How to Maximize Damages in “Standard” Personal Injury Cases

00:10Rory Safir: Welcome to the Safir Brothers Lawcast. I’m Rory Safir, I’m a Florida trial lawyer, and today I’m putting my brother Gary in the hot seat. Gary’s a Michigan personal injury trial lawyer, and we’re going to be talking about how to maximize the value of your average injury case. Not your catastrophic case, but just, you know, the everyday one.

00:27Gary Safir: Hey Rory. I’m really happy that we’re doing this. I also want to point out that my little brother also handles personal injury cases. And I say little brother even though he’s about, what, four inches taller than me. But yeah, you know, I think that it’s important to talk about these kinds of cases because they don’t get the headlines. You know, they’re your everyday cases, they’re regular folks with injuries that are common. I myself mostly handle car crash and motorcycle crash cases, but by and large it’s car crash cases that end up with neck injuries, back injuries, maybe a herniated disc, these kinds of things. And so we really got to focus on what to do to help those regular folks out when they’re hurt. But before we get into it, Rory, I don’t know what your practice really entails. Is it, you handle a lot of premises cases, right?

01:05Rory Safir: I do. So I would say my practice is largely DUI defense. I do criminal defense as well, just like general. But that kind of lends itself to personal injury too, when you’re suing, drunk drivers and you’re on the other side. But as far as personal injury, I just, yeah, you kind of go where you get the experience. So I used to work at a smaller personal injury firm, before I went out on my own and, as it would have, or as, you know, as fate would have it, however you want to call it, I ended up doing a lot of, premises liability cases and, we recently had tort reform in Florida where it completely just neutered a lot of our, mechanisms to recover for injured folks. And so nobody wants to do premises liability anymore. And I’m pretty good at it, if I do say so myself. So that…

01:59Gary Safir: Did you sue Disney?

02:00Rory Safir: Yes, but that’s quite common. I’m, again, I’m in, the Tampa Bay area, so Orlando’s my neighbor, and they’re quite commonly sued. But before it, so before I go off on a tangent about myself, Gary, why don’t you tell us, tell the audience, tell the people what you do, how you ended up, you know, starting off, I understand you started off, I mean I’ I understand you’re my brother, of course I understand. I know that you started off doing, insurance defense. You did that for a bit, you learned the playbook of the enemy, and now you’re on the, you’re, you know, fighting for the good guys. Why don’t you tell the, why don’t you tell the people a little bit?

02:39Gary Safir: Yeah, sure. So I did start off my practice on the other side of the v, on the defense side, just ’cause that’s where the jobs were out of law school. It was a tough time when I graduated in 2013 and getting a job out of law school was hard. But I got a lot of experience on the defense side, working with insurance adjusters and other more experienced defense lawyers, things like that. But, I did a lot of that, so I got to see how they value cases and what they’re looking at to try to poke holes in a regular person’s case. And so I learned that, you know, they have a very interesting way of looking at cases where they’re really just trying to pick it apart. It’s a totally different experience on the other side where you’re really building a case, you know, you’re working with a real person, you’re working with somebody who’s hurt, you’re working with somebody, like that. But as far as how I became a personal injury lawyer, you know, I, you remember when Dad passed away, back in 2016 and, you know, I was just really not happy with my life. I, you know, I was an okay lawyer, but I just never really fit in with the defense side of things. I couldn’t get jazzed up about saving a multi-billion dollar company a couple grand. Just, it was not what got me out of bed in the morning. So once Dad passed, it really put a lot of stuff in a in perspective for me and it stopped being just about the job and it started being about what do I want to do with my life? What kind of a legacy do I want to lead, and then, you know, what do I want to do with myself? And so you and I actually went on a little vision quest to, Latin America, and on that trip, you know, you and I did a lot of talking. I…

04:00Rory Safir: A lot of talking.

04:00Gary Safir: About the future and what we want to, what the mark we want to make on the world. You and I have had long conversations about that, we can make that could be a whole other episode. But, you know, when I got back to the States, after living in, Latin America for a little bit, I realized that I just can’t do it with insurance companies anymore and, I want to fight for people. And so ever since 2017, I’ve been representing injured folks. I’ve done exclusively personal injury since then, by and large auto accident cases. So that’s how I got to where I am now.

04:30Rory Safir: I couldn’t agree more. I also, not to the same length, but I also did not want to represent Darth Vader and the Death Star, which is, I mean, I joke a little bit there, but not really, because that’s kind of how it felt for me too. I lasted, you know, after I started doing, I had to do insurance defense for a little bit. I think I lasted 6 months. I was,…

04:56Gary Safir: Longest three years of your life, right?

