Trial Lawyer Resource Center

What I hated most about being a defense lawyer was that 75% of the work that you did seemed to have nothing to do with getting a good result in the case. Instead, we were always working to make our firm look good to the client. (Note: I was never very good at that anyway because the filter I had to root out all of the things that I thought but should have said was somewhat defective.) They talk about doctors practicing defensive medicine. Defense lawyer practice defensive law about 10 times worse that doctors practice defensive medicine. Anyway, the one that about the defensive practice of law (if you have not heard that expression before, I just made it up 2 minutes ago) is that it does keep you on guard. Plaintiffs' lawyers tend to be more relaxed and more focused on what really matters.This is usually a good thing. Where it can go wrong is in dealings with experts. When I was a defense lawyer, I can't tell you how many times we would find a "nice fishing with you on Thursday" or "great having dinner with you" line in correspondence from a personal injury lawyer to his/her expert. I never tried a case with that kind of ammo. But it sure would be fun. The take home message of all of this is do not send a letter, email or even leave a telephone message to an expert (or fact witness) that you would not like to read to a jury. Smart defense lawyers always subpoena an expert's entire file and even if the substance is innocent, it is going to be take out of context.

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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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For plaintiffs’ lawyers, the statute of limitations is a habitual pest. As easy as it usually is to avoid, it is the most common basis for legal malpractice actions against personal injury lawyers. A more common pain for most of us is the great case where the statute of limitations has passed before the client calls. Who has not gotten a call from a deserving client with a great case only to find that the statute of limitations has long since passed? While it shocks plaintiffs’ lawyers that someone would sit on their rights for so long, it happens all the time. Late Sunday evening as I was getting ready for Christmas with my family, I got an intake call from a woman whose 14 year old son, who died last year, had had cerebral palsy spastic quadriplegia. This is the definition of a catastrophic personal injury case. I wanted to ask her – but didn’t – the question that was burning in my mind: why did you wait so long to call?

The statute of limitations is considered harsh and inflexible, even by those enforcing it to the detriment of a deserving plaintiff. But if you get a case where the statute of limitations has seemingly passed, make sure that your case does not fall within one of the four exceptions that most jurisdictions have in some form or other, which can extend the statute of limitations.

The first, and the most litigated, is the discovery rule. Under the discovery rule, an action begins to accrue when the injury victim knew or reasonably should have known of the negligence and the harm that ensued. This exception also has exceptions in many jurisdictions by statutes of repose that often apply in products liability and medical malpractice cases.

The second “end run" around the statute of limitations is the continuation of events theory. This may apply in cases where there is a continuation of services, like a lawyer performing services over time for a client, or when the victim’s right depends upon the happening of an event in the future. In these cases, the statute may often be extended beyond the date of a given act of negligence. The third exception is when the culpable party fraudulently conceals knowledge of a cause of action. In this case, in many jurisdictions, the cause of action does not begin to accrue until the reasonable discovery of the fraud.

The final exception, which would have saved the cerebral palsy example above, even if the young man had not died, is when a person is under a disability. A disability is defined as minors (under 18 in most jurisdictions) and plaintiffs who are mentally incompetent. If you think the statute of limitations kills your case, it probably does. But first make sure you turn over the rocks of these exceptions.

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In a perfect world, personal injury lawyers could just get the best possible recovery for their clients, either by settlement or trial, and that would be the end of it. Often, it is just the beginning of a case because of medical liens. In terms of hierarchy of difficulty, Medicare liens are among the most difficult. This post offers a few thoughts on dealing with Medicare liens.

Medicare was established in 1965 as a part of the Social Security Act. In theory and usually in practice, Medicare offers what should be a part of any civilized society: health insurance and medical care for the aged and disabled. When a personal injury plaintiff receives Medicare benefits, Medicare has a subrogation interest to any award given in a workers' compensation, medical malpractice or auto accident claim (both first and third party recoveries). While Medicare has been provided a direct right of action, they usually choose to piggyback off personal injury lawyers seeking compensation for their clients.

