Trial Lawyer Resource Center

This is a guest post from Miller & Zois personal injury lawyer Laura G. Zois.Most of our law practice is based on referrals from other lawyers. Some lawyers first try to settle a claim themselves. In many case, these lawyers are amazed to see the offer rise the moment we notify the insurance company of our involvement in the case, even if the adjuster is an out-of-state adjuster, which is often the case in truck accident cases, who may not have ever heard of Miller & Zois. There are a few reasons for this. But the main reason is that claims adjusters know that lawyers and clients rarely both have the stomach to litigate a case. Usually, the leader of the resistance to litigation is the lawyer who does not want to expend the energy - which is considerable if you do not have the systems in place to file frequent claims - to bring and handle a lawsuit. If you don't want to refer out your personal injury cases, the solution to these substandard offers is quite simple: file more cases. How does this help? Insurance companies use the taxpayer ID number of law firms to determine if the firm has a history of filing cases and taking them to verdict or if they simply settle all of their cases. There is no evidence of this but it would not be surprising if some insurance companies also look to the size of the cases a law firm is willing to file. Will you blink at every 6 figure offer you receive? Some lawyers will file suit on smaller cases but are willing to settle the larger cases under market value. Usually the problem is most lawyers will not file suit and even fewer will try a case. The settlement negotiations between lawyers and insurance companies in these cases are similar to the interactions between children before they get into a fight. If you were a fan of television in the 1970s, there is a Happy Days episode directly on point: Richie Cunningham was being picked on by a bully. Fonzie revealed to Ritchie why he rarely got into fights: Sound tough, act tough and people will think you are tough. "Stand up to the bully," Fonzie told Richie, "and he will back down." As Richie prepared to fight the bully (I think it was the Rocko character if I remember correctly) in the middle of Arnold's Restaurant, it because clear he was not going to back down at he was squaring up to fight. Ritchie asked Fonzie why the bully was not backing down. Fonzie comically told Ritchie that he forgot to tell him one thing: once in his life, he would have had to have actually hit someone for the "act tough, sound tough" strategy to work.This is the exact problem with most personal injury lawyers in these cases. Most lawyers talk a big game when it comes to bringing a claim. In fact, I think there may be an inverse relationship between how tough you talk and how willing you are to actually file a claim. The phrase "talk is cheap" got started for a reason. But the insurance adjusters know full well who has been in a fight before and is willing to file and try personal injury cases. If you do not have a history of hitting someone, to use the Richie/Fonzie metaphor, the insurance company is not going to blink. The solution is to just throw a few punches and you will see over time that the size of your offers will increase.To file more cases, you need to have a quality plan to move cases through your office without friction. These claims can be resolved in an efficient, cost-effective fashion. This requires having systems in place for gathering and organizing the client's medical reports, police report, lost wage documents and other pertinent documents, as well as initiating and following up on settlement negotiations. For the personal injury lawyer, you could fill an entire book with the detailed nuances of an effective case management system but if you are organized and consistent in your systems and willing to keep an open mind about which systems are efficacious and which must be changed, you are 95% of the way there. One important system to put into place is sending out your demand packages with a copy of the complaint and discovery you intend to file if the case cannot be resolved. Does it take extra time? Absolutely. But you will be ready to file in the event the case does not settle, and you have also sent an important message to the adjuster about where the case will go if she/he does not make a reasonable offer.

