The Missouri Court of Appeals for the Western District has weighed in on a growing issue in the arena of worker's compensation law in the State of Missouri. That Court reached the same conclusion that the Missouri Supreme Court reached in Abrams v. Ohio Pac. Express: employers have no right to appeal the granting of a temporary award by an administrative law judge.
In Motor Control Specialties, Inc v. Labor and Industrial Relations Commission, 323 S.W. 3d 843 (Mo. App. WD 2010), the Court rejected the arguments of the employer that the regulation which did not allow such appeals was, among other things, inconsistent with state statutes and a violation of their right to due process. The Court relied on Abrams in finding that the regulation was not inconsistent with the statute.
As far as whether the regulation violated due process, the Court held that "intermediate decision-making steps within the agency, before decision become final, are constitutionally permissible. It is only after an administrative decision is final that intervening steps between judicial review become unconstitutional because they preclude direct review of that final decision. The regulation only addresses intermediate decision-making before the decision becomes final. Thus the regulation is constitutional because it does not thwart judicial review of a final decision." Motor Control, 852.
The worker's compensation plaintiff's attorney in me likes this decision, obviously. It means that should an ALJ make a temporary award, my client should not have to wait while that decision is appealed in order to get the compensation the ALJ has determined is warranted.
However, there is another part of me, I guess the law student part of me, that has a real problem with this decision. A temporary award represents an award of compensation to an injured worker. This means that the employer's insurance company is going to have to pay the injured worker pursuant to that award. I have a hard time with a system that does not allow for a party to appeal to a higher tribunal when that party now has an obligation to pay based on a decision of a judge in a lower tribunal.
The plaintiff's attorney in me is also concerned about the ramifications of the lack of review. What if a temporary award is granted improperly? This means the employer could argue that my client received monies they were not entitled to. Will they then look to my client for reimbursement of the temporary award payments?
I certainly don't profess to have an easy answer to this problem created by the statutes and regulations as they are currently written. Perhaps the best answer would be to re-write them to make them clear and remove some of the ambiguities, but even then it would not be likely that they would change the reg to allow for the appeal of temporary awards. They would likely simply make it even more clear that such appeals are not allowed.
Perhaps the agency and legislature should consider allowing for the employer to appeal the temporary award to the Labor and Industrial Relations Commission, but make them do so in a quick fashion to avoid delay of valid payments. Also, subject them to penalties should their appeal be denied (such as payment of interest or attorney's fees on the temporary award should their appeal be denied). This would hopefully provide an incentive to the employers to only appeal those temporary awards that are truly unjust.
The more I thought about this issue, the more I felt like that guy with the two angels on his shoulders. In one ear I am hearing one thing, and the complete opposite in the other ear. Maybe some of you can give me some insight to sway me one way or the other.
Friday, January 21, 2011
Thursday, December 9, 2010
Thoughts on the Rising Costs of Litigation, From a Defense Perspective
As I was reading through the November 22, 2010 edition of Missouri Lawyer's Weekly, I came across a Commentary piece regarding the rising costs of litigation. It comes from the perspective of a plaintiff's attorney. I, as someone whose practice has primarily focused on representing insurance companies, have a different take on the issues raised in the commentary. I wanted to use this forum as an opportunity to provide my thoughts on some of the issues raised in the Commentary, hoping to generate a discussion amongst readers on both sides of the aisle.
One of the examples given of the system working in strange ways is a case where mediation had been offered prior to the suit being filed, but then after suit was filed that offer was withdrawn until certain discovery was completed. This may seem strange to a lay person, but in my experience working with insurance companies it is not strange at all. Oftentimes, before a suit is filed the matter is handled by one adjuster, and then once suit is filed, the claim is transferred to a litigation adjuster. Also, the company itself likely has guidelines to follow once suit is filed, which may include the completion of certain discovery and investigation prior to agreeing to mediation. Also, carriers often consider settling cases that have questionable merit prior to suit being filed because they can be closed quickly and cheaply. Once a “questionable” case gets past that point, the more prudent approach is frequently to defend the case vigorously, since that often does cost the carrier less than settling. We can debate for hours on end whether the guidelines themselves create waste in the system, but the fact is the insurance companies have put them in place to protect themselves in resolving claims that have made it all the way to litigation.
