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How long will my case take?

Nathan here. I'm back for a guest post with some new tricks I've learned at my new job from some of the researchers at UAMS. I've having a blast getting an inside look at cutting-edge biomedical research. This post looks at some data visualization about the time it takes to resolve civil tort cases in Arkansas.


One of the researchers has a master's degree in computer science, and I picked his brain a little bit about what software packages he likes to use. He prefers python to Perl (which I like) because python's research libraries are easier to use.

I took his recommendations to heart, and I've been tinkering around with the Anaconda python distribution with data I've gathered for another project I'm working on releasing very soon: Docket Dog. It's an Arkansas state court notification system. I used the data mining application Orange to perform some data visualization on the types of civil cases my dad and brother handle.

Arkansas Tort Case Length Analysis:

I took a look at over 98000 tort cases available electronically from the Administrative Office of the Courts for which I could calculate an end date. This is what the time frames look like:

Pendency of Arkansas tort cases in years. The scale is 20 years wide. Click to enlarge.

As you can see, civil court cases can take several years to resolve. We'll see what the averages look like here in a few minutes with another chart.

In the meantime, there are several interesting patterns that appear in this chart. For instance, on the first line for product liability cases, there are several vertical bands around 9, 12, and 14–16 years. I haven't looked into this, but I suspect each band probably represents a settlement of a specific type of cases, like Firestone exploding tire cases, Pinto exploding car cases, or something similar.

The declaratory judgment (dec action) line is notably shorter overall than the others. Again, I haven't researched this further, but I would expect this is due to the fact that dec actions don't involve juries and are usually about a specific question of law. For instance, lots of dec actions involve whether there is insurance coverage for a particular event or not (the hilarious Luther Sutter v. Dennis Milligan dec action notwithstanding). 

Now, on to the next chart. This is called a box chart:

Comparison of median Arkansas tort case values over the last 20 years. Click to enlarge.

This chart is broken up into quartiles. The light blue box represents 50% of all cases. So, 50% of motor vehicle collision (MVC) cases are decided within 2 years, with the median value being 1.6 years. (Median means the middle value; if there were 101 cases, for instance, the median value would be the 51st value). The average MVC case length is shorter at just over 1 year.

The dark blue lines represent maximum values, excluding outliers. The dots out to the right of the graph represent those outliers, which extend out to 20 years.

What's the bottom line? For 3/4 of tort cases, you can expect resolution to take at least 6 months to 3 years. Another quarter of cases take up to 4 years or so. And, there are always outliers that can take many, many years to reach ultimate resolution.

What questions do you have about this analysis?

Sebastian County jury tells State Farm safety rules matter

Don and Taylor spent the week of December 1-4, 2015 in Fort Smith trying a motor vehicle collision case. It was a classic example of an insurance company hiding behind their insured. The wreck happened after our client dropped her son off at a Boys and Girls Club in Fort Smith.

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She was headed home with her daughter when another vehicle hit them in the middle of their van on the passenger’s side. An elderly State Farm insured did not look to his left before pulling out of the parking lot of a barber shop. The elderly State Farm insured admitted to violating the safety rule to pay attention.

The collision threw our client toward the point of impact. Her torso got caught in the seat belt. This caused an aggravation of a pre-existing back condition that had given her no pain in over a decade.

Our client reported back pain to the police officer who responded to the scene. Our client's pain intensified overnight and she went to the ER the next day. The ER found degenerative changes in her back; told her she would probably be a little stiff; prescribed anti-inflammatories and muscle relaxers; and told her she would probably be fine in a few weeks. Our client took the medication. A few weeks passed. Her pain returned and worsened. She also starting having mild incontinence.

