Know When To Hold ‘em, Know When To Fold ‘em

NeuwirthLawCase Matters, For Lawyers

I field a lot of calls from members of the public who believe that they have a case worth pursuing. After a brief listen, I can tell that they do not, because I have been doing this for a while. Nevertheless, the callers will often persist that there was a violation of the standard of care, or that laws were broken, or that something else caused them harm. Usually, they are right, but they are missing the critical factor of damages or some elementary issue of law that torpedoes their case. You can only learn this stuff by being a lawyer for a while. My physician wife used to spend a lot of time dealing with people who had done well-intentioned research of the internet but were missing about 10 years of medical training. It’s similar with my callers.

On the other hand, I was talking to a contractor friend recently and said that I would like to be a stone mason in retirement. It seems nice and peaceful to me. Place mortar, place brick, repeat. He laughed and said, my father was a stone mason, my brother was a stone mason, etc. It’s hard back breaking work outdoors etc. So, things are not always what they seem and very, very little is easily learned from the internet. Remember, the prosecutor trying to undermine Vinny’s wife in my cousin Vinny?

What makes someone a plaintiff’s personal injury lawyer, like me, versus an insurance defense lawyer or a corporate litigator? What makes someone a surgeon instead of an oncologist? To some extent, the area of your profession that you are happy in is one that suits your personality or your skills. Very, very few people can be good surgeons. It takes a level of dexterity and belief in your self and your skills and training that few people possess. Similarly, few surgeons want to or can bring a critical level of empathy to working with cancer patients fighting to survive.

How about lawyers? I was a defense lawyer for a while, but I always felt badly for the injured people I was up against. I am much happier representing the injured people than the insurance carriers. That’s just me. What else matters in my world? It is nearly impossible to be a successful personal injury lawyer or practice without a really strong personal and professional balance sheet. In my practice, cases settle fairly regularly, but dosing out settlements and knowing with some certainty what you are going to make in a year and how to prepare for bumps in the road is something that few lawyers can do well. What does a bump in the road look like? You go to trial on an auto case, turn down a mediocre effort, win on negligence and the jury finds no causation. Okay, stuff happens. You just lost $13,000. Meh.  That doesn’t feel good. But, I absorb that and move on. What is the lesson? Well, I look at my caseload and keep money around for the tougher cases or more longshot cases. Less aggressive or less risk taking lawyers try to dose out their bigger cases by putting one or two in a year. I have more confidence and am better financed after years of doing this, that I put my biggest strongest cases into suit as soon as I get a crappy defense offer from the insurer. Yes, the case may cost me $25,000 over the next year or two, but I have confidence in what I am doing.

Most of my defense lawyer brethren and sisters don’t have the money to place down on the line and don’t have the internal willingness to do it. I am no gambler, but I am willing to put myself on the line for a good case. Most lawyers don’t ever do that or want any part of that. Insurance defense lawyers whom I am up against are burdened by ten times the number of cases that I run. I know my cases one hundred times better than they do, but that is the luxury of my side of things. The problem on the defense side is that they get used to doing a competent job on a huge number of cases. Often, what happens is that in the process of moving cases along, the defense lawyer just gets used to being competent.

The New Normal: Are You Going Back To The Office?

NeuwirthLawFor Lawyers, Uncategorized

So, as far as I can tell, we are in the new normal and that involves hybrid work environments for lawyers. I was visiting lawyers recently and their office park in Montgomery County was 90% empty of cars. That is the same for my large suburban office park. This should not be news to youse. This is my experience as well. Something is lost by not being in the office, but it is along the lines of productivity or efficiency or institutional sharing of information and experience. Every large employer I hear about is trying to nudge its employees back to work on some regular basis.

Law firms on the other hand are having a harder time of it, particularly where the more senior lawyers prefer working from home. I would guess it is pretty tough to convince a new law school grad that it is important to their career development that they come into the office, when their partner level colleagues are still working from home. I have spoken to a series of newly minted lawyers who found it very disorienting working from home as new lawyers. They had no idea how to be a lawyer, what their job was, what to do etc. While we could chalk it up to training failures, really, lawyering is often learned by knocking on someone more senior’s door and asking how to handle a situation.

A lot of event planners, charities, and other organizations that either raise money by gathering groups or whose purpose is to put its alumni or members together are struggling to figure out what the new normal means for these events. I have recently attended some events that were fully subscribed and came off without a hitch and have seen others cancel due to lack of RSVP’s, where that was never a problem in the past. It is simply a changed world and figuring it out when you are trying to network or fundraise or get a group together is going to be a continuing challenge.

