Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers, and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and proposed changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Dirk Derrick (00:42):
We're here today with The Legal Truth and my co-host today and going forward will be Pearl Carey. Pearl is a recent graduate from the Ohio State University who beat Notre Dame this past weekend on the final play. So Pearl will be smiling continuously during this podcast, but we welcome you. Pearl is going to be co-hosting The Legal Truth Podcast and we're glad to have you part of the team.
Pearl Carey (01:07):
Thank you so much for that introduction. I'm so excited to be here. And most importantly, I'm excited to talk about the real value of your claim.
Dirk Derrick (01:16):
That question, what is the real value of a claim? Is probably the most common question I get. And you get it from the beginning of the case. If you watch TV lawyer ads, everybody's talking about getting you the money you deserve and the real value of the claim. So I'm glad we're addressing that question because that's a big question for the public.
Pearl Carey (01:42):
Absolutely. So first off, what factors should be considered when determining the value of a personal injury claim in South Carolina?
Dirk Derrick (01:51):
There's a lot of factors. The first thing is to define what the real value is. Out on the street, people think it's two times your medicals or three times your medicals, which is absolutely wrong. There are hundreds of factors that determine the real value of a claim. People come in, they meet with me the first time, and they ask me before the case even gets started as far as the construction of the case, "What do you think the value of my claim is?" They ask it again when insurance justices offer a settlement and they want to know, "Is this the real value of my claim?" They ask it again if we're trying to decide whether or not we need to file in litigation and file a lawsuit, "What is the real value of the claim?" And then they will ask it again before we go to trial, "Are they offering the real value of the claim?"
(02:46):
So first you got to define what real value is, and here I define the real value of the claim as what would the best jury we could pick in a particular county award in a case if we presented every fact that existed, that increased the value of the claim in a presentation model that the jury would like to hear. So that's our backdrop. If we go out and investigate all the facts, build the best case possible, what would a jury in the county in which that case is pending, what would they give us? And that's the real value. It's not two or three times the medicals. It's really a lot deeper than that.
(03:31):
I think of what we do is like building custom cases just like you build custom homes. And if you think of it in the construction world, it would be like me asking you, "What's a 2,400 square foot house worth?" When that's all I know, it's a 2,400 square foot house. Well, it depends. It depends on what county you building in. Do you have a custom home builder who has a reputation of building high quality homes? What elements does he have to work with? I mean, are you buying marble countertops? What kind of flooring? What kind of walls? What kind of lighting? What's the elements that he's adding to the project and who is he using as subcontractors to install the elements?
[NEW_PARAGRAPH]And it's the same thing with building cases. What's the elements of a particular case? And every case got different elements or facts that surround every case. It comes down to facts about the plaintiff, about who they are, who they've been in the past, facts about the defendant, who they are, who they've been in the past, what happened at the wreck, what happens after, or I say the wreck or after the incident, what happened at the incident that caused the injuries, and then what has happened since the incident? So there's hundreds of factors that determine the real value.
Pearl Carey (04:53):
So speaking of a particular incident, how do injuries impact the potential value of a personal injury case or the severity of them?
Dirk Derrick (05:03):
I believe getting the real value of a personal injury claim is like getting the real value of a custom home. What we do is that we build custom homes. We build custom cases.
Pearl Carey (05:15):
Interesting.
Dirk Derrick (05:15):
No two cases are exactly alike.
Pearl Carey (05:19):
Right.
Dirk Derrick (05:19):
No two cases have the exact elements and facts that increase and decrease value of that claim. If you think of it, we build custom cases like a professional builder builds custom homes. We don't build cookie-cutter homes where you're building the same thing for everybody. That's not getting the real value for our particular client. You see homes, if you live in Horry County or Charleston, you go buy fields and they're just beaucoups of homes.
Pearl Carey (05:52):
Exactly.
Dirk Derrick (05:52):
Just alike. And they go up in three months. That's not what we're doing. What we're doing is building custom cases based on the elements. If you think about a custom home, you want a custom home builder, someone who's got some experience, know what they're doing. The value of that home is going to be determined about who builds it, what's the elements they put in, how valuable are the elements that they put in, where is it built? Is it built in Horry County? Charleston County, another county away from the beach? The county determines the value, the subcontractors who put in the elements, a custom home will be more valuable if an experience marble counter installer installs a counter than if I try to do it myself.
Pearl Carey (05:53):
Exactly.
Dirk Derrick (06:40):
So the installer matters, the items matter. If you think about a case, the first thing we do is try to find every element that we can put in this case that adds value. So the first thing we're doing is investigating everything. We're looking for elements that increase value of the claim. There's hundreds of them. It's not two or three times the medicals. That's the cookie-cutter, is the plaintiff someone who's been good to society that people like that has value to society? What's the plaintiff's background? What's the defendant's background? It's just the third DUI that defendant has had? Have they contributed to society? Both of those things make a difference in the eyes of juries.
Pearl Carey (07:29):
So maybe someone's character could be like the marble countertop in this analogy?
Dirk Derrick (07:33):
That's right.
Pearl Carey (07:33):
Okay.
Dirk Derrick (07:34):
Or crack [inaudible 00:07:35] countertop.
Pearl Carey (07:36):
Right.
Dirk Derrick (07:36):
But you're right, it's the details. The installation process is the difference between a plaintiff saying, "My neck hurts," and having a reputable doctor who shows an image that proves an injury, and then that doctor is able to explain to the jury, "This is what's causing the neck pain. This is why it hurts. What the plaintiff is saying is consistent with this injury." Well, the same element's been given to the jury, but it's been given in two different ways. The plaintiff through a reputable doctor.
Pearl Carey (08:11):
So what I'm hearing you say is that with each of these custom cases, there's going to be a different outcome, so there's not really a set way to determine the exact number that a client might get.
Dirk Derrick (08:11):
That's correct.
Pearl Carey (08:21):
So going forward, when we're looking at these personal injury cases, what might the severity of the injuries kind of do to the amount that a client might get in the end?