Seven months before the wreck she had seen a chiropractic physician for mild neck pain. So she went back to him three months after the wreck. Her chiropractic physician sent her to the ER on her very first visit. The same degenerative changes were found at the ER as three months beforehand. The most noticeable of these changes were at the same level our client had an old work injury in 1995. Her incontinence problems worsened. She began seeing her family doctor. This resulted in a referral chain to a neurosurgeon; a pain management specialist; a urologist; and a gastroenterologist. Our client also had neck injuries from the wreck. These injuries resulted in a 23% whole person impairment rating.

Before the wreck our client was a hard-working mother of seven adopted children. She took pride in being a big woman. She also coached her children's sports teams; drove and maintained a school bus; enjoyed being a substitute teacher; took occasional family vacations to Ohio and other locations; enjoyed attending her children's sporting events; and kept an orderly home while cooking and cleaning everyday for her family. After the wreck, she began having "accidents" in public. These "accidents" were caused by her incontinence problems. They not only embarrassed her, but also her children and anyone else with her at the time they happened. She learned to avoid "accidents" by not eating. As a result, she lost a significant amount of weight. This negatively affected her self-esteem. A nerve stretch injury was diagnosed in her low back as a result of the wreck. This kept her from being able to sit or stand for long periods of time. The nerve stretch injury eliminated her ability to watch her children's sporting events the way she could before the wreck.

It forced her to quit coaching. It stopped her from adopting a sibling of her other children. It forced others to pick up the physical tasks required of a mother and wife. Our client's dream was to become a full-time teacher of at-risk junior high children. She went back to school after the wreck to become certified. However, her injuries from the wreck forced her to give up this dream. Her only way of being gainfully employed after the wreck was to have an understanding supervisor. She worked several jobs where her supervisor allowed her to take unscheduled breaks as a result of "accidents."

Our client incurred a little under $40,000 in medical expenses when the trial began. She sustained injuries in the wreck that will be with her for as long as she lives. The most State Farm offered was $11,500 despite their elderly insured having only $25,000 in coverage. This is the minimum amount required by state law. State Farm's low ball offer left our client with no choice but to try her case to a jury of her peers. State Farm relied on the jury to give their elderly insured a pass. They counted on the jury to disregard the traffic safety rules that keep us all safe from danger.

Instead, the jury enforced the safety rules. They returned a verdict of $84,500. Clearly, the jury cared much more about the safety of their community than State Farm. The jury cared about a safety rule violation leading to a teacher who could no longer help kids nobody else wanted. The jury cared about a wife who could not help her husband make ends meet as she did before the wreck. They cared about a mom who is less of a mother to her children. They cared about a member of the community who is embarrassed about the person she has become. They cared about protecting the life of one of their own.

What does State Farm care about? They tried to hide behind their insured and get away with it. They also helped sponsor tort-reform legislation during the regular session of the 90th General Assembly in 2015. This legislation would have required injured Arkansans to receive no benefit for the premium dollars paid to their own automobile insurance companies. State Farm cares much more about their own profits than taking care of the people of Arkansas. Does that sound "like a good neighbor"?




Several anti-consumer bills introduced at the Arkansas Legislature

Yesterday was the bill-filing deadline for the Arkansas Legislature. Several anti-citizen bills were introduced. These bills are designed to increase profits for insurance companies and other major corporations at the public's expense. Please reach out to your legislators and oppose anti-consumer bills.

For example, under current Arkansas law, an injured person must be "made whole" by settlement or jury verdict before that person's health, worker's comp, or car insurance company has the right to recover any money from the at-fault party (or his or her insurance company). The reason for this law is this — as between the customer and the insurance company, the insurance company was paid to assume the risk of injury to its customer. This "made whole" doctrine is an issue of fundamental fairness because it helps Arkansans play on a more level field with insurance companies, who already get to hide behind their insureds and rarely get called to account for other bad faith tactics.

HB1907 would repeal this "made whole" doctrine, which would result in a windfall to insurance companies at the expense of Arkansas citizens. Several federal laws are already like this, and many Arkansans already receive nothing — zero — when injured because their federal insurance program gets paid first. The federal law is good for major corporations but bad for consumers, and HB1907 is a bad bill modeled on a bad federal law.

