Consistent & Appropriate Treatment Are Key To A Successful Case

You must treat consistently and appropriately if you want full compensation in any personal injury case.
 
  1. Inconsistent treatment means big gaps in treatment and/or failing to follow your doctor’s recommendations.
  2. Inappropriate treatment means continuing to do something that obviously hasn’t resolved your pain and discomfort despite repeated attempts. When one type of treatment doesn’t work then you must try a different kind of medical provider or technique. You can’t do the same thing forever and expect a different result.
 
Inconsistent and inappropriate treatment can kill cases.
 
Let’s look at three cases that are typical of what I see as a personal injury lawyer:
 
Client A gets into a crash and doesn’t get treatment for two months. He then goes to his family doctor who recommends an MRI. Client A finally gets the MRI a year later. Client A then goes to an orthopedic doctor who recommends a three-level cervical fusion. A cervical fusion is a highly invasive surgical procedure that requires replacing a damaged cervical disc with a cadaver bone and metallic hardware. It will cost him about $300K and he will likely be paralyzed if he doesn’t get it. He doesn’t get the surgery because he’s too busy. His out-of-pocket expenses consist of $200 in co-pays.
 
Client B gets into a crash and goes to a chiropractor. She treats a few times a week off and on for three months, stops treatment, and then returns to treating off and on again with the chiropractor. She discovers after nine months of treatment that she has cervical herniations. She doesn’t treat anymore but complains of continuing pain over a year later. She then consults with an orthopedic doctor who recommends a two-level cervical fusion that will cost her about $200K. Client B has the cervical surgery and is out of work and in a neck brace for three months. She lost three months of pay because she didn’t have FMLA or disability insurance. Her total out-of-pocket expenses are $250,000.
 
Client C gets into a crash, treats about 24 times with a chiropractor, and when her symptoms don’t resolve, has an MRI, which reveals the same type of cervical herniation as Client A & B. Client C goes to see an orthopedic doctor. The orthopedic doctor recommends Client C try injections and refers her to a pain management doctor. Client C has a series of facet and epidural injections, and her symptoms decrease. A few months later, those symptoms return, so she schedules a follow-up visit with her orthopedic doctor. The orthopedic doctor recommends a single level micro-discectomy, which is a minimally invasive technique to remove the impinging disc material and release pressure on the nerve. It does not require a cadaver graft or hardware, and it is often done on an outpatient basis. Client C has the surgery and returns to work the next day. Client C returns to her orthopedic doctor once every few months due to her activities aggravating her injury, but her orthopedic doctor doesn’t believe she requires a cervical fusion, although he thinks physical therapy might help her, so she does that. She still has some pain on occasion, but overall, she feels much better. The surgery cost about $50K. She has no lost wages. Her out-of-pocket expenses are only $50K.
 
Pop quiz time:
 
  1. Which case is easier to sell to a jury?
  2. Which case is a lawyer more likely file a lawsuit on?
  3. Which client is a lawyer likely to drop?
Here is how I view these cases:
  • While Client C has the least invasive surgery and arguably the lesser injury, her case is probably the most valuable and the best litigation case.
  • Client A has a very low value case and most personal injury attorneys would drop it unless there are very low policy limits. An insurance adjuster would likely make a very low starting offer.
  • Client B is an okay case, but it will probably settle pre-suit, and Client B will not be pleased with the result.

Treat consistently and appropriately if you want the full value of your case.

The Cellular Culture

America is quickly becoming what I call a Cellular Culture.

 
Many people no longer own computers or printers. Scanners? Ha! No.
 
Instead, the Cellular Culture uses their cell phones for almost everything. That’s particularly the case with the sub-30 year old segment of our population. Some don’t even use email.
 
Their major means of communication is through . . . wait for it . . . social media.
 
If a Cellular Culture person wants to complain about a customer service issue, she uses Facebook, Twitter, and even Yelp. I’ve seen people pick up their phones in a restaurant to write a scathing review online rather than speak with a manager.
 
Less chance of having someone spit in their food, maybe?
 
Ringing doorbells is apparently now considered intrusive to some people. I have a neighbor whose friends don’t get out of their cars to announce their arrivals. They used to blow their horns, but now, I more often see them sitting quietly in their cars and texting until someone comes outside,
 
Yet even texting is considered old school by some younger people.
 
The Cellular Culture is different than any we’ve seen before, and it’s evolving far more rapidly than we know.
 
I practice personal injury law across Florida, and that means I will represent clients from from the Keys to the Panhandle. I do not meet in person with all my clients. There’s little need for it today because I use a Cloud-based software platform that allows my clients to see every document I send or receive in their cases, and my clients can use Face-time or Skype if they really want to see my smiling face.
 
Plus, I communicate with my clients every month or so via phone calls, texts, and email. I want to know what’s going on with them. I want them to know they can reach out to me through a variety of ways whenever they want. I respond whenever I can.
 
So far, so good, right?
 
The proverbial fly in the ointment, though, arises when my clients must send me legal documents. The Cellular Culture tends to send pictures of documents. Those pictures are often illegible and incomplete. I’ve received pictures of a contract’s signature block before.
 
That obviously won’t do.
 
Discovery in a lawsuit can be a nightmare. Think of someone sending you a picture of each Interrogatory answer. If you’re lucky enough to get PDFs, well, you’ll potentially receive a separate PDF for each page—that literally can mean dozens of PDF pages that could and should be sent as a single document.
 
I’ve spent many hours creating a single document from a jumbled mess of discordant PDFs. Such messes sometimes arrive a few hours before the discovery deadline.
 
