MORE EFFICIENT LAWYERING: THE PRACTICE OF LAW POST-PANDEMIC

NeuwirthLaw Case Matters, Insurance, Law Practice Management, Medical Malpractice

The pandemic wrought a lot of changes in the practice of law just like any other business that was affected in a significant way. Interestingly, the nature of litigators is to be averse to changes in how the court system functions.  The pandemic familiarized everyone with zoom and it inadvertently made us a more efficient system. For example, I have not taken an in-person deposition since pandemic began. That is a big change. It has saved umpteen hours traveling around to defense counsel’s offices, saved tons of hours of witnesses or court reporters or lawyers being late and saved tons in parking expenses. In court, we now do conferences on everything except settlement and pretrial by zoom in Philadelphia.  This saves probably 8 hours per case and $100 in client costs.  I would have thought that this would hurt the defense bar because they would bill hourly for travel to conferences and discovery hearings and no longer could do that.  When I discussed this during trial with my opponent’s counsel, he said actually, they found that they were more efficient as they knew where their young associates were physically, knew that they were working, and were getting paid more because they were not billing at the lower travel rate and were instead doing actual work. So, this change to “zoom court” has helped both sides it seems and reduced costs for the insurers in legal fees. That will surely not trickle down to your insurance rates but that is another story.

In speaking to insurance agents recently, they are seeing insurers fleeing most markets and rates going up by 14% or more across all markets.  That means that your renewal rates for homeowners, auto, etc. will go up or have been going up.  Mostly this is because the insurers are losing money and need to increase their revenue.  That is not your fault, but it hurts everyone.  Rates going up are a roundabout way of reflecting increases in costs of repairing a roof or a bumper etc.  Stuff is just more expensive.  And then there are all the fancy new vehicles on the market.

Here is a quick story.  My wife was driving her Tesla Y, which is the required suburban mom vehicle to keep up with the joneses.  She was in an accident that was not the other person’s fault.  Let’s leave it at that.  The Tesla was severely damaged.  Everyone was okay.  The Tesla is still in the shop five months later because Tesla has been frantically trying to make new cars and has been lagging on making replacement parts.  The body shop guy is exceedingly apologetic but it’s ridiculous. As a result, the insurer had to pay its maximum amount of money for rental cars, the body shop has not been paid out fully, and we have been without a car for long periods.  The Y was the most popular purchased car in America last year with the Rav 4, so soon you will start to see the repair delays work their way through such that the insurers will want higher rates to insure these popular cars.

CSI Type Stuff

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Jurors always expect every case to have a CSI level of investigatory work on it and it is nearly impossible to measure up to TV, which is of course, Fiction People!  It is very, very, time-consuming and unrewarding to try to get text messages from defendant’s phones or to show that someone was texting and driving before a crash.  Usually, texting and driving crashes are severe and it does not usually matter why the defendant crashed into you. It matters to you or the client A LOT.  It does not really matter to the lawyer.  We know the defendant was texting. There is no other way to explain the crash.  However, prying text messages out of a person’s personal Verizon account or worse a smaller carrier is really really tough.

I have a new case I am working on where there is a criminal aspect to the case.  The phone in question was properly seized and it has now taken a whole year for the text messages to be downloaded in Harrisburg by the state police.  A year is forever.  And that is with criminal charges at issue.  Civil inquiries work on a much slower track.

Jurors also love to see video of crashes, but most of my cases have no video.  The ones that do have video are damning for the defense and never go to trial because of the video.  Here is a video of a case that will never go to trial. My client is on the bicycle and is crushed by the car.  The car plainly never stops at the stop sign, never looks for passing traffic, and just flat out is at fault.  End of case right?

Well, the video was shot by a neighbors surveillance camera totally by accident.  Without the video, this would have been a he said/he said situation between the driver and the cyclist.  With the video, there is really nowhere to go here.  At the deposition, the driver conceded that he was 100% at fault.  He tried to say that there were school kids at the bus stop blocking his view of the cyclist, but again, the video busted that claim up.  And, the school district confirmed that there was no bus pickup that day as it was mid-August.

So, we really cannot create evidence when it is not there, unless we do an accident reconstruction and those are only usually used for paralysis or death cases where liability or fault is in dispute.  They are expensive processes that are only justified on occasion.