Dirk Derrick (08:31):
Well, the severity of the injury is a big factor. It's a big element. It is kind of the foundation. If you think of a custom home, what's the square footage? If somebody have a sprain 1,500 square foot, or do they need surgery on their spine in two spaces because they have herniated disc? That's going to be a larger footprint. So that is kind of the foundation upon which you build the case. If you think of it, someone comes in, they've been injured, and they have a spine injury. The first thing we want to do is find out what the diagnosis is and what the imaging shows, and then we go backwards. We go backwards in time to look at medical records to see if there was any prior complaints, any prior problems, because if there isn't, then that injury, the causation of that injury, is a lot clearer to juries.
(09:26):
If there is prior problems, then we want prior imaging to see if and how it's been exacerbated or worsened by this incident. I would think of the injury as the foundation of the case that we're building. We're looking back as far as causation to prove causation that this injury was caused by the accident or caused by the incident. We're comparing priors. We're then leaving injured party and his or her doctors to do their thing. We don't get involved. We want the doctor and the client to take care of the health problems and the injuries and just give us reports as far as what's the diagnosis, what's the prognosis, what's the future look like?
Pearl Carey (10:10):
So now that we kind of have these medical records from our client, what do you do going forward now that you have that foundation of the case of how severe the injury really was?
Dirk Derrick (10:22):
Well, the value of your claim is determined by three major components. When I was in law school a long time ago when we rode horses and buggies to law school, I was taught that the value of a claim is you have to look at it like a three-legged stool. You have the liability leg, you have the damaged leg, and you have the collectability leg. And like any three-legged stool, if you don't have solid three legs and you sit on it, if one of them is weak, you fall, it breaks and you fall. So, someone comes in with a significant injury. If that injury is caused by the incident, you have the damaged leg and you're trying to determine if and how is that injury going to affect somebody for the rest of their lives. That is a big factor in value.
(11:14):
The liability leg is how strong do the facts make it that it was someone else's fault and someone violated conduct that's recognized in the State of South Carolina as being a wrong that you can collect? And the state has to have elements that you have to prove in order to even get to the damages. In torts, car accidents, you have to show that the person had a duty, they breached the duty, the breach caused damages, duty, breach, causation, and damages. In a premise case, you have to show that the premise owner knew or should have known there was a defective condition on the premises. So every different types of case have different elements you have to prove. So you look at the liability leg, it may be a strong liability. You may be riding down the road, someone crosses the yellow line, they're drunk, they come across and hit your family.
Pearl Carey (12:17):
It's pretty clear, yeah.
Dirk Derrick (12:18):
Clear liability.
Pearl Carey (12:19):
Right.
Dirk Derrick (12:20):
That leg is solid. And then the third leg is collectability. Collectibility is often a sad leg to have to talk to people about because you can have a good liability case where that's solid, you can have bad injuries and damages, but the insurance coverage is very low. Somebody's riding on the road with $25,000 in liability coverage. Our client doesn't have underinsured motorist coverage to protect themselves. The at-fault party has no assets, so you have bad liability, bad damages, and $25,000 to collect. And those are hard conversations because-
Pearl Carey (13:01):
Kind of sad, yeah.
Dirk Derrick (13:02):
... the real value of that claim may be millions of dollars, but if you can't collect it-
Pearl Carey (13:08):
What do you do? Yeah.
Dirk Derrick (13:09):
We can go to trial and get a piece of paper, my judgment against the person, that's good for 10 years, but if someone's been damaged bad, that's a sad situation.
Pearl Carey (13:18):
Okay. So let's say we do have a case where the liability is clear, someone was really injured, they went to the doctor, they did everything right. What kind of role do medical expenses then play in determining the real value of their claim?
Dirk Derrick (13:31):
Yeah. Like I said, the injury is the foundation, medical bills, they're an element. Sometimes they're a valuable element and sometimes they're not a valuable element.
Pearl Carey (13:43):
Really?
Dirk Derrick (13:43):
Let me explain that.
Pearl Carey (13:43):
Yeah.
Dirk Derrick (13:44):
Somebody's got $300,000, $400,000 of medical bills, and that's a valuable part of the damages to come up to the real value. But sometimes somebody has devastating injuries and very low medical bills. If you think about somebody who may lose both legs in an incident or someone who has a traumatic brain injury, their past medical bills, they pale in relationship to the actual damages in this case and the life change in this case. So sometimes medical bills are a big element in coming up with the real value, and sometimes we don't even present them to the jury because you risk the chance of the jury anchoring down on a low medical bill when the medical bill is nowhere near the most important parts about the case.
Pearl Carey (14:43):
So let's say medical bills aside, let's say I couldn't work due to this injury. What kind of compensation can I recover in an instance like that?
Dirk Derrick (14:53):
Well, in South Carolina, you can get the medical bills, both past and future medical bills. You get future medical bills if you have a doctor to opine that based upon a reasonable degree of medical certainty, it is more likely than not that you would need these future medical procedures. The law also allows that an injured person can collect past lost wages and future lost wages. The future has to be proven. We use vocational experts who will often assess our client's abilities, their past work history, and then look at the medical restrictions given by doctors to determine whether or not that person is employable in the future.
Pearl Carey (15:41):
Absolutely. And so maybe while this client is missing work and they're trying to account for these lost wages, there's also an emotional and mental part that comes into play, right? So how do you assess those damages and determine what kind of compensation they might deserve for that?
Dirk Derrick (15:58):
Yeah, one of the elements allowed in South Carolina law is mental anguish and emotional damages. That element is tougher. That element, you really need to have a subcontractor. We talked about as far as presenting that element, you need a credible person to be able to come up. It's often done with lay witnesses, sometimes it's done with professionals if the emotional damages are bad enough. But often those are your good friends, your coworkers, your family members who've seen a change and see what you're struggling with. Most people don't like to go out and announce they're having emotional stress and mental anguish about something, so it takes people close to the individual. And because that's something that could be true or not true, the credibility of those people, witnesses who can explain that to a jury, their credibility is very important.