A Medicare lien has real teeth, taking priority over all other liens or interests on any settlement or judgment proceeds. If you ignore the lien, they can later seek a recovery not only from the injury victim, but also the lawyer. Unlike many liens, notice is not required, so lawyers need to find out if there is a Medicare lien, as opposed to sitting back passively waiting for a lien notice. Under the statute, if the lien exceeds the amount of the recovery, Medicare recovers the entire lien, excluding only the lawyer fees and expenses.

 So is there any hope beyond recovery of the attorneys’ fees? There is. Medicare has authority to reduce or waive its Medicare lien if it is in the “best interests of the program,” if the “probability of recovery, or the amount [of the recovery] not warrant pursuit” of the lien, or if enforcing the lien would lead to significant “financial hardship.” This means you have to find the right person to talk to at Medicare and you need to make a real case; you can’t just have a paralegal call and ask for a reduction. You also need patience, because getting a response takes time and multiple phone calls and letters.

Not surprisingly, the more of a reduction you seek, the more hoops you have to jump through. If the request exceeds $ 100,000.00, the Department of Justice decides whether a reduction is in order.  Obviously, this adds more time, more phone calls and more letters to the process.

There is nothing more frustrating than killing yourself to settle an auto accident or medical malpractice case, only to realize you work has just begun. But in many cases, it is the most essential work a lawyer can do on the case in terms of achieving some measure of justice for your injured client.

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Medtronic Sprint Fidelis Defibrillator Lead wires may cause greater risk to Medtronic defibrillator patients than was originally thought when Medtronic first announced that it was, essentially, recalling the Sprint Fidelis leads. Sadly, and this really underscores where we are in this country with medical device safety, this news comes not from Medtronic, but from a report by a Deutsche Bank analyst named Tao Levy. The report indicates that the Medtronic Sprint Fidelis lead wires had poor sensing capability that may compromise communication between the leads and the defibrillator The Deutsche Bank report stated that potential concerns over the Medtronic Sprint defibrillator lead wires’ sensing and transmitting abilities “is something we have learned from our clinicians contacts, and we could see published in medical journals.”

So, apparently, Medtronic defibrillator lead wires not only have an unacceptable fracture rate, they also appear to have poor sensing capabilities, even if they do not fracture. The first news Medtronic defibrillator lead patients are hearing of this is not from the FDA or Medtronic, but from an investment bank analyzing the stock. Unbelievable. This should be Exhibit A in attacking the preemption defense.   Exhibit B should be the Baxter heparin recall where contaminated heparin entered the market because the FDA confused which the names of the factories in China and believe it had already inspected the plant that make the active ingredient in heparin that supplied half of this life saving medication that we use in this country.

For lawyers not familiar with the litigation, a lead is a wire that is threaded through the blood vessels and connects to a defibrillator in the patient’s chest. The lead sends messages to the defibrillator that a patient’s heart rhythm is significantly abnormal. The defibrillator then returns a shock to the heart, through the leads, to shock the heart back into rhythm. If a defibrillator lead breaks, it can send a painful, and, of course, terrifying shock to the patient who may think he/she is dying. The fractured lead can also fail to give a needed shock to get the patient’s heart back in rhythm.

Unlike a pacemaker or defibrillator recall, these Medtronic leads cannot generally be recalled, because it can be risky and invasive surgery, particularly in those who have had the leads for some time. The FDA has suggested that it is generally not a good idea to replace a defective defibrillator lead. Common sense tells you that patients with the Medtronic defective defibrillator leads should be talking to their doctors about their options.

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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.

Continue Reading...

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I read an interesting wire service article in the Maryland Daily Record today on Gerry Spence's Trial Lawyers College. Given Gerry Spence's trial record and the verdicts he has obtained, it is hard not to be interested in copying the tactics and strategies he employs. The question is whether his approach can be successfully adopted by other lawyers.