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Personal injury clients expect their lawyers to diligently handle their claim, turn over every stone that there is to turn, and remain in constant and concise communication with them about their case. The problem with hourly clients in personal injury cases is that they don't want to pay for it.If you are handling a plaintiff's personal injury case on an hourly fee basis, the first question you have to ask yourself is why? As borne out by a recent study, people who prefer contingency fee agreements even if it meant they were ultimately likely to pay more in fees. In fact, affluent trial lawyers were also included in the experiment as imaginary plaintiffs, and they too chose the contingency fee agreement over the hourly billing rate. Besides being risk adverse, most clients prefer a contingency fee arrangement because it makes sense. In any business relationship, if you are able to forge a deal where the parties are working with vested interests, you are better off. The personal injury lawyer-client relationship is one of the cases where the parties' interests line up well. Moreover, the contingency fee preference is also because it is less stressful for the client to have some degree of cost certainty. Few people like paying anyone by the hour, especially when it is hard to know how many hours will need to be expended. Most of us would rather just be given an all inclusive price to solve the problem, in any context and, particularly for personal injury victims. In light of the overwhelming logic of a contingency fee arrangement in a personal injury case, that brings us back to the question of why an hourly fee. The usual reason is the attorney has requested an hourly fee because the lawyer does not believe in the case. Almost invariably implicit in this is that the lawyer believes that claim will not benefit the client. If this is the reason for the hourly arrangement, you should not take the case. If you do not think you will achieve a successful outcome for the client, you should not be involved in the case. If it is the client that desires an hourly fee arrangement, you have to question that as well. That client is choosing a path the client thinks is going to save him money. This means you have a very cost conscious client. There is nothing inherently wrong with this. But if the client is proven wrong and the fees are higher under an hourly arrangement, the client may not concede the hourly way was the wrong way to go; instead, they may point the blame right back to you for over billing, spending your time needlessly, and so forth. In summary, hourly billing is rarely the best approach. If you have an exceptional case that you think warrants an hourly billing arrangement (or you ignore this advice), here a few thoughts:1. Obviously, you cannot know exactly what each task will cost at the outset of a case or what the final cost will be, particuarly medical malpractice or complex product liability cases. Still, you will likely be asked to make an estimate for various tasks and your overall fee. If you try to set expectations too low to make sure you get the case, you are likely going to find yourself in trouble. "Underpromise and overdeliver" should be your motto.2. Get approval for anything that would not be legal malpractice to not do.3. Document everything and make sure your time sheets are clearly detail the work that you have done.

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There is no question that, all other things being equal, live witnesses are more interesting than videotaped depositions. It is simply more interesting to connect with an actual human being than it is with a figure on a videotape. But all things are not always equal. Often, it makes more sense to offer witnesses by videotape in personal injury cases.  This blog post offers a few things to consider in the decision making process that may weigh in favor of bringing your expert by videotape.

Some expert witnesses make a better appearance on a video than they do testifying live at trial. This is true for a lot of reasons. The doctor might seem more “independent” in his office with his lab coat on than coming to trial to testify on behalf of the client. Also, the truth is that some witnesses are unattractive in mannerism or appearance and are more palatable on video where some unattractive qualities can be muted somewhat.

Some experts also charge so much money for live testimony that it makes it untenable to bring that expert live given the size of the case. If you have an auto accident case that you believe is worth less than $50,000, it becomes very difficult to justify to the client paying an expert $8,000 to testify live at trial. Even if the lawyer is fronting the money for the experts, it comes out of the client’s pocket at the end of the day (assuming the case is successful).

In some trials where scheduling of witnesses is an issue and you have a judge who is going to demand to move the trial along, it is also sometimes helpful to have a videotape because of the flexibility it provides in terms of plugging in the right witnesses at the right time during the trial. This is particularly true of those witnesses where you need their testimony in evidence, but the issues to which they speak are not particularly issues of great contention.

Finally, if you think the trial testimony is going to be contentious in terms of what testimony will be allowed and you fear this dispute may look unfavorably on you or your client, a videotaped deposition in a viable solution. This way, you can air your disputes with the defense lawyer, and either edit the tape accordingly, or, as is more customary in the real world, simply fast forward though the objections.

Again, all things being equal, a live witness is a better witness. But these choices should be made in each individual case. Sometimes, the best and easiest thing for your client is to videotape the deposition of one or all of your expert witnesses.

