A Whiff of Spring – in the East?

NeuwirthLawUncategorized

It seems like we skipped right over winter this year. This is not good for your local personal injury lawyer. I usually start the year off with a bevy of slip and fall on ice cases and work into the rest of the year from there. This year, not so much. Nevertheless, it is nice to see a warmer season coming and outdoor cycling and tennis are on the horizon for me.

Out west, the weather picture is much different. I was skiing at Snowbird last month and they have had so much snow that it is just piled everywhere and they are used to moving snow around. Snowbird is a super-challenging ski mountain outside of Salt Lake City, Utah. I’m an expert skier here in the east, but out there is a whole different animal. If you point your skis downhill there, you better be locked in and ready because you will be going very fast. I skied about 26,000 vertical feet in four days.  All of it downhill.  That is like skiing a very long run down Mt. Everest.

What makes things hard there is every decent run you have to crest and drop in over a lip to start your run. We don’t do that here. Second, the mountain is at 11,000 feet. So, buckling your boots leaves me out of breath and the runs are a little more tiring for your legs. Finally, the locals seem to put moguls or bumps in their runs through the trees which we don’t do here either. On one run, I was trying to escape the moguls through trees and skied out onto a normal open bowl but was conked on the helmet by a tree branch I did not see coming. Thanks helmet!

What is the Prime Motivating Factor for Settlements of a Six-Figure Case?

NeuwirthLawCase Matters, For Lawyers

In my experience, the prime motivating factor is that both sides do not know how a jury will decide the case and therefore neither wants to take the risk of a verdict for or against. Juries are very unpredictable in the mid-six figure cases. On smaller cases, juries may not care too much. On huge cases involving deaths or paralysis, jurors will care and likely find for plaintiffs. But, in between, the jury is unpredictable.

In Pennsylvania, lawyers are not allowed to tell the jury what we think the case is worth or even what they should award. Often, this means that the jury has no guidance as to value. Both sides of a case may be able to settle the case for $300,000 meaning both value the case somewhere in the 200-400k range. But, a jury does not know that. A jury may think that they are doing the plaintiff a huge favor and give them $100,000. In that case, the plaintiff has given up huge sums by going to trial.

So, since we cannot suggest a number to the jury and since the jury is never told what the insurance coverage is in a case, they have no baseline way to assign value. As a result, in most mediations or negotiations, a client will come to understand that they are better taking 80% of a case’s value, provided that that is acceptable, versus rolling the dice and hoping that the jury agrees with the valuation that seasoned professionals assign to a case.

Essentially, there is a going rate for certain injuries. I can tell you what a fractured arm is worth with and without surgery. I can adjust that number up or down if it is from a slip and fall versus a car accident. Regardless, of how frustrating, painful, wasteful of your time and life value the injury was, there is a going rate for the injury. The reason is this whole jury uncertainty issue. The client may feel the value far undervalues what they went through, but that is really not the issue. The issue becomes what can be achieved that is in the client’s best interest. That generates the going rate.

 

TSA Checkpoint Slip & Fall and the Federal Tort Claims Act (FTCA)