The goal of Gerry Spence's Trial Lawyers College is to teach trial lawyers how to be more successful in the courtroom and to win big verdicts for their clients. One of the fundamental principles of Gerry Spence that has filtered down to the Trial Lawyers College is the idea that personal injury lawyers need to learn how to become good storytellers. Obviously, trying a case well requires lawyers to convincingly convey their client's story to the jury. The methods the Trial College uses range from the unusual to the bizarre. The first step in "How to Be a Storyteller" is having the lawyers reconnect with their emotional selves, and the summer camp atmosphere is supposed to enable this process. The Trial Lawyers College has the attorneys share meals, chores, and talks around the campfire in hopes that they will "rediscover their own humanness."

This may be the most normal aspect of the Trial Lawyers College. During their sessions, lawyers role-play scenes from their own lives while complete strangers play the role of loved ones. They are supposed to use this opportunity to embrace personal pain and hardship and to learn to love themselves. Part career workshop, part therapy session, the College's classes use this psychodrama role-play to enable the attorneys to reconnect with their humanity. Once the participants connect with themselves (or have themselves voluntarily committed), the Trial Lawyers College teaches them to translate this into a connection with their client. The role-play switches from scenes from the lawyers' pasts to scenes from their clients' own lives. The ultimate goal is to enable the attorneys to create opening or closing statements that truly capture the personal impact on the client.

Last night, the 23 point underdog Philadelphia Eagles played a surprisingly close game against the obscenely dominant New England Patriots. The talk after the game was how the rest of the league will now copy Philadelphia's defense schemes against the Patriots. With obvious limitations, this can work in football. But when it comes to connecting with a jury authentically, the copycat game plan can lead you astray.

I wrote a post a while back for the Trial Lawyers Resource Center, commenting on one writer's view that trial lawyers should not wear bowties at trial. My response was essentially that you should wear bowties if you are a bowtie guy because to connect with people, you have to be yourself. Usually I steer clear of such trite advice. But in this case, it really is true. You have to be yourself or at least an authentic ambassador of yourself to connect with skeptical juries whose initial suspicions are mistrust.

There are a lot of successful personal injury lawyers who do not have the same connection to their inner selves and try a very effective personal injury case and can connect with a jury. I believe wholeheartedly in the idea that you need to tell a quality story to the jury. There are about 1000 things everyone can learn about trying a case from Gerry Spence which is why I have read all of his books and why if I had the opportunity and did not have three small kids, I would love to go to the Trial Lawyers College. But if you try to copy his touchy-feely emoting style at trial, you better have the personality to back it up or you are going to fall on your face in front of the jury.

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After my blog post on Friday on loss of consortium damages, I received the following comment from "Florida Lawyer" that raises a common concern regarding the apportionment of damages in personal injury cases:

"Do you have any suggestions regarding the handling of a loss of consortium claim in a case where: 1) the injured spouse is totally incapacitated as a result of the accident 2)insurance company is willing to tender limits (limits will not make Plaintiffs whole), and 3) the tortfeasor does not have significant assets to satisfy any potential excess judgment. My dilemma is, for purposes of settlement discussions, how to determine what amount or % of the available funds should be "credited" toward the injured spouse's claim and what amount should be "credited" towards spouse's loss of consortium claim."

Great question, one that does not have an easy answer. This problem usually presents itself with respect to wrongful death beneficiaries. Regrettably, there is no formula. Certainly, I think the true experts are the clients themselves. If they agree on what the split should be - as I would expect they would - then I think you have your answer. Otherwise, each should hire separate counsel and arbitrate the issue, keeping you far away from what could be a conflict of interest. In the unlikely event this is the chosen path, take money out of your fee to hire two lawyers and an arbitrator. It should not cost that much, given the discreet and limited issue of apportionment. Good luck!

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