I Know I Am Winning At A Deposition When Defense Counsel Starts Barking Nonsense At Me

NeuwirthLawCase Matters, For Lawyers

Defense Counsel barking at me on the right.

We have thick skins as lawyers. I operate every day in a professional world where someone on the other side is paid to try to make me look bad or prove I am wrong or argue that I am lying to them. So, I am used to pushing my view loudly and forcefully. Sometimes, when faced with lawyers on the other side, who don’t know the case well or are unprepared or who have not prepared their clients well, the opposing lawyer’s response is to criticize me, my style, or how I am conducting a deposition. So, recently, a lawyer in a slip and fall case started talking over me and telling me all I was doing was asking leading questions and that was inappropriate in a deposition. Or, often, defense counsel will start whining that questions are asked and answered or other similar objections that while okay in court are simply silly in the deposition setting.

What is a leading question? A leading question is usually one where the answer is either yes or no. So, “The ice between cars should not be there, correct?” Answer: Yes. There is just nothing wrong with such a question. Tactically, it does not allow the witness to give a broad answer and you don’t get to hear a more general response. But, for my purposes, it allows me to know at trial I can stand up in a snow and ice case and say, the company’s own witness says the ice should not be there. Defense counsel in that case had prepped her client to try to shift all blame onto a co-defendant by saying we relied upon them for ice removal. But, when faced with the direct leading question, the answer was either yes, it’s okay for the ice to be there, which would be a ridiculous answer or no it should not be there. Allowing the witness to rattle on about how they defer to another company to evaluate dah dah dah, does not get the correct and damning answer. Now, with the leading question and answer, one defendant has crushed the co-defendant. And, you better believe that the co-defendant was going to be prepped to come in and blame this defendant. Game over. Andrew wins. Only remaining question will be the cost of ending the case for the defendants.

Often, defense counsel will threaten to file motions or end the deposition but I have never, ever, ever, seen that happen. Back in the day, when I was a New York lawyer and just before the ubiquity of cell phones, I was in a deposition watching a more senior partner defend a medical malpractice deposition. Typically, if the deposition is so contentious that a lawyer needs to call the court, you just pick up your cell phone and call. But back then, the upset lawyer wanted to use one of the phones in our law firm to call the judge. The senior partner said nope, but there is a pay phone downstairs on third avenue you can use. That is true New York style litigation.

The End Of Personal Injury Law As We Know It?

NeuwirthLawAuto Accidents, For Lawyers

As Michael Stipe sang about 20 years ago, it’s the end of the world as we know it…. Well, that was 20 years ago or 40 and we are still here. So, that may be a bit much, but the one thing we learned from the covid pandemic was that it is prudent to spend a little more time thinking about future planning for the black swan or unexpected occurrence. So, on the way TO THE OFFICE today, I was in my car like a good suburbanite and listening to a CNBC guest talking about GM’s push into self-driving cars. I really do think that self-driving cars will be the end of personal injury law. It may be 40 years down the road, but the self-driving car totally obviates the negligence of the average driver causing a car accident. These cases are the bread and butter of personal injury law practices. They are what keeps our skills sharp and allow us to take bigger risks on more challenging cases. So, I think that if the self-driving car goes away, this practice will go away too. Simple as that.

If you go to Vegas, you will see self driving cars passing pretty regularly through major intersections without trouble. On the other hand, if you drive in Philadelphia or its suburbs, you will regularly see people drive into oncoming lanes of traffic, make left on red lights, tailgate, or generally drive like idiots. That is not the general average driver, but it is certainly a daily occurrence if you drive regularly.

Every decade or so, there are sea changes in the profession. Twenty years ago, before I got here to the personal injury land of milk and honey that is Philadelphia County, the insurance law changed to allow insurers to sell limited tort policies. These nominally prevent you from suing for pain and suffering in exchange for a savings of $100 a year of so. They are plainly another point of leverage for the insurance companies. Why did this matter? Well, there were legions of personal injury lawyers, who simply could not adapt to that change and still collect limited tort cases because they are small ham and egger type lawyers. They could not adapt to the change.

As Americans, the world looks at us as the most adaptable, resilient first world nation for a number of reasons. We will or have overcome covid, will make it through recession, will or have survived trump etc. As lawyers, the failure to adapt to limited tort or self-driving cars is simply disastrous.

I don’t know that there is a solution for self-driving cars. Certainly, it is worth thinking about.