NeuwirthLawCase Matters, For Lawyers, Slip and Fall

I am in the middle of a case involving a slip and fall at a TSA checkpoint at our beloved Philadelphia International Airport (PHL). It now involves a gobbledygook of abbreviations as with many things involving the federal government. As the lawyers reading may know, you cannot sue the sovereign or your government without their expressed permission. You can sue the federal government or the City of Philadelphia, but only within certain areas. My case against TSA basically says that if you force someone to take their shoes off, you should be held responsible when a certain portion of PHL and TSA passengers fall and hurt themselves. Makes sense right? My client would not have fallen if she had her shoes on. Simple enough, right? Well, no. There is a whole body of caselaw regarding suits against the feds. I am now painfully well-versed in the Discretionary Function Exception (DFE) and the Due Care Exception (DCE) to the FTCA. Fun stuff, huh?
So, the short answer to my case is that you can sue the federal government or TSA, but only if they are not carrying out some discretionary function. So, if you approach TSA and they think you need extra screening because you have a t-shirt with a huge pot leaf on it, that is TSA discretion and you cannot sue for that. But, in my case, there was a TSA rule saying no shoes. So, I am arguing that there is no discretion there and hence the DFE does not apply. A judge will make the ultimate call on who is right about the applicability of the DFE to this case. There is also this due care exception. If a federal employee uses due care in the execution of a regulation or statute, then the feds are not liable. But, and this is a big but, this only applies if there is a regulation or statute directly on point. The shoe removal rule is neither and is merely a policy. While it may be splitting hairs or nitpicking, this is what lawyers do. The shoe removal rule is neither reg nor statute. Therefore, the DCE does not apply. Why? Well, there is an old rule that statutes or legislation is strictly interpreted. If Congress or the Commonwealth did not specifically list something in a statute, a judge cannot just read into the law what they think the government intended. So, I think I will win on both these counts. But, I will report back.
Another amusing thing about the FTCA is that despite the sixth amendment right to confrontation and a jury trial, plaintiffs are not entitled to a jury trial in these cases. So, we will have a bench trial. Nevertheless, do you see a pattern emerging here? Yes, you can sue the government, but we are going to put so many restrictions on it that it is very challenging to even get to a trial.
By way of example, a semi-recent case, Pellegrino, involved a TSA officer filing false charges against a passenger who mouthed off to the TSA officer. There were any number of potential bars to the lawsuit, but the Court was clearly fed up with the TSA conduct and the federal government’s efforts to immunize itself from asinine conduct. In another PHL case, Menkin, the TSA officers took a lady’s cane away as the cane was not TSA approved. Unsurprisingly, the lady fell and broke a bone. The Court said that is bad/stupid/not protected, take your pick. Menkin won that one.
In my current case, there has been testimony that the TSA supervisors, PHL supervisors and others knew about Menkin, knew that people would periodically fall due to the slippery floors and the shoe ban, but just did not do anything with that information. In my normal non-FTCA practice, this would be damning testimony. Can you imagine a bank officer saying, yes, when it rains, people seem to go crashing on our marble floors, but we really don’t care and definitely don’t put mats down to save them from falling??? A jury would promptly crush the bank. But, in the same scenario, the federal government says we don’t care.

Trial Report

NeuwirthLawUncategorized

Scene from Franz Kafka’s The Trial (1963) Starring Anthony Perkins and Orson Welles

 TRIAL REPORT: COSTS/BENEFITS OF TRIAL FOR THE SMALL PERSONAL INJURY PRACTICE:

I try to be on trial once or twice a year for various reasons. One, I like being on trial periodically. I like the focus that comes with the need to actually prove everything in a one week period to a bunch of fellow residents of our area. Trials are really a small part of personal injury practice. Maybe 90% of cases end up in settlements whether big or small.  That leaves about 10% of cases that get to something near trial. Even at trial, there are many cases that settle at jury selection. So, probably 5% or so of all personal injury cases go to verdict.

From a professional case selection standpoint, cases going to trial is not good for business, but the ones that go to trial are often hard to pick out when the case first comes into the office. If you knew that your case was going to go all the way to trial, you might turn it down or refer it out because they are not usually good for business from a bottom line perspective. Why is that?

One of the down sides from the perspective of the law firm owner is that trial means everything else has to be put aside and probably 50-100 hours has to be dedicated to one case. And, those 50-100 hours must be put in despite my already knowing the case, the experts, the defendants, and my clients. So, it is mostly time spent on exhibits, preparing to cross experts for the other side, preparing to depose my own experts on video, motions in limina, opening statements, preparing questioning and summation. So, a lot of time that could be spent moving other cases along is dedicated to one case. Interestingly, many of the defense lawyers I have on other cases do not know me personally or professionally. It is often our first time against each other, though our firms may have had cases together before. I have never had a problem telling opposing counsel that I am on trial or will be on trial and need a week or two off from responding to their requests. I reciprocate that courtesy as well.