I agree with the Commentary’s assessment of trying to resolve claims prior to suit being filed. In the plaintiffs’ cases that I have handled in my career, that is exactly what I try to do. For many of the reasons mentioned in the Commentary and above, it is advantageous to all parties to do so. It keeps costs down, it results in a quicker resolution for your client. That being said, if there is not clear liability, or the damages do not warrant resolution, or there is a coverage dispute, the insurance carrier should not be blamed for having those matters litigated to the full extent. Requiring a Plaintiff to prove their entitlement to an award is central to our system of civil justice. We don’t require them to prove it "beyond a reasonable doubt" like we do for criminal liability, we require them to prove it "by a preponderance of the evidence" or simply that it is "more likely than not" that the Defendant is liable. It is my job as a Defense attorney, on behalf of my clients, to make sure the Plaintiffs meet their burden before being compensated. If that is viewed as “running up the bill” by the Plaintiff's bar, then so be it. I can tell you that it has not been my practice to waste my or anyone's time, whether it be the Plaintiff, my client, or the Court, by filing frivolous motions or propounding unnecessary discovery. That type of behavior can be detrimental not only to the case at hand, but it can also lead you to quickly lose credibility with the Judges and your fellow members of the Bar, which will adversely impact cases you handle in the future.
Finally, I want to point out an area in which I may be in agreement with the Commentary. I would be in favor of a state system of expert disclosure similar to that required by Federal Rule of Civil Procedure 26. I am in favor of expert reports being prepared and disclosed to the opposing party early on in the proceeding. I am in favor of those reports following a certain format, and that certain information be required in that report. I am also in favor of experts being required to disclose their rates for services and prior testimony when providing their reports. It is my opinion that these disclosures allow the parties to make intelligent decisions as to whether to depose the particular expert witness. As the system inMissouri
Laying the blame for the spiraling costs of litigation at the feet of one party (Plaintiffs or Defendants) is not appropriate, as the truth always lies somewhere in the middle. So long as the issues are discussed with civility, which I think was done in the Commentary, and I hope I have done here, we will hopefully all end up with a system that continues to improve and serve the interests of justice.
One of the examples given of the system working in strange ways is a case where mediation had been offered prior to the suit being filed, but then after suit was filed that offer was withdrawn until certain discovery was completed. This may seem strange to a lay person, but in my experience working with insurance companies it is not strange at all. Oftentimes, before a suit is filed the matter is handled by one adjuster, and then once suit is filed, the claim is transferred to a litigation adjuster. Also, the company itself likely has guidelines to follow once suit is filed, which may include the completion of certain discovery and investigation prior to agreeing to mediation. Also, carriers often consider settling cases that have questionable merit prior to suit being filed because they can be closed quickly and cheaply. Once a “questionable” case gets past that point, the more prudent approach is frequently to defend the case vigorously, since that often does cost the carrier less than settling. We can debate for hours on end whether the guidelines themselves create waste in the system, but the fact is the insurance companies have put them in place to protect themselves in resolving claims that have made it all the way to litigation.
To suggest that defense firms “churn” files just to generate fees ignores the reality of the defense assignment generally. Our firm, for example, must defend cases assigned to us pursuant to relatively stringent defense counsel “guidelines” from most of the carriers for whom we work. Although those guidelines differ from carrier to carrier, in general they require us to communicate regularly with the insurance company regarding our strategies, plans and the rationale for any work we expect to do. We submit frequent reports to our clients, alerting them to witnesses whom we might wish to depose and explaining why, and outlining the work we expect to do before we do it. If the carrier thinks we are doing more than is necessary, they are not shy about refusing to authorize the work, because the cost of that work does increase their expense.
