Bar News - August 23, 2013
Workers’ Compensation & Personal Injury: Practice Tips for the Personal Injury Practitioner
By: Peter Hutchins
There are a few key principles that, when kept in mind and followed, can maximize a personal injury practice. Here are some basic but important practical tips that have served me well over the years in running an efficient and hopefully effective plaintiff’s personal injury practice:
Accepting the wrong case or client can lead to years of frustration, stress, financial loss, and potential competency or ethical consequences. Only accept cases that are within your experience and expertise and which you know you have the time, desire, and resources to handle competently. Avoid clients that are overly demanding with unreasonable expectations.
If a case is interesting and has merit, but is beyond your expertise or ability to handle alone, seek assistance. Most attorneys who accept referrals will gladly allow you to remain active as co-counsel if you want. Don’t promise a potential client the moon just to “land” the case. Not only is this bad lawyering and questionable ethically, but will always lead to a dissatisfied client in the end.
Be Honest, Objective
Always be upfront and honest with your clients