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The Stella Awards are making the rounds on the Internet once again. It seems that the Stella Awards, honors given out to the most unbelievable lawsuits of the year, may highlight cases that are just that: unbelievable. The year's top prize continues to go to the same case, a woman who won almost two million dollars in a lawsuit against the maker of her RV which crashed while it was on cruise control. The catch in this case is that the owner decided to go to the back and fix herself a sandwich while the Winnebago on cruise control fended for itself. The story of this unbelievable case spread quickly over the internet years ago and was picked up not only by mass chain e-mailers but by respectable news outfits such as CNN and New York Daily News as well. Many people were understandably outraged at the state of the current legal system.

The only problem  is that this case of the cruise control to get the sandwich never actually happened, entertaining through it may be.  A little fact finding by one reporter revealed that Winnebago, the manufacturer who reportedly paid the almost two million dollar settlement and changed its owner's manual as a result, was never involved in any such case. It seems that reporters and readers were so mesmerized by such a crazy story that they didn't take the time to do a little digging and find out if the story was actually true.

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There is an article today in the “Maryland Daily Record” titled, “Beware of Bow Ties and Diamonds in Court.” I liked the title. But I disagree with the premise. The article by Paul Mark Sandler, a prolific Maryland lawyer and author, is somewhat more nuanced than the title suggests. But he does suggest that lawyers should be cautious in wearing bow ties or jewelry, writing that trial lawyers should be “conservative in a way that is compatible for what is comfortable” for them. He also writes of the concern of wearing expensive clothing or cuff links on the theory that “expensive looking jewelry can create a gulf that interferes with having the jury ‘identify’ with the lawyer.”

This is the conventional wisdom. But as I have written in the past on the Maryland Injury Lawyer Blog, I completely disagree with it. I think what really “creates a gulf’ between a trial lawyer and a jury is when the lawyer is not authentic. My style is very conservative. I would feel uncomfortable with a diamond stud earring in my ear. But some lawyers in conservative suits look like your cousin who puts on that same conservative suit for every wedding, and he looks like he wants to crawl out of it. Your cousin does not look or feel authentic, which is why he looks so pained, as would some lawyers putting on the same suit. Now, some people can fake stepping outside themselves so well that they appear authentic. But I can’t and neither can most people.

I suspect that Gerry Spence would not be Gerry Spence if he followed this advice. My suggestion as to how to dress and act at trial is simple advice to follow: be authentic and be yourself.

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When I sit down and review cases with my staff we have a lot of cases that are right on the edge of being resolved, but have one thing hanging. My friend Todd O’Malley calls that Ligitation Constipation, where the cases come in, but they don’t go out. That’s a real apt description. What is that one thing that is left undone? See if these sound familiar:

• Waiting on Records from a Doctor’s Office – They’ve sent 2–3 letters and called and called, but can’t get a response or records from that office.
• Waiting on Bills from an Office – The doctor’s office uses a third party billing service halfway across the country and they can’t get anyone to respond. (This one, I really don’t understand because the bills are on the computer and they can print and fax them to you, and it helps them get paid).
• Waiting on an Expert’s Report – an FCE, IME, vocational consultant or other experts report. Where the client has gone for an evaluation, but the report isn’t in yet.
• Waiting for a Specific Medical Report – We have the medical records in for that doctor, but when we’ve compared the medical records to the medical bills, there are a few dates of treatment missin.

So what do we do about it? Why does it seem like there are so many cases with just a loose thread hanging before we can put together the demand package? Is it the lawyer? Is it the staff? Or is it just a matter of timing? It turns out it’s none of those, it’s a law of physics.

If you have 4 events that each take about two weeks, you would expect the time to resolve those four events would be 8 weeks. You would think that any delays would average out. It turns out that the delays don’t even out, they accumulate. There’s a principle of mathematics that says when there are dependent events (things that have to be done in a sequential order) the variations (delays) are cumulative.

So what does that mean for lawyers? Last week I sat down with my staff and we played a little game. For those that want to play along, all you need is a big bag of peanut M & M’s, 2 bowls, and a number of cups. Here’s what I told them:

We have a magical law firm where we have as many cases as we want and there is an unlimited supply of cases where the people have finished medical treatment. This big bowl of peanut M & M’s is our supply of cases. Each M & M is a case. We can help as many people as we can get out the door.

