South Africa Trip

NeuwirthLawBest of, For Lawyers

As some of you may know, I was away in South Africa for two weeks over the holidays. It was definitely the trip of a lifetime and I highly recommend it. Safari is really an eye opener on a few fronts. First, it is fascinating seeing the African bush as it has been for thousands of years. In the game parks, while there are dirt roads for the safari vehicles, the reserves are hundreds of thousands of acres and there is no real maintenance or upkeep done. So, elephants knock trees over and they stay knocked over. The entire landscape is largely just the way nature develops it. It’s cool just to see the wild being wild.

Secondly, while elephants look fairly harmless on the Discovery channel, they are just inadvertently destructive animals. They are like a hungry tractor trailer. If there is a tree in the way, they just knock it over. If they want to eat bark, they do that and the tree dies and they move on. There is a great book called The Elephant Whisperer, if you want to read more on them.

Third, getting out of the safari trucks and walking around with guides with big elephant rifles puts a whole new perspective on things. Out of the trucks, we are prey. We walked for two hours single file with three guides and two large rifles. The rhino that appeared 40 yards away looked way too close for comfort. The zebras and wildebeest, which were 100 yards away were eyeing us warily. We are neither fast enough, nor strong enough to really defend ourselves. Other than the rifles, the guides all said climb a tree if you see a water buffalo approaching. However, as the elephants had crushed most of the trees and we were walking on a grassy plain, the climb tree advice was amusingly not reassuring. If you want to know more, email me and I would be happy to share.

The second part of our trip was to Cape Town and it’s nearby wine country Stellenbosch. Cape Town was a long-time stopover port for mariners on their way to the spice islands and Asia. It is a truly beautiful place. It reminds you of Vancouver or other places where there are mountains, ocean, and a bustling city all crammed together. Plus, a two-hour drive puts you in a place that looks just like Napa, California.

But, and it is a big But, Africa still has a lot of disorder to figure out. Unemployment is 45% or so and hence crime is a whole part of the economy. Barbed wire, electric fences, high walls, and angry guard dogs are all routine for those with money. For those without, you live in a shantytown. There does not seem to be a lot in between.

Two of the funnier memories were: One of my uber drivers asked if I had to give cows to my wife’s family to marry her. I accidentally said yes and then had to correct myself and he said yes, we all have to pay something. The other was with this same driver, we were driving along a very potholed, but paved road. At the side of the road were boys with shovels who would fill the potholes with dirt in exchange for coins from passing motorists. It seemed to encapsulate a bit of the Africa problem. They have a lot of people who need jobs, a lot of problems to solve, but getting money to the roads, or to collect trash, is just not yet running smoothly.

The dollar is very very strong right now, so the country is very much on sale for American tourists, who were there in force. So, get packing! But don’t take too much as you may be on a small propeller plane at some point.

  • Soulful eyes.

2023 BEGINS…

NeuwirthLawUncategorized

 

As we swirl around the sun again another time, we hope all your 2023 verdicts go your way, and may Judges laugh at all your jokes.

THE CALM BEFORE THE STORM

NeuwirthLawCase Matters, For Lawyers, Uncategorized

So, summer has come to a close and now the real work of litigation kicks into high gear. Anything that was put off for summer reasons, whether good or bad, is now on the front burner. A lot of work was put off till after Labor Day and now we are going to be in the middle of a lot of depositions, pre-trial conferences and generally productive lawyer work through Thanksgiving.

There is a weird but interesting phenomenon that affects personal injury law at this time of year. Insurers like to close what cases they can before the close of the calendar year. So, a case that may not have a lot of value, at least has some urgency as the end of the year approaches. But, it’s not even time for the pumpkin spiced latte you say! Well, actually, if you want to have your case settled by early December and get paid out before Christmas, so you can buy presents, then your lawyer has to have started the demand and settlement negotiation sooner than later. Why?

