In a recent settlement negotiation with a defense attorney and in-house counsel in a long term disability claim we were discussing what could happen if we went to court instead of settling the case. What happens if the claimant wins the case?
Here's what the defense attorney said:
Even if you win the claim in court all the judge can do is pay your past benefits, put you back on claim and pay your attorney fees. Since your client is young we will be able to attack the client and play that game every year for 20 more years.
What the defense attorney meant is that in long-term disability lawsuit the judge cannot determine that you will be disabled in the future and force the insurance company to pay you in advance for your claim. Defense attorneys and insurance companies use this as a "hammer" to get you to try to settle your case. The threat is, as they very well put it, is that we will continue to attack the claimant and play the game of continually denying the claimant in the future, cutting off their benefits and forcing them to appeal and sue us again.
This is a real hammer and we have seen this happen before. This is why is it is important that you hire an attorney who is going to be with you in the long run. Don't be cheap about this and think that you will need the attorney only until the court case is over. Don't hire an attorney who is only going to do the appeal but will never file a lawsuit. These cases, unfortunately, can go on and on for years.
Yes, the defense attorney was correct in terms of what the judge has the power to do. We've heard that line for over 20 years, and insurance companies use it because they are evil.
This is why we do the work we do. Frankly, most lawyers don't have the stomach for it.