I have a six sided dice here. Each person is going to roll the dice and they ‘move’ or produce as many cases as they roll. 5–6 is a good week. 1–2 is a bad week. 3–4 is an average week. Now we all know all of the possible reasons for having a non-productive week, some of them are within are control and some are not.

Our goal here is not to be judgmental about good reasons or bad reasons, or productive vs. non-productive time. That’s what the dice is for. A high number is a good week and a low number is a bad week.

Each roll of the dice is a ‘week’. We’ll run through 10 weeks, which is going through the whole team in sequence ten times. Halfway between one and six is 3.5 (I know your first thought is 3, but that’s halfway between 0–6). My expectation for my staff at the end of ten weeks is that we will have moved 35 cases.

Every turn, I want my staff member to roll the dice and then take that many ‘cases’ from the cup to the left. The first person in the chain has an unlimited supply of cases. Each person down the lline from there can only take as many cases as they roll, or as is actually in the cup. Okay, let’s go.

I then put my staff into the following four stations (you can use more or less):

• Get Medical Records – This means ordering and getting them in
• Get IME – This means anything needed for the IME, FCE, permanent impairment rating, statements of future medical treatment, and/or vocational assessments
• Get Future Medical Costs – Determine costs of the treatment recommended above.
• Write Demand Package – I put my lead paralegal on this task.

Then we went with the first station rolling the dice and whatever number she rolled, she picked from bottomless pit of cases to put together. Our office manager, Christie, was in this position and I think in 10 turns she averaged rolling a 5.3. Talk about a curve buster. At the end of ten ‘weeks’ Elaine had rolled a 38, which is right about where she should be. 35 is statistically smack dab in the middle of the road and a 38 is pretty close to that. Guess how many cases we moved? 31.

What Happened to the Other Seven Cases?

She was ready to produce 38 cases, but only 31 cases were done during that time period. What happened to the other 7 cases? It has to do with the relationship between dependent events and statistical variation, a subject I’ve talked about before. When there are sequential (dependent) events, any delays (statistical variation) will be an accumulation of delays rather than an average of delays.

So this means, if a staff member rolls a ‘2’ they only move 2 cases. If they roll a ‘5’ and there are only 2 cases in the cup to their left, they still only move 2 cases. Hmmm……

It was interesting to watch the M & M’s move down the line from station to station, their would be times they would bunch up in one station and another station would be totally empty. Watching the progression of ‘cases’, we could actually see how it mirrored putting a case together.

What happens if we add events to the 4 already there? Then the process slows down even more.

What is the Moral of the Story?

 The moral of the story is that it’s a natural phenomenon to have ‘one more thing’ that needs to be done on the case. It’s not a problem with the paralegal, it’s not a problem with the lawyer, it’s not a problem with the secretary or other staff. It’s a matter of physics. It also needs to be guarded against and fought at every turn. We need to watch the cases with just ‘one more thing’ and make certain we knock those out, so we can keep them moving.

I now have a sign above every staff members desk saying ‘Remember the Other 7 Cases’.

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A number of attorneys find value in radio advertising, me included.  Radio spots in metro cities work especially well, and in smaller towns they are relatively inexpensive.

I  have been able to  find out what works in radio spots.  I call them Mark's Radio Rules.

First,  an easy to remember telephone number. Whether it is a vanity number like 1-800-JUSTICE or a simple number like 800-444-2222, the key is having that number.

Second, repeat the number at least three times. Once within the first 5-10 seconds, once in the middle, and once more at the end.

Third,  have  an easy  to remember  .com address.  One that works is simply using the telephone number, such as  "our website is our telephone number,  800justice.com.  This works if you have a hard to spell website or one that is phonetically vague- such as as last name that could be "C" or "K."

Fourth, keep them short - thirty seconds at most.

Today I heard an ad that violated those rules. The ad ran sixty seconds.  The telephone number in the Atlanta area had a 404, and then numbers that were all over the place, none of which were repeating.
As I listened,  I  kept waiting for the telephone number.  At the end, the number was repeated twice within the last five seconds of the spot.  By then, most listeners had changed the channel to another station, thus the importance of saying the number within the first 5-10 seconds.