Productivity and Lawyering

NeuwirthLawFor Lawyers

I was recently taking my required CLE or continuing legal education and happened to hear a lecture about productivity for lawyers. Productivity or efficiency is just always a struggle for me. I like to get deep into my cases, like a pig rooting around in mud or a bear picking over garbage. But, only really at trial do you have the luxury of doing that on a single case. Otherwise, you may have a day to prepare for a deposition. I learn quickly and mostly know the facts of every case, but the details need refreshing.

Nevertheless, I am fascinated to see people who are productivity mavens and have their time blocked to answer phones, check email, etc. I recently started using MS To Do, which is free with MS Office 365. It is pretty easy to use and like a lot of task programs, but I like it so far, if you are looking for something to focus your time and day.

Since I am a lawyer working on contingency, I do not keep my time or hours. It is a great luxury of my side of the fence as many lawyers come to hate keeping their time every day. But, it also permits time to slip away. I always try to do the most unpleasant task of the day before lunch along with those things that require rapid intellectual effort. So, what are those things? Calling a client and telling them that I don’t think that they have a case worth pursuing. Or, calling and conveying a $1,000 offer to someone in a limited tort case. Basically, it means I am going to either drop the client or refer them to a lawyer who wants those sort of cases. Or, dealing with a claim rep at an insurer who is stuck at a crazy lowball number. Essentially, anything that is emotionally unpleasant, I do before lunch. My wife makes fun of me that my epitaph will read, “He loved lunch.” In the past this was true because I was often eating meals with people and lunch was more enjoyable. Covid has made that less frequent.

Patience Young Grasshopper: Cases Take a While to Resolve

NeuwirthLawCase Matters, For Lawyers

I like to know the ending of things before they get going. In Kung Fu, the old master is always reminding the student to be patient above all things along the path of life. I am not patient. I have been waiting for tomatoes in my garden to turn red for a month now and am tired of waiting. Nevertheless, a green tomato is not for me, no matter how much they like them down south.

It is hard to be an impatient litigator. It’s almost like you are going against your personality grain. Nevertheless, I have tried to learn and train myself to be more patient and to take developments in cases as they come. Very, very little in personal injury law happens quickly. Few, if any, significant emails are responded to quickly. Depositions are regularly cancelled once or twice before they actually occur. Even the Federal Courts, which are comparatively “speedy” compared to State Courts, will take 12 months to go from start to finish in a case.

How do you explain this to a modern-day client? Well, generally people who are impatient on the client side generally have lower value cases. Someone with a serious case, knows that they had a bad injury and with some discussion will understand that their case has to go to court to be resolved for a fair value. I just had a client in my office last week, who was picking up a large settlement check and the last time she and I saw each other in person was three years ago and before the entire pandemic. It was a nice reunion, but we had been working together on zoom for depositions and by phone and email over the course of three years.

However, for your typical modern-day Pennsylvanian, adjusting expectations of when their case will finish is begun… at the beginning of the case. For example, in Pennsylvania, some insurance company lobbyist convinced the legislature that insurers are not required to disclose how much insurance they carry for an incident until a lawsuit is filed. This is gobsmackingly ridiculous in lawyer land. I went to a conference once and the lawyers from other states were simply stunned by this nonsense. Why does it matter? Well, if there is $500,000 in insurance, it changes the negotiation dramatically versus the state minimum auto policy of $15,000. I can often get some sort of a sense of the available coverage, but it is just a sense and I have been misled before. Why does this matter? Well, you don’t want to settle a case early if there is insufficient coverage. You have to file suit to find out full coverage. So, you file suit and that means you are now going to have counsel assigned and are likely to at least go to depositions before you get even a whiff of settlement negotiations.

Generally, I tell clients that nothing in lawyer land takes less than three months and my average case takes nine months. Some are longer and some are shorter. It’s a marathon not a sprint. Take your pick of trite sayings, but they are true. It is hard to explain to people used to amazon prime next day delivery of a new motorized toothbrush that their case may take three years, but that is the truth. Most people get it. Those who don’t may go find a lawyer when they feel their case is not moving quickly enough and then they have the same slow process with that lawyer.

HEAVEN CAN WAIT: WHAT HAPPENS IF YOU DIE WITHOUT A WILL AND YOU HAVE A CASE ONGOING?

NeuwirthLawCase Matters, For Lawyers, Sue The City

First, it is fairly routine for regular practitioners to pursue claims for dead clients. Lots of things go into dealing with the deceased client who was a plaintiff or had a claim. So, what happens? First, for ethics reasons, I have to notify the other side that the client died. You cannot negotiate saying the client is damn sure coming to court and then have to fess up that he died. Why not? Well, who is going to sign the release for the dead client???