04:58Rory Safir: Yeah, it felt like three years. No, it was, I worked with the nicest people, really intelligent lawyers. It was, a good a good firm, it was a bigger firm, but, it was just the work. I remember I was doing, nursing home defense and I was, doing a deposition of a, daughter of, I think it was her father that passed away, and I, you know, knew behind the scenes that yeah, this nursing home did some things that, would qualify as negligence, professional negligence. But yeah, so I, you know, here I am, I’m trying to catch this woman in some kind of, you know, to get her credibility, or some, you know, I’m trying to do my job ’cause I’m representing the insurance company and the nursing home, but more the insurance company. And so if I, if I win, I guess that means that I deny this woman and her and this and this, fellow’s estate any kind of recovery. So I guess that’s a, you know, a win, and if I lose, well then I did a bad job in, you know, for my from my employer’s standpoint and from my client’s standpoint. So it was a lose-lose situation. And that was really what where I kind of was, you know, let me let me let me let me switch over to the good guys. I just, I cannot, let me just let me I’ll find something. And so I ended up getting a job…

06:23Gary Safir: Yeah, the same thing. I had a lot of the same the same experiences like that and I just it got to be too much. And, you know, with dad passing away I was doing a lot of thinking about what do I want to, you know, is this the life that I want to live ’cause life is apparently very short and we’re all mortal. But, so, I guess getting back to, you know, maximizing damages on your regular case, it really kind of ties into what we were talking about. You have to find out who your client is. You can’t represent somebody and get them compensated for what happened to them if you don’t know who they are. You have to get to know your client. And I work at a, you know, some people look at me, they say I work at a large firm, you know, Morgan & Morgan, and I have a pretty large docket, but it’s a very important part of every case to spend time with those clients and make the time. You know, you can automate a lot of things away. There’s AI now, there’s other resources, there’s staff, but you cannot automate away and you cannot skimp on getting to know your client and talking to them. And I think one of the biggest ways that you can do it in your average case is focus on depositions. Depositions are your entire case because for most people, most cases don’t go to trial. You can prepare a case for trial all you want and you should, because the cases that you prepare for trial are the ones that are going to resolve for the highest value, but most cases are decided in your client’s deposition because that is their day in court. That is it. You know, that’s gonna be probably the only time your average person in a car crash case or a slip and fall case are going to end up having a chance to talk about what happened to them and why they’re entitled to anything. And so when you take the time, I never skimp on deposition prep. I give my clients at least a couple hour period the day before, but I try not to, you know, do too much information in one setting. I try to give them mixed media. So I’ll send them an email with a YouTube video from our firm that shows them how to do a deposition, what the basic principles of it are. So they get to watch that video. Then they meet with me. Then we go over their specific case and go over, and I have my own memo that I put together for myself to make that efficient. And so I’ll go through and we’ll hit all the landmines. Just go through ’em all. Let’s go through everything. ’Cause the most important thing is telling the truth. You know, the truth is the truth. And so just because it’s a bad fact, may not be a bad fact, and it may just be something you have to talk about with them. You know, you have clients that they’ll sometimes try to hide things from you, as their lawyer, as I’m sure you’re aware of in a criminal case. They think they’re helping themselves. They’re not. So you gotta get it out of ’em. And you can’t do that in 15 minutes before the deposition saying, you’re just gonna tell the truth, right? You know, you really have to spend that time with them. And then when I’m done meeting with them, I send them another, version of what we just talked about. I’ll give ’em like a little memo that kind of hits the highlights again so they can sleep on it overnight. And one of my secret weapons, and I hope there’s no insurance defense lawyers watching this, but one of my secret weapons that I use is I have my clients put together, kind of a list of their experiences and how the accidents affect their life. You know, they’re day-to-day. I try to have them give me dates, what they couldn’t do, why they couldn’t do it because of their injuries, and then who was there to see it and who was affected by it. Because a lot of these injuries might seem minor in your normal case, somebody’s got a neck problem, or a shoulder problem, or a knee problem, but there’s always some ripple effect of an injury. And so I have them, you know, put together a list of their experiences and then incorporate that into the deposition prep. So those are, those are some important ways for how to, you know, maximize the case, and I cannot highlight enough how important depositions are.

10:04Rory Safir: So you mentioned a few things. I just kinda wanna unpack those for the listeners. So, the first thing is you talked about depositions. But just kinda on a broader level, and the answer might be very well depositions, but when you’re looking at an injury case, and the topic of this episode is kinda your average run-of-the-mill, injury case, not to minimize that ’cause that’s a big deal. It’s the worst day of the of someone’s life, or multiple people’s lives depending. But what actually has the greatest impact on its value, you know, when you’re when you’re thinking about these cases, from a legal or a lawyer perspective? Is it depositions? Is it documenting the file, for medical treatment? What is it in your experience?

