DEPOSITIONS

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Sample of Witness Deposition

Depositions are really the best way to get information in a civil case. There are interrogatories and other written responses that begin to tell me about a case, but they need to be explained by a live person. Further, most of my cases are not document dependent.

Below is a link to a routine deposition I took in a motorcycle crash case that recently resolved. I share this for you to see that these are dry proceedings that are important to the lawyers, but not particularly exciting. They are certainly unlike anything you see on TV or in the movies. This deposition was of a police officer who was the first responder to a motorcycle crash, where my client hit a pothole off of the Schuylkill Expressway at Exit 346C Vare Avenue. He was ejected from his motorcycle and died the following day.

Here, there were several important points to be made. First, when my client was ejected, he hit a bollard or metal post that was illegally placed by the car dealership where he landed. My claim in the case required me to prove that the flying motorcyclist hit the bollard. Without that fact, I would not have a case that the dealership did something wrong that caused harm. I knew that there was a small spot of blood on one bollard and the police officer confirmed that it was fresh and from my client.

Another important point was proving pain and suffering, where there were only a few hours between the crash and his death. There was not going to be any testimony from the client as he had passed, so the evidence of pain and suffering in that interim period had to be reconstructed. One way to handle this problem is through expert testimony. I had retained a specialist in critical care/ICU medicine to talk about all of the pain that a trauma patient experiences prior to death.

But, the best testimony came from the responding police officer, who was clear that my client was moaning in pain, tried to sit up, and was clearly in distress. I could not have anticipated exactly what the officer was going to say, but his testimony was powerful and undisputed. My client was not unconscious and was suffering. So, while it was somewhat gruesome testimony, it was done in a professional manner and represented the client and his family in an effective manner. Every case is different, but for this case, this was important testimony.

Often, even though there are no fireworks, the lawyers see important facts unfolding in deposition testimony. Here, the officer’s testimony on those two points, the blood and the pain were very important and would have told a jury everything that they needed to know about what my client went through before his death.

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THE WHEELS OF JUSTICE GRIND SLOW BUT GRIND FINE

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Old oil mill, millstones and and mechanical press.

Sun Tzu gets some credit for this pithy insight as does someone named Sextus Empricus who wrote “The mills of the gods grind slowly but exceedingly fine.” What does this have to do with legal practice. Well, for starters, nothing moves quickly in personal injury law. That was true before the pandemic and is more true now. We live in a rapid response world, where I can order cycling tights on amazon and have them the next day. So, we grow accustomed to things being done yesterday. However, every time I meet a new client, I have to take the time to explain that getting to the end of your case will take months, if not years.

My average case takes about 9 months. More serious cases take 1-3 years. So, if you are looking for a quick buck, you have come to the wrong place. But, with that being said, about 94% of personal injury cases settle without going through trial. So, odds are that you will get a favorable settlement, but odds are that it will take time. Why so much time? Well, a whole series of factors delay the progress of your typical case.

First, cases cannot be analyzed and negotiated until we have a full picture from your medical records. Typically, we will not order your medical records until you have undergone at least 3-6 months of treatment because a visit or two is not useful to me and further, getting medical records produced is a tremendous headache. Hospitals and doctors’ offices are required to keep records for seven years. But, they are not required to produce them in a speedy manner. So, often we wait 45-60 days to receive records. A whole cottage industry has sprung up in charging lawyers and clients for medical records retrieval, which is totally ridiculous, when they could be emailed in a moment. To some extent, medical records retrieval has become a small profit center for healthcare providers. Regardless, this is the first bottleneck in moving cases along. The second is that no case that is filed in Court ever takes less than a year from start to finish, with very limited exceptions. Occasionally, I will file cases in federal court as they have rapid timelines, but rapid usually means 9 months from start to finish if all goes smoothly.

There is simply no way to rush a case along. If I file a lawsuit today, I have to serve it which takes a month or so. Then the other side has 20 days to answer. If they don’t answer, I have to notify them that they have 10 more days to act or I will seek a default. And on it goes. These protections often just serve to delay the progress of your average case. The procedural delays are generally there to protect clients and lawyers from things unexpectedly happening on their case without their knowledge. Most court systems I deal with have electronic filing and notification systems. So, I know right away when some ruling occurs, but there is still an overworked or understaffed judge or Court on the other side of the e-filing system. So, if I file a motion to compel the other side to do something today, the other side will usually have 20-30 days to respond and then the Court will usually not act until another 3 months has passed.  In Philadelphia, things are a little quicker, but you can see that 90 days can go by with absolutely nothing happening on a case while we wait for things to progress on this one motion.

