Sample Forms
This is a sample post so that the category will show up. This will be deleted once we start posting forms.
Lorem Ipsum
Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Ut sed justo egestas diam viverra adipiscing. Ut molestie orci ut dui. Mauris est lacus, volutpat vitae, lobortis vitae, vulputate non, purus. Cum sociis natoque penatibus et magnis dis parturient montes, nascetur ridiculus mus. Duis velit. Fusce nisl est, suscipit at, fringilla ac, lobortis ut, quam. In suscipit pulvinar erat. Nam feugiat lorem. Nunc vitae libero. Nunc fermentum condimentum tellus. Vivamus vitae sem. In diam. Suspendisse vel mi. Vivamus egestas. Cras neque risus, pretium in, tincidunt in, ultrices congue, leo. Phasellus sem. Donec vehicula lectus in neque. Morbi pellentesque.
Economics of Case Selection
The key to making a decent living (and maintaining sanity) as a plaintiff's lawyer is knowing when to turn a case down.
Our law firm’s work usually comes from other lawyers. These lawyers often have a conflict or have an inquiry about a case in an area outside their expertise. Most frequently, however, the referring lawyer has a case that will require the investment of either a considerable sum of money or time and the risk of loss of represents too great of a risk for them to handle the case on their own.
We recently turned down a case for one lawyer because we did not think it could be won. He was disappointed--the damages in the potential case are huge and the clients are wonderful people. But I did not think that the case could be won even one out of ten times before a jury. The referring lawyer thought we should be more aggressive, more willing to assume risk. I went off on a gentle rant with him; that rant gave rise to an entry in my blog (www.dayontorts.com) and, now, an expansion of those ideas are set forth in this paper.
As plaintiffs’ lawyers, we are in the risk business. We work for free -- unless we win. We advance the costs -- sometimes hundreds of thousands of dollars in a single case--and don't get it back unless we win. If you are not willing to accept some risk, you need to do something else.
I am not risk-adverse. That being said, I don't play blackjack, I don't shoot craps, and I don't play poker. I am a plaintiffs’ lawyer. Simply put, gambling is my vocation, not my avocation. I like a little more control over the outcome of any event other than the flip of a card or a roll of the dice.
Continue Reading...What's in your Demand Package?
My office writes and sends 200+ demand packages/settlement letters/demand letters each year. Over the past ten years, we have hired on former adjusters, spoken with those that have left the profession, and tried to hone the messages conveyed for our clients and to insurers. Here are a few items that I see working for my office:
Demand letters that do not demand a sum certain: With few exceptions, none of my demand letters states a dollar amount to settle. My clients always receive a copy of the demand letter sent out, and it has become too cumbersome to inflate a number in the letter only to have to convince our injured client to accept an offer that is lower than a stated amount. Exceptions of course are demand letters seeking policy limits.
Thirty-day deadlines: I have been surprised by the number of attorneys who send demand letters without a deadline to respond. Our demand letters always inform that a deadline will not be extended unless the request is made in writing before the deadline runs and the deadline extension is approved by the client. With perhaps Safeway Insurance being the only exception, nearly 100% of insurers will extend a settlement offer by the deadline I set.
Graphics in Demand Letters: I am a fan of graphics from sites such as www.emedicine.com and www.wheelessonline.com. Wheeless’ Textbook of Orthopaedics provides helpful information regarding injuries that are often explained in plain language.
Diagnosis Codes: By now most know that Allstate uses Colossus to determine values in injury cases. All information I have tells me that it is critical to list and explain all diagnosis codes listed in medical notes, and to have treating doctors list all relevant codes. I use www.flashcode.com extensively to unravel the codes and their meanings. The site is free. In demand letters I send to Allstate, it is not uncommon for me to explain more than a half dozen codes.
If you have any tips that work, send them along to me and we will try to post them here.