Another downside of trial is that personal injury cases that go to trial are often flawed or broken cases. This pattern has been a little screwed up by the pandemic backlog as there is a bumper crop of old cases that have been sitting around waiting for resolution because the courts were closed for over a year. Nevertheless, a personal injury case at trial means that the case has some weak point that can be exploited by the defense/insurance company. The other situation is where the plaintiff, meaning the client, and the insurer have vastly different ideas about the value of the case. How does this play out?

I tried a broken case recently in Montgomery County. It was a fairly routine three day jury trial tried to 12 jurors. The process of settlement discussions is confidential so I cannot discuss that here. Nevertheless, suffice it to say that the money offered to settle the case was not enough to entice me or my client to even discuss settlement. Basically, the client would end up with zero dollars after litigation costs and health care liens. On the other side, the insurer had essentially offered only the money that would have been spent paying their lawyers to try the case. So, really, the insurer had only offered costs of defense. While sometimes I have to have a hard conversation with my client about offers and trials, this was not one of them.

Montgomery County is a moderately conservative, generally middle class place to try a jury trial. As a rule, trying a small damage auto case is not a great idea, but the case simply had to be tried. It was from 2017 and I had been through 4 lawyers and 4 claim representatives from State Farm on the other side. It was overdue.

Why was the case broken? Well, this was a minor impact soft tissue type of case. MIST we call them. They are hard cases. The photos of the vehicles showed little damage. Minor damage means minor injury to your average person on the street. Soft tissue injuries are the bugaboo of the tort reform movement. But, soft tissue injuries like a herniated disc may cause lifetime pain, whereas your broken leg will heal in weeks.

What else was broken about the case? The client was not apparently injured at the scene, but her injuries developed over the next week or two. The client ended up with a few rounds on steroid injections and then was in a second car accident, that was much worse, about eighteen months later. Finally, the client had not treated in two plus years before the trial.

So, from a defense perspective, the client’s injuries ended at the second accident. Plus, the client had some minor pre-existing back pain that colored the view of the first accident, which resulted in back pain.

Finally, we had a very, very educated and seemingly upper middle class jury pool. We picked 12 jurors from a panel of 35 or so. Many were professionals in the pharmaceutical industry that makes up a large part of Montco residents. We are allowed four challenges per side and no amount of challenges were going to change the pool makeup.

The case went in well and the clients testified well and the Defendant predictably tried to minimize his actions on the stand and I crushed him with his prior testimony. I tried to keep the photos of the vehicles out and did what I could, but generally, the case was a tough one. The jury came back with a defense verdict after three hours of deliberation. That is how it goes.

What are the upsides of trial? For the client there is only one. Because of our contingency system, they have not lost anything in terms of dollars. They lost the chance to get a larger verdict than the last settlement offer. As an aside, the second car accident resulted in a substantial payment to the client, so we were sort of playing with house money.

What are the upsides of trial for me? I think it is good for defense lawyers to know that I am willing and able to try a case and that I will do so in a professional and effective manner. The judge was happy with both sides and the trial process went along smoothly. I have seen trials put on by unprepared or ineffective lawyers and it is embarrassing. I once saw a defense lawyer read his entire closing argument in a homicide case. Don’t do that!

I also think it is good for the State Farms of the world to know that I ain’t taking their stupid offers unless I want to. They may have won this round, but they know that I will call them on their nonsense.

What are the downsides? Well, let’s see. Unlike most lawyers I deal with who are not personal injury lawyers, I put my own money up for cases. When I lose, the client does not owe me the money. So, I ate $10,000 in money spent on depositions, experts, etc. Not fun. I look at it like tuition. I learned more here than the cost of the case. I don’t like paying tuition, but it pays dividends down the road.