Please call your representatives and senators and tell them you oppose "tort reform" in any form or fashion. Conservative financial magazine Forbes recently declared that tort reform didn't reduce defensive medicine, but rather resulted in record profits for insurers. Forbes also noted tort reform had the unintended consequence of slowing down new patient safety initiatives to correct the 44,000-98,000 needless deaths that occur each year in hospitals. A list of legislators is on the Legislature's website here, and UALR has a district finder here if you need to identify your own legislators. 

Remind your legislators that the U.S. Constitution's 7th Amendment preserves the right of juries to make decisions about disputes between citizens exceeding $20. Under the Arkansas Constitution, this requires full compensation for any wrongs. Juries are the ultimate check on the power of government — they represent constitutionally-established local control of our own communities. Let's keep the power in the hands of the people, and out of the hands of the insurance companies.

Remember this: if legislators can take away your 7th Amendment right to a full and just award by a jury because an insurance company wants them to, they can take away your 1st and 2nd Amendment rights to free exercise of religion and to bear arms as well.

A picture is worth 1000 words – especially in injury cases

We've previously discussed how injury clients need to be cautious when posting to social media. A Florida appeals court recently showed why this is important. In Nucci v. Target Corp., the Florida Court of Appeals ruled that an injury plaintiff had to disclose over 1200 photos on her Facebook page, even though her privacy settings were set to "Friends Only".

The court rejected the argument that the "Friends Only" setting created a reasonable expectation of privacy in the photos. Target had an investigator perform surveillance on the plaintiff, and took pictures of her "carrying heavy bags, jugs of water, and doing other physical acts, suggesting that her claim of serious personal injury is suspect." The court pointed to this evidence in ruling that the photos must be turned over. The court stated:

If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a “day in the life” slide show produced by the plaintiff before the existence of any motive to manipulate reality. The photographs sought here are thus powerfully relevant to the damage issues in the lawsuit. The relevance of the photographs is enhanced, because the postaccident surveillance videos of Nucci suggest that her injury claims are suspect and that she may not be an accurate reporter of her pre-accident life or of the quality of her life since then.

People involved in a lawsuit should pay attention to this case for a couple of reasons:

  • Social media accounts are, by definition, designed to share personal information. So, that information isn't private.
  • In lawsuits, corporations and insurance companies will go to great lengths to try and prove someone is a liar. Even if a plaintiff tried an activity she formerly enjoyed just one time and had problems afterwards, defense lawyers will use a photo of the activity to try and prove the plaintiff is faking.
  • Context for posts is important. People usually want to present their best outward appearance to friends on social media.

This last part is crucially important. Just like in real life, most folks don't run on and on about the bad parts of their lives on social media — otherwise they would be defriended or blocked. It can be explained like this (warning: mild language):

So the next time you’re driven to jealousy by a Facebook friend’s humblebragging about his or her awesome life, don’t forget: They’re probably embellishing it for social media, even if it’s unconsciously.

Ultimately, Facebook is a narcissistic playground where the best, the funniest, the most charming aspects of our lives are publicized and the s*&%y stuff, the boring stuff, the beige that is most of our daily grind almost never gets posted. All those walls are edited at some level and that makes them, at best, a deformed mirror image of real life or, at worst, nothing more than a fictional movie of how we want people to see us.

If people involved in lawsuits post stuff on Facebook, defense lawyers will present small snapshots of a person's life and represent those as the average of a person's life, rather than the "best of" snapshots they really are.

We advise clients to limit posts to social media to avoid these problems during insurance claims and lawsuits.