Here is an example of how things play out. I had a client die of COVID during the pandemic. The process of settling his case had begun and was being negotiated when he passed unexpectedly. So, what happens? Well, first, I had to analyze whether his death was due to the accident he was involved in. I concluded that his injuries from the accident may have contributed a little bit to his immobility but not to covid causing his death. So, I was able to discuss settling his case with the claims adjuster, but did not have to claim that the accident caused his death. It made the case easier to resolve, because if we had claimed that the accident caused the death, we would have had to file the lawsuit and find a doctor to claim that fractures following the crash somehow caused him to contract covid and die. That would have been tough to do and would have prolonged resolution of his case for the family.

So, while he died without a will, the intestacy laws take over and describe that his surviving partner and children inherit the proceeds. The Court will look and decide if the settlement is appropriate and will mostly rely on my petition to the Court and the approval of his surviving partner. However, the Court will also entertain challenges from outside parties on whether the claim is one for wrongful death or survival.

Wrongful death actions are brought by the heirs and allege that the person would not have died but for the negligence that caused the accident. A survival claim is what we ended up bringing. In Pennsylvania, a survival claim can be brought by the Executor or representative who then stands in the proverbial shoes of the deceased. So, the Executor can bring any claims that the client would have had had he not died. Simple enough right? Well, not really. If your lawyer characterizes a claim or settlement as wrongful death it is not taxable by the state, especially if there is an ERISA claim for past health expenses.  Rickard v. American National Property and Casualty Insurance Company, 173 A.3d 299 (2015) If it’s a survival claim, it is taxed. So, we have to really take a hard look at what can be proven and what is defensible.

Here is a fact pattern that is from a recent matter. A person dies 12 hours after a severe car accident. There is some pain and suffering, but the person is mostly on death’s door for the majority of the 12 hours. The person then passes on and a lawsuit is brought for both wrongful death and survival. What is the challenge here? Well, first, the tax man gets to weigh in on whether there was a valid division of wrongful death and survival. Second, your lawyer would have had to allege some pain and suffering to make the survival claim, so there is then some basis for the tax man to say he is entitled to some proceeds.

This is not stuff taught in law school. So, what is the answer? It is really just professional judgment and trying to craft a resolution that will be accepted by a judge, who has to approve such settlements in death cases and with any lienholders etc. What usually happens? The PA Department of Revenue will often approve a fair split and collect its taxes.  There is simply no right answer and often the sympathies lie with the wrongful death beneficiaries. So, the tax man would likely face a judge and be taking money from bereaved children, which would not turn out well for them. Interesting stuff, but there is really no right answer.

 

OTHER SPECIAL RELATIONSHIPS (HIPAA)

NeuwirthLawUncategorized

HIPAA, the Health Insurance Portability and Accountability Act, is the basis for the forms you sign when you go to your doctor’s office. Your signature indicates that you agree that it is okay for your doctor to share your health information with insurers, who pay for your care, hospitals, other doctors, etc.  People periodically are incensed and call me complaining that their health information was improperly shared and they are looking to sue the provider that did the perceived improper sharing. So, what does this look like as a case? Well, for example, perhaps you go to your primary care doctor during divorce proceedings with your spouse and reveal that you have a minor drug addiction and also test positive for a sexually transmitted disease. Your doctor is supposed to only communicate that to your insurer or other doctors. However, by happenstance, your records are available on an online portal to your spouse, whom you are trying to divorce or to their lawyer, and now your custody rights are affected. Do you have a case? Nope. Why? For unknown reasons, HIPAA does not provide a civil remedy for people harmed like in the above hypothetical. Weird, but true. Your only recourse is to lodge a complaint with the Federal Government through the Department of Health and Human Services and they will, may, or probably will not investigate. So, those are easy calls to field. The only time that you hear about HIPAA violations being successfully pursued is when celebrities’ medical records are viewed and disclosed in large hospital systems, where a nurse or other person is looking at records and revealing them for non-treatment reasons. Say, Brad Pitt or Emily Ratajkowski, who may or may not be dating, are hospitalized following treatment for side effects of botox use or liposuction or whatever makes them look perfectly perfect. Perhaps the stars would not want that information revealed and perhaps a hospital employee sells that information to the Enquirer. Can the stars sue the hospital system? Nope. But, they can file a complaint with DHS! Will they find counsel to claim a defamation and pursue that route? Perhaps, but it won’t be me taking that case.