The mostly likely positive dividend is that I can tell future clients the story of what happens with a trial story to back it up. Faced with possibly losing what is offered, most people, except for the world’s gamblers will take the guaranteed money over the remote, but possible larger verdict.

Finally, what do my colleagues say about all this? The sentiment is usually, that was a tough case, but thanks for fighting the good fight and persisting. There are many personal injury lawyers out there who don’t try their cases, who settle everything, and really have never gone the distance to verdict on a tough case to win.

While it is cold comfort, there is always Teddy Roosevelt’s Man in the Arena quotation from his 1910 address to the Sorbonne in Paris: “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”

Until next time, GO BIRDS!!!

 

All the bots love Chat GPT

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Chat GPT has taken the world by storm, and being curious, we thought we’d ask what it thought about our favorite topic–suing the City of Philadelphia. Here’s what the robot had to say:

Suing the City of Philadelphia involves several important considerations that need to be taken into account before taking legal action. The following are some of the key considerations to keep in mind:

  1. Sovereign Immunity: The City of Philadelphia is a government entity and as such, it is protected by sovereign immunity, which means that it cannot be sued unless it waives this immunity. This immunity can be waived in certain situations, such as when the City is sued for monetary damages resulting from negligence or breach of contract.
  2. Statute of Limitations: In Philadelphia, the statute of limitations for a personal injury or property damage case is two years from the date of the incident. If the claim is not filed within this time frame, the individual may be barred from pursuing the case.
  3. Notice Requirements: Before suing the City of Philadelphia, individuals must provide notice of the claim within six months of the incident. This notice must include a description of the incident, the location where it occurred, and the names of any witnesses.
  4. Expert Testimony: Depending on the nature of the case, it may be necessary to have expert testimony to prove negligence on the part of the City. For example, in a case involving a traffic accident, expert testimony may be needed to prove that a traffic light was not functioning properly.
  5. Jury Selection: In Philadelphia, jury selection for a case involving the City is done by the Chief Jury Commissioner. The jury must be impartial and free from bias in order to ensure a fair trial.
  6. Legal Representation: Suing the City of Philadelphia can be a complex process and it is recommended to have an experienced attorney represent the individual in court. An attorney can help navigate the legal system, gather evidence, and build a strong case on behalf of the individual.
  7. Evidence: In order to prove negligence on the part of the City, it is important to gather evidence as soon as possible after the incident. This can include photographs, witness statements, and other documentation.
  8. Cost: Suing the City of Philadelphia can be a costly process, as it involves hiring an attorney, paying for expert testimony, and other legal expenses. It is important to consider the cost of the lawsuit before proceeding.
  9. Appealing the Decision: If the individual loses the case, they have the right to appeal the decision. The appeal process can be complex and it is recommended to have an experienced attorney represent the individual during the appeal.
  10. Alternative Dispute Resolution: Before filing a lawsuit against the City of Philadelphia, it may be possible to resolve the dispute through alternative dispute resolution methods such as mediation or arbitration. These methods can be faster and less expensive than going to court.

In conclusion, suing the City of Philadelphia requires careful consideration and preparation. It is important to understand the legal requirements, gather evidence, and have a strong case to ensure the best outcome in court. Hiring an experienced attorney can also be of great benefit during this process.

I’m thinking we still have a few years before they take over…

Ask Andy How To Be A Good Personal Injury Client

Andrew NeuwirthAsk Andy Podcast, For Lawyers

My Podcast, Ask Andy, will relaunch in the coming weeks. Here’s a sample of things to come.

In this podcast, I discuss how contingency fee cases work, how personal injury lawyers are paid, what costs and expenses there are and how they affect or reduce the money in your pocket. I also discuss the risk a lawyer takes in personal injury cases.

Tua / The Fencing Response / Concussions

NeuwirthLawIn the News

Tua Tagovailoa Stretchered Off Field With Head Injury, Hands Clenched.

