Writing a Book
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.
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
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?
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
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
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!
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.
GO MAYOR PARKER
Ah, the holiday season. I got my first static electric shock this morning and it always serves as a reminder that winter is coming.
On another note, Cherelle Parker was elected as the first female Mayor of Philadelphia. She has a lot on her plate and while it is nice to have a historical change and perhaps some more energized leadership, results matter. I expect that we will have 8 years of her, and we can only hope that she is able to fix up the quality of life that makes people want to live AND stay in Philadelphia. I think that policing and enforcement of quality-of-life crimes has to be at the top of the list with the City’s really pathetic education system second. After that, the 250th anniversary of the founding of the Country is coming to Philadelphia and will be a big deal for all of us who live here.
I happen to field a ton of calls from Philadelphia people who want to sue the City. Amusingly, if you google sue the City of Philadelphia, you see www.neuwirthlaw.com above the City of Philadelphia’s own site. So, I get a lot of calls about: 1) dirt bikes/atv’s terrorizing people; 2) Kensington’s drug abuse culture; 3) gun violence killing people. Those seem to be the hot topics to call about. I cannot help with any of these things. These are all government functions. While we are not Somalia or Yemen, it is tough to say that you are running a functioning City if you cannot protect the vast majority of law-abiding citizens from the extreme minority of jerks who make things unpleasant.
If you talk to students in Philadelphia or young families, what do you hear? You hear plans to leave because the schools are not working to educate people and the city is too dangerous to raise little ones. So, people leave. Statistics show they go to North or South Carolina for jobs, weather, schooling, etc. They are certainly not staying here.
So, Mayor Parker, have a good Thanksgiving and get some rest. You are going to need it.
128 GRAZER WINS FAT BEAR WEEK 2023!!
You have no idea what I am talking about? In a nutshell, every year forest rangers monitor which grizzly bears return to eat salmon in Alaska on the Katmai river. An informal competition watch has developed and this female bear ate the most and gained the most. Sleep well mama bear. At least she wont have to run Philly when she wakes up in the spring.
More importantly, do you engage in risk taking behavior? I don’t skydive or free solo rock climb because they are too dangerous. But, I read a lot of medical records and a lot of us engage unwittingly in risk taking behavior that might as well be like skydiving. If you live in the suburbs, you don’t walk enough. I was just in NYC and everyone is thinner there because they walk all the time. They are also prettier and taller, but I think that has something to do with the drugs they are using. So, before you end up looking like 128 Grazer in January, try to get 7,000 steps in a day or just do something physical every day, however small. Your body and future will appreciate it. I have a friend who is 73 and had a heart attack and recovered, but his doctor said he needs to exercise more to keep healthy. Exercise had never really been part of his life and he had to start at square one to learn how. It’s a long road to learn how to do something at 73 for the very first time. It just is. If you start walking now, you may lose the fat bear challenge, but you may feel better in 20 years.
WHAT DO I DO WHEN A SIGNIFICANT VALUE CASE COMES IN OR DEVELOPS?
So, a case of $500,000 or more in value needs more time and attention and funds spent than a case with a smaller value. The usual distinguishing factors for these higher value cases is a loss of earnings that is legitimate. Not two weeks of work at $1500/week. I am talking about totally taking you out of your career and costing you $200,000 over 20 years or so. That takes a few fractures or a major injury and turns it into something more valuable.
But I cannot snap my fingers and say your case is worth more. It must be proved in Court and that takes experts and experts take money. So, if you have a severe injury that keeps you from doing your job, like a concussion that results in trouble reading or trouble hearing etc., I will hire someone to explain why you cannot do your occupation. Usually, this is a physiatrist or other doctor who, for litigation purposes, can connect up why an injury prevents you from doing your job. Then, I also must hire an economist to project your future lost earnings. The two work together to really tote up what your losses look like and the losses get big fast because of lost benefits, Medicare contributions, health insurance lost etc. This is a regular part of what I do in higher value cases. It makes the case cost more, but it is worth it to the client and outcome down the road. If I do not take these steps, an insurer will not view the file as significant because I will not have done the basics to get the evidence of future losses admitted.
What other elements go into bigger cases? One is a real focus on damages witnesses. Your family, friends, and co-workers are always great windows into what you suffered. Most people need to hear about damages from the injured person, but if it turns into too much drama, jurors will turn off and view it as whining. So, that is where bystanders come in. Anyone who can say what you went through is usually devastating testimony. Most of the time, the defense lawyers will not take their depositions during discovery and often will not even cross-examine the witnesses in a trial. It is great evidence. But most personal injury plaintiffs don’t want their family and friends to have to come in and hear about their pain and suffering or participate in their case. Plus, who really wants to drop things and come to court to testify under oath? Not too many.
I finished a recent case where the friendly witness was the best witness in the case. She came in, said her piece, and supported everything the plaintiff was saying, but in a nice folksy and endearing way. She was a winning witness. In summations, even the defense lawyers conceded that she was a lovely witness. Amusingly, before I put her on the stand, I had a chance to discuss with her what she would testify to and she basically said, “Mr. Neuwirth, I have testified in my own cases before over the years and I know what you want and what to say. I will do my job.” And she did. It was nice to watch her talk about her friend and her friend’s struggles. There was no cross-examination of substance.
So, bigger cases take more work, but there is more reward.