Nevertheless, clients do patiently wait. Most often, cases settle on the eve of trial or during mediations etc. This is the exceedingly fine part. At some point, lawyers on both side, have learned enough about your case to make some judgments about the value of the case in dollars. Every case has strengths and weaknesses. Some are bigger than others. Regardless, at these critical moments when everyone is focused on your case is the best time to resolve the case unless there is a huge gulf between how each side values the case. Those cases go to trial. The rest get settled. So, at the end of a year or more, there is often a negotiated settlement that gets the case resolved and that is agreeable to all sides.

RECESSION WATCH

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The recession is coming, whether we like it or not. I am not an economist, but have been around long enough to see the signs. If the stock market is selling off, home prices are cooling, Amazon is laying people off, and layoffs are starting to creep into the news, one should be on recession watch. We have been in a year or two of wildly low unemployment. If you want a job and do not have one right now, go find one because events are going to turn against you soon. Inflation may fall, but once business gets a whiff of recession, their first reaction is to stop hiring or lay off five percent of the workforce. I deal with people, lawyers, clients in all walks of life. I think that personal injury law is actually one of the few practices along with bankruptcy law to thrive in recessions. People who are injured, but employed are less likely to call me than when they are out of work and desperate for cash. So, when the economy tanks, calls ramp up. Just be warned and be careful.

PICKING THE CASE: What Makes A Medical Malpractice Case?

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What Makes A Medical Malpractice Case?

Damages, damages, damages. If you are calling me about your own medical malpractice case, then I am instantly concerned whether you have sufficient damages to pursue a case. Conversely, if someone else has to call for you or you died, you are more likely to have a case worth pursuing. Why? These are expensive and long cases to pursue. Plus, physicians are entitled to make judgments, rightly or wrongly at the time of treatment. They don’t know how things will turn out and a jury will be told not to judge them in retrospect. They did not know that that spot was not a bone island but rather a mini tumor. It is easy to see in retrospect, but that is not how these cases are judged.

As I tell most people, you don’t want to have a medical malpractice case worth pursuing. So, in my view, you had better have a lifetime of pain and suffering or lost a body part or died before your medical malpractice incident meets criteria to become a case. I field five calls a week from people who are incensed by the poor care they received. They are right. People get crappy care. But, crappy is not the standard for a lawyer to take your case. Crappy care with devastating results is the standard to me.

Here is an example. A doctor should have recognized that you had a bowel obstruction. The doctor failed to do so. You are rushed to the hospital are diagnosed with sepsis, which is a systemic and dangerous infection. You have surgery to remove the blockage, sew your intestines back together, close you up and you recover. It sucks and you are miserable and the doctor’s boss comes to you and says we are sorry Dr. Bob screwed up. Do you have a case worth taking? I don’t think so. You are fine. Not happy with the care, but you look fine and your records say you are fine. End of story. Next!

How about this? You go in for a routine biopsy of your prostate as do 20 other men on the same date. Your prostate sample comes back as clear or no cancer anywhere. Unbeknownst to you, your prostate had a small cancerous tumor but your slides were mistakenly switched with another patient’s slides in a high volume operation that reads a lot of prostate slides. This scenario happens periodically. Do you have a case? Meh. Well, assuming that the mixup is figured out sooner than later, you would have had your prostate out anyway or some similar treatment.  So, no damages. If there is a delay of over a year or so and you develop metastatic prostate cancer, then yes, you have a case. More interestingly, the person who was on the other end of the slide mix up and had their prostate removed, but the prostate was found to have no cancer anywhere has a strong case. Because of the lab mix up, their prostate was removed and never needed to be removed.

 

The Low Hanging Fruit:

Clients with strong cases know that they have a strong case and can be patient and wait for the settlement to come. You have a fractured leg from a car crash and have surgery? You will get paid in the end. It may take a bit, but I will get you paid.

Clients with weak cases or iffy connections between the crash and the injury tend to have a much harder time as defense counsel can see various defenses and hence room for negotiation to reduce the value of your case.

As a personal injury lawyer, I have to be able to explain your case to an insurer, a judge, a jury in a few simple sentences, themes or photos. Personal injury trials in auto crash cases usually last 3 days or so including jury selection, playing videos of doctors testifying etc. So, a jury may hear an hour or two of testimony and an hour or two of arguments and that is it. If you have an injury that may be vaguely related to your crash, but is incredibly complex, it is best left out of your case.