Finally, the ad did not direct the listener (which in Atlanta is probably a person behind the wheel at 8:10 a.m., when the spot ran) to any website.   As a bonus, the attorney firm had a  firm name that  was difficult to spell.  Interestingly enough, after finally finding the firm's website, what did I find? A pretty decent domain name that is very easy to remember.

I blame not only the attorney  for the mess that went on air but the ad agency that allowed this to be produced.  If the attorney simply placed the ad himself, the radio station should have done more than simply taken the money for the spot.

Is  an attorney in your area making these mistakes? Are you?
 

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As far back as the early 1900's, corporations knew of the dangers associated with exposure to asbestos containing products. Yet every year, including this year, as many as 3,000 people are diagnosed with
asbestos-related cancer.

The reason is that corporations, with full knowledge of the dangers made a deliberate decision to expose employees to asbestos containing products and those workers today are paying the ultimate price with their life. If you worked as a pipe fitter, steam fitter, changed brake pads, broiler maker, in construction or demolition trade chances are pretty good that you were exposed to asbestos.

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Our office has a short form intake form for all new calls.  In my practice, we also  are referred cases  like most attorneys.

Our intake form has these fields -does yours?

1)Email address

2)Cell phone -  in addition to home and work

3)Telephone number of the nearest relative not living with you

On our post contract form, we now ask for:

IM Screen Name - through AIM,Yahoo, MSN or other. It is this one addition that I had to battle the more seasoned attorneys (those over 50) who don't think we'll need it.  I've already used IM at least a dozen times, and simply send one that says "please contact our office, tel # __________. Thank you."). It works every time we have used this.

Folks can either fill it in or leave it blank.  Currently we are running about  50% of our clients under 40 providing that information, and that % will surely go up. 

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Is this you? You have been scanning legal documents for years. You scan pleadings, contracts and other documents and convert them to PDF or TIFF images, then email them to clients and other lawyers. Even some courts require filing documents electronically instead of in paper. You have been thinking about getting a faster scanner and converting all your paper files to electronic files. You see this as an answer to the continually-growing room of closed files or the large monthly bill for offsite closed file storage. If this is you, now is the time to write an electronic file policy.

Electronic files are ethical. The Florida Bar Professional Ethics Committee recently issued Opinion 06-1 which expressly states that lawyers may store files electronically. There are a few exceptions, such as the need to keep originals required for evidence, the need to keep originals belonging to clients, the need to keep originals to comply with a statute or rule (6 years for trust account checks), and the need to keep a paper document when destroying it would adversely affect the client�s interests. The opinion states:

Lawyers may, but are not required to, store files electronically unless: a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client�s interests. Files stored electronically must be readily reproducible and protected from inadvertent modification, degradation or destruction.

The file belongs to the lawyer. The ethics opinion makes sense because files relating to client matters are assets of the lawyer and do not belong to present and former clients. "Files prepared and maintained by an attorney for the purpose of representing a client are the attorney's personal property." Potts v. State, 869 So.2d 1223 (Fla. 2nd DCA 2004), citing Long v. Dillinger, 701 So.2d 1168 (Fla. 1997. The Florida Supreme Court in Long stated:

As noted by the Fifth District Court of Appeal in Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984), files prepared and maintained by attorneys on their clients' cases are commonly referenced by a particular client's name. In reality, however, such referral simply means that the file relates to a particular client; the file and its contents are the personal property of the attorney. Id. at 1142. The court reached this conclusion based on the fact that the attorney's file may or may not contain documents or other property of the client. Importantly, the court noted that, while the attorney may have an ethical duty to communicate information to successor counsel, only actual property of the client must be returned.