Preservation of Evidence in Truck Accident Cases
Truck accident cases are typically more complex than the average automobile accident case. Practically, truck accident cases are more difficult to handle because there is typically more at stake. A recent Jury Verdict Research nationwide study looked at truck accidents from 1996 to 2005 and found that the average compensation award of these verdicts was $90,000. In contrast, the average personal injury verdict was $38,461. Because there is more at stake, and because truck accident cases are typically handled by outside counsel who bill by the hour, a lawyer handling a truck accident case should expect to put in more work than they would in the average personal injury case.
The upshot to handling truck accident cases as opposed to other motor vehicle accident cases is that if there is a liability dispute, there is a wealth of data that may be available to assist you in making your case. It is critical that this evidence be preserved. In a letter to the trucking company, plaintiff's lawyer should make broad requests to preserve all documents, equipment, photographs, data and other items related to the accident. The truck accident lawyer should consider, if applicable, specifically requesting:
1. Black box data;
2. Truck driver's personnel file and driving history;
3. All statements obtained from investigation of the truck accident;
4. The truck driver's log for the last two years (which must be kept per 49 C.F.R. 395.8 and 395.15);
5. The truck driver's qualification file as required by 49 C.F.R. 391-51;
6. GPS and/or other tracking data; and
7. The truck's maintenance and repair history.
With respect to item #4, plaintiff's attorney should send a letter immediately to the trucking company requesting that they retain the log books. The attorney's letter should reference 49 CFR 395.8(k), which specifically addresses the retention of a driver’s record of duty status. The letter should also specifically request all the operational documents associated with each trip the truck driver took for at least three years before the truck accident (although the CFRs only require 6 months).
If the trucking company fails to produce the driver's logs, you should be able to get a charge of a spoliation instruction if the case goes to trial.
Attacking the Defense Medical Exam Doctor
One of the most frustrating things for a plaintiff's lawyer is getting plaintiff's designation of experts and finding only the "usual suspects," doctors whose testimony you can anticipate the moment you see their name. In Maryland, and under the Federal Rules, a medical exam is not a matter of right and can be obtained only by an order from the court. When the defendant requests an independent medical exam of our client (IME), we agree to the exam but only under certain conditions. We also subpoena the doctor's financial and other relevant records. We do this for two reasons: (1) in many cases, the doctor refuses to respond and the insurance company withdraws the doctor; and (2) studies are showing that more and more high-priced hired gun experts are being ignored by juries.
You may be worried that the defendant will do the same thing to your treating doctor. In Maryland, the expert needs to be a "professional expert" before his financial and other personal information is discoverable. The lesson: it is almost always more advantageous to use the treating doctor than an outside expert.
If you have an uninsured motorist coverage case and your state has first party bad faith (Maryland does not) you may want to consider a bad faith claim based on if the defendant names a clearly biased expert. See, Deese v. State Farm, 838 P.2d 1265 (Ariz. 1992) (bad faith for insurer to use biased expert); Burgess v. Mid Century Insurance, 841 P.2d 325, 329 (Colo. App. 1992). (I doubt this would really work, but I would love someone to win this claim on behalf of a frustrated Maryland lawyer whose jurisdiction does not have first party bad faith.)
Preparing Your Client for Deposition
In most personal injury cases, one of the critical events is the plaintiff's deposition. Yet many lawyers put a low priority toward preparing their client for deposition. But if you "lose" the deposition, you are facing an uphill battle at trial. This post is not meant to be a comprehensive list of what you should do to prepare your client for deposition. Instead, it represents one lawyer's experience from the trenches of what often gets missed in preparing clients for deposition. I rely more on my experience as a defense lawyer than as a plaintiff’s lawyer in this regard.