If you were watching the Dolphins game recently and saw Tua Tuagvailoa hit, you saw something that doctors call the fencing response. To my untrained eye, it certainly looked strange and concerning and my first thought was that he had a dislocated finger or fingers. Sadly, this response of flexed and rigid fingers with arm posturing is a sign of a mid-brain injury. The doctor who apparently discovered CTE in athletes suggested that Tua should stop playing football for his own health.

Basically, in my practice, concussions are a routine injury following car accidents. They cross the spectrum from mild to severe. Most doctors and the medical literature will tell you that most concussions resolve after a few months. Mild concussions will have you feeling headaches, ringing in your ears, feeling like you are in a cave compared to your normal functioning, sensitivity to light and loud noise and an inability to function with modern technology like phones, computers etc. More serious concussions can result in something called convergence disorder, in which your eyes don’t focus together resulting in serious problems reading, which is a major component of our daily lives. Vertigo is a similarly debilitating result of concussions from trauma. I have had clients whose lives are irreparably changed by these conditions and their settlements reflect their disabilities.

I had a fairly routine concussion five years ago. I was cycling in Lancaster and I hit gravel approaching a covered bridge. I tried to correct the bike and landed on my helmet. I thought nothing of it and finished the 35-mile ride. When I sat down at my computer the next day, I could not read the words on the screen and went home. It took about two weeks to return to work feeling normal, but my memory was poor in that period. Eventually, I felt like myself after about two months. However, little bumps in the car or other minor shakes of the head still bothered me a bit. I play goalie in a soccer league, which involves a decent amount of getting banged around by people who are bigger than me. I did not play soccer for about six months after the concussion because I simply could not stomach the idea of another shot to the head. So, I got better, but have every sympathy for new clients who call me with concussions after a recent traumatic injury.

The Advertising Lawyers

NeuwirthLawFor Lawyers

What are they doing and why? Morgan and Morgan/Lundy/Top Dog law: Why do people go the route of the big advertising law firms? I think it is fairly simple. They don’t know lawyers, don’t have someone to turn to who knows a good lawyer, or they are new to the legal system. Top Dog has a new billboard on the Schuylkill Expressway. It seems sort of clownish for the 1980’s era cell phone and the guy works out of his house in delco as far as I can tell. But, he seems to be a great marketer. What are you getting? Who knows. How about Morgan? I love John Morgan. He wrote a great book for Personal Injury lawyers called “You can’t teach hungry.” Amusingly, no editing was done on the book as it is filled with typos etc. But, that is what you are getting. The advertisers are counting on a high volume of calls, resulting in a yield of 10% or so of actual cases, and then someone has to manage the volume of crappy cases that they took. There is not a lot of careful selection going on is my guess. I am contacted every month or so by clients who are unhappy that their case, which they believe has merit, is being handled by a paralegal, that they cannot talk to a lawyer, or are being pressured to take what they think is a crappy settlement. I usually turn them back to their lawyers.

A big part of what you get with a small firm is personal attention and an honest review up front of what your case is potentially worth, what the timeline is for resolution, and the comfort of knowing that someone is monitoring your case and pushing it forward, meeting important deadlines, and not screwing it up because they are burdened with too many cases. In this practice, you need to spend money to make money. You need to have an expert on important points and a good one. You need to have someone care about your case. If you are just a file being managed by a senior paralegal, you will likely not get what is best for you.

With that said, unless you are a returning client, I really, really try not to take smaller value case. The whole “no job too small” mantra of small businesspeople is a quick way to unhappy clients.