The federal court provides a good starting point. Much of the work in drafting an electronic file policy for lawyers has already been done by the federal courts in adopting procedures for electronic filing. The procedures provide sound wording to make it clear that the court file is the electronic file that resides on the court's computer server and not the paper document that was the source of the electronic file. Therefore, a starting point for drafting an electronic file policy for a lawyer or law firm should be to review the electronic filing policy of the local federal court. For example, the U.S. District Court for the Middle District of Florida adopted the Administrative Procedures for Electronic Filing in Civil and Criminal Cases, which states:

1. A. Effective Date: Unless otherwise permitted by these administrative procedures, by a general order of the Court, or by authorization of the Judge, all documents filed in Civil and Criminal cases in this District on or after July 12, 2004, no matter when a case was originally filed, shall be filed electronically.

B. Official Record: The official court record is the electronic file maintained on the Court's server and any physical item or document permitted to be filed in paper format. When a document filed in paper format is scanned and uploaded to the Court's server, the electronic file shall constitute the official record.

Here is a sample electronic file policy. Set forth below is a sample electronic file policy for a sole practitioner or small law firm in Florida. It is only a beginning, though, because the policy should include the specifics applicable to that lawyer or firm.

Electronic File Policy

[Lawyer]

[Date]

1. Electronic Files
All files that we maintain regarding clients and their matters are stored electronically on our computer file server. All incoming and outgoing paper documents are scanned daily and added to these electronic files. After scanning, the paper documents are placed into paper file folders in chronological order for convenience, but the electronic file is this office's actual file relating to that client and that client's matter. The paper file folders are shredded from time to time (see below), but the electronic files are maintained after the paper file folders and contents are shredded.

2. Scanning
Each day all incoming and outgoing paper documents are placed by the lawyer into the sorting box in the order to be filed for that day (basically chronological). At the end of each day, the paper documents are scanned and uploaded to the office server into an electronic file designated as the general file relating to that client and the paper document is then filed in a paper file folder labeled with the client�s name and the designation "general file". Once the paper document is scanned and uploaded to the office server, the electronic file shall become part of the office file. The paper file is merely for the lawyer�s convenience while the case is open. Any original paper documents are copied and scanned to the electronic file and returned to the client or other person who gave them or filed with the court (see below).

3. File Backups
All electronic files that we maintain regarding clients and their matters are backed up daily by synchronizing the entire server to an external hard drive, which is then taken off site. There are seven external hard drives that are backed up in rotation and kept off site as follows:

Daily A and Daily B [specify offsite location]
Weekly A and Weekly B [specify offsite location]
Monthly A and Monthly B [specify offsite location]
Annual [specify offsite location]

In addition, whenever paper file folders are shredded, the electronic files are copied to three CDs and kept onsite and offsite at [specify locations] and are also copied to a remote online storage server by SSL-secured Internet transmission.

4. File Ownership

All files that we maintain regarding clients and their matters belong to this office and not to the client. This includes both the electronic files and paper file folders. As noted by the Fifth District Court of Appeal in Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984): "[F]iles prepared and maintained by attorneys on their clients' cases are commonly referenced by a particular client's name. In reality, however, such referral simply means that the file relates to a particular client; the file and its contents are the personal property of the attorney. Id. at 1142. The court reached this conclusion based on the fact that the attorney's file may or may not contain documents or other property of the client. Importantly, the court noted that, while the attorney may have an ethical duty to communicate information to successor counsel, only actual property of the client must be returned."

5. Document Originals
Our policy is that we do not keep original documents that belong to clients or others. If a client provides us an original document, we scan it to our electronic file and make a copy for our paper file folder and return the original to the client. Therefore, the contents of our files regarding clients and their matters do not contain any original documents belonging to the client. The only exceptions to this are as follows:
i. Original will of a decedent, which we file immediately with the Clerk.
ii. Evidence for lawsuits, which is filed with the Court or returned to the client at the conclusion of the case.

6. Client Copies

Our policy is to keep our clients informed by providing them copies of documents that we receive and that we send regarding their matter at the time they are received or sent. It is the responsibility of the client to maintain their copies of documents for their own files.