10:45Gary Safir: Credibility of your client. Because I for example, treatment. People think that having lots and lots and lots of treatment is what drives up value, and it can. Obviously in cases where you can, you know, put up on the chalkboard the medical bills and things like that, certainly if there’s a lot of them that can that can help. But those cases kind of try themselves, right? They’re those are obvious, you know, if you have big bad injuries, you’re going to have big bad medical bills. But what matters most is your client believable? Do you believe them? Is somebody else gonna believe them? Because sometimes they’re going to have that negative MRI. They’re going to have a negative EMG. They’re going to have not a lot of treatment, but they’re going to say, but I’m still being affected and it ’cause I can’t do what I want to do but my these MRI came back negative, but my neck is still killing me. So that’s something is not showing up there. So credibility is the most important thing. I tried a case last year where I represented two Chinese nationals that were in the United States on a preaching mission, and they were in a bad car crash and my and my client ended up having, non-surgical compression fractures, which, they’re nasty, but there’s not much you can do for them. She ended up having about six months of PT, had a back brace for a little while, and never treated again for three years. That was it. So there was, like, no treatment. And I got brought onto this case to help try it, and there was just nothing to work with medical records wise. I had the ER, I had some X-rays, and that’s it. And the thing that sold the case to the jury is the humanness of these people. And the story that they had to tell. You know, the my client, one of the one that was hurt, she, you know, she’s a young, younger woman. She’s in her early 30s. She had a baby after this crash. But she couldn’t like, nurse her child because of her back injury, her back still hurt. You know, she didn’t have any follow-up treatment. She was in Kenya on a on a mission trip with her husband after this crash, and they tried to use that all against her. But the fact that she had to watch her mother-in-law, you know, burp her baby for her, and this is like their miracle baby, they had fertility issues and stuff. So, you know, credibility. Credibility was everything. Because when she looked to the jury and they looked into her eyes and she had tears in her eyes and they were genuine, you know, human feelings, like a real person, who wasn’t coached, didn’t make it up, that’s everything. Credibility is everything.

12:53Rory Safir: Just for the people. I know the answer to this, but what was the verdict in that case?

12:58Gary Safir: That was a $2.1 million verdict.

13:00Rory Safir: What would you say would be the biggest mistakes that, plaintiff’s attorneys make, when they’re, when they’re, you know, trying to, build their cases or, prepare their clients or, you know, just running the case. What would you say are the, biggest mistakes?

13:17Gary Safir: Some big mistakes are just going on autopilot. I think if you just look at a case’s value as just a bag of stats, you’re going to miss stuff. That’s one. The other is when you’re getting near the end of a deadline or something, people will panic and they’ll just start trying to do things because they feel like they have to. You know, if you’re going to trial, I think a big mistake people make is trying to put on too much evidence or too much stuff like, let’s call every single doctor we can think of, that’s got that’ll show the jury that they’re really hurt. No. You know, keep it, keep it simple. I think don’t panic, don’t try to over-try the case, don’t try to make the case more than it is. Just tell the story. Find that, find that through-line for your case. There’s a story in that case and you have to find that. You should be spending a lot of your time on any case, even the little cases, that I work on that can turn into a $2 million verdict. ’cause before that trial they’d only offered this family $13,500. So it was a little case, you know, they were offering these people nothing, but you have to find that story. You have to find what it is about them that makes them human, that makes them relatable, that makes them, even if they’re not a likable client, you have to find something about them that makes them human and makes them worthy of somebody caring about them. So that’s the those are the mistakes, you know, again it all comes back to you gotta know your client’s story. I don’t care if you’re a volume litigator. I’m a volume litigator, but I still take the time to know my clients and know their story. That’s very important. How about you? You know, like, what do you do for your cases? What like, what is your, you know, what’s your bag of what’s your little bag of tricks that you got over there?