Pearl Carey (17:00):
Right, absolutely. So what I'm kind of hearing you say is that it depends on each case, like you were saying, it goes back to that kind of custom house analogy where in one particular case you might have a lot of witnesses that are super credible, but sometimes it's just kind of hard to prove.
Dirk Derrick (17:14):
That's right.
Pearl Carey (17:15):
Yeah.
Dirk Derrick (17:15):
If you think about the mental anguish part about cases, I can tell you that as a society, we recognize mental health and mental anguish a lot more than we did 20 years ago.
Pearl Carey (17:27):
Right.
Dirk Derrick (17:28):
20 years ago it was a very small part of any kind of personal injury case.
Pearl Carey (17:33):
Really?
Dirk Derrick (17:34):
But I think just the public is much more aware of mental health problems today than they were 20 years ago.
Pearl Carey (17:40):
Absolutely. So kind of turning back to a different kind of case, let's say in terms of property damage, what is kind of the process for valuing that in a personal claim?
Dirk Derrick (17:51):
Property damage is a frustrating thing in South Carolina. We can handle a huge personal injury claim with less hassle than property damage claim.
Pearl Carey (18:02):
Really?
Dirk Derrick (18:03):
It is frustrating. And the frustration comes from the law, what it allows for and what it doesn't provide for. In a car wreck case, if your car is not damaged, it's not totaled, you can repair it for less than 75% of the value. It's not total. South Carolina says you're entitled to the reasonable amount of money to have it repaired, the reasonable amount of money to store it while it's being repaired. Loss of use to substitute that car while it's being repaired for something for you to drive, and then depreciation of the car because of the wreck. Because we all know that Carfax is going to tell you if your car's been wrecked.
Pearl Carey (18:44):
Absolutely.
Dirk Derrick (18:45):
So you're entitled to those. If the car is totaled, you're entitled to the actual cash value of the car. That really stings for people who have a dependable car, they've taken real good care of it, they got some age on it, it's paid off, they don't have any payments. Then by no fault of their own, somebody comes across and-
Pearl Carey (19:09):
[inaudible 00:19:09].
Dirk Derrick (19:09):
... totals their car. When you look at the book value or you talk to a car dealer, it's only worth blank dollars. And now they only have blank dollars to go out and try to find a dependable car. And that's tough.
Pearl Carey (19:21):
So would that value that they're may be given like that blank dollars? Are you saying that that's typically way less than what they paid for it originally?
Dirk Derrick (19:29):
Oh, it's always way less.
Pearl Carey (19:30):
Oh, okay.
Dirk Derrick (19:31):
And if they've got it paid off and they've been driving it for five years and taking care of it, that value has dropped. And when you drop off the lot, it drops, but it drops every year and every mile you put on it. So the people who have dependable cars they have paid off, it's not a good thing for them what the law provides. And oftentimes if the at-fault driver in a situation either not talking to their insurance company or telling a different story to their insurance company, the insurance company may not be willing to repair your car.
Pearl Carey (20:07):
Really?
Dirk Derrick (20:07):
And that may be contested. In that case, you better have some collision and comprehensive insurance on your own policy so that you can take care of it and let your carrier go back against their care to get repaid. We've had some clients who only have liability coverage. They don't have anything on their own car, and in that situation they're without a car until we can litigate it or prove to them they should pay for the property damage.
Pearl Carey (20:37):
So obviously one of the factors you're saying here is whether your car gets totaled or there's some lesser damages or things like that. Are there any other pertinent factors people need to consider if they happen to get in a wreck or they experience property damage?
Dirk Derrick (20:53):
No, you have a duty to mitigate your damages.
Pearl Carey (20:55):
Okay.
Dirk Derrick (20:56):
What that means is you have a legal duty to reduce your damages as much as possible. One of the rubbing points with property damage is the car would get towed to a storage place. The at-fault driver's insurance usually pays for that, but now the at-fault insurance company is delaying making decision whether they don't pay for, it sits there and it's getting storage charges, a daily storage fee. After a short period of time, if there's a place our client can put their car, we try to remove it from that if our client can't, doesn't have a location to put it, and they can't do a whole lot to mitigate that damage of storing a vehicle, but the storage charges to getting people in a car, that's a frustrating part of property damage.
Pearl Carey (21:46):
And is there typically an allotted set of time that an insurance company would have to respond to, to make sure that these storage fees are taken care of?
Dirk Derrick (21:55):
No. Worst case scenario, an insurance company can say, "We're denying liability, so we're not paying your property damage."
Pearl Carey (22:01):
Gotcha.
Dirk Derrick (22:02):
And so to receive those damages, you'd have to file a lawsuit. That takes a while. It takes about 13, 14 months to come up on a roster.
Pearl Carey (22:12):
Wow.
Dirk Derrick (22:13):
South Carolina does have a process where you can file a property damage claim, it's a non-binding arbitration. They put three attorneys in a particular county to listen to it, and they come up with what they think the value and what the decision should be. We've done that a few times. That's not the best situation.
Pearl Carey (22:33):
And why is that?
Dirk Derrick (22:34):
It's just it's not binding, so the insurance company can still keep fighting it. It has got some cases settled when there's just a dispute about some of the storage stuff and about the depreciation, whether you have a disagreement about depreciation.
Pearl Carey (22:49):
Okay. So kind of going back to maybe our car wreck scenario. Let's say I was driving my car, I get injured, but maybe I'm partially at fault. So what does comparative negligence do to my personal injury claim?
Dirk Derrick (23:02):
Well, you can't work for the Derrick Law firm if you're stirring up litigation, Pearl. Be careful.
Pearl Carey (23:06):
Oh, no.
Dirk Derrick (23:08):
No, we have comparative negligence in South Carolina. It's not true comparative, but what the law says is that if your fault becomes greater than the other party, you collect nothing.
