On the one hand, personal injury litigation is very similar to any kind of lawsuit: a plaintiff files a complaint, a defendant responds, there’s discovery, and possibly a trial. But the subject matter, business model, and technical rules involved in personal injury disputes make them unique. Since I don’t focus my practice on litigating on behalf of injured parties, I knew I needed to get some insight from someone who did. And so I was fortunate enough to speak with my friend Matthew Haicken to learn more about personal injury litigation.

Why should you continue reading this post about personal injury litigation?

You’ve seen a hundred injury attorney billboards and you still don’t know how the process works.
You want to go behind the scenes into how injury lawyers view clients and cases.
You want to learn about special software for personal injury lawyers that I, a commercial litigator, had never heard of.

Matthew Haicken is a personal injury attorney in New York.

How did you get into personal injury law?

I grew up seeing John Morgan's ads on TV in Florida. Back then it was Morgan, Colling, and Gilbert. And I just thought the ads were interesting. Like what happens after an accident? How much can you get?

Also, my dad was a general surgeon and he got sued a few times. When I was very young, he talked about how much he hated lawyers. Later, he started doing expert testimony and he really got into it. His home office was filled with paperwork for lawsuits he was working on. He loved being a surgeon but he also had a flair for the dramatics. He really loved testifying in court.

By the time I was in high school, he used to say, "Go to law school and sue doctors!"

What do you look for in a client? What do your clients have in common?

Personal injury lawyers are always looking for valuable cases. You need three things - liability, damages, and insurance coverage. It's not a complex formula. The ideal client is completely innocent, but there's often some aspect of comparative fault.

I think it's more a question of what clients are looking for in a lawyer. Being that I speak Spanish, many of my clients have that in common. They find me because I represented someone they know who only spoke Spanish. They want someone they can talk to and relate to without having to go through an interpreter.

How often do your cases involve a dispute over the law versus a dispute over the facts or amount of damages?

That's a hard one to answer. It's mostly questions of liability and damages but the law is always there. There's been a lot of confusion about the Court of Appeals case Rodriguez v. City of New York. It is very good for plaintiffs but a lot of judges are unfamiliar with it as it is so new.

How do you assess the potential value of a case?

I use the very scientific method every PI lawyer uses - I text a synopsis of the case to friends in both the plaintiff and defense bars.

Image credit: https://en.wikipedia.org/wiki/Injury#/media/File:US_Navy_041117-M-0000G-004_U.S._Navy_Surgeons_and_Hospital_Corpsman,_assigned_to_the_Surgical-Shock_Trauma_Platoon_(SSTP)_at_Camp_Taqaddum,_Iraq,_operate_on_a_Marine.jpg

What is the hardest part of your work?

It is very tiring and cumbersome dealing with an entrenched insurance industry that controls the court system and the legislature. The New York State court system is barely functional. Cases that should settle within 1 year often take 5 years. The insurance industry has figured out how to get the court system to work for them, rather than for the people.

I hate the fighting. The judges should force the insurance companies to comply with the law so there's not all these unnecessary disputes.

It's also shameful that most cars in New York have such small insurance policies. Every PI lawyer in New York has had to break the news to clients that even though their case is "worth" a lot, they're only entitled to $25,000 because that's all the insurance there is. It just (understandably) doesn't make sense to most people.

What is the most interesting part of your work?

Every case is different. Every client is different. There's always something new. Just when I think I've seen it all, something else will pop up that I'll have to figure out.

What are the aspects of personal injury litigation that make it different from a standard commercial dispute, like breach of contract?

My clients never wanted this. It's not like the went into a business venture, signed a contract, and knew that litigation was possible. They were just walking to work or whatever, and this happened. And they got physically hurt. So, there's a lot more emotion involved, I would assume, than a breach of contract.

It's hard for people to understand that injury cases have been commoditized. Even though your broken leg is really important, it all comes down to how much the insurance company will pay to avoid a trial. And how much insurance coverage is even available.

How often do your cases settle? How often are they resolved before trial by motion practice?

More than 99% settle. I've never had a case dismissed by a motion; however, I have settled a few cases for less than they were "worth" while such motions were pending.

How often do your cases get appealed?

Since I've been on my own, I've had only one case on appeal. And that's based on my winning partial summary judgment, not on a trial.

How often do you go to trial?

About once every 3 years. My last verdict was in October 2022.

What does an average day in your job look like?

Lots of emails, texts, and calls with clients. Mostly in Spanish. Some time taking calls about new cases.

Emails and calls with defense lawyers and adjusters about discovery, trying to get cases settled, etc.

Sometimes I have to run out somewhere and sign up a case in person.

At any given time, how many cases are you working on?

Since I went on my own in 2015, my case load seemed to stabilize around 50 cases.

Do you use any computer software specifically for PI cases that you think a non PI lawyer wouldn't use?

I use CloudLex. Not sure how applicable it is to other fields. I really don't know what anyone else does.

How often do you re-use documents? Do you have templates that you find yourself using a lot? How often do you draft new documents from scratch?

Every case I use templates.

Personal Injury Litigation