14:54Rory Safir: Well, I would say, I mean, I, you know, this is of course I agree. Especially, it kind of put me in the premises, sandbox, and I’m happy to be there. So I would say that it’s especially important to your client’s credibility is everything because you can be sure, they are, so in Florida, I think Michigan’s the same, although you can correct me if I’m wrong, it’s modified comparative negligence, which all the lawyers listening will understand, but basically, it’s, 51%, yeah you gotta prove fault. And if it’s if it’s 49% or less, it you’re getting zero. If you’re getting nothing. So, in a, when you got, you know, a lot of auto crashes, you know, wrecks, you’ve got often you’ve got good liability, not always, but usually it’s more likely than a premises case or a slip and fall, trip and fall, you know negligent security, whatever kind of premises case it is, you’re going to have you’re going to have that challenge with liability in every case. Whereas in every premises case, you’re going to see that delay, deny, defend, it’s going to go all the way to the doorsteps of trial unless you’re willing to take a discount for your trial, or for your client, pre-summary judgment or pre-trial, which I’m not, I don’t know, maybe other lawyers are, but I’m certainly not. You know, I want full justice for my clients. So, to get there, yeah, my it is it’s not just, you know, the it’s not just lawyering, it’s like you said, it’s not a bag of tricks, it’s telling the truth. And you can be sure that they’re going to ask you know, what they’re gonna get, they’re gonna go into a play-by-play on what you fell on, how you fell, you know, your not only that, but then you got the same arguments that you got to deal with, you know, the medical side of things. You know, are you really hurt or are you faking it? I mean that’s a whole other, a whole other conversation.

16:53Gary Safir: Oh yeah. That comes up all the time in, so in Michigan, we have a threshold we have to show. We have to show that your injury is a serious impairment of a body function for car crash cases, which means your injuries have to be objectively manifested, which means somebody other than the injured person can see what they are, can see the impairment. Has to be an important body function, like your neck or your psyche or your brain or your shoulders or whatever, you can’t sue for your haircut getting ruined. And then it has to affect your general ability to lead your normal life for some amount of time. It doesn’t mean it has to be permanent, but you gotta show that somebody’s life was affected in order to even recover in Michigan. So, again, it goes back to that deposition thing where you have to really find out, it may not be big things. I have so many clients I ask them what are your hobbies, and they’re like, well, I don’t really have any hobbies. I’m like, well, what did you have, what did you do before for fun? Oh, I just worked. I just, I’m like, all right, well, then let’s you know, lets back up from that. What was it like to wake up in the morning, you know, before this crash? Did you ever have to like think about what it was going to feel like to get out of bed? They’re like, well no, I never really thought about that. So you start walking them through just a normal day. You know, a normal day where you wake up before the crash, you wake up, you get out of your bed, you go brush your teeth, you don’t even think about it. But somebody with a neck injury or a back injury, they’re lying in bed like, gosh, as soon as I get out of this bed it’s going to start hurting. And then they got to, you know, get over to the bathroom, and they lift their toothbrush up and now they’re brushing their teeth, you know, they’re just doing the thing. You know, and all of a sudden, now their neck’s killing them, you know. So you have to just find you gotta find the truth in there and then help your client articulate it. Right? Because sometimes they are trying to tell the truth, but they don’t know even what to say.

18:30Rory Safir: One of your colleagues, which is, your it’s awesome that you can say colleague, Keith Mitnik, pilot light pain, right? Can you tell the people a little bit about that?

18:42Gary Safir: Yeah, pilot light pain and it’s becoming increasingly less known to people as the time goes on, you ask a Gen Z person typically about what pilot light pain is, they’re like, what’s that? But you know, it’s the idea of this little flame burning all the time and it never goes out. It can flare up and it can go back to a flame, but that pain is always there, even if it’s a 1 out of 10, it’s always there. It never goes away ever again, and there’s a lot of, you know, that’s a lot of aggravation and a lot of hurt for somebody.

19:10Rory Safir: Yeah, so I guess just kind of we’ve kind of talked about a number of things here, so I’m gonna kind of try to bring it full circle here and do a little bit of a summary and then I’ll put a question to you, but so we talked about depositions, we talked about credibility of your client which kind of goes along with the depositions. We talked about you know, I talked a little bit, well we talked about our stories, we talked a little bit about, yeah, premises cases and how they kind of differ a little bit from auto cases. Maybe I’m missing some things, but for the lawyers that are listening, what is your like takeaway from this conversation that we’ve had today? What’s your what’s your advice for protecting the value or getting full value, however you want to look at it, on one of these, you know, these average or small cases that we have?

20:00Gary Safir: I think it comes back to get to know your client whether you like it or not, and spend the time with them and find a way, whatever your practice is, to find the way to spend that time with them, because that’s the only way you’re going to tell their story right.

20:14Rory Safir: I think that’s all for today’s Safir Brothers Lawcast. You can learn more at thesafirbrotherslawcast.com. Please subscribe. We are a brand new podcast. Please leave a review so other people can find us, and please share this with someone who needs to hear about this, and we’ll see you next time.

20:33Gary Safir: Take care.

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