 

MEDICAL MALPRACTICE / NEW YORK TIMES ARTICLE ON DOCTORS UNIONIZING

NeuwirthLaw Insurance, Medical Malpractice, Standard of Care

Unfortunately, there is a lot of medical malpractice in our health care system. Usually, it is not the fault of individual practitioners but the fault of the system dropping the ball during handoffs of the patient from one service to another. For sure, there are bad surgeons and poorly trained ER docs, and mistakes made. But, most often, in the handoff of a patient from doctor to nurse to different hospital floor to different service results in key information being missed or lost.  There is a New York Times article detailing that doctors have turned to labor unions to try to fight off their ever increasing workload.  A higher physician workload has repeatedly been shown to result in poorer health outcomes for patients.  It’s really not in dispute. These studies follow on studies showing that less sleep for doctors also results in poorer outcomes.

Now what has triggered the turn to union organizing is that healthcare institutions have sought to increase efficiency at the cost of the doctors’ workloads.  For years the institutions tried physician extenders like PA’s and NP’s, which I suggest you avoid.  Then, when that did not help enough, the institutions piled more work on the doctors.  Then, during pandemic, a lot of docs simply retired or moved out of clinical care.  Those who are left are getting crushed with the volume.  Your average radiologist is asked to ready nearly 30% more films now compared to a decade ago.  Your average primary care doc is seeing 30 patients a day.  It is getting to be too much.  The inevitable outcome is poorer care.

The doctors are getting burned out and using unions to fight back.  It’s an interesting turn of events. Perhaps nursing home nurses will take notice and make their way to unions next.

All this efficiency is great if it improves things.  It’s not so great if people are dying as a result.

Writing a Book

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Due to many of you telling me that you like my writing, I am writing a novel with a lawyer med-mal focus.  I will keep you updated on progress.  Thanks for the encouragement.

Winston Wolf: “It’s 30 minutes away, I’ll be there in 10” aka Ugh, the driving out there is terrible.

NeuwirthLaw Auto Accidents, Insurance

Several times a week, I weave my way down to Philly and I must say that people seem to be taking liberties with ye olde traffic laws that I did not see before the pandemic.  Much like airline passengers acting out, you see some crazy stuff out there these days.  Driving the wrong way to avoid having to wait for cars to move up seems to be particularly popular.  For my clients, the hit and run is a particular favorite.  Don’t forget to have UM/UIM insurance people.  Meaning Uninsured and underinsured motorist coverage.  This coverage protects you from hit and runs or some kid with minimum coverage hitting you.  They should call it hit and run coverage.  Then, everyone would buy it, but I guess that would be bad for the insurers so we call it something nobody, but an insurance lawyer can understand until it’s too late.

One popular way to injure oneself is riding a motorcycle on Philly streets.  There are so many ways to hurt oneself riding a motorcycle that involve nothing but driving normally.   The bikes are not themselves dangerous, but the combination of motorcycle, bad roads, and physics seems to take its toll on my clients.  I choose to omit the reckless motorcyclists as they are not my clients, I think.  Mostly, these are young guys who are just calamitously injured and need my help.  I have seen deaths, grievous scarring, skin grafts, and amputations in my cases.  I understand the enjoyment of these bikes and I ride a bicycle all summer outdoors for exercise.  You can get almost as hurt on a bicycle, but the added speed of the motorcycle increases the risk dramatically.

Re-Filling the Pipeline

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I am guessing that most personal injury firms are in the process of refilling their pipelines like I am after two years of pandemic wearing off.  This does not manifest itself too much to the client.  Really, the work is the same now as it was before pandemic.  But, for me and my competitor colleagues, it means that cases are coming in more regularly, and there are green shoots or lights at the end of the tunnel etc.  Anecdotally, colleagues were telling me that all personal injury was down during and immediately after pandemic.  My average case has about a 9-month lifetime from intake to settlement.  The stronger cases usually take about 3 years to settle from intake to settlement being finalized.  Stronger cases take longer because they must be filed in court to accrue full value.

The funny thing about what I do that is different from most lawyering is that I can meet with a client shortly after a fall or crash or whatnot and have no idea what the case looks like, who I am talking to, what their situation is etc.  In regular commercial litigation or most areas of the law, a first meeting with a client is a big event and both the client and the work and potential for payment have to be vetted before both sides are willing to work together on a case.  For me and my fellow personal injury lawyers, we never have the luxury of time to sit and ponder and evaluate before signing a client up.  In my world, if I don’t sign the client up, someone else will by the next morning.  Plus, most clients have no idea if their case is hard, easy, or in between.  Usually, they just know that they need a lawyer and someone else is at fault.

