We hear from Silvio Riesen who reveals his journey to specialising in liability law, the challenges he faces and how he overcomes them for the betterment of his clients.
What was the main reason behind you specialising in liability law?
Before specialising in liability law, I had worked in a business law firm in an advisory capacity dealing mainly with corporate law matters for a few years. During that time, I realised more and more that I actually wanted to do something which puts me in closer contact with people who have tangible problems in their lives and enables me to help them directly. Furthermore, I have always been interested in forensic work; in my job, I can now do both.
How was the journey to specialise in liability law and what was the biggest challenge you had to overcome?
First, it was difficult to get accustomed to the fact that mostly not the legal analysis of a case is important, but the handling of the facts of the case and the assessment of the medical situation. Therefore, it is often hard to predict and tell the client what they can expect from the situation they are in. You also have to be aware that you have to fight hard for the rights of your clients every day and most of the time face considerable resistance from the counter party, especially the insurers.
What motivates and challenges you about your role?
What motivates me most is mainly representing my clients against the large insurance companies. Almost every day you will find yourself in a David vs. Goliath situation. It is one case among many others for the insurers, whereas it is mostly the case of their life for your clients.
This sometimes leads to very emotional situations in which human understanding is often as important as legal skills. You must show the clients that you understand their situation and try to achieve the best result for them. At the same time, you need to be able to persuade them that it is often not possible to obtain as much as they may have hoped for. This balancing act is a big challenge every day.
You often deal with snow sport accidents - what is the most challenging aspect of these cases for you?
The difficulty we often face is to provide evidence in favour of our clients. You have to convince the court that the accident happened in the way as you claim. You usually only have your client’s statement and, possibly, the statement of one or a few other persons who witnessed the accident. The experience shows that the witnesses often remember the same situation differently and that such recollection differs more and more after a certain period of time. Therefore, time is always against your client who bears the entire burden of proof.
Having been successful in providing evidence in your favour regarding the relevant facts of the accident, you must be able, in a second step, to show that the specific situation leads to a liability of another skier or the operator of the ski resort. The court has a big discretion in assessing whether, for example, another skier was too fast or the piste markings were misleading. In summary, it is thus always a big challenge to present as many facts as possible in favour of your client in order to persuade the court that the whole circumstances of the accident lead to a liability.
Another obstacle for claimants may have ceased to exist, at least in a euro-international context. According to a recent and legally-binding decision of a Dutch court based on the Council Regulation (EC) No 44/2001, the court of the residence of the injured party has jurisdiction regarding a claim against the ski resort operator since such a matter can be qualified as a consumer dispute if certain criteria are fulfilled. Obviously, it is easier to succeed before the courts in your own country than before the courts at the residence of the ski resort operator.
Which other areas of liability law do you and your firm deal with?
The majority of the cases we deal with relate to road traffic accidents, especially car accidents. Furthermore, we are often concerned with employees suffering from accidents at work. Due to the great significance of the Swiss public transport system which many people use every day, we also often represent injured persons in connection with accidents related to trains, trams or busses.
Another important aspect of our work are medical negligence claims, especially damages resulting from deficient surgical operations. We have a specialised department which deals with such claims only.
Which are the most important aspects of the Swiss personal injury law system?
The Swiss system consists of an interaction between different social security branches, private insurers and the liability insurance or payments by the injuring party, respectively. The coordination between these players can sometimes raise very difficult legal questions. In case of an accident, the social security usually provides payments based on a certain percentage of the income gained prior to the accident and shall cover a part of the loss of earnings.
Payments based on a third-party liability shall lead to the hypothetical situation which would exist if the accident had not happened. Thus, the injured party shall be fully compensated for their losses. Our legal system does not have any payment limits for certain injuries or circumstances; the amount of compensation is open towards the top.
Additionally, it is worth noting that we are in a very negotiation friendly environment. We settle around 90% of our liability cases amicably. A big advantage for the injured party lies in the fact that the lawyers’ fees and other expenses are part of the damage and therefore have to be paid by the injuring party or their insurance, respectively. This allows us to assist and represent also clients who are not able to pay the (sometimes very high) costs in complex and time-consuming matters.
Is there anything that you know now, that you wish you knew when you first began practising law?
When you first begin practising law, you think that it is the correct legal analysis which decides whether you win or lose a case or reach a favourable or disadvantageous settlement for your client. Every day you learn more and more that in most cases other aspects play a key role. You have to be able to assess which are the most important information and documents of the case and how those facts have to be presented so that your claim can be successful.
Another very important point is your negotiation ability. Over time, you learn how you have to present yourself towards the opposite party and the court, how you have to react to their statements and questions, which information should be disclosed, and, probably most important in our business, to find out their absolute limit as to the compensation payment they are willing to offer.
I sometimes think that I might have settled some cases more favourably if I had had the experience I have now already at that point in time.
Silvio Riesen
Attorney
schadenanwaelte.ch AG, Alderstrasse 40, 8008 Zurich, Switzerland,
Phone Number: 0041 58 252 52 52
Email Address: riesen@schadenanwaelte.ch
Homepage: http://www.schadenanwaelte.ch
I work at the Swiss law firm schadenanwaelte.ch AG which specialises in all legal matters concerning insurance and third-party liability law related to personal injuries. We are the largest Swiss law firm in this field and employ about 20 lawyers. We strictly represent only claimants against the injuring party or insurers.
Personally, I am mainly engaged in various civil litigation cases in complex liability matters. Moreover, I often deal with cross border cases representing foreign persons having had an accident in Switzerland or vice versa.