For example, maybe you were in a bad crash and it worsened your anxiety and you had to double your medication dosage. Is that a real injury? Of course! Can you claim that in Pennsylvania? Of course! It is an aggravation of a pre-existing condition and well-recognized as entitled to compensation. However, do I, as your lawyer, want to base an entire case on that as your injury? Nope. Why? Well, first we have to discuss your baseline anxiety, which may seem unusual or stigmatizing to your jury. Second, there is no injury identifiable on any scan, test etc. So, you could be making the aggravation up to beef up your settlement. Next, we need to have your psychologist explain how your anxiety changed or worsened. It is a medical condition and so it is not enough for you to explain that it was the result of the crash. A medical doctor or licensed professional needs to draw the connection. Plus, you likely present as an anxious person and anxious people are often perceived as hypersensitive to certain events. Rightly or wrongly, it is a tough sell and not a case I would want to take to a jury. Is it a real case? Yes, surely.

I turn down cases every week that have insufficient damages to make them worth pursuing. So, the low hanging fruit are the cases that end up in my case load. If you need a lawyer who will take any case and not worry too much if it makes sense or will benefit the client, then go see the lawyers who advertise on buses, on daytime tv, and operate on a huge volume basis. Do you know why they need to advertise? The high volume shops have lots and lots of unhappy clients and as a result, their former clients don’t refer new clients back to them because they are unhappy with the treatment they received. I don’t want unhappy clients.

“I play for money”- Joey Knish

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In the epic poker film Rounders, Matt Damon plays the young flash in the pan superstar who wants to win it all. Joey Knish, Turturro’s character, is the classic poker grinder, who watches his money, makes good bets on good risks and doesn’t chase cars, ego etc. When Damon needs his help, Knish is there for him, but won’t lend him money. Knish says: “I got alimony, child support, rent” etc.  The message is….. Damon is a bad risk.

I have always looked at plaintiffs’ personal injury practice as a game of poker. The insurance companies are the house and the house usually wins. Big bets against the house are usually not a good plan for long term success. Instead, prudent playing of risk and reward is what generates long term success for the lawyer and client.

Clients do not want their injury compensation to be in the hands of a jury of strangers. No matter how strong they feel their case is, few people are Matt Damon and love the risk. Some people are forced into the trial setting because the insurer is making a bad decision, but few embrace a jury trial. Clients want a fair settlement in a timely manner.

The one problem we face as lawyers in Pennsylvania is that we cannot tell the jury what we think our client’s case is worth. It is simply not allowed. So, how is a jury supposed to know how much money to award? They don’t. They don’t have experience awarding money so they guess, estimate or put round numbers on pain and suffering. $100,000 may be a lot of money in Berks County. But, to me, $100,000 for a single surgery is simply inadequate. How would a jury know that? It won’t. Juries get it right and get it wrong, but usually neither side wants to trust the jury to be accurate on value.

For decades now, I have played Joey Knish. It’s not glamourous, but I run a business that flourishes, maintains a fortress balance sheet, and keeps clients and referrers happy. That is the right play in my mind and it keeps everyone happy. Firms come and go and while it may not be apparent outside of the profession, personal injury firms break up all the time when money disputes break out. I know so many personal injury lawyers who are terrible with money, overspend on personal and business expenses, are loaded with debt and obligations, and have terrible credit. It’s an affliction that may or may not be part of personal injury practice. If we hit a big case, there is a huge dump of money. It may have been four years to get there, but all of a sudden there is a dump of money and it is tempting I am sure to go blow it on whatever is tempting at the moment.

I know lawyers who have killed themselves over their debts. I know lawyers who have been through multiple bankruptcies, have drinking problems, and everything in between. That’s not me. I guess I am Joey Knish. He is looked down on in the movie for not pushing all in and taking his shot. Ah, well, to me that is Hollywood. If you want to read a great book, read A Civil Action about Jan Schlichtmann. He was a bright lawyer, who graduated well before me from Cornell Law. He fought the good fight and pursued an endless toxic tort lawsuit. He went bankrupt, got divorced, lost his practice and lost his way.