Twice in the past year, I have met with people who told me that they had fractures following car accidents.  These are sort of the ground ball of personal injury.  But, sure enough, when the medical records roll in 45 days after the initial meeting, the records say possible fracture or avulsion fracture.  Avulsion fractures are a bete noire of mine.  They are technically a fracture and they hurt but they result from a tendon pulling a bone chip off the bone and are not as impressive as really cracked bones.  Plus, they are always downgraded to sprained ankle etc.  So, the client hears fracture.  The lawyer hears fracture.  The client gets signed up and then it’s a sprained ankle.  Now what? Well, I don’t pursue sprained ankles as injuries, but I will do avulsion fractures, though unwillingly.  So, we get more medicals and make a decision.

The Client’s View of Value vs. The Lawyer’s View: Ne’er the twain shall meet?

NeuwirthLaw Case Matters, For Lawyers

Clients with strong cases know that they will get paid full value eventually.  However, the majority of cases are ones that require some negotiation.  Most cases have value or I would not take them, but we do take the plaintiff as we find them.  So, a lot of clients who claim back pain from a car accident have prior back pain due to being over 50.  In other cases, the car damage was not severe or there is something else for the defense lawyer to hang their hat on to defend the case.  These cases require negotiation and can settle because both sides have strengths and weaknesses.

So, the epic battle, push/pull, negotiation, or normalizing expectations begins.  I recently had a client say “you’re the expert on value” out of the blue.  It was so unexpected and unusual it was refreshing.  Many clients have no idea of value and overestimate what their case is worth.  Like jurors or like people in any area, if you are not a specialist at valuation of a personal injury case, you will have no basis to make a judgment.  That’s just the way it is.  I don’t know how to tile a bath and I expect that there are good tile guys and bad ones.  But all the tile people would agree that a level surface, grout, a tile cutting tool, etc. are needed.  Those are just the basics.  In my world, the severity of your injury, extent of disability if any, lost earnings, and expenses are generally areas that make up valuation.  But many people’s injuries are mostly pain and suffering from an injury that is of debatable origin.  Is your disc bulge from the accident or old age? Are your headaches from the concussion or just a migraine flare which you had before?  Is your case on liability so strong that we are only discussing damages or is your liability case weak?

I can pull up from memory or on paper prior settlements in similar cases from my practice.  I can also search the google for PA verdicts and talk to my colleagues about what they think the value is of a particular case.  Generally, I am usually in the ballpark and the client needs to be brought around to a more realistic view of how “the system” views their case.  The “system” or experienced practitioners like me can tell you what the case can settle for.  What a jury will do is often a crapshoot.  Like my average client, a juror has no basis on which to make a valuation judgment and really does not get the benefit of a lawyer sitting down and explaining how to come to a valuation.  That is why most cases settle.  But many more personal injury cases go to trial than any other type of case in our system.  Plainly, something is going on.  Usually, the insurers don’t want to pay what the plaintiff’s lawyer feels is reasonable.

That end of year feeling/The holiday season

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Sometimes, timing is everything.  Right now is the last few weeks that we can get cases settled with the insurance companies before the year closes out.  The companies want to close their books on cases that can be closed and the claim reps are under pressure to get their case load down and resolve those cases that they can resolve.  I usually prepare for this time by sending in a lot of demand letters in October and they are supposed to bear fruit at this time of year.  This year seems to be holding to form and claim reps are randomly calling me looking to settle cases that will have to settle at some point.

As always in personal injury law, there is nothing like a lawsuit to motivate action on a case.  My policy is to always put my strongest cases into suit as soon as possible.   There is no reason to negotiate presuit on a case that has strong liability and damages.  Why take short money and waste time on a case that will get the client a nice strong settlement.  There is no good reason for that.

The flip side is that cases that either have liability problems or damages are not substantial should be settled presuit.  This is not rocket science.