I agree with the Commentary’s assessment of trying to resolve claims prior to suit being filed. In the plaintiffs’ cases that I have handled in my career, that is exactly what I try to do. For many of the reasons mentioned in the Commentary and above, it is advantageous to all parties to do so. It keeps costs down, it results in a quicker resolution for your client. That being said, if there is not clear liability, or the damages do not warrant resolution, or there is a coverage dispute, the insurance carrier should not be blamed for having those matters litigated to the full extent. Requiring a Plaintiff to prove their entitlement to an award is central to our system of civil justice. We don’t require them to prove it "beyond a reasonable doubt" like we do for criminal liability, we require them to prove it "by a preponderance of the evidence" or simply that it is "more likely than not" that the Defendant is liable. It is my job as a Defense attorney, on behalf of my clients, to make sure the Plaintiffs meet their burden before being compensated. If that is viewed as “running up the bill” by the Plaintiff's bar, then so be it. I can tell you that it has not been my practice to waste my or anyone's time, whether it be the Plaintiff, my client, or the Court, by filing frivolous motions or propounding unnecessary discovery. That type of behavior can be detrimental not only to the case at hand, but it can also lead you to quickly lose credibility with the Judges and your fellow members of the Bar, which will adversely impact cases you handle in the future.
Finally, I want to point out an area in which I may be in agreement with the Commentary. I would be in favor of a state system of expert disclosure similar to that required by Federal Rule of Civil Procedure 26. I am in favor of expert reports being prepared and disclosed to the opposing party early on in the proceeding. I am in favor of those reports following a certain format, and that certain information be required in that report. I am also in favor of experts being required to disclose their rates for services and prior testimony when providing their reports. It is my opinion that these disclosures allow the parties to make intelligent decisions as to whether to depose the particular expert witness. As the system in
Laying the blame for the spiraling costs of litigation at the feet of one party (Plaintiffs or Defendants) is not appropriate, as the truth always lies somewhere in the middle. So long as the issues are discussed with civility, which I think was done in the Commentary, and I hope I have done here, we will hopefully all end up with a system that continues to improve and serve the interests of justice.
Tuesday, November 16, 2010
LNCs Bring Valuable Perspective and Expertise to a Litigation Team
As I looked at the followers I have thus far on my blog, I noticed that I have quite a few nurses following my musings. I got to thinking that I have a unique perspective on the value of nurses to a litigation team. In my prior job in New Orleans, my firm did not have any legal nurse consultants ("LNC"s) on staff. I was left to my own devices to decipher medical records and learn what all of the terminology meant. I can tell you that it took a lot of my time summarizing medical records and checking out WebMD in order for me to get a good grasp on what I was dealing with, and even then I couldn't be sure I was right.
At my current firm, Eckenrode-Maupin in Clayton, MO, I am blessed to be on a staff that includes two LNCs. They are an invaluable resource to me and my fellow attorneys in getting a case ready. I wanted to share with others some of the things I find most helpful about the work that they do.
1) They are more knowledgeable about the medical terminology.
This may be the most obvious statement I will make in this post, but it has to be said. The fact of the matter is that I was not smart enough to get into medical school, that's why I went to law school. (Well, that and I hate blood, but that is better left for another post, or maybe another blog entirely.) LNCs have been trained in the medicine reflected in the records. They know what all the words, and perhaps more importantly, what all the abbreviations mean. They may have even worked with doctors who write illegibly, and can decipher scribbles in records that I could stare at for days and never figure out. This knowledge gives me greater comfort that I know exactly what is contained in those records than if I was simply reviewing them on my own.
2) They have real-life experience with treatment.
We all learn better by actually doing something rather than by just reading about it. That type of real world experience gives LNCs a much better understanding of a course of treatment for a plaintiff than I could ever learn by reading the recommendations of the American Medical Association. They can fallback on their experiences to give the lawyer an insight into what should or could have been done differently for a particular patient. This is especially helpful to us here as a good percentage of our cases are medical malpractice cases that turn exactly on that question.
3) Excellent resource for deposition preparation and expert selection.
When you add number 1 and number 2 together, you end up with someone that can be extremely useful in the selection of expert witnesses, and in the preparation for deposition testimony. They know the questions to ask to get to the heart of the matter from a medical standpoint, so while the ultimate decision of what to ask falls to the lawyer, the lawyer can come at those questions from a more educated position if they have an LNC to help them prepare.
4) Always good for a lawyer to get a non-legal opinion on things.
