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There is No Such Thing as a "Simple" Personal Injury Matter!

I’m always cautioning attorneys about the hazards of dabbling, reminding them that there really is no such thing as a “simple” will or contract. This advice is never shared with the intention of suggesting that they should avoid taking on a new matter that leads them into unfamiliar legal territory. Rather my purpose is to remind them that if and when they choose to do so, they must be responsible about it. For example, they might research the law, seek advice from a mentor, find an attorney willing to act as co-counsel, call in a favor from a colleague, or take a relevant CLE course. I just don’t want to see them “shooting from the hip” because doing so can really back fire. Why? Because it is simply too easy to forget that you don’t know what you don’t know. Far too often the reality is the matter only appears simple because the attorney doesn’t know what questions to ask.

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One especially problematic practice area that attorneys tend to dabble in is the personal injury (PI) plaintiff arena and this can be a costly mistake. To explain why, I offer the following questions as food for thought next time the temptation to say yes to a seemingly simple, hard-to-resist PI plaintiff matter falls in your lap.

  • Do you understand the consequences of workers’ compensation liens, medical liens (including Medicare, Medicaid, and other state and federal liens), attorney liens or liens subject to ERISA regulations on settlement proceeds? Liens are a huge trap. This issue must be investigated early and thoroughly and will require an in depth knowledge of the law in this practice area. In addition, liens can significantly reduce the amount of recovery that will eventually reach the client leaving the legal fee potentially higher than what the client will eventually receive. Unless both the attorney and client are fully aware of the presence and impact of potential liens at the beginning of a case, a fee dispute or worse is in the making. In addition, under certain circumstances, an attorney can be held personally liable for failing to protect liens against a client recovery.

  • Are you fully prepared to handle and fund the case through trial? It is not unusual to find that after a few months the case isn’t the open and shut case you first thought it was which means that “quick settlement” you were planning on isn’t just around the corner. Now as the time demands of the case are growing, so too are the costs (experts, depositions, travel, staff time, etc.) which are going to be far above what you originally anticipated. Heaven forbid you find yourself in a situation where you begin to need to make tactical legal decisions based upon personal financial pressures. This is a conflict situation you don’t want to find yourself in.

  • Do you have the time to do so and are you adept at independently verifying facts relevant to the statute of limitations date and identifying the correct defendants from reliable sources? Clients, and people to whom they talk (e.g. physicians), may not be reliable sources of information. Accident dates should be verified from independent sources such as police reports and the dates on the reports themselves should be verified. Understand that the driver of the other car may not be the owner of the car. Thorough investigation from reliable sources is the only way to ensure that you have accurately determined all possible sources of liability coverage for your client, a process that can take significant time and effort.

  • Are you skilled at identifying and/or prepared to deal with a problem client? Some plaintiffs have very minor injuries, are complainers, are demanding, have unreasonable expectations about their desired recovery, are unwilling to follow through with medical treatment recommendations, and/or don’t stay in contact. If you’re not adept at dealing with clients like this just say no because the situation can quickly get out of control, especially if your lack of abilities leads you to ignoring the file. Procrastination and avoidance can easily result in a missed statute of limitations date and other problems all of which could have been effectively dealt with had they been immediately addressed.

  • Are you adept at evaluating and negotiating claims? It takes experience to set a reasonable value and then to successfully negotiate to that value. Value it too high and a trial will be on the horizon. Value it too low and your client loses out. In addition, you want to avoid allowing your client to form unreasonable expectations based upon any upfront promise of a large award or quick resolution. Always take whatever time is necessary time to fully investigate a claim before discussing the range of possible outcomes as well as the risks associated with trial.

  • Do you have a basic understanding of the tax ramifications of damage awards (to include any interest on the judgment) and settlement payments? If not, be aware that a blanket statement that you will provide no tax advice may not protect you to the degree you hope it will. You are the attorney and at a minimum have the responsibility to issue spot on any basic tax issues. You should either seek outside help yourself or advise your client to seek outside help in order to ensure that any tax issues can be understood and properly addressed before its too late.

  • Do you have a working knowledge of the relevant statutes and their application in the various state and federal courts? Do you have a working knowledge of the various state and federal court rules? If not, seek assistance. A seasoned trial attorney should be brought in as co-counsel if you wish to stay involved. Take time to “learn the ropes” from someone who is skilled in handling PI plaintiff matters. Otherwise, refer the matter to someone else. The ramifications of missing any number of critical deadlines can be quite serious even in those seemingly simple PI matters.

Related Posts:

Malpractice Missteps and the Importance of Keeping Your Emotions in Check

Getting It Right with Client Selection
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Mark Bassingthwaighte_ALPS Risk Manager​As a Risk Manager for ALPS, Mark Bassingthwaighte. Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog at www.alps411.com. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be contacted at: mbass@alpsnet.com
 
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