Then, there are the cases where the claim rep’s decision making presuit is simply wrong and misguided or ridiculous.  About seven years ago, when I was in my misbehaving phase, I had a claim rep with a heavy southern accent give me a $2,500 offer on a case that eventually settled for $200,000.  The claim rep really had no idea what they were doing and I thought it was going to be a quick presuit settlement for a substantial case.  I was wrong and she was wrong.  Unfortunately, I told her that she was most likely going to be fired for her poor decision-making and that she would probably lose her trailer home and be out on the street and hence should look for a different line of work.  Now, none of this line of bile was based on anything but her southern drawl.  Sure enough, as soon as I filed suit and a lawyer was assigned, the first thing I heard was that line about the trailer park.  The case settled anyway soon after filing suit, but I sort of learned my lesson.  Sort of.

The funny thing about dealing with claim reps is that everything is recorded and no matter what is said they are mercilessly audited and criticized.  So, you can pretty much call a claim rep an idiot and point out all that is wrong with their analysis and they cannot hang up on you.  They are just not allowed to.  I have backed off from that approach as I have matured, but being a claim rep is in my opinion a pathetic line of work where you are required to undermine your fellow human’s life on a regular basis.  I place claim reps just above corrections or prison guards on the scale of people.  Prison guards spend so much time with criminals that their view of common decency degrades to the lowest common denominator and that is pretty low.

The Rough and Tumble of Personal Injury Practice

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I had an amusing past week in practice.  I was contacted by a guy in a tough part of town who had what seemed like an interesting case with real damages.  He was assaulted on a commercial property with a long history of prior assaults on the property.  He suffered broken bones and other injuries.  He had fired his prior lawyer and called me.  I went to see him and was not thrilled with the neighborhood, the client, his situation, or his general demeanor.  Through long experience, you get a feel for people whether you are a good lawyer or a bad one.  You just meet enough people and you know how the client is or will be.  I had the client sign a retainer letter at his house, discussed his case with him for an hour and left the area.  I had fired him the next morning after he called my cell and my office about ten times about new lawsuits to file, domestic abuse and a raft of other stuff.  I think that that was the fastest sign up and termination in my history.  Next!

The same week a client came to me who already had a lawyer and was pissed at his treatment by them.  Taking cases away from other PI lawyers is frowned upon.  That is not to say it is not done.  Nevertheless, there is a proper way to do it to keep the bad blood to a minimum.  You have to advise the client to patch things up with his prior lawyer, see if they can get on the same page, and then if they cannot, the client can come back and I will take their case.  Then, I am supposed to reimburse costs reasonably incurred by the other lawyer and come to some agreement about a referral fee to keep animosity to a minimum.

This client had been poorly treated by his counsel.  He somehow found a firm online that was really a large firm in California, but which claimed to have a Philadelphia office.  It turned out that the Philly office was a single lawyer and when I googled the lawyer, he was operating the “Philadelphia Office” out of a rent a room office.  Worse still, the lawyer was operating his own personal injury firm out of the same office and was listed as a real estate associate lawyer with another firm, also out of the same office.  Unsurprisingly, the client was upset that he could never talk to a lawyer, that his case wasn’t moving etc.  The last he heard was that a demand had been sent to the federal government seeking settlement of his case.  If you have a half a brain and practice in this area, there is no reason to wait for a response from the feds on a case.  They don’t care about our clients, don’t know what values apply, and have no urgency in anything they do.  So, they will delay for months and then make comically bad offers with no repercussions.  As a result, on a good case, you make your demand, wait thirty days and file suit.  End of story.  Then the case moves quickly along and a federal judge looks at the government lawyer and says, “what the heck are you doing, dummy.”  The most amusing part of this interaction was that his prior “lawyer” had not advised him that the legal fee when you sue the federal government is statutorily mandated to be 25% and not the 40% he had signed up for.  That’ll stick in your craw if you are a client.  So, that was my week.

Happy Thanksgiving!

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U.S. President Joe Biden pardons the National Thanksgiving Turkey, Liberty, during the annual ceremony on the South Lawn at the White House in Washington, U.S., November 20, 2023. REUTERS/Leah Millis

I am looking forward to a nice vegan vacation and hope that everyone has a place to go and people to reconnect with for this uniquely American holiday.  We all have something to give thanks for.  Whether it is the memory of past Thanksgiving holidays or loved ones lost or the new generation at the Thanksgiving table, there is good and bad and happy and sad that comes with the season.