Well, cases are generally settled in the following manner. First, my client has to finish treating or come very close to back to normal. As a lawyer and client, you don’t want to have surgery after your case has settled, just because you were rushing to get a settlement. Surgery increases the value of the case, so we wait to make sure all the high value treatment is complete, and we know about how you are doing and are sure that you are back to where you were before the crash or know your current baseline.  If you have a herniated disc from a crash, that likely can be treated but will not get unherniated. As long as we know that you are done with injections and not having surgery, we can settle your case. So, thirty to forty-five days after you are done treating, we usually have your medical records proving that your treatment is done. Then, we will email in a demand letter outlining our claims and my opinion on the value of your case and we allow 30 days to begin settlement discussions. Then, most discussions take about two weeks to resolve if they are going to be productive. Then, a release is sent within a week after a verbal settlement and payment is required to be made by the Defendant within twenty days after receipt of a signed release.  The City of Philadelphia has 90 days to pay, but 20 is the required period.  So, you can see that if you want your case settled by early December, then your lawyer better be typing demand letters in September.

CROSS-EXAMINATION 101:

NeuwirthLawFor Lawyers

I like to think that preparing my client for defense cross examination at a deposition is important. I have sort of a standard set of instructions I give my clients about depositions and then work on the key facts of the case. I like to think in terms of themes to the case that can be regurgitated in a sentence and encapsulate the case. This takes a bit of work with the client and some back and forth practice. The critical part of every case is searching for statements made by my client, whether they remember them or not. Did you tell your physical therapist you felt great? Did you tell the police officer that you were switching lanes? Did you tell the ER doc that you were out drinking? The good, the bad, and the ugly should come out in prep so that I don’t have to say much in the deposition itself. I do not like to have to ask my clients questions at their depositions. I know that there is a school of thought that says that you should have your client at least audition or recount how this incident has altered their lives or destroyed who they were before the incident, but I feel like it opens too many doors for a semi-conscious defense lawyer to attack. This is especially true if the defense lawyer has missed key points in their questioning.

As with a lot of litigation, there are a lot of judgment calls made during depositions by both sides. If my client is too talkative, maybe the deposition concludes without any questions by me. If the defense lawyer obtained an admission that is significant, but was simply a misunderstanding by my client, I will go and fix that. Sometimes, clients are just very nervous and unable to display who they are as people and that situation requires more involvement by me to draw the person out and recount their story.

Regardless, the best clients are always the soft-spoken and seriously injured who have mostly healed, but will never be the same. Everyone on both sides knows that the case will settle and the question is for how much and when. The client’s demeanor helps push the case one way or the other. Is your client a nice family man, a church going grandma, a construction worker who can’t lift things again or a convicted felon?

SEASONS GREETINGS!

NeuwirthLawBest of

From all of Us to all of YOU,

May 2023 be the best year yet, and may your holidays be festive, fun, and most importantly–SAFE!

Warmest Regards for the Season,

Neuwirth Law Group

Tony Beets: King of the Klondike

NeuwirthLawFor Lawyers

You don’t know who this is do you? Like all things these days, there are a lot of things funny and not pulling on our attention and time. Tony is, apparently, the gold mining king of the Klondike a star of the show Gold Rush. But, for me, he is a very entertaining, no bs kind of business owner. I would guess he makes millions of dollars mining gold in his small business. He has comically large expenses, like he needs to buy a million dollar bulldozer and there are days and weeks when he is putting money into the business stripping the overburden before he can get to the gold. But, once on the gold, Tony is relentless about pushing his crew to get results. Described by his daughter as loved by animals and small children, Tony is one of a kind. If you are loved by animals and small children, there are a lot of people who don’t love you or your manner. It bespeaks a disregard of social norms, but a good heart underneath. Tony curses so much and is so rough on his people that you have to see that success is what keeps people coming back to work for him. In gold mining, there are lots of failed miners and few success stories. Tony is a success and survivor.

Even his competitors shake their heads with admiration. We cannot all run small businesses mining gold, but Tony’s malapropisms like Asp for ASAP tell you that he is a crazy hard working immigrant who really cannot be bothered getting the word right as long as you understand that you are taking too long doing his work for him. The workers who succeed there are no bs kind of people. I like watching his drive and push to get things done. Nothing comes easy when you are in a remote area and there is always a need for two or three back up plans. If you are an environmentalist, this is not the show for you. I have not figured out the environmental impact of this show, but they dig a lot of holes, burn a lot of diesel, and move water flow around willy nilly. But, it is entertaining to watch.