Pearl Carey (23:22):
Really? Wow, I bet that can be devastating to some cases.
Dirk Derrick (23:26):
Yes. Now, when I got out of law school, it was contributory negligence, which said that if you were 1% at fault, you can't collect nothing.
Pearl Carey (23:34):
Oh my goodness.
Dirk Derrick (23:35):
That still exists in North Carolina, which is a terrible law.
Pearl Carey (23:38):
Wow, yeah.
Dirk Derrick (23:39):
I mean, they would argue 1% fault because you got up and got on a highway.
Pearl Carey (23:43):
Right.
Dirk Derrick (23:44):
But comparative, if your total damage is in your case is $100,000 and a jury finds you 50% at fault and the other party 50% at fault, you can collect $50,000 of that hundred.
Pearl Carey (23:54):
Okay, so that's still... Yeah.
Dirk Derrick (23:56):
If your hundred is reduced by 50%. If you're 25% at fault, it's reduced by 25%. But if you're 51% at fault, you get nothing.
Pearl Carey (24:05):
No way. So that 1% can really take you over the edge there.
Dirk Derrick (24:10):
Yes, it can.
Pearl Carey (24:11):
Wow.
Dirk Derrick (24:12):
And that's when we're investigating these cases, and really the most important thing about getting real value of your claim and determining the real value is a fast thorough investigation. I tell our attorneys, "I want to know everything. I want to know the good, the bad, the ugly." I want to know everything because every little fact counts. And we may be in a situation where we're fighting for that 1%, and so I want to know everything. We jump on, we have private investigators on standby. We've got six or seven of them now. I want to investigate within 24 hours, I want pictures of the skid marks, I want pictures of all the cars, I want to talk to every witness, I want to pull the data from the at-fault party's vehicle to see how fast they were going.
(25:03):
Everybody's got computers in their cars now, we can get a lot of good data. I want people on the scene looking at surveillance of homes or businesses close to the incident, the importance of getting all of those facts so that you can prove 100% on the part of defendant, get every piece of evidence that you can put on your side of the scales to weigh it down.
Pearl Carey (25:29):
Yeah. Right, because that can be that 1% like you were talking about.
Dirk Derrick (25:30):
It's amazing how you can... Evidence disappears. 20 years ago if you get in a wreck, 10 people stop, make sure the person is okay and leave their names and numbers, "Hey, if you need, I saw it, call me."
Pearl Carey (25:44):
Really?
Dirk Derrick (25:45):
Those days are over.
Pearl Carey (25:46):
Yeah.
Dirk Derrick (25:46):
There can be a wreck out on 501 in front of Tanger Outlet and there's no witnesses. So it's harder to get witnesses nowadays because people just kind of move on with their lives. So we're looking for surveillance. I tell family members when something happens, I really wish some family members step up and say, "Hey, let me call somebody and get this investigated while you're mourning or while you're taking care of these injuries because time erases evidence." And if we can get on a case early where I can pull surveillance, the problem is these surveillance videos, they overwrite themselves. So it may be seven days, it may be three days, it may be 30 days, but the evidence disappears.
Pearl Carey (26:30):
Really?
Dirk Derrick (26:31):
The witnesses disappear. Who was working at the store next to the scene who went out there and talked to everybody?
Pearl Carey (26:37):
People forget.
Dirk Derrick (26:38):
They forget.
Pearl Carey (26:39):
Yeah.
Dirk Derrick (26:39):
They changed jobs, they leave the state.
Pearl Carey (26:41):
Right.
Dirk Derrick (26:42):
The difference, and I'm going to tell you 20 years ago when I was in practice by myself, I was the only attorney, small firm, I could not afford to do what we do now in the cases that make huge differences. We now investigate immediately to get those facts. And I like the woman who called me. I mean, she doesn't call me and this surveillance, they get gone.
Pearl Carey (27:06):
Right, they disappear.
Dirk Derrick (27:06):
It just gets to be a much harder case, and it's the timing of getting someone to investigate the case is probably the most important thing that the plaintiff or the plaintiff's family can do.
Pearl Carey (27:19):
That's good to know. So what steps can I take to maybe maximize the value of my personal injury claim? I know that we talked about timeliness being key and that being really, really important. What are some other things that really contribute to getting that claim number faster?
Dirk Derrick (27:37):
I would, and we ask our clients, to cooperate with your lawyer. There's things that people do to destroy or weaken their case. Number one is to lie about anything.
Pearl Carey (27:49):
Right.
Dirk Derrick (27:49):
If you don't tell the truth-
Pearl Carey (27:51):
They can't help you.
Dirk Derrick (27:52):
... somebody's going to find out and you wreck your case. So to be honest is number one. Number two is to do what your doctors tell you to do. You need to be honest, you need to do what the medical providers tell you to do. Other than that, just live your life. I mean, the things that have happened up until the incident and at the incident, there's nothing you can do about that. Be honest with your lawyers so we can go investigate it and get everything pulled and know the things that add value and the things we need to work on after the incident, the plaintiff is actually part of building their case because everything they do after that is evidence.
Pearl Carey (28:35):
Really? Okay.
Dirk Derrick (28:37):
So you think about, we've had cases where at-fault driver hits one of our clients and immediately he starts FaceTiming and how bad he was and somebody pulled out in front of him and blah, blah, blah on FaceTime and on social media. We made some hay with that. So you have a person who's injured in a wreck, they jump on social media, everything you say on social media is discoverable. You can't erase evidence. So when you jump on social media and share everything with the world-
Pearl Carey (29:10):
Right, it's going to come back to you.
Dirk Derrick (29:13):
... you get the good and the bad. And most time it's the bad. We advise people to just get off of social media, not for their entire life, but you just don't need to discuss anything out about the incident or anything. It's just is creating opportunities for the other side to attack you.
Pearl Carey (29:34):
Right. And would you say that juries kind of pick up on the type of character of a plaintiff or defendant if they posting stuff on social media that may be rash or things along those lines?