7. Shredding Paper Files

Paper file shredding is performed at the lawyer's direction by an outside service provider in such a manner that the provider cannot view contents of files. Shredding is observed by the lawyer or legal assistant. Paper file folders can be shredded at any time upon the lawyer's direction as long as they have been scanned and uploaded to the officer server because the electronic files are the office's files regarding clients and matters. When a paper document is scanned and uploaded to the electronic file on the office server, the paper document will be filed in the paper file folder, which can be shredded upon the lawyer's direction (see exception above for original documents).

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I am one of our firm's 'road warriors' -depositions,  client meetings, meeting with witnesses. Invariably  the need for a notary will arise. 

I'm a Notary. It's so ridiculously easy and cheap, it is a wonder more  attorneys are not. How does being a Notary help?

1)I met a witness last week in a city about 300 miles away.  The facts I gathered were simply written out, attested to by the witness, and then notarized. To be on the safe side I took a photo of the driver's license of the witness.  Easy.

2)A small town medical provider had records  in that same town where the witness was located.  I prepared in advance a records certification, and when they informed no notary was available, no problem. (I may have to deal with evidentiary issues later, but for now it worked).

3)When a client travels to my office for a late afternoon meeting there were times when the staffers who were NPs had left, and we had to track down one in the building. Never again.  

Take the time to apply, and  you are set.

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One of the significant problems with running a plaintiff's practice is managing cash flow. Any fees earned are usually contingent fees, and cases are not always resolved in such a way and a such a time to meet professional and personal financial obligations.

There are at least four different ways to address this issue. First, you can visit your friendly banker and arrange a line of credit that you dip into went you need to meet payroll, significant expert expenses, etc. This is probably the most common way of handling the situation.

Second, you can do business with a company that provides funding for plaintiff's lawyers. Here is an article describing what these companies do and what they charge. There are several different models out there and the interest rates for each of them are much higher than you would expect to pay a bank.

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Here is a tip that will improve the quality of your law practice and your life - look at the law first.

Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.

Why? The law changes - Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.

In fact, I can say that one of two things is almost certainly true when a lawyer is surprised by a motion to dismiss. First, the lawyer did not do his or her homework. If a plaintiff's lawyer is "pushing the envelope" he or she should not be surprised by a motion to dismiss and indeed should welcome it.

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Janabeth Taylor pointed me to some quotes on justice. These seem more applicable to a criminal law case, but they were still entertaining. Some of the quotes are listed below:

 

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ~Oliver Wendell Holmes, Jr., The Common Law

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I wrote earlier about the Theory of Constraints. Assuming we buy into the theory and want to increase efficiency by getting rid of the largest bottlenecks. What are the bottlenecks in a law firm? Here are the ones that immediately come to mind.

1. The lawyer - As a sole practitioner, there is only so many items I can review, or tasks I can perform in a day. Regardless of how efficient I am, there are only so many 'touches' the lawyer can have.

 

The solution: minimize the amount of things the lawyer needs to do. This involves standardized letters and forms, checklists for the employees and standardized questionnaires for screening and client intake.

 

It also means standardizing the best of your work, so that your paralegal knows where it is without interrupting you.

 

2. Generating paperwork - Regardless of how efficient and productive your paralegal is, there is only so much paperwork she can crank in a day.

 

The solution: A good document generation system can help ease this constraint (or bottleneck). When filing a complaint, typically the same procedure is followed. The computer should be able to generate the Complaint, Civil Court cover sheet, standard discovery requests for the type of case, plus a letter to the Clerk of Court requesting the Complaint be filed and a copy returned to you. Even with an efficient paralegal, the computer can generate these forms quicker.

 

 

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A friend recommended the book "The Four Agreements" by Don Miguel Ruiz.

It is a helpful guidepost in both my professional and personal life.  Here is a summary of what I learned.