 

 

 

 

 

 

Ch Ch Ch Changes

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As David Bowie sang, “Time may change me, but I can’t trace time.” Many of us as lawyers get up every day and run our firms or work on our cases, trying our best to keep clients happy and the airplane flying while repairs are underway on the fuselage. There are always positive changes to be made. Always! And, with everything, there are lessons to be learned from mistakes, misjudgments, and challenging situations. My practice is different looking now than it was ten years ago. I expect it will be different in ten years from how it looks now. But, the changes are hard to subtle and take years to become apparent and as Bowie sings, they are hard to untangle or put a finger on. I have an economically better off clientele than I did ten years ago for various reasons.

My first clients were brought to me by my kids’ nanny, a great lady named Sheila Cupit, who has since passed on. Sheila was a force of nature and a committeeperson in Norf Philly. (That’s Philly lingo for you non-Philadelphians) (Wolf, the animal and governor is pronounced Woof here).

There was no better start to a case than when a Philly resident would testify that she was on her way home from church when the crash occurred. That would instantly remove the defense lawyer’s belief that the client would be perceived as exaggerating, fabricating etc.

Plus, money I made for my poorer clients often had a much greater effect on their lives than what I make for my better off clients. I used to offer my clients the service of a trusted case loan company that was endorsed by the Pennsylvania Association of Justice. Clients were always seeking loans on their prospective recoveries. Now, that rarely happens.

Now, my suburban clients have concerns about their cars initially and then about long term medical expenses etc. Often, the hardest thing with self-employed people is proving lost wages when they are not paid a salary. Working with a W-2 employee is much much easier than assessing lost wages for someone who lost a week of work, but does not get paid hourly.

So, what does this mean to professional practice? Well, first, I am much better now at the routine conversations with clients on what to expect than I was ten years ago. I know most, if not all, of the questions clients have and what answers are fair and satisfying to someone who is dealing with a lawyer for their first time. Nevertheless, when your practice or clients change, it is important to recognize it and respond or at least change the reference for how you speak to clients.

 

ALWAYS BE CLOSING: SIGNING UP NEW CASES OR CLOSING NEW BUSINESS

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Does “always be closing” ring a bell? If not, you may not be a rainmaker! If not, watch the movie Glengarry Glenn Ross’ famous Alec Baldwin “ABC” or “coffee is for closers” scenes on YouTube. Why? It always lights a fire in the belly that there are others out there competing against you and you need to work to keep up. I firmly believe that anyone can bring in business with enough effort.

However, as in Glen Garry Glen Ross, there is a downside to closing the deal! In personal injury law, most of the time, the first lawyer to speak with the client gets the case. That is just the way it is in auto litigation. In more complex cases, like a pelvic mesh case, I will refer those cases out to firms that specialize in that area.

In auto law, if you are the first person to speak with a client, it is important to have the client understand that their case has low, medium, or high value. If you don’t give a valuation range to a client, often they may not stay with you. If the client thinks that you are a lawyer who will settle for the first offer, then why would they stick with you?

I close most of my client interactions where I see a case that is worth pursuing. People like that I generally do not speak to them like a lawyer and that I empathize with their plights. With that being said, I have lost clients to other lawyers and it sticks in my craw. The worst is when it is a larger case that wanders off to some other lawyer for no reason. We have a whole protocol we are supposed to follow in taking cases from other lawyers when clients are unhappy, but people only seem to follow it when the case is not good.

My clients rarely have interacted with lawyers.  Thirty-five percent of the time they are coming to me from google or other internet searches. What that tells me is that they do not know any lawyers or don’t have faith in the ones they do know. The other sixty-five percent come through word of mouth referrals and hence know lawyers and have a higher level of faith in what I am telling them. So, your typical internet referral client requires more convincing 1) that they have a case worth pursuing and 2) that I am the lawyer for them, that I am trustworthy etc.

Finally, if you tell a client that $100,000 is the case value and over time the case declines in value for whatever reason, you are going to have to get the client to come off of their $100,000 expectation that YOU put there. That is not fun. Clients understand it, but it is not a fun conversation.

VALUE DESTRUCTION OR VALUE ADJUSTMENT IN PERSONAL INJURY

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So, what reduces value?

Well, prior accidents and gaps in treatment are the largest areas that reduce values in the eyes of the insurance carriers, who set the playing field in personal injury. If you had a prior car accident before the one you are my client for, then there will always be an argument that the injuries from this accident are merely the result of the other crash. I have had cases, where clients had 4 accidents over the course of the two years that I was representing them. Four accidents just makes your case really hard to value and reduces the eventual settlement value substantially. Nobody is ever going to be able to tease out which injury came from which crash.