Dirk Derrick (29:45):
Absolutely. I mean, there's no doubt about that. One of the first things we do investigating people is social media. I mean, the at-fault driver gets an array, we're going to look at their criminal record, we're going to look at their social media and just get all kinds of stuff. We get videos of somebody bragging about riding down the road while they're high.
Pearl Carey (30:07):
Oh, Lord.
Dirk Derrick (30:09):
That's pretty good evidence.
Pearl Carey (30:10):
Yeah.
Dirk Derrick (30:11):
So it's amazing to me, and maybe I'm just an old man, but it's amazing to me what people put on social media.
Pearl Carey (30:18):
Absolutely.
Dirk Derrick (30:18):
But nowadays, they share some things-
Pearl Carey (30:22):
Everything.
Dirk Derrick (30:22):
Everything, that they should not share. But if you're injured in a wreck, understand that everything you're doing, if you're injured in any kind of incident, understand that everything you do after that until the case has concluded is evidence, discoverable. And that's what insurance companies look for. That's what defense lawyers look for. They're looking for just something to hang their hat on. So people need to know that.
Pearl Carey (30:48):
So would you say overall, when you're building this custom case, what's most important is calling as soon as possible or getting somebody else maybe in your inner circle to call. B, making sure that you're being honest with your lawyer. And then C, watching what you're doing on social media and being careful about what you're disclosing.
Dirk Derrick (31:10):
I think so. I think investigation's fast. We've got to get the facts. When I was growing up, there was a TV show called Dragnet. You ever seen drag net?
Pearl Carey (31:24):
I have not.
Dirk Derrick (31:24):
Okay. And there was a line at the first of every show said, "Just the facts, ma'am." The facts are what determines the value of your claim, the facts. So if you get a fast investigation where we jump on it, and when you get all these facts fast, we've done the most we can do with the facts. The facts after the incident as developed by the plaintiff and the plaintiff's conduct, those are what determines the value of the case. Like I said, we do a lot of focus groups. It used to be for the first 30 years that I practiced law, somebody would come up and say, "What's the value of my claim?" If they come into my office and say, "What kind of value do I have in my claim?" I have no idea. I've heard this much of the evidence. I've heard from one side. I have no idea.
Pearl Carey (32:10):
You need all the details and all the facts.
Dirk Derrick (32:12):
All the facts. After we get all the facts, what we do now, we've been doing the last four or five years, we'll get all the facts and then we'll do a focus group jury research project where we bring in 12 people. We don't tell them which side we represent and we present the facts that are good for the plaintiff, the facts that are good for the defendant, and let them deliberate and tell us what's valuable and what's not valuable, and what they think the value of the case is, and what additional facts they would want if they were on a real jury. We take what they tell us and go get those additional facts. And so we're able to show our clients what these 12 people say the real value is. And before we did that, we're just guessing.
Pearl Carey (32:57):
Right.
Dirk Derrick (32:57):
As a lawyer, we're just guessing.
Pearl Carey (32:58):
You never know.
Dirk Derrick (32:59):
You don't know. What lawyers know, if you don't use real people, what lawyers know is what insurance companies will voluntarily pay. And that's not our definition of real value. Insurance companies have a duty to their shareholders. They're trying to make them money. I have no duty to their shareholders. I have a duty to my client to find out what the real value is. So to say, "This insurance company will only pay blank dollars," has no relationship to what the real value of the claim is. They're paying out a risk, their way and their risk rewards. And the better you can build the facts and then you get an appraisal from a focus group, and we often show the appraisal to the insurance company, to the defense lawyer and say, "Hey, that's what these 12 people [inaudible 00:33:50] you need to get your money. Here's what the real value is."
Pearl Carey (33:52):
Right.
Dirk Derrick (33:53):
There's a lot of cases. People think it's funny because I'm an attorney and I think there's a bunch of unnecessary litigation, but the reason there's unnecessary litigation is there's no way to determine the real value of a claim until it gets to a jury. And often, that jury's three or four years down the road from when the incident happened.
Pearl Carey (34:15):
And you still never know what they might say.
Dirk Derrick (34:17):
No. So you build the facts and people are disagreeing with what 12 people in a particular county would do with those facts as far as value. So what we've done with our jury research is we've taken this thing that happens three years from now and we'll actually focus group the case before we file a lawsuit. If we can get the majority of the facts, focus group it, see what they think the value is, so we can tell our clients so they can make a decision whether or not they want to file a lawsuit or show it to other side. If they come up into an acceptable range for our client, the client can make a decision. "Well, based on what these 12 people say, I want to take that." Or, "No, I want to drive forward and go into litigation."
Pearl Carey (35:00):
So kind of wrapping up with jury research focus groups, where would you say you can kind of place these focus groups in terms of our house analogy from before or our custom case, would you say it kind of caps off this jury experience or this case experience?
Dirk Derrick (35:15):
Well, the focus group, they're the appraisers. We have a podcast called The Appraisers, where we share case studies with other attorneys around the State of South Carolina, but they are the appraisers. When a custom home builder builds a home, he can put a price on it. But if somebody's on buy, they didn't go to the bank, they didn't get an appraisal done, a professional appraisal to come in and determine the value of that house in that location. That's what the focus group is. The focus group is not me appraising it because I love my client, it's not what my client thinks the case is worth, it's not what the insurance company thinks the case is worth, it's not what the defense lawyer thinks the case is worth.
(35:57):
These are 12 people who don't have a dog in the fight, 12 people who are unrelated to anyone in the case to come in and say, "In our community, based on these facts, issues, and damages, here goes what we think about the case." Before, we did focus groups at every step of the way. The insurance company makes offer, says, "This is all we're going to pay you. What do you think about the offer?" "Well, I don't like the offer." "Well, what's the value?" "Well, I think the value may be more." "Let me go look at what John Doe got in a case two years ago against Jill Doe, the other attorney, on different people with different facts and different elements presented in different formats."