This last point would not just apply to LNCs, but to any non-lawyer. It is always good for a lawyer to get the thoughts of people without legal training when preparing a case. This is because the jury box is going to be filled, in most cases, with 12 ladies and gentlemen with no legal training. These are the people you need to sway to your side, so it is good to make sure that what you will be telling them makes sense to them. There is no better way to do that than to run your arguments and ideas past other non-legally trained folks. Specifically, the LNCs can help you in crafting your presentation of the medical evidence so that it is palatable to a person without medical training, as they had to do this all the time with their own patients.
I hope that you will share this post with lawyers who may not realize what they are missing by not bringing an LNC in to assist them. I know first-hand what it is like to try to go into battle without their help, and it can be done, but you will sustain a lot more scars along the way. Your clients will be better served having the training and expertise of an LNC working for them.
At my current firm, Eckenrode-Maupin in Clayton, MO, I am blessed to be on a staff that includes two LNCs. They are an invaluable resource to me and my fellow attorneys in getting a case ready. I wanted to share with others some of the things I find most helpful about the work that they do.
1) They are more knowledgeable about the medical terminology.
This may be the most obvious statement I will make in this post, but it has to be said. The fact of the matter is that I was not smart enough to get into medical school, that's why I went to law school. (Well, that and I hate blood, but that is better left for another post, or maybe another blog entirely.) LNCs have been trained in the medicine reflected in the records. They know what all the words, and perhaps more importantly, what all the abbreviations mean. They may have even worked with doctors who write illegibly, and can decipher scribbles in records that I could stare at for days and never figure out. This knowledge gives me greater comfort that I know exactly what is contained in those records than if I was simply reviewing them on my own.
2) They have real-life experience with treatment.
We all learn better by actually doing something rather than by just reading about it. That type of real world experience gives LNCs a much better understanding of a course of treatment for a plaintiff than I could ever learn by reading the recommendations of the American Medical Association. They can fallback on their experiences to give the lawyer an insight into what should or could have been done differently for a particular patient. This is especially helpful to us here as a good percentage of our cases are medical malpractice cases that turn exactly on that question.
3) Excellent resource for deposition preparation and expert selection.
When you add number 1 and number 2 together, you end up with someone that can be extremely useful in the selection of expert witnesses, and in the preparation for deposition testimony. They know the questions to ask to get to the heart of the matter from a medical standpoint, so while the ultimate decision of what to ask falls to the lawyer, the lawyer can come at those questions from a more educated position if they have an LNC to help them prepare.
4) Always good for a lawyer to get a non-legal opinion on things.
This last point would not just apply to LNCs, but to any non-lawyer. It is always good for a lawyer to get the thoughts of people without legal training when preparing a case. This is because the jury box is going to be filled, in most cases, with 12 ladies and gentlemen with no legal training. These are the people you need to sway to your side, so it is good to make sure that what you will be telling them makes sense to them. There is no better way to do that than to run your arguments and ideas past other non-legally trained folks. Specifically, the LNCs can help you in crafting your presentation of the medical evidence so that it is palatable to a person without medical training, as they had to do this all the time with their own patients.
I hope that you will share this post with lawyers who may not realize what they are missing by not bringing an LNC in to assist them. I know first-hand what it is like to try to go into battle without their help, and it can be done, but you will sustain a lot more scars along the way. Your clients will be better served having the training and expertise of an LNC working for them.
Wednesday, November 10, 2010
What Lawyers Can Take Away from a Trip to Sesame Street
It was 41 years ago today (November 10) that the iconic children's television program, Sesame Street, premiered on American television. Ever since then, toddlers across the country have become friends with Big Bird, Bert and Ernie, Elmo, and countless other loveable figures. The anniversary of the premiere got me thinking that there are things that lawyers can take away from the show that can help us be better at our chosen profession, even if we are a little old to plop down in front of the tube and count along with The Count.
TODAY IS BROUGHT TO YOU BY THE LETTER "B"
I am not suggeting that you dedicate your day to a particular number or letter of the alphabet. What I am suggesting is that you look at every day as an opportuntity to learn something to help you in your practice. All states require their attorneys to maintain a certain number of continuing legal education credits in order to renew their licenses. While this is important, I am suggesting a more regimented dedication to learning can help you become an even better lawyer than cramming in all 12 CLE hours just before the deadline. I make an effort to read the updates to the West reporter series, scanning them for cases pertinent to my practice areas. I also review local legal newspapers for case reports and rulings. These efforts give me insight into what judges are thinking about cases. They also give me insight into the types of arguments and cases my colleagues are having success in pursuing. Keeping up with developments in the law in this way can give you ideas that you can apply to your current cases that keep you ahead of the curve.