The Four Agreements
Don Miguel Ruiz

1. Be impeccable with your words
   • Speak with integrity
   • Do not injure with your words
   • Take responsibility for your actions
   • Do not judge, blame or reject yourself
   • Use your energy in the direction of truth
   • Refrain from gossip
2. Don't take anything personally
   • Your point of view is personal
   • What others think is about them
   • Live & love without fear
   • Be truthful to yourself
   • Trust yourself
3. Don't make any assumptions
   • Express what you truly want
   • Ask questions
   • Make sure communication is clear
   • Accept people as they are
   • Don't assume that others think, feel or judge as you do
   • Take action to clearly communicate
4. Always do your best
   • It will help you avoid self-judgment and regret
   • Expressing what you are is taking action
   • Do it because you love it
   • Take action without expecting a reward
   • Let go of the past and live in the present moment
   • You are alive, so take your life and enjoy it
   • Learn to accept yourself
   • Learn from mistakes
   • Practice makes the master

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Thomas Jefferson was a scientist, philosopher, inventor, gardener, reader, and wine lover.  Jefferson's 11 Rules of Conduct were not always followed even by Jefferson. 

Jefferson's Rules of Conduct are:

1. Never put off tomorrow what you can do today
2. Never trouble another for what you can do yourself
3. Never spend money before you have it
4. Never buy anything that you do not want because it is cheap
5. Pride costs us more than thirst, hunger and cold
6.  We seldom repent from having eaten too little
7. Nothing is troublesome that one does of his own volition
8. How much pain, never occurred events cost us
9. Take things always by their smooth handle
10. Think as you please, and let others as well, to prevent any disputes
11. When annoyed, count to ten before you speak; if very annoyed, count to 100

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Personal injury contracts are almost always the same in content and language.
From time to time, however, a potential client may call you to talk about an unsafe drug or product heard
about in the news or on television on the internet.

In my opinion, the worst thing an attorney can do is,
presuming there is not a statute of limitations
problem - simply have that client sign a pro forma
contract that covers a typical claim such as an automobile accident or premises claim.     

If you complete your initial research and think a person 
may have a claim, I would consider a case specific contract, such as one that involves a claim against a drug maker
and an unsafe drug.  

In my office, our unsafe drug case contracts have the language listed in addition
to the standard language regarding fees and costs:

The first paragraphs detail fees and costs issues, the scope of the engagement, and
other standard language. I also include:

Court-awarded fee: Client agrees that in the event extraordinary
services are required, Law Firm may apply to the Court for greater
compensation.  In the event that Law Firm is awarded a fee by a court that exceeds the percentages, the
court-awarded fee shall apply in lieu of the above amounts.
 
Claims Excluded From This Engagement:  This Agreement
does not cover other related claims that may arise and
may require legal services (for example, medical
malpractice claims).  Client understands and agrees
that Law Firm will not investigate or pursue any
medical malpractice action or any other action against
Client’s doctors or medical caregivers.  Should Client
wish Law Firm to handle matters in the event they
arise, separate written agreements are required.


Common Benefit Expenses: Law Firm may incur expenses
on behalf of multiple clients in connection with their
individual matters (“Common Benefit Expenses”).  If
Law Firm spends $1,000 to hire an expert to reach an
opinion on a topic affecting many clients, rather than
charging the entire $1,000 to the first client who
utilizes this expert, the firm spreads the costs among
all other clients in the group.  If Law firm has 10
clients being represented in similar litigation, each
client is charged $100 of the expert fee instead of
the first client being charged $1,000. Client agrees to 
common benefit expenses being charged. 

MDL Fees and Costs

Law Firm may enter into an agreement with a
Plaintiffs’ Management Committee for a Multi-District
Litigation (MDL) established to obtain information
against multiple Defendants.  Only if Law Firm enters
into this agreement, Client agrees to pay a percentage
of the gross settlement of every case they handle (if permitted by 
the Court), which percentage is generally two to three percent of
the gross settlement.  If this MDL assessment is
charged, Law Firm typical pays half the assessment out
of our attorney’s fees and half the assessment may be
charged to our clients as a cost of litigation.
 
Those issues both relate the pitfalls of being
expected to investigate a medical malpractice claim,
and the potential to be assessed an MDL fee down the
road.

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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.

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