5 Do's and Don'ts When Litigating Long Term Disability Claims in Court

Disability Wiki.

Here are 5 do's and don'ts to help win a long term disability claim in Court.


1. Follow Our Advice.  Our disability lawyers in New York have extensive experience litigating disability cases under ERISA in federal courts.  This is our firm’s area of expertise.  We would never take an action on your behalf and/or advise you to take an action that would endanger your lawsuit.  We encourage you to ask questions if you have any concerns or doubts.

2. Keep Getting Treatment.  Your doctors are key witnesses to your disability.  Therefore, even after starting a litigation, you will need to see your doctor on a periodic basis (at least every 3 or 4 months), even if there is little the doctor could do for you.  At some point in the litigation you may need to provide support for your continued disability.  If you have not been seeing your doctor on a regular basis, this will become problematic.

3. Tell Us Everything.  You need to be transparent with our firm regarding any changes in your disability and other related issues (e.g., work and/or financial status).  This is applicable to all information even if it is embarrassing or incriminating.  What you may perceive as a non-issue may in actuality be an issue we need to preemptively address, as opposed to being accused by the court or opposing counsel of “hiding” information relevant to your claim.  We strive to preserve your credibility before the court.  Your credibility is essential to your case.

4. Be Patient.  Litigation is a lengthy process that takes time because it is subject to the court’s schedule, the parties’ availabilities, and other unforeseen circumstances/factors that are beyond our control.  Our disability lawyers in New York understand the frustration and financial hardship caused by the delays during litigation and will try their best to move your case along as fast as possible.  An average case litigated in the Federal District Court in Manhattan could take as little as six months if settled early or go as long as two years if the case is litigated to judgment.  The rare case could take even longer, particularly if an appeal to the Court of Appeals is required.

5. Keep an Open Mind.  Insurers often reach out to our firm to settle cases at all phases of litigation.  We ask our clients to enter into settlement discussions with an open mind.  The best settlements are achieved when both parties are willing to work toward a compromise.  The insurers will often begin the settlement discussions with an unreasonably low dollar value—do not be discouraged by the initial offer.  We will aggressively seek the best settlement possible for you.  We also will be transparent and advise you when we believe settlement will not be feasible and/or not in your best interest.


1. Communicate with the Court and/or Other Parties.  Do not attempt to communicate directly with the court, the opposing counsel, and/or the insurer during litigation.  It is our firm’s responsibility to serve as your advocate by communicating with the other parties on your behalf.  Judges become furious when a client attempts to directly communicate with the Court.  We know you may feel impatient waiting months for a court decision, but attempts at communication only hurt your case and hurt our reputation in the eyes of the Court.

2. Take the Opposing Counsel’s Arguments Personally.  The opposing counsel’s role is to mitigate or fully discredit your claim for disability benefits.  Do not be discouraged by the opposing counsel’s arguments that you are not disabled (e.g., there is insufficient evidence to support your disability, or you are exaggerating/lying about your disabling condition).  We will aggressively rebut these assertions and demonstrate to the court why the opposing counsel is wrong.

3. Perform your Own Research.  Do not attempt to perform your own research as it may yield outdated, inaccurate, or irrelevant information.  For example, mere searches via general search engines may yield case law that is outdated, reversed by an appellate court, or applicable only in other jurisdictions.  At Riemer Hess, our disability lawyers in New York monitor case law developments on a daily basis.  If case law is important or relevant to your case, we will already know about it.

4. Unreasonable Expectations.  The law defining the damages you may obtain under ERISA in your lawsuit is well settled.  You may obtain the monthly benefits you have not been paid, interest on those benefits, an award of reasonable attorney fees and costs, and an order to pay future benefits in accordance with the terms of the plan.  You may not obtain damages for your pain and suffering, consequential damages or punitive damages.  As a result, we can calculate to a high degree of accuracy the monetary value of your lawsuit.  Also, because we have settled numerous cases in this area of law, we can make a very good assessment of the settlement value of your case.  Claims for damages that are unavailable under ERISA are not realistic and only diminish our credibility to opposing counsel and the court.  Likewise, settlement expectations outside of the settlement range of your case are unrealistic and likely only to lead to protracted litigation.

5. Publicly Shame the Insurer.  Do not disclose the details of your case and/or disparage the insurer in a public forum (e.g., news media, newspapers, blogs, or social media).  If you publicize the unscrupulous conduct of the insurer during litigation, you are more likely to have the insurer dig in its heels and destroy any chance of settlement.  One of the reasons that an insurer will settle with you is to keep that information out of the public eye.  By disclosing it during litigation, you are giving away some of the leverage you have for settlement.

Speak with our Disability Lawyers in New York

If you still have questions after going through the do’s and don’ts of litigation, please contact our disability lawyers in New York. They can answer any questions you may have or assist you with a case you may be going through. Call Riemer Hess today at 212 297 0700.

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