In non-lawyer businesses, a lot of the focus of sales books is on your unique sales proposition or what makes you different from your competitors. In professional services, that is just not important. It has been tested and studied, but the truth is that there is plenty of work out there and there are good lawyers and bad ones, but differentiating one from the other in personal injury law is nigh impossible from the customer or client perspective. I know a lawyer who specializes in cases against prisons and another who specializes in people shot by police.  I have a minor specialty in carbon monoxide poisoning cases, but these are small facets of a general personal injury practice. We are more like accountants or realtors than kitchen tools retailers. It is just the way it is. If I had to have a unique brand like Lundy does in order to succeed, I would never succeed. Nevertheless, I have been doing this for a while with continued growth and success.

Peaky Blinders

NeuwirthLawCase Matters, For Lawyers

I am deep into this Netflix series that is sort of a 1920’s British Sopranos/Breaking Bad mashup. It is great if you like that sort of thing. How does that affect what we are doing here at Neuwirth Law or in personal injury land generally?

I am largely unknown to most defense lawyers and insurers. I take millions in settlement dollars from them, but they really have no idea who I am or what I am up to. The Blinders are struggling to make their name outside of their home base in Birmingham in a tough period of time following World War One. Thomas Shelby, played by Tom Hardy, has a really hard edge to him, but recognizes that those who did not fight in the war like him and his brothers, are not scarred like he is. He doesn’t want to fight, but is more than able to when necessary.

For me, I try not to be a thug about things in my practice. But, it is critically important to quickly size up a situation and decide if we are going to have a fight or not. The Blinders always have guns available and razor blades tucked away for a fight. For me, I don’t really care one whit about the defendant on the other side, meaning the person who injured my client. They do not figure into my calculus until we are on the verge of trial. The more important variable is the insurer and my experience with them. Since the pandemic, I have seen more and more insurers, who are simply unable to perform their basic function of timely evaluating a claim and making an offer. We don’t expect them to make fair offers pre-suit, but I expect them to make an offer. A lot are failing to do that. So, we end up filing suit on cases and their lawyers are going to be having some tough calls with their claim reps about why the case wasn’t fully evaluated more promptly.

I don’t really care. It is not in my control. But, if you are running an insurer and cannot do the basics, you are going to start losing money. If you are a claim rep and cannot efficiently process cases, you will be losing your job. If you are a claims administrator and cannot process claims, you will fail. So, more often than not, actually doing the job you are supposed to be doing will keep you employed. Crazy as it sounds.

Unlike an individual trying to negotiate their own case settlement, I have the power and the ability to file the case in court. Most insurers recognize that power and it is what makes pre-suit negotiation somewhat productive. If I don’t like the offer from the insurer, I am not going away, I will just go to Court and win. It’s like the ultimate bargaining chip.

 

Would You Rather…

NeuwirthLawCase Matters, For Lawyers, Medical Malpractice, Slip and Fall

Do you think you would rather have 1) a medical malpractice case where the doctor admits he missed something, but the miss has limited or hard to figure damages or 2) a slip and fall case resulting in the doctor admitting he missed something, but the miss has limited or hard to figure damages?

Several new cases of mine have this interesting twist.  The legal rule of thumb is that a defendant’s negligent act makes her responsible for all negligence that flows from the original act.  So, if you did not salt your sidewalk and Andre falls, you are responsible. Furthermore, if Andre falls and a doctor messes up his surgery and he needs a second surgery you are still responsible for the malpractice.  Why? Because it was foreseeable that if someone were hurt by your negligence, surgery and hence errors in surgery may result.  Recently, two people came to me with this same scenario. They were complaining that they were the victims of medical malpractice following a fall and a botched first surgery. While they both appeared to have been the victims of less than stellar doctoring, medical malpractice cases are very tough to pursue because the physician is entitled to wide latitude in the use of their judgment. The slip and fall cases are far easier to pursue and the slip and fall defendant is just as responsible for the injuries as the doctor is. Plus, you don’t have to fight over whether the doctor breached the standard of care, which is always a tough fight. Double plus, if the doctor’s error resulted in some minor damage, but it was quickly repaired by a better doctor, then while you have a malpractice claim, it will never be worth it to pursue the case into court. There, the slip and fall case is your friend.