GROUCHES END UP IN THE TRASH CAN
I think everyone has a soft spot for Oscar the Grouch, Sesame Street's resident trash can dweller. Why does Oscar live in the trash? I would suggest that the way he treats others gives him no choice, who would want to share a house or apartment with someone like that. Attorneys should consider this in connection with their professional reputation. I still remember at my swearing-in ceremony in Louisiana the featured speaker talking about an attorney's professional reputation as being his or her currency. A good professional reputation is something that is earned over years of practicing in a particular legal community and exhibiting qualities of trustworthiness, candor, and professionalism. As long as it takes to build up a good reputation, it can be lost with one poor decision, one moment of trying to cut a corner. As lawyers we do our clients no service by acting unprofessionally to our colleagues. We need to always keep in mind that the legal communities in most cities are small, and word gets around pretty quickly. If we do not treat our colleagues with professional courtesy, we might find ourselves operating our practices from a dumpster.
I invite you all to share your thoughts on what lessons for life and career we can all take away from Sesame Street.
TODAY IS BROUGHT TO YOU BY THE LETTER "B"
I am not suggeting that you dedicate your day to a particular number or letter of the alphabet. What I am suggesting is that you look at every day as an opportuntity to learn something to help you in your practice. All states require their attorneys to maintain a certain number of continuing legal education credits in order to renew their licenses. While this is important, I am suggesting a more regimented dedication to learning can help you become an even better lawyer than cramming in all 12 CLE hours just before the deadline. I make an effort to read the updates to the West reporter series, scanning them for cases pertinent to my practice areas. I also review local legal newspapers for case reports and rulings. These efforts give me insight into what judges are thinking about cases. They also give me insight into the types of arguments and cases my colleagues are having success in pursuing. Keeping up with developments in the law in this way can give you ideas that you can apply to your current cases that keep you ahead of the curve.
GROUCHES END UP IN THE TRASH CAN
I think everyone has a soft spot for Oscar the Grouch, Sesame Street's resident trash can dweller. Why does Oscar live in the trash? I would suggest that the way he treats others gives him no choice, who would want to share a house or apartment with someone like that. Attorneys should consider this in connection with their professional reputation. I still remember at my swearing-in ceremony in Louisiana the featured speaker talking about an attorney's professional reputation as being his or her currency. A good professional reputation is something that is earned over years of practicing in a particular legal community and exhibiting qualities of trustworthiness, candor, and professionalism. As long as it takes to build up a good reputation, it can be lost with one poor decision, one moment of trying to cut a corner. As lawyers we do our clients no service by acting unprofessionally to our colleagues. We need to always keep in mind that the legal communities in most cities are small, and word gets around pretty quickly. If we do not treat our colleagues with professional courtesy, we might find ourselves operating our practices from a dumpster.
I invite you all to share your thoughts on what lessons for life and career we can all take away from Sesame Street.
Thursday, November 4, 2010
Good Ol' Common Sense Holds the Answer to Many Ethical Quandaries
State and National bar associations have all promulgated Rules of Professional Conduct that are meant to guide attorneys through the practice of law in an ethical manner. As litigators, we are often confronted with ethical questions during the life of our cases. They can occur at any step in the process: from case selection, through pleadings and discovery, all the way to trial and appeal. Some can be dealt with easily, and others require more thought and careful consideration. While the Rules are there to guide us as to how to deal with ethical quandaries, one thing to never leave out of the process is something we all possess, whether we went to law school or not, and that is common sense.
One ethical consideration that can arise very early in the process is determining whether you, as the attorney, have a conflict of interest that would preclude your representation of a particular client. Some conflicts are easy to spot (i.e. trying to represent both the husband and wife in a divorce, or taking on a plaintiff's case against one of your insurance company clients). Others are trickier to spot (i.e. representing both the driver and the passenger against a third party in a car accident).
