1982); Royal Indem. Co. v. Blakely, 360 N.E.2d 864 (Mass. 1977); Gaudet v. Safeco Ins. Co., 593 A.2d 1362 (Cone. 1992).

(2.) See, e.g., Griffin v. Stonewall Ins. Co., 346 So. 2d 97 (Fla. Dist. Ct. App. 1977); Harleysville Mut. Cas. Co. v. Adair, 218A.2d 791 (Pa. 1966); Lutz Eng'g Co. v. Sterling Eng'g & Constr. Co., 314 A.2d 8 (R.I. 1974); CRAIG A. PETERSON & CLAIRE MCCARTHY, ARBITRATION STRATEGY AND TECHNIQUE 107-20 (1986).

(3.) Terilli v. Nationwide Mut. Ins. Co., 641 A.2d 1321 (R.I. 1994).

(4.) Lawrence v. New Hampshire Ins. Co., 616A.2d 806 (Conn.App. Ct. 1992); Goldblatt v. Transamerica Ins. Co., 457A.2d 1247 (N.J. Super. Ct. Law Div. 1982).

(5.) Aldcroft v. Fidelity and Cas. Co. of New York, 259 A.2d 408 (R.I. 1969). But see Durant v. Motor Vehicle Accident Indemnification Corp., 260 N.Y.S. 2d 1 (N.Y. 1965).

Raymond A Pacia is a partner with Pacia & Pacia in Pawtucket, Rhode Island
COPYRIGHT 1997 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1997, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:Auto Cases: Crash Course
Author:Pacia, Raymond A.
Date:Feb 1, 1997
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