Samples of Our Work Product — Part 1
Greetings, and welcome to our inaugural blog post at dreyermazaherilaw.com!
Although it seems to have become a bit of a lost art in this day and age, the attorneys here at Dreyer & Mazaheri take great pride in our persuasive writing skills. We feel that our excellence in this area sets us apart from other law firms, and continually garners the respect that our clients are due from insurance adjusters, opposing counsel, judges, mediators, and all other pertinent decision-makers.
Thus, we have decided to devote our initial blog posts to providing our website visitors with samples of our written work product, accompanied by some background information about the cases from which these samples arose. Accordingly, you can familiarize yourself with certain aspects of the litigation process, in addition to seeing examples of the zealous advocacy we give for all of our clients here at Dreyer & Mazaheri.
Traffic accidents comprise a large percentage of our personal-injury practice, so I figured I would start by showing you some demand letters we have prepared in connection with these types of cases. The following letter is a counter-demand submitted to State Farm on behalf of a client who was seriously injured while driving his motorcycle. It is common for several back-and-forths to take place during the course of negotiations with an insurance company, and this particular letter occurred in the midst of just such a situation (please excuse any alignment and formatting errors, which are caused by the copy-and-paste process):
VIA FACSIMILE TRANSMISSION
& FIRST CLASS U.S. MAIL
STATE FARM CLAIMS
P.O. Box 149203
Austin, Texas 78714-9203
Re: Our Client: Commander Xxxxxx Xxxxxx, USN (Ret.)
Your Insured: Xxxxx Xxxxx
Claim Number: 51-0642-277
Date of Accident: 10/24/2010
Dear Ms. Xxxxxx:
Thank you for your patience since our most recent telephone conversation of a few months ago. In the interim, Xxxxx has completed his physical therapy regimen and consulted with his surgeon, Dr. Xxxxxx, regarding an up-to-date prognosis for his shoulder. Accordingly, I am enclosing the following medical reports and bills, in order to supplement those records provided previously:
Exhibit 1 – Narrative statement of Xxxxx Xxxxxx, M.D., dated July 20, 2011
Exhibit 2 – All medical reports since November 24, 2010
Exhibit 3 – All billing records, in the amount of $77,117.66
At the outset, I regret to inform you that your current $xxxxx offer of settlement is woefully out of line with what a jury would award Xxxxx in this case, based upon the severity and extent of the injuries he suffered. But it is our sincere hope that this low offer merely stems from an incomplete apprehension of Xxxxx’s injuries. Accordingly, it appears that a review of the facts and evidence underlying this case is necessary.
At the time of the accident, Xxxxx was a truly active senior adult, and was enjoying excellent health in his golden years. Unfortunately, he suffered debilitating and painful injuries, especially to his left shoulder, that fateful day and his life has never been the same as it was before – and never will be the same. To wit, Xxxxx has already undergone a clavicle and scapula open reduction and internal fixation (ORIF) surgical procedure, and now it is reasonably certain that he must undergo not just one follow-up surgery pursuant to the recommendations of his surgeon, Dr. Xxxxxx, but two follow-up surgeries.
I’m sure you will agree with me that undergoing surgery is, in general, one of the most unpleasant and painful events that a person will ever have to endure. And undergoing a subsequent, follow-up surgery? The thought is so abhorrent to the average person as to be unspeakable. A third surgery? Unthinkable for most, yet all too real as far as Xxxxx is concerned. And Xxxxx’s medical records only serve to bolster and affirm this layperson school of thought. To wit, I direct your attention to Dr. Xxxxxx’s narrative, wherein he states:
“[Xxxxx] had a major trauma that was essentially a near life-threatening event….[a]s a consequence of this, he will have some degree of long-term disability that is guaranteed.”
This brief excerpt of Dr. Xxxxxx’s narrative speaks volumes regarding the magnitude of Xxxxx’s injuries. Again, I think we can agree that when a surgeon uses words and phrases like “major trauma,” “life-threatening event,” and “long-term disability that is guaranteed” to describe a patient’s injuries, we are dealing with something above and beyond a run-of-the-mill, low-impact motor vehicle accident.
I hasten to remind you that Xxxxx served our country with distinction as a Commander in the United States Navy, and a jury in a military-centric city like San Antonio would find him to be quite a dynamic and compelling witness, who has suffered tremendously due to the negligence of Ms. Xxxxx. For example, those activities of daily living that you and I and others with two fully functional upper limbs take for granted have become painful, frustrating tests of endurance – if not outright impossible – due to the impairment and pain Xxxxx has endured in his left shoulder. Even to this day, Xxxxx finds it too painful to perform movements which resemble an overhead reach or lift with his left arm/shoulder, despite the blood, sweat, and tears expended in rehab. In fact, to this day he remains physically unable to participate in his favorite pastime, riding his motorcycle.