The Power of Perseverance

All of the Chaneys except my wife, who's from Virginia, are University of Arkansas alumni. Those in Razorback country know well the struggles of our football team. For those that don't, here's a recap:

  • 2010 – BCS appearance in the Sugar Bowl, where we were defeated by a bunch of tattooed (and ineligible) players from Ohio State. Bobby Petrino's third year. The game was close, and we all looked forward to Petrino's recruits maturing.
  • 2011 – A dominating Cotton Bowl victory over K-State in Bobby Petrino's third year. 10 wins on the season. Truly, a cause for celebration and optimism.
  • 2012 – Ah, 2012. Truly, this was a year to forget. April Fool's Day brought a headline worthy of the day but, alas, it was no joke. Coach Petrino had a wreck on his Hog-red Harley with a woman not his wife on the back. He then lied about it to his boss, repeatedly, who fired him during a press conference televised on national TV. A bankrupt interim coach took over for the season. 3 players were charged before the season started with nine felonies EACH, making the Hogs the winner of the 2012 Fulmer Cup (an offseason tally of criminality, so not something you want to be winning). Still, we carried a top-10 ranking into the season, but many fans were uneasy. They proved to be right, as a lowly directional school in Louisiana-Monroe beat us in overtime the second game of the season and we tumbled out of the rankings. We finished 4-8. One of the four was against Kentucky in what would be the last SEC win for a long while.
  • 2013 – Athletic Director Jeff Long hired Bret Bielema to take over the program. The fanbase collectively said, "Huh"? Reactions were of two varieties when fans learned of his track record at Wisconsin (three consecutive Rose Bowl appearances, but no wins in two coaching appearances). Some fans thought he'd be great at putting together a running team like he had at Wisconsin with Russell Wilson, who won the 2014 Super Bowl at Seattle. Other fans thought he was only good playing with the players of his mentor, Barry Alvarez. The season was a long one, ending with a 3-9 record and 0 wins in conference play.
  • 2014 – A long offseason saw quarterback Brandon Allen's name besmirched daily on talk radio and his truck torched before the season started. The schedule was brutal. Most of Petrino's recruits were gone, and the ones that stayed were losing jobs to more talented youngsters. Every SEC school played through last weekend ranked in the top 17, and five of six were in the top 10 at game time. The season picked up where last season left off — a slew of conference losses. There were bright spots, to be sure, in dominating non-conference wins over inferior opponents and close games against superior opponents.

This 5-year history brings us to the present. Last weekend brought LSU to town, a team that is usually in the top two of the SEC West. LSU was ranked 17. Arkansas was on a 17-game SEC losing streak. Arkansas dominated from start to finishing, winning 17-0. The 17-degree windchill* didn't stop jubilant fans from rushing the field to celebrate with the players.

Who has been kicked in the teeth 17 times in a row by their peers? How does that affect one's psyche? Most folks would really be down on themselves after such a long period without success. It really says something for the leadership abilities of Coach Bielema to keep his players motivated during such a long losing streak. The players haven't quit this season and have played most teams close with the exception of Georgia. They have broken the cycle. #WPS

There is a corollary to trial work. People like me who represent individuals against insurance companies and other big corporations often face repetitive and distasteful behavior. A common tactic of insurance company lawyers is to ask questions to clients about things that happened 17 years ago, then try to find a piece of paper from a doctor to make the client out to be a liar. For example: "Have you ever been treated for neck pain or headaches?" If you went to the doctor 17 years ago after a waterskiing fall with headaches and neck pain, you better believe the insurance company will point to it in denying your claim. Nevermind the hypocrisy of arguing, on one hand, that soft-tissue injuries should heal within 6-8 weeks, but, on the other hand, the treatment 17 years ago was to the same body part so the defendant couldn't have caused the injury.

The toughest clients are the ones willing to take their case to a jury of their peers. A jury trial is grueling on clients in its own right: everything in the client's life is placed under a microscope — work history, social life, tax returns. However, a jury is sometimes the only way clients are ever able to persevere after a life-altering injury. A jury has the power to make right all the things that went wrong for the client. The jury is the difference between what could have been, and what is.

*I may or may not have made the windchill up, but it was in the 20s during the game.