As I’ve continued to grow and gain experience as a personal injury trial attorney, I’ve come to realize that no case is perfect. However, I’ve also come to realize that meaningful value can be realized in some of our most imperfect cases. To determine such value, it is critical to strategically position yourself for success prior to trial. This is particularly true in the dreaded “no pay” case. 
    
We’ve all been there: an insurance adjuster or defense attorney proudly proclaims “no pay” and refuses to offer a single penny. NJM is notorious for their “no pay” position, and when they say it, they mean it. Here is my story of how my firm, Scura, Wigfield, Heyer, Stevens & Cammarota, LLP (Scura), turned an NJM “no pay” case into a six-figure settlement. 
    
The plaintiff in this case was involved in a classic automobile rear-end collision. The facts are simple: the plaintiff was approaching traffic due to construction and came to a complete stop. Suddenly and without warning, plaintiff was rear-ended by the defendant going 20-25 mph. There was minimal damage to the plaintiff’s vehicle, and she drove herself to the hospital later that day. The defendant alleged in her Form C Interrogatories that the plaintiff had stopped short, causing her to collide into the plaintiff. Thereafter, the plaintiff treated conservatively - namely physical therapy and chiropractic treatment. 
    
Following MRIs, it was determined that the plaintiff sustained injuries to her neck and back. This included one broad disc protrusion to her cervical spine and one small midline disc herniation to her lumbar spine. Importantly, the plaintiff treated a chiropractor only three weeks prior to the car accident. As you may have guessed, the defendant alleged that her injuries were pre-existing degenerative conditions. This was a standard verbal threshold herniation case.
    
Prior to the lawsuit, NJM had denied permanent bodily injury due to the verbal threshold. After the lawsuit was filed, it was clear that NJM was going to maintain a “no pay” position. This included the defendant retaining two medical experts, as opposed to the plaintiff’s one medical expert. During non-binding arbitration, the plaintiff was only awarded $17,500. This low arbitration award only continued to bolster NJM’s “no pay” position. 
    
Shortly thereafter, Scura determined it was more likely than not that our firm would be trying this case in Passaic County, notorious for no cause verdicts in verbal threshold cases. After speaking with the plaintiff, she agreed to make the defendant a $15,000 offer of judgment. We strategically made a low offer of judgment, since it was likely NJM would not accept the same. However, our client was prepared to resolve the case at $15,000 if accepted. 
    
Following the offer of judgment, the defendant filed numerous motions in limine, motions to bar certain discovery, and a motion for summary judgment. Likewise, our office filed numerous oppositions to defendant’s motion, motions in limine, and other discovery related motions. Due to various issues, the trial was adjourned multiple times, which required Scura to prepare for trial several times. 
    
In any case, whether it retains multimillion dollar value or “no-pay,” Scura’s trial preparations remain the same. This includes demonstrative evidence, trial graphics, videos, and researching the jury panel. Our office is fortunate to have a full-size courtroom to practice opening statements and prepare the client for numerous sessions of trial testimony in front of a live jury. While lead counsel conducts direct examination of plaintiff, another firm attorney acts as defense counsel and cross-examines the plaintiff harshly. All potential trial scenarios are explored. 
    
Approximately one week prior to trial, the defendant requested a new settlement demand and stipulated liability. Since our firm made numerous efforts to settle without any counteroffer from NJM, the plaintiff withdrew her last settlement demand of $40,000 and made a subsequent settlement demand for $185,000. If the parties were going to trial, it was reasonable to make a high settlement demand, so if the defendant sought to settle during trial, the plaintiff retained a position of power. It was clear that the trial judge was not thrilled by the plaintiff’s settlement demand of $185,000, especially considering the $15,000 offer of judgment. 

Like most NJM cases, the adjuster was present during trial. This was critical, whereby the adjuster witnessed how prepared our firm was, particularly in utilizing technology, during trial. Due to our client’s preparations, she was a star on the witness stand. Likewise, Scura’s jury panel research allowed us to obtain a favorable jury. 

Scura was also strategic in obtaining an aggravation charge, which clearly concerned NJM. Since the defendant alleged that plaintiff’s injuries were degenerative in nature, plaintiff alleged any asymptomatic degenerative conditions she had prior to the accident were aggravated to the point she was now symptomatic. Notably, the defendant’s medical expert admitted that degenerative conditions could be aggravated by trauma. Likewise, the plaintiff’s medical expert testified in detail to the same. All personal injury attorneys should be aware of Edwards v. Walsh, 397 N.J. Super. 567 (Super. Ct. App. Div. 2007), which allows the aggravation charge despite plaintiff initially denying the existence of any pre-existing condition. In that case, the defendant raised the issue through their own medical expert and during cross-examination of the plaintiff’s medical expert.

Like all trials, you learn valuable lessons. One valuable lesson I learned is to shorten medical expert testimony, particularly video testimony. This includes questions about qualifications. The most critical aspect of any herniation case is the review of MRI films. In both plaintiff’s and defendant’s medical expert testimony, the review of MRI films did not occur until over an hour into each expert’s testimony. Frankly, the jury was almost asleep watching the videos. Going forward, I will strongly consider quickly going through medical qualifications and immediately starting with MRI films during substantive testimony. 

Prior to closing statements, NJM made its first settlement offer. It was clear NJM was concerned about the aggravation charge and any potential legal fees related to the offer of judgment if plaintiff obtained a verdict for $18,000+. Clearly, the threat of a substantial verdict and offer of judgment was a driving force towards settlement. Due to plaintiff’s settlement demand of $185,000 just prior to trial, plaintiff was able to obtain a six-figure settlement in an NJM “no pay” case. 

As stated before, value can be obtained even in “no pay” cases, but you need to be willing to try the case and strategically prepare for trial in advance. 

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Guillermo “G.” Gonzalez is a Partner at Scura, Wigfield, Heyer, Stevens & Cammarota LLP. He specializes in litigation, including personal injury, commercial litigation, employment litigation, and estate litigation. He has obtained multimillion-dollar settlements and judgments and has successfully tried cases to verdict. Before transitioning to litigation, he primarily practiced in the firm’s bankruptcy department. Mr. Gonzalez can be reached at ggonzalez@scura.com or at 973-696-8391.