Preparation begins by spending time getting your client ready to testify at his or her deposition. This is done by adequately preparing your client for deposition which should lead to you knowing what your client is going to say on the critical issues in the case before the deposition. It also involves making sure your client understands that the purpose of the deposition from the plaintiff's standpoint is to do no harm. There is no need to make your case during the deposition. This is where some plaintiffs get into trouble. Plaintiffs are so eager to make their case to the defendant's lawyer that they tend to overreach. When a good defense lawyer spots an exaggerator, the lawyer will continue to ask questions that encourage further exaggeration. At trial, your client is boxed into a story that no juror will believe. If you are preparing your client for deposition and you are not sure if you believe something they are telling you, flush it out until you are satisfied the client is giving an honest version of the facts. Make sure your client reads and rereads his or her interrogatories before his or her deposition.
Other suggestions:
1. In motor vehicle accident cases where liability is in dispute, time and distance are often critical. Guesswork can discredit an honest truthful witness and/or introduce controversy where it need not exist. Take the time before the deposition to obtain exact measurements and site line distances. Make sure your client's version comports with a reasonable interpretation of the physical facts. Left to their own devices, some clients who are trying to be as honest as possible still give ridiculous time and distance estimations simply because they are not good at making such estimations.
2. Many personal injury clients fail to appreciate the difference between a deposition and a trial. Explain to the client that the primary goal is to do no harm. But also explain that while the defense lawyer is not your friend and is trying to elicit answers to help defendant's case at trial, the defense lawyer may be influential from a settlement perspective. Counsel the client to afford the defense lawyer the respect to which they are entitled even if the client feels it is not always being reciprocated.
3. Draft the 10 most critical questions that the defense lawyer may ask. Ask your client to answer the questions under "test conditions." If the deposition will be at your office, ask the questions of the client in the exact chair in the conference room where the deposition will be taken.
4. Keep in mind that clients are prone to forget prior accidents and injuries. Get a claims history of every client that is going to be deposed. Ask the client about his or her claims history before sharing the results of the search with the client. It gives you a good baseline for the client's penchant for honesty or the strength of the client's memory.
5. For a variety of reasons that vary from client to client - pent up anger, a desire to be in command and control or a need to impress the defense lawyer with their intelligence - it is the rare client who does not offer boundless gratuitous information. For some clients, months of preparation would not turn off the faucet. But, in preparing your client for deposition, he or she must understand that random information that does not directly address the question may lead to the discovery of additional information that is not helpful to the case. Underscore and underscore again that less is more. There is, however, one caveat I think is important; the client should not take answering just the question to the extreme, particularly if the questions are for general background. If the question calls for obvious follow up, instruct your client to give it. If the defense lawyer is asking a simple question, such as "Do you know your wife's birthday?", a simple "yes" without offering the date sends a message to the defense lawyer that the witness wants to do things the hard way. A lot of defense lawyers are simply going through the motions in a deposition. Do not start a confrontational relationship. Let sleeping dogs lie.
Effective Use of Requests for Admission
You once heard that requests for admission are a severely
underutilized tool. So you tried using them and filed detailed requests in a
case. Yet you accomplished absolutely nothing because the defendant's
attorney categorically denied virtually every request for admission.
There are two good tactics to consider when faced with this
typical obstruction. The first is to propound an alternative interrogatory
upon the defendant which asks the defendant's lawyer to set forth all facts
and evidence upon which the defendant intends to rely upon at trial to
support the defense lawyer's denial of the request for admission. This
type of interrogatory helps to put defendant's case into a tighter box.
This box tends to be even tighter if you are propounding your discovery at
the beginning of the case. Most lawyers begin to look creatively at their
case just before trial. Forcing the defendant to take early positions gives you a competitive advantage.
The second tactic to use when faced with nonsensical denials is
to do absolutely nothing at all. At trial, read the request for
admissions to the jury. The most typical denial used is defendant's denial that the hospital bills and treatment were causally related to the accident. The message the jury gets loud and clear is that Mr./Ms. Defense Counsel is acting very reasonable now but defendant’s lawyers have fought the injured plaintiff at every single turn on every single issue, regardless of the merits of that issue. This gives the defense attorney an edge in the most critical fight between lawyers in a jury trial: the battle for credibility.