Most Rules of Professional Conduct allow for representation, even in conflict situations, if a proper waiver is obtained from the parties involved. If you are contemplating getting your clients to waive the conflict of interest, you may want to pause to allow your common sense to guide you as to whether that is a good idea. Take a long, hard look at the situation and determine whether you truly can do the best for each client if you represent them both. Take my example above, trying to represent both the passenger and the driver against a third party in a car accident case. Many states are "comparative fault" states. This means that the passenger really should make a claim against both the driver and the third party in order to fully protect her interests. If you represent both the passenger and the driver, how is that going to make your driver-client feel when you start calling up their insurance company looking for a settlement. Common sense would seem to dictate that it would be best to take on one or the other, but not both. This will allow you to zealously represent your client without any concern for how that will affect the other parties.
This is just one example of how common sense may lead you to a better decision than the Rules of Professional Conduct. I am sure you all have your own examples of how common sense has helped you resolve ethical quandaries in your practice, and, in honor of "Use Your Common Sense Day" (November 4), I invite you to share them here so we can all learn from each other.
One ethical consideration that can arise very early in the process is determining whether you, as the attorney, have a conflict of interest that would preclude your representation of a particular client. Some conflicts are easy to spot (i.e. trying to represent both the husband and wife in a divorce, or taking on a plaintiff's case against one of your insurance company clients). Others are trickier to spot (i.e. representing both the driver and the passenger against a third party in a car accident).
Most Rules of Professional Conduct allow for representation, even in conflict situations, if a proper waiver is obtained from the parties involved. If you are contemplating getting your clients to waive the conflict of interest, you may want to pause to allow your common sense to guide you as to whether that is a good idea. Take a long, hard look at the situation and determine whether you truly can do the best for each client if you represent them both. Take my example above, trying to represent both the passenger and the driver against a third party in a car accident case. Many states are "comparative fault" states. This means that the passenger really should make a claim against both the driver and the third party in order to fully protect her interests. If you represent both the passenger and the driver, how is that going to make your driver-client feel when you start calling up their insurance company looking for a settlement. Common sense would seem to dictate that it would be best to take on one or the other, but not both. This will allow you to zealously represent your client without any concern for how that will affect the other parties.
This is just one example of how common sense may lead you to a better decision than the Rules of Professional Conduct. I am sure you all have your own examples of how common sense has helped you resolve ethical quandaries in your practice, and, in honor of "Use Your Common Sense Day" (November 4), I invite you to share them here so we can all learn from each other.
Monday, October 25, 2010
Abra Cadabra: Why won't bad facts just disappear?
This week is International Magic Week. A week to celebrate and appreciate the talents of those skillful with the slight of hand. Unfortunately, lawyers do not have any magic wands to wave over the bad facts of our cases in hopes that they will just disappear. And if we try the "pay no attention to the bad facts behind the curtain" approach, inevitably the little dog Toto, in the form of our capable opposing counsel, is there to pull the curtain back and reveal them for the whole courtroom to see. So what is an attorney to do with bad facts. Let me offer a few suggestions from my own experience on how I manage bad facts in my cases.
1) Make sure your client tells you everything.
The only thing worse than a bad fact, is a bad fact that you do not even know exists. It may be easy to feel you know the whole story when dealing with a long-term client, a client that you trust is telling you everything you need to know. It is trickier with the new client, someone you have no prior dealings with. In those situations, you have to go with your gut and keep fishing for information until you are satisfied that you have the whole story. One tactic I take with my new clients is to explicitly tell them that I need to know everything, even the bad stuff. I make sure they know that telling me does not mean I am going to tell the other side, but that it makes sure that I am prepared to deal with it if (and when) the other side finds out.
2) Make sure your client knows all of the bad facts
Hand in hand with making sure your client tells you all the bad facts, is making sure you tell your client all of the bad facts that you learn from your opponent. We must always keep in mind that the client is truly the one who should control the course of a case. It is our job as lawyers to advise the client, based on our training and experience, what we feel is the best course of action, but ultimately, whether a plea deal should be taken, or a settlement should be agreed to, is the decision of the client. The client needs to know all of the information necessary to make those decisions. Trust me, if the client decides not to settle a case because they feel the case is air tight, and it turns out that your star witness has several prior convictions for perjury, the client is not likely to be upset with the star witness, but upset with you for not telling them.
