Not surprisingly, COVID 19 has significantly impacted many personal injury court cases. It is harder to get trial dates. When we start a trial, COVID 19 protocols make that trial harder and longer. Vaccination issues can further complicate a trial (Spoiler Alert — stand by for my next article as to how vaccination status might impact a jury verdict).
So what can be done to keep personal injury cases moving during the COVID 19 pandemic?
Arbitration is one option. It is an existing alternative to a traditional personal injury court case. Unlike such a case, arbitrations do not have full blown pre-trial proceedings, motions, and a jury trial. Instead, the parties submit their dispute to a decision maker, usually a retired judge, practicing attorney, or professional arbitrator. They also choose the rules for arbitration. The arbitrator decides the case by reviewing the parties’ case records and summaries, and hearing their testimony.
This can make arbitration an attractive option for a personal injury case during COVID 19 for three primary reasons.
1. Arbitration is quicker and can be done virtually
A personal injury arbitration is much quicker than a court case. It is easy to set up. The arbitrator often hears testimony in a day or less. He or she reviews the submitted records and usually issues a decision within a month. If you have suffered lost wages, uncovered health care expenses, or unreimbursed damages because of your injuries, and you can’t wait for a COVID 19 trial date, this quicker resolution might appeal to you.
COVID 19 restrictions also do not impact arbitrations because the parties can agree to appear before the arbitrator virtually.
2. Arbitration is usually final
The arbitration decision, except in rare circumstances, is final, without appeals. If you are injured and win at arbitration, then the defendant or his or her insurance carrier usually pays within 21 days after they get the closing documents. In a court case, even after the jury reaches a verdict, post-trial motions and appeals can take another year to play out. If legal errors are found, you may have to try the case again to a new jury. So a jury verdict may not be the final decision, unlike in an arbitration.
3. Arbitration costs less
Personal injury court cases are expensive. In the Albany, New York area where I practice, your orthopedic surgeon may charge $7,500 to $10,000 to testify at trial about your medical treatment. Economists, accident reconstructionists, liability experts, and life care planners charge from $2500 to $10,000 for trial appearances. Of course, not every case needs these experts; many don’t. But you get the picture.
In a personal injury arbitration, unlike in a court case with a jury trial, experts often don’t testify in person. Instead, they may submit a sworn statement of their opinions to the arbitrator. Their charges for this are substantially lower than their trial appearance charges. This can translate to a larger net recovery for you at the end of the day. This is particularly true if you have been injured, for example, in an automobile crash where the careless driver has limited insurance and no assets. In that case, going to trial and paying for experts could swallow up a big chunk of your net recovery. That doesn’t make sense.
Like anything else, arbitration has potential downsides. Traditionally, many attorneys believed that jury verdicts tended to be higher than arbitration awards. Further, on a complex legal case your attorney might not want to stake everything on a single arbitrator getting it right. And sometimes, we need the full tools of a court case to discover facts to prove your case.
Each personal injury case is different. If you have questions, call us at 518-489-1098 x 17 or contact us by email here. [email protected]