In my practice, usually I have a pretty good idea how a case will turn out or I would not have taken it in the first place. However, the focus of the case or the weaknesses of the defense only become apparent during the course of discovery. If everyone agrees that nobody was watching the store when it was robbed, that’s a problem for someone. In complicated cases, it takes some time to figure out where the case problems lie for both sides. While I can look at a sidewalk and tell you why someone fell or look at medical records and tell you what went wrong, often only the people involved in the hospital or responsible for the sidewalk can tell you why the problem developed. So, in my world, digging out the overburden or stuff that you and I call topsoil is a process of obtaining records and taking depositions.

Often, the best thing that can happen for a plaintiff is for defendants to be pointing fingers at each other, but you will not necessarily see that until depositions press opposing counsel to make a decision on how to defend a case. Once people are under oath, it is hard to undo finger pointing. So, in order to be the success story and not the failure, finding the weakness in your opponent is an important step in getting a really good result for your client.

Yes, you could probably get an okay settlement for a client with a real injury and real liability on the defense, but can you add value to the case? Can you find a way to make the case indefensible? That is where I try to find my worth. I recently finished a case where a very experienced expert suggested a potential defendant that I had simply not considered. Consulting with my expert before filing the case made a big difference and increased the settlement value of the case by over a hundred thousand dollars. What is the end conclusion here? Get the case figured out as early as possible. Get your expert on board and informing your view of liability and potential defendants. Is this approach rocket science? No. Is it good lawyering? Yes. That is what you get from the small focused firm. The big advertising law firms will plow through your case and get to the end result, but will miss significant value along the way, because they don’t really care and your case does not matter to them.

 

USA Pretty Weak At Preventing Roadway Deaths Compared To Developed Nations

NeuwirthLawAuto Accidents, For Lawyers, In the News

Here is an interesting article from the people who publish Wordle. https://www.nytimes.com/2022/11/27/upshot/road-deaths-pedestrians-cyclists.html?smid=nytcore-ios-share&referringSource=articleShare

If you are TLDR, then here is a summary. If you don’t know TLDR, then time to catch up with the current world racing past you. Per the NY Times’ article, “Much of the familiar explanation for America’s road safety record lies with a transportation system primarily designed to move cars quickly, not to move people safely. “Motor vehicles are first, highways are first, and everything else is an afterthought,” said Jennifer Homendy, chair of the National Transportation Safety Board.

https://www.nytimes.com/2022/11/27/upshot/road-deaths-pedestrians-cyclists.html?smid=nytcore-ios-share&referringSource=articleShare#:~:text=in%202021.-,United%20States,%E2%80%938%25,-Slovakia.

All you really need to know is that we are badly lagging all our fellow developed countries in basic safety measures for bicyclists, motorcyclists, and pedestrians. Much of the changes that are suggested in the article are simple road design changes and some vehicle changes. If you narrow a roadway, build a roundabout, and paint pedestrian areas, you will reduce fatalities. It is not so difficult.

Have you ever heard of a ghost bike or seen one? I ride about 1500 miles a year and seeing a ghost bike is always a sobering and concerning event. A ghost bike is a white painted bike chained to a post and it marks where a cyclist was killed. They dot the City of Philadelphia. I was riding over the summer DTS and passed two ghost bikes there. In Newport, Rhode Island, I passed three near their famous beaches. Basically, if you are biking and passing ghost bikes, you better be extra careful and it simply makes you sad. If you don’t know DTS, go look that up too. I have teen girls and their odd lingo seeps in over time. BRB!

DJT always moaned about the US being weak in the eyes of the world. Here is something we are actually weak at, but is easily fixable. Other things, like healthcare, and a social safety net are a little tougher to work through.