ERISA: INCREDIBLY SIGNIFICANT AND INCREDIBLY BORING

NeuwirthLawUncategorized

This is easily the most boring and most significant federal law I deal with on a weekly basis. ERISA is a borderline impenetrable area of the law. Basically, the federal government created a system whereby health plans and employer sponsored health plans and other employer benefits enjoy really special benefits. The stated purpose of ERISA is to allow large companies and their health and benefits plans to operate with certainty from state to state without regard to each state’s parochial laws trying to protect their citizens. Why do I have to deal with ERISA?

Consider the following hypothetical. You work for Aramark, that staffs cafeterias around Philadelphia. This is a very pre-pandemic hypothetical. You have health insurance through Aramark and Blue Cross. You are in a car accident and have $35,000 in medical bills that are not covered by your car insurance medical. Your lawyer gets you a $100,000 settlement. ERISA says Blue Cross can collect their $35,000 out of your $100,000 settlement! Not fair, right? Truly not fair. But, completely legal, lawful, and backed up by ERISA, Congress, the US Supreme Court etc. You are not going to win this fight. Them’s the rules. I read the ERISA plans very very carefully and sometimes there are loopholes, but usually I end up begging the insurer to reduce their claim and have unhappy conversations with clients explaining why ERISA is taking money from their settlement rather than from the person who injured them.

There are large firms that have lawyers that spend their careers working on ERISA, but for me on my end, it is simply unfair. ERISA is written such that the health plans have a right to subrogation or to collect through you for medical bills paid out by any insurance coverage. Blue Cross is essentially able to say that we would not have had to pay medical bills but for the negligence of the person who caused the car accident and the law says we can collect reimbursement from ANY car insurance. The “any” is the sticky part for my clients. The only insurance payouts in these situations are ones that are made to my clients and at the end of the case, Blue Cross is there with their hand out. Sorry little guy. Sorry injured person. Thanks Congress.  Thanks Judges.

MENTAL HEALTH PROVIDERS IN PENNSYLVANIA

NeuwirthLawMedical Malpractice, Mental Health Providers

People often call me with claims that they were mistreated or the victims of perceived malpractice by mental health providers. Claims range from people believing that they were improperly 302’d or had medications switched with bad side effects or were otherwise mistreated. These calls almost uniformly do not turn into actual cases. The aggrieved person may be correct and may have a valid basis for a complaint. But, there are so many hurdles to surpass that the claim will only rarely become an actual lawsuit. Why? Because, I would have to prove that a mental health provider acted with gross negligence or engaged in willful misconduct. These are nigh impossible standards to meet in civil practice. Willful misconduct means you intended to harm the patient. The only case that jumps to mind here is sexual assault by a nurse or provider in the mental health context. Gross negligence similarly means something akin to leaving a suicidal person alone without supervision for days or failing to provide needed and prescribed medication for an extended period. This is not just an oversight or missed dose etc. Often, the cases that meet this very high standard are ones where prison suicides are the focus of the case. Often, our prison mental health system is not ideal and though the expectation of medical care in a prison is lower in my mind, there are still standards to be met.
Pennsylvania’s Mental Health Procedures Act, 50 P.S. § 7114, is intended “to provide limited civil and criminal immunity to those individuals and institutions charged with providing treatment to the mentally ill.” Farago v. Sacred Heart General Hospital, 562 A.2d 300, 303 (Pa. 1989). To this end, § 7114 provides that those who are engaged in treating or examining a patient “under the act” cannot be held liable absent “willful misconduct or gross negligence.” Whether we agree with it or not, them’s the rules. Much of the Act addresses voluntary inpatient treatment for mental health. However, it would also arguably prevent a lawsuit for other routine medical malpractice. The MHPA defines treatment as including diagnosis, evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a person from mental illness and shall also include care and other services that supplement treatment and aid or promote such recovery.” 50 P.S. § 7104. This definition evinces the legislature’s intent to define “treatment” broadly, so that it includes “medical care coincident to mental health care.” Allen v. Montgomery Hospital, 696 A.2d 1175, 1179 (Pa. 1997). Thus, “the General Assembly decided to reduce certain risks by granting limited immunity to doctors and hospitals who have undertaken the treatment of the mentally ill, including treatment for physical ailments pursuant to a contract with a mental health facility to provide such treatment.”
So, apart from being involuntarily committed for your own mental health, it is very hard to pursue these cases.