Besides rendering him unable to ride his beloved motorcycle, the physical impairment severely limits if not destroys his ability to engage in household chores, exercise, recreational events with his family and friends, and a host of other physical activities. And perhaps most frustrating of all, is the fact that Xxxxx faces the prospect of returning to Square One with respect to his rehab efforts – not once, but twice – after he undergoes the follow-up surgeries.
Moreover, this physical pain and impairment represents just the tip of the iceberg with respect to Xxxxx’s injuries. Specifically, Xxxxx bears the psychological and emotional burdens and scars which are part and parcel of living through a life-threatening episode, followed by living with a permanent disability. These burdens have manifested themselves in the form of anxiety, loss of sleep, and depression, and are clearly charted in Xxxxx’s medical records.
Given the clear, 100% liability of Ms. Xxxxx, the severity of the collision, the past and future medical expenses, and the pain, suffering, disfigurement, and loss of enjoyment of life endured by our client, it is our opinion that this matter should settle without resorting to needless litigation. After thoroughly evaluating this case, I feel there is a very substantial probability that a verdict in this case for Xxxxx’s bodily injuries would be at least $xxxxxx. Specifically, even the most conservative jury would award Xxxxx the full amount of his medical expenses incurred to date plus any estimated future medical expenses. As you know, there is ample documentation to support a recovery of the following medical expenses:
Past medical expenses ($ 77,117.66)
Future medical expenses
Related to surgical release of contracture ($ 44,000.00)
Related to arthroplasty surgery ($ 40,000.00 – $161,117.66)
In addition, a recovery of at least $xxxxxx in connection with Xxxxx’s pain, suffering, impairment, disfigurement, and loss of enjoyment of life would be reasonable based upon the per diem method of damage valuation – which is an acceptable argument to the jury under Texas law. In other words, the jury would be asked to value these non-economic damage components in response to a query along the lines of “What amount of daily wages would a reasonable person in Xxxxx’s shoes expect to be paid in order to perform a job that inflicted the amount of daily pain, suffering, impairment, disfigurement, and loss of enjoyment of life experienced by Xxxxx?”
While I would never purport to be an expert in jury psychology, based on my many years of courtroom experience I am confident that a jury would have no qualms with awarding per diem damages over at least a six- to seven-year period, in light of Dr. Xxxxxx’s forecast of 2 additional surgeries, plus rehab, for Xxxxx in the next five years. Moreover, an average per diem amount of $xxx per day over a seven-year period would represent an extremely conservative, low-end award, since Xxxxx quite obviously endured many days (and will again after the follow-up surgeries) where his level of pain registered 10 on a scale from 0 to 10. These “10/10” days would most certainly yield a per diem amount in excess of $xxx. Thus, I submit to you without hesitation that the amount of $xxxxxx (equivalent to seven years of per diem damages at an average of $xxx per day), is the minimum amount of non-economic damages Xxxxx can expect to be awarded by a jury of his peers.
However, despite the magnitude and duration of Xxxxx’s injuries and his entitlement to a recovery consistent, at a minimum, with the aforementioned jury award estimates, Xxxxx is prepared to accept the amount of $xxxxxx in full satisfaction of his bodily injury claim. This is an unconditional demand made pursuant to G.A. Stowers Furniture Co. v. American Indemnity Co., 15 S.W.2d 544 (Tex. Comm’n App. 1929, holding approved) and its progeny. In exchange for payment of this amount, your insured will be provided a full and final release of all claims, including without limitation any medical liens or subrogation interests. This demand will be held open for a period of 21 days, after which it will automatically expire.
A mere cursory review of Xxxxx’s medical records, and the police records describing Ms. Xxxxx’s negligent conduct, will clearly and convincingly substantiate Xxxxx’s claim. As mentioned previously, a Bexar County jury will quite likely award Xxxxx an amount far in excess of our demand, and potentially expose your company to liability above and beyond your contractual limits.
I submit that a very serious consideration of this conservative demand should be given and a proper response is warranted. Please advise us as to your intentions as soon as possible. You may contact me at (210) 239-9420 or firstname.lastname@example.org to discuss the claim more fully.
Very truly yours,
Dain A. Dreyer