TELADOC: RECIPE FOR DISASTER

NeuwirthLawMedical Malpractice

So, Teladoc is a company / platform that has you meet with a doctor on line for various purposes. I am getting ready to travel abroad and am fairly healthy. So, for me, this is a great use of my time, the doctor’s time etc. But, Teladoc and urgent care situations in general present a real risk of inadvertently promoting medical malpractice. The reason is that there is a lot of information that a doctor gleans from in person visits. And, I mean a doctor, not a physician assistant (PA) or a nurse practitioner (CRNP or NP). I strongly encourage you to see an MD once a year now that we are done with the whole masking experience. An in person visit allows the doc to see how you breathe, walk, inspect your bumps and bruises, see how your skin carries blood to your extremities, and a thousand other things that can signal you are healthy or not. I have worked on cases where someone went to urgent care, was misdiagnosed and died at home. I expect that these are not isolated events. I have not worked on Teladoc or remote doctoring cases, but it is just a matter of time for those to work through the system. Interestingly, radiologists have worked from home for years without too much trouble. However, your radiologist never interacts with the patient. The film studies are performed by a technician and read remotely and the results then conveyed to your doctor. While there are still plenty of medical malpractice cases against radiologists, they are rarely related to the remote aspect of their work. That is not the case with internal medicine doctors. Unfortunately, insurers have tried to reduce the level of expertise that you as a patient receive in an effort to reduce costs. “Physician Extender” is the polite moniker for the PA or NP that you see, but the truth is you are accepting a poorer level of care. Most likely you may even call your PA or NP “doctor” without realizing that they are not trained as a doctor. It is a sad state of affairs. Yes, it is hard to get to see a doctor and Teladoc makes that easier. But, there are a lot of unusual things that are hard and you would prefer a trained person see you in person rather than over a video feed. I promise.

A New Addition to The Firm

NeuwirthLawIn the News

 

Edie. law dog in training

Edie, a new yellow Labrador Retriever has arrived at Chez Neuwirth. My older lab Louis went over the rainbow earlier this year and we were concerned that Yukon, who is also a yellow lab was lonely. We may have misjudged that. Edie is 9 weeks old and rather freestyling with her peeing and whining and generally being an infant. We are getting less sleep but taking lots of puppy photos and videos. Yukon does not seem too thrilled with the whole idea of a new puppy and is generally tolerating Edie.  I will keep you updated.

HIGH VALUE CASES?

NeuwirthLawCase Matters, For Lawyers

excited accident victim shouting and showing win gesture near attorney in court

What makes cases more valuable in the eyes of both sides is whether the injured person has a permanent injury that will not resolve. Essentially, could both sides see a jury compensating the claimant for future pain and suffering beyond where the person is today? If so, then the person will have a case with unlimited damages. This poses a problem for valuation on both sides.

For the insurer, a permanent serious injury that will inflict obvious harm or disability is a case that needs to be analyzed and resolved if negligence is clear. So, what do these cases look like? Well, I am currently working on a case where a vehicle passenger’s right arm no longer fully rotates from palm up to palm down due to a crash. By any definition, he has a permanent and lifelong injury from this crash. The case will have to be resolved by the insurer. This is not a case that they will want to take to trial because it would not be hard for a jury to award large six figure numbers to my client for the injury.

On the Plaintiff’s side, these are high value cases depending on the extent of disability. However, they are also fraught with challenges. Often, clients with severe impairments are happy with lower numbers than the lawyer would like to achieve. The certainty of a settlement is important to the client, but most are unwilling to push cases to the courthouse steps or to a jury when there is real money being offered and the client knows that they have a real injury that will not go away.

Additionally, most plaintiffs’ injuries get better over time. People heal or adjust to their impairment. This means that the client will look better at trial than what they went through in the first two years of recovering. So, it is in both lawyer and client’s interest to get the case settled for the most amount possible before trial. But, from my perspective, it is always hard to judge when a client who is enduring a lot of pain and treatment is ready for settlement. Often, clients try to put off surgery as long as possible. Surgery increases case values, so putting it off makes valuation more challenging. A case where the client may have surgery is valued less than one where the client has already had two surgeries. But, as the lawyer, you don’t want to settle the case for the value of one surgery and then find out that the client had two more after that. That is either bad luck or impatience and costs both lawyer and client money. Doing a good job on these cases is a delicate balance and requires some really long discussions with clients about what they want, what their doctors want, and what they are realistically going to go through to get better.