Pearl Carey (36:42):
It's not as helpful.
Dirk Derrick (36:45):
It's apples and oranges.
Pearl Carey (36:46):
Right.
Dirk Derrick (36:47):
There's a trial consultant that says if you give a case to four groups of six people, you'll get 95% or 98% of the conversations that go on in the real jury room. We often do a pre-lit focus group, and then we do another focus group after we get the evidence in before mediation. Then we do an all-day focus group for trial. So when we're going in, we've had six groups of six tell us what they think about evidence and what they want to know, so we feel like we're incredibly prepared when we go in.
(37:20):
One of the benefits we have found in everything we do is based upon no one wants to file a lawsuit. These focus groups have allowed us to get jury's opinions before lawsuit's filed to share the values given from those focus group panels with the other side to try to expedite the resolution of the case. Been successful in a lot of cases, I believe it's the best thing we've done to get real value for our clients to know what the real value is and get it in an expedited manner.
Pearl Carey (37:59):
So what I'm hearing you say is that jury research focus groups are kind of a way to have the trial experience without having to go through a ton of unnecessary litigation. So I know that you said that clients really benefit from this process. What is the benefit to the attorney who has this case, who's focus-grouping this case?
Dirk Derrick (38:17):
Well, it's huge. When I got out of law school way back then, we tried cases all the time. We were always on a trial roster, we were always up at the office on the weekend getting ready for trial. We just tried cases. We didn't have arbitration, mediation, all that stuff. We tried cases. And we got the feedback from the community as far as what they believed about issues, facts, and damages. I wouldn't need focus groups if we were trying that many cases, but cases don't try anymore. We win cases now in discovery, but you must be prepared to try the case if the insurance company makes you try the case. So our attorneys are able to stand up over and over and over, and present cases to jurors in the focus group arena, get immediate feedback, watch themselves on video, make changes to presentations.
Pearl Carey (39:17):
Well, it seems to me like these focus groups can really help everybody from the attorney to the plaintiff. But my question is how do these focus groups kind of aid jurors? What do you guys offer to jurors who want to participate in a focus group?
Dirk Derrick (39:31):
People love it. I think we've had about 6,000 people sign up.
Pearl Carey (39:38):
Really? That's a lot.
Dirk Derrick (39:40):
I think 2,500, 3,000 have served.
Pearl Carey (39:42):
Wow.
Dirk Derrick (39:43):
Over that 95%, 96% of them sign up. They want to serve again. People like having a voice in the community standard. They come in, they serve, they get some good supper, nice piece of cake, and they get to have a say so and make a difference in a case. What they do very often affects everybody who's involved.
Pearl Carey (40:13):
Absolutely.
Dirk Derrick (40:13):
And they like it, there's some people who come who've never been picked for a jury, and they're like, "I've always wanted to be on a jury." And people like the law.
Pearl Carey (40:21):
Of course.
Dirk Derrick (40:21):
They watch the criminal cases on TV and get into it, so they like to come in and-
Pearl Carey (40:26):
Have their legal experience. Yeah.
Dirk Derrick (40:28):
Have their legal experience. And it's good to get a wide variety of opinions on what people want. It helps our attorneys get ready for trial if they have to go to trial-
Pearl Carey (40:37):
Right, their practice.
Dirk Derrick (40:37):
... they are as prepared as they can be.
Pearl Carey (40:41):
Yeah, absolutely. So I know that you put such an emphasis on getting all of the facts of a case. So how do you really do that? Is that just part of the in-house investigation or are there other parts that kind of come into play?
Dirk Derrick (40:52):
It depends on the type of case it is. To get the real value, you need to get the facts. You need to get-
Pearl Carey (40:58):
Of course.
Dirk Derrick (40:59):
... good, bad.
Pearl Carey (41:00):
Yeah.
Dirk Derrick (41:01):
For the first 30 years of my practice, or at least the last 20 of those 30 years, when we talk to the insurance company, they would say, "Well, we think your case has problems because of A, B, C, and D, We don't offer you this." And the older I got, the more I'd say, "Listen, I don't want to hear the problems in my case, I'm old enough to understand them."
Pearl Carey (41:22):
Of course.
Dirk Derrick (41:22):
"Just tell me what you don't pay me." And I've now changed that and I've told our attorneys, "Now you listen to them and you say, 'Tell me every reason you don't think this case is worth what we think it's worth. Tell me every argument you have, every piece of evidence you have.'" And we get them to tell us that so that we can then use it in the focus group and make their arguments with their evidence to these focus group members to see what they have to say about their arguments.
Pearl Carey (41:53):
Or perhaps make your case stronger, I'm assuming.
Dirk Derrick (41:55):
Absolutely. There is nothing better than sending a focus group result to an insurance company who, when those members of the focus group, jurors, have killed the arguments they've made to us on the telephone. So we can do that and correct that kind of case. We get it from the insurance industry a lot of times. And then if it goes in litigation, we'll get it from the defense lawyers too. And then when they start taking depositions, you start picking up on what their argument's going to be.
Pearl Carey (42:30):
Yeah. Maybe it's in different places.
Dirk Derrick (42:32):
What their theory of the case is. There are some cases, if we can get most of those facts in the insurance, we can focus this stuff before we ever have to file a lawsuit and speed up the resolution a lot of times.
Pearl Carey (42:44):
Right.
Dirk Derrick (42:45):
There's other cases you can't do that. Let's say it's a premise liability case where someone falls inside of a business, they have surveillance. Let's say it's a bar, they have surveillance. Something happens, this incident report. There's witness statements. We say, "Hey, how about you give us that?" And they say, "Nope."
Pearl Carey (43:05):
"Sorry."
Dirk Derrick (43:06):
Because they have no legal duty to give it to you if there's no lawsuit going on.
Pearl Carey (43:10):
Oh, so you'd have to file the lawsuit at that point.