It’s frustrating.
 
Yet I don’t blame my clients. It’s an educational process for them. I now discuss their legal needs—not mine, theirs—in the beginning stages of my representation of them.
 
No pictures. Opposing counsel and the E-Filing Portal won’t accept them.
 
If I send them a document to complete, then I need them to return a whole document. Not the signature page and certainly not just a picture of the client’s signature.
 
Don’t send legal materials and confidential through Facebook.
 
Don’t text discovery materials to me.
 
I also send SASEs to my clients now because I had one client who was unfamiliar with how to buy stamps. Some people do not use a service if it’s not online. Some seemingly have never mailed anything.
 
So how else do I handle this new communication challenge?
 
I now recommend my Cellular Culture clients download free PDF apps like Adobe Fill & Sign. I ask them to try a few until they find one they like. PDF technology has become increasingly more intuitive over the last few years.
 
I actually get the Cellular Culture despite some of the challenges it represents. I hate paper. I rarely print anything. Why should I? We lawyers rarely file paper motions anymore unless a judge requires it.
 
I use my iPad for referring to motions and pleadings when I’m in state court. My trial exhibits, unless I’m entering them into evidence, are encompassed in PowerPoint presentations.
 
I literally do not keep paper files or even CD-ROMs. I turn everything into a digital file and use a multiplicity of Cloud and backup hard drives in order to ensure nothing gets lost.
 
It’s a rare occasion when I can’t tell a client exactly what’s going on with her case. I’ve even done it from the Bahamas. Yes, I answer emails, texts, and phone calls while on vacation. I doubt you’re surprised. If you are, well, you’re probably new here.
 
Yet I wonder what the future holds for communication.
 
One day, and it’s coming very soon, we may be dealing with embedded communication technology that doesn’t require external devices. Indeed, that’s the premise of the Synchronicity. Google the term. You’ll probably be fascinated by the concept.
 
We will all be the Borg. Resistance is futile.
 
Until the Synchronicity arrives, though, we have the new Apple Watch. It no longer requires a cellular phone to be present to use it, and I suspect some of the Cellular Culture will no longer use their cell phones very often.
 
Eventually, we may have a strictly Watch Culture. I’ve no idea how I’m going to handle that technological evolution.
 
I’m sure there’s going to be an app for that.

How Lawyers Get Paid In Personal Injury Cases

Here is the difference between how plaintiff’s lawyers and defense lawyers get paid in personal injury cases:

Plaintiff lawyers represent the injured parties who have either filed a claim or lawsuit against the defendant who injured them.

I’m a plaintiff’s lawyer. I represent people whom others have hurt through negligent acts. I don’t do defense work even though I get asked to do so fairly frequently.

Plaintiff attorneys usually take personal injury cases on a contingency fee basis. That means we get a percentage of whatever you recover plus our costs for handling the case. Costs can be postage, ordering police reports and medical records, holding depositions, and paying expert witnesses, among other things.

Personal injury cases are calculated risks for plaintiff’s lawyers. We can invest hundreds of thousands of dollars of time and money in a contingency fee case, and there’s never any guarantee we will win. If we don’t get a settlement or win a case, then we don’t get paid.

It’s far different for defense lawyers.

Defense lawyers in personal injury cases represent people who have injured other people in negligence cases like car accidents, slip and falls, and other injury cases.

Defense lawyers—who are almost always paid by insurance companies—get paid by the hour. They often have a vested interests in maximizing their “billable hours.” The more time a defense lawyer can ethically bill, then the more money he and his law firm can charge.

What are billable hours?

Well, that’s how much time a defense lawyer puts into a case in six minute increments (unless the insurance company is paying the lawyer a flat fee to defend a case). There can be other formulas, but six minute increments is pretty standard.

If the defense attorney is what we call “house counsel,” then he gets paid whatever his insurance company employer pays him. Most house counsel are salaried employees. Most defense attorneys are not house counsel, though, and use billable hours in six minute increments to determine what they get paid.

That means if the typical defense attorney makes a one minute phone call that he bills his client for six minutes of time.

So if a defense attorney makes six one minute phone calls within six minutes then he can bill the insurance company for 36 minutes of his time (at several hundred dollars per hour). In other words, a defense lawyer can theoretically bill for more hours than there is in a day.

That’s perfectly ethical. It’s how they work. It might not seem logical, but it’s ethical.

Yet win, lose, or draw, a defense lawyer gets paid. The insurance company pays him no matter what happens in a case.

No matter what, a defense lawyer gets paid, unless he takes a case pro bono.

I have encountered only one case in which a defense lawyer had taken on a personal injury case pro bono (for free), and in that case, the defendant was uninsured.

That can happen. It just doesn’t usually happen. Everybody has bills to pay.

So how do I get paid as a plaintiff’s lawyer?

Well, let me tell you about a conversation I had with a Miami defense attorney after court (I handle cases throughout Florida) last week who tried to convince me to drop a negligence case:

Miami Defense Attorney: I don’t understand why you’re here. I get paid by the hour no matter what happens. I don’t think you can win [this case].

Me: I’m here because I get paid for results, and I make a damned good living doing it. I like this case. We’re going to trial.

Plaintiff attorneys in personal injury who work on a contingency basis get paid for . . . Wait for it . . . Results.

Not by the hour.

No results? Then we don’t get paid in contingency fee cases. That’s it. End of story.

I get paid for results in personal injury cases. Nothing else. That makes me highly motivated to get my clients the best possible results that I can.