3) Disclose bad facts in court as soon as possible.
Whether the case is being heard by a judge or a jury, I always try to get my bad facts out as soon as possible. Admitting that your case is not perfect can make you seem more believable, more honest. I think everyone knows that no case is perfect, and just because your case is not perfect does not mean that you should not prevail. This can be especially true in front of a jury. Keeping bad facts to yourself, and having them come out through the opponent's case can make you appear as if you are hiding from those facts. Putting them out there allows you to control the flow of information, to some extent, and allows you to present those facts in the best light possible.
These are just a few of my thoughts on how I try to manage bad facts in my practice. I am sure all of you have thoughts on the matter, and I hope you will share them. Unless you went to law school at Hogwart's (the school of wizardry in Harry Potter, for those of you not as dorky as me), we all need to be able to deal with bad facts, because they won't just disappear.
1) Make sure your client tells you everything.
The only thing worse than a bad fact, is a bad fact that you do not even know exists. It may be easy to feel you know the whole story when dealing with a long-term client, a client that you trust is telling you everything you need to know. It is trickier with the new client, someone you have no prior dealings with. In those situations, you have to go with your gut and keep fishing for information until you are satisfied that you have the whole story. One tactic I take with my new clients is to explicitly tell them that I need to know everything, even the bad stuff. I make sure they know that telling me does not mean I am going to tell the other side, but that it makes sure that I am prepared to deal with it if (and when) the other side finds out.
2) Make sure your client knows all of the bad facts
Hand in hand with making sure your client tells you all the bad facts, is making sure you tell your client all of the bad facts that you learn from your opponent. We must always keep in mind that the client is truly the one who should control the course of a case. It is our job as lawyers to advise the client, based on our training and experience, what we feel is the best course of action, but ultimately, whether a plea deal should be taken, or a settlement should be agreed to, is the decision of the client. The client needs to know all of the information necessary to make those decisions. Trust me, if the client decides not to settle a case because they feel the case is air tight, and it turns out that your star witness has several prior convictions for perjury, the client is not likely to be upset with the star witness, but upset with you for not telling them.
3) Disclose bad facts in court as soon as possible.
Whether the case is being heard by a judge or a jury, I always try to get my bad facts out as soon as possible. Admitting that your case is not perfect can make you seem more believable, more honest. I think everyone knows that no case is perfect, and just because your case is not perfect does not mean that you should not prevail. This can be especially true in front of a jury. Keeping bad facts to yourself, and having them come out through the opponent's case can make you appear as if you are hiding from those facts. Putting them out there allows you to control the flow of information, to some extent, and allows you to present those facts in the best light possible.
These are just a few of my thoughts on how I try to manage bad facts in my practice. I am sure all of you have thoughts on the matter, and I hope you will share them. Unless you went to law school at Hogwart's (the school of wizardry in Harry Potter, for those of you not as dorky as me), we all need to be able to deal with bad facts, because they won't just disappear.
Tuesday, October 19, 2010
Welcome to My Blog
I would like to welcome all of you, which at this point probably consists of my mother and a few friends, to my new space on the web. For some time now I have been kicking around the idea of starting a blog. The problem I have had is really two-fold: 1) convincing myself that people actually care about what I have to say and 2) figuring out what to say. I finally came to the realization that the only way to get over these problems was to start. So here goes. The focus of my blog, as the title suggests, will be on my work as a civil litigator. I chose this topic as it is what I have known for my entire professional career. My intention is to post on issues that arise during the course of my practice in the areas of personal injury, worker's compensation, and medical malpractice (keeping the neames to myself of course). I also will throw in my two cents about recent court decisions or topics of interest in the news. While it may seem that these topics will only be pertinent to the legal practitioner, my intention is for the audience to be much wider. I hope that through my musings on the legal process, the general public can have a better appreciation for what we do as attorneys and understand how we can help them. I look forward to this new venture and hope that I can provide pertinent items for education and discussion.
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