Dirk Derrick (43:12):
So then you go to your client and say, "Listen, the facts that they have, the facts they know, have a chance to change the value of this case drastically."
Pearl Carey (43:22):
But-
Dirk Derrick (43:22):
We've got to file a lawsuit.
Pearl Carey (43:23):
Yeah.
Dirk Derrick (43:24):
And like I said, nobody wants to file a lawsuit and no one wants to be sued, but they won't give us the facts to evaluate. That's the only way you do it. You can't properly evaluate a case when there's facts you don't know. It's like that in trucking cases.
Pearl Carey (43:38):
Yeah.
Dirk Derrick (43:39):
Do they properly hire the right trucker? Do they violate their own policy? Do they train them right?
Pearl Carey (43:44):
There's a whole commercial aspect to it.
Dirk Derrick (43:46):
A whole commercial, the regulations. They will not give you that without litigation. You have to go file a lawsuit. Same thing with dram shop cases. We do cases against drunk drivers and the bars that over serve them, they get out in the road and kill people or hurt people. What we want to do in that, we want the facts, we get on that, we get the dash cam out of the police cars, the vest cams, the body cams on the police officers if we can.
Pearl Carey (44:13):
Are they supposed to give that to you or how does that work?
Dirk Derrick (44:15):
The dash cams, we get, a lot of times they won't give us the body until there's litigation.
Pearl Carey (44:20):
Oh, so same thing kind of as some of those other businesses.
Dirk Derrick (44:23):
We want surveillance, we want to do everything we can get from the time of the wreck to prove intoxication level of the driver, but also find out if they're coming from a bar that over served them. A lot of times the dash cam, you can pick up. Sometimes they talk about where they come from if the officer questions them. But those cases usually require us to file quickly because it may surprise you that surveillance disappears-
Pearl Carey (44:51):
Oh, really?
Dirk Derrick (44:52):
... pretty quickly in that incident. We want surveillance, we want the credit card receipts when somebody goes into a bar and drinks to see what they purchased. We want to know who's working that night. We won't just know all the facts. And they won't voluntarily give it to you, so your only option is to file suit and go in and do discovery. When I say file suit, what I'm talking about, when you file suit, you now have the ability to subpoena things. You now have the ability to make them sit across the table from you and you ask questions. You have the ability to make them produce credit card receipts to you, make them produce the surveillance to you.
Pearl Carey (45:33):
So while they're maybe withholding such receipts or footage or things along those lines, is there a particular reason or are they just kind of hoping that you won't file a suit in that case maybe?
Dirk Derrick (45:44):
I'm trying to put it real nicely. They're playing defense and we're playing offense.
Pearl Carey (45:47):
Okay. Right.
Dirk Derrick (45:50):
Also, a lot of them, I know of some circumstances where insurance companies have kind given directives, "This is what to do when this happens."
Pearl Carey (46:00):
Don't say yes, perhaps.
Dirk Derrick (46:01):
"Preserve this, get it to us. Give us these things, don't say anything to anybody. Don't give anything." So there's been some situations where I've seen insurance companies kind of directed people on what not to do and what to do. And if you understand it from their standpoint, their standpoint is they don't want to give facts. They're going to increase the value to the plaintiff. So they sit on it until legally they have to give it to you.
Pearl Carey (46:27):
Okay. Right. So unless you subpoena those things in your lawsuit, chances are you might not get those?
Dirk Derrick (46:32):
Oh, that's right.
Pearl Carey (46:33):
Okay.
Dirk Derrick (46:33):
Understand, it's almost like playing chicken. You offer a person blank dollars, oftentimes our injured parties will get offers immediately after the [inaudible 00:46:45]. "We'll pay you blank dollars, sign our lease, you'll be finished." Very few facts known at that time. They go hire a lawyer and they offer something again. And if you base it, if I'm basing on what somebody else did on another case, and I don't have all the facts, I feel like I'm not doing my client a good job. I think we've got to find out what the real value is.
Pearl Carey (47:08):
Right. And that has to do with all those details and facts that might not come up unless-
Dirk Derrick (47:12):
All the details.
Pearl Carey (47:13):
Yeah.
Dirk Derrick (47:14):
The longer they drag out, the more leverage they put on plaintiffs. I call it the leverage of time. They've always had for the first 30 years, insurance industry has had on our clients the leverage of time, how can we drag it out, hold onto the money. We've got that money invested somewhere, we're making money on that money. The leverage of time, people get tired, the case is over-
Pearl Carey (47:38):
Just want to get it over with.
Dirk Derrick (47:39):
They're going through some hard times. They can't last for so long. They've always had the leverage of uncertainty. You don't know what a jury's going to say about that.
Pearl Carey (47:46):
Right.
Dirk Derrick (47:47):
That jury could really... You don't know, you don't know how 12 people will respond to this.
Pearl Carey (47:51):
But that's what focus groups seem to alleviate sometimes.
Dirk Derrick (47:53):
The focus group has flipped those two leverages.
Pearl Carey (47:56):
Okay.
Dirk Derrick (47:56):
Because now the focus group, we can speed up the process and we can take away the leverage of uncertainty. So we have flipped that and we're still working on flipping it better. I mean, every focus group we do, every focus group that we analyze, we've got more data.
Pearl Carey (48:16):
Yeah, absolutely.
Dirk Derrick (48:18):
So we use that data, we use what we find as a leverage against the insurance company. Insurance companies in South Carolina have a duty to act in good faith liability coverages, which means if you're a bar, you have insurance, the insurance company will pay damages up to a certain amount. They also have a legal duty to protect your assets. So if I can show them that the real value of this case is more valuable than all their coverage, it puts them in a situation where if they don't protect their client's assets, they need to go ahead and pay us our money.
Pearl Carey (48:56):
Okay. In order to act in that good faith.
Dirk Derrick (48:58):
That's right.
Pearl Carey (48:58):
Yeah.