Gaps in treatment are the other big issue that reduces value. What is a gap? Well, perhaps you had a bad crash and did not go to the ER and then felt crappy and hoped the pain would go away. Then, the first time you see a doctor is 10 days later. To all involved, it looks an awful lot like you were not injured enough to require medical attention for ten days. The simple inference is that the crash did not cause you any serious injury and hence you were just looking for a payday rather than actually hurt.

Perceptive defense counsel will sometimes ask, “When did you first speak with a lawyer?” I do not view that question as seeking privileged information, but it is a good question that seeks to imply a connection between speaking with a lawyer and getting medical care to bolster your allegedly minor car crash lawsuit. At least that is the implication. Some may view the question as objectionable on grounds of privilege, but I do not.

Do pre-existing conditions reduce value? This is a complicated area. The insurance industry believes that if a client had asymptomatic arthritis in your back, meaning no back pain anywhere in your records before the crash, then you still had a pre-existing condition and that reduces the value of your case in their minds. The defense medical expert will often harp endlessly on a client’s degenerated arthritic spine on their way towards saying that the crash did nothing to the client and all of their complaints were pre-existing. I don’t usually concern myself too much with this defense, unless there are prior surgeries or injections to the area at issue. Why? Well, defense experts are often overburdened by all the cases they review and their own practices and do not take the time to actually fairly evaluate the medical records. The most fun I have in cases is picking apart the defense expert when they blame asymptomatic pre-existing arthritis and there is no medical record to support any patient complaints. It gets cringey for the expert.

So, don’t worry if you or your clients have pre-existing conditions.  Worry about gaps in treatment and prior accidents.

PICKING CASES: Take the Case? Refer it out? Turn it down?

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Do you want the client’s case???  One of the critical pieces of personal injury law is Case Selection. It simply cannot be overstated how important this is. While you need a steady volume of cases to make case selection an issue, that is a separate topic. Case selection is simply the 80/20 rule or figuring out what is the best use of your time and resources. For me, car accident cases are my bread and butter and keep the lights on and the bills paid, the kids in private school etc. The other cases like medical malpractice, products cases, slip and falls with serious injuries, suing the city and carbon monoxide poisoning, are the more entertaining and high value fights.

In the auto cases, case selection is fairly straightforward.  Assuming liability is clear, injury determines value along with a host of other factors. So, when a new person calls, I am listening for injury and makes and models of cars to guess at coverage. Fact patterns in North Philly are often plagued with hit and run drivers, serious injuries and not enough insurance coverage. The Pennsylvania State Minimum coverage is $15,000 and that is never enough for any injury. Fact patterns in the Philly suburbs often involve plenty of coverage, but inexperienced or out of control drivers in big cars and inevitably some blaming of the other party, traffic conditions etc. Usually, I assume that there is some element of texting and driving.

Nevertheless, there is always a lawyer willing to take a case of some lesser value than I like to mess around with. My average case takes about 9 months and every client with a strong case will tell you that their case was filed in court and took about 2 ½ years from start to finish. So, if I am going to take a case with real injuries, I want to be sure that the case is worth it for both the client and me and that we can get along for a year or longer. The last thing I want is a unhappy client. I should not take that case and try to learn from the mistakes where I do take those cases.

Even if I sign the case up and have a decent sense of valuation, I may still refer it out to other lawyers for any number of reasons.  I try to do that sooner than later in the case and preferably at the very beginning.  I refer out cases in medical malpractice, workers compensation, employment and any other area that I do not handle.  I often refer out cases that are too small or too large for me. I don’t like to handle class action cases or multi-expert medical malpractice cases. They require too much of an investment of my time and money.

Finally, I turn down cases most often when the client’s story is not supported by their medical records, the police reports or some other area that raises questions about liability.  If you were at fault, I am probably not going to represent you. There are simply too many other fights to have than fighting about who was responsible and then having to also fight whether you were injured or not.  Not worth the time.

Summer

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I always believe that there is a grand conspiracy, intentional or otherwise, to slow things down for the summer. Lawyers and judges vacation, clients are less interested in stressful depositions, and generally, the practice of law slows down for the summer. It has always been this way as long as I can remember. It is a good time to work on more time intensive cases or re-assess how the year has gone and what cases are getting ready for trials and need extra attention.