We hear a lot about the “Black Swan” in the context of the stock market.

The Black Swan metaphor refers to an event that comes as a surprise and has a major impact.

These events, individually, are extreme outliers.  But they collectively occur frequently enough to constitute a “silent risk” that should be taken into account when making decisions.

But Black Swans don’t just affect the market.  They affect everything.

The variety of Black Swans I want to talk about affect personal injury cases.

Personal Injury Cases Don’t Get Better with Time

I’ve known for almost 30 years that personal injury cases don’t get better with time.  The longer they last, the more vulnerable the case becomes to a Black Swan.

What are the Black Swans in personal injury cases?  Off the top of my head the following come to mind:

  • 9-11
  • Witnesses or Clients (Needlessly) Blurting Something Out that Scuttles the Case
  • Clients Getting Divorced and having their Spouses Turn Against Them
  • Clients Suffering Another Injury—that’s their Own Fault—that Overlaps with or Eclipses the Original Injury
  • Clients Getting Charged with Crimes or Sent to Prison
  • Witnesses, Experts and Clients Dying

And now, COVID-19.  It’s doing two things.  First, it’s making it impossible to move cases through trial.  Second, it’s causing a backlog that’s going to delay everything.  That delay is going to invite more Black Swans to land and reduce or eliminate value.

What Should We Do?

There’s always going to be uncertainty.  There will always be “what ifs?”  (What if I have to have surgery?  What if we can find a witness who saw the crash?)

Certainty is elusive.  More time does not create more certainty.  It creates more (silent) risk.

We’re making a push to move cases into arbitration (basically a private trial) or bench trials (trials with no juries).

Time will tell whether insurance companies are receptive.  The upside to insurance companies is the ability to close files and contain costs.

But insurance companies—contrary to popular belief—love jury trials (at least in Washington).  Why do you think insurance companies love jury trials?  It’s because historically in Washington juries are much less generous (in most cases) than arbitrators or judges.

Sure, there are outliers.  There are some big verdicts that make the news.  But in most cases jurors award less.  That’s why in Washington defendants are always the ones who demand a jury and insurance companies have universally changed their policy language to require suit in court rather than arbitration.

With Black Swans hindsight is always 20-20.  None of us know how this pandemic is going to turn out.

But at our firm we’re not waiting to see what happens.  We’re taking steps to ensure the best outcome possible for our clients.  And the best outcomes are almost always something that happens sooner rather than later.

What Our Clients are Saying

Mr. Myers and his wonderful colleague Samantha Lin helped us when my husband was injured in a motorcycle accident.  The whole process became so stressful for us until we decided to retain their services.  At the end we walked away with a very nice settlement to help us recover from a very scary and horrible experience.  I would definitely refer any friends or family to them if ever needed.  They were great with explaining the whole process and took care of everything.


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