Dirk Derrick (48:59):
So we got more ammunition to give them to act in good faith. In the past, they've always said, "Hey, we're acting in good faith. We just disagree what 12 people are going to do with these facts." Now we show them what 12 people or 24 people or 36 people are going to do with the facts.
Pearl Carey (49:15):
You kind of have the evidence in that way.
Dirk Derrick (49:17):
Yep.
Pearl Carey (49:18):
I've heard the phrase, "Bad faith" a few times. Could you kind of define what that is in terms of an insurance company?
Dirk Derrick (49:24):
South Carolina has recognized an implied duty on the part of insurance companies. They recognize that insurance companies have leverage on people who buy insurance. Auto insurance is mandatory. You got to go buy it. You better have health insurance, you better have disability insurance, you better have this insurance and this insurance. And they understand the imbalance of power between an insurance industry and one individual person.
Pearl Carey (49:53):
Person. Okay.
Dirk Derrick (49:54):
So what they say is, "These people pay premiums, and then there's a claim. Insurance company, you got to act reasonable. You can't act unreasonable. You got to have a reasonable basis for denying a claim. You got to have a reasonable basis for delaying the payment of a claim. You got to have a reasonable basis for how you value the claim." So we have used, in our effort to find out what the real value, the topic for the day, real value of your claim, is to do this work, get all the facts, get it appraised, and then use what we have found to be the real value to leverage the insurance companies to act in good faith. If you put it in the best possible light for the insurance company, they're doing their jobs, they're trying to save money for their investors. So we just show them, "This is what the real value is."
Pearl Carey (50:46):
With all the facts, all the details, and all the evidence. Yeah.
Dirk Derrick (50:49):
"If you want us to present anything else, let us know and we'll present it to the next focus group."
Pearl Carey (50:52):
Right.
Dirk Derrick (50:53):
So if we show them that, we're allowing them to see what these 12 people think about it, and hopefully if we're doing the right thing, they'll go ahead and do it. If they continue not to do the right thing-
Pearl Carey (51:05):
They act in bad faith, perhaps.
Dirk Derrick (51:08):
There could be a claim for bad faith.
Pearl Carey (51:08):
Yeah.
Dirk Derrick (51:10):
And what happens is, let's say the insurance company, we show them this focus group, we show them this focus group, we give them all the evidence. They don't believe it. They say-
Pearl Carey (51:19):
"No."
Dirk Derrick (51:20):
"We're not paying."
Pearl Carey (51:21):
Right.
Dirk Derrick (51:22):
We go to a jury, the jury gives us $3 million, and the at-fault bar has only $1 million in coverage. But now he's got a judgment against the bar for $2 million that they could have prevented by paying the policy limits.
Pearl Carey (51:35):
Wow. Okay. It changes things.
Dirk Derrick (51:36):
So that bar owner could then sue them for bad faith for not protecting him.
Pearl Carey (51:41):
Oh, okay. Because they have a duty to protect their client as well if it's their business.
Dirk Derrick (51:44):
That's right. Or that bar can assign his case to us to pursue against his insurance. In return, we won't come after his assets.
Pearl Carey (51:54):
Really?
Dirk Derrick (51:55):
Yeah.
Pearl Carey (51:55):
Oh my gosh. That's interesting.
Dirk Derrick (51:57):
Yep. So they have that. Insurance companies are always looking at the responsibility to pay the claim, but the responsibility to act in good faith based on reasonable information.
Pearl Carey (52:08):
But then they also have their clients, which causes a whole other situation.
Dirk Derrick (52:12):
That's right.
Pearl Carey (52:13):
Gotcha. Awesome. So during this podcast, we discussed finding the true value of your claim, and you mentioned three major components, collectability, damages, and liability. Could you just give me a quick synopsis about what those mean?
Dirk Derrick (52:28):
Yep. Liability is proven that someone else caused it by their negligence or violation of some statute or some duty, how strong that case is and disproven that the plaintiff contributed to it. Damages are investigations as to all the damages that were caused by the violation of the duty. Yes, I can answer that question. Liability is who was at fault, who caused it, how much fault you can put on the defendant versus the plaintiff. Damages are looking at all the damages that are recognized under South Carolina law and then investigating and looking at every damage that was sustained by the plaintiff in this particular case.
(53:18):
And then collectability is, how can you pay the damages? It's got to come from insurance or assets. Most cases, I've done it for 35 years, I've had assets involved five out of 10 times. Most of it is limited by the insurance coverage, the insurance coverage that the although party has purchased and the insurance coverage that you have purchased yourself to protect yourself against other people's negligence or recklessness.
Pearl Carey (53:47):
So the truth about the real value of your claim. Would you mind kind of summarizing the five or six points we talked about here today?
Dirk Derrick (53:54):
Yep. The real value of your claim is based upon what a jury would give you if the case was presented with all the facts that added value for your claim in a presentation model that the jury likes, which includes everything they want to hear. It is not one or two elements. It's not a multiple of your medical bills and your lost wages. That's like the custom home analogy, again. It is about building a case using every fact that exists in this world to add value to that case. And then looking at the blemishes in the case to see if they can be painted over or they can be minimized. And then to get the elements of your case and the facts of your case given to a jury by the most credible people available to teach the jury the facts and to share the facts with the jury as your subcontractors. And then you get it appraised by the focus group.
(55:04):
And just like an appraisal on a house, you get an appraisal of your case by a focus group to determine, "In this particular county, this is what this case is worth." And then you leverage that to try to do away with the insurance company's leverage of time and uncertainty to flip a leverage on them by using their duty of good faith to get the client paid the real value faster.
Pearl Carey (55:30):
Absolutely. That was really awesome information. Thank you so much for letting me be a part of this podcast. I really learned a lot throughout our conversation and I'm sure our viewers did as well, and I look forward to the next one.
Dirk Derrick (55:42):
Thank you.
Voiceover (55:43):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to [email protected]. If you would like to speak to us directly, call us at (843)248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or Workers' Compensation claim.
(56:12):
Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 90 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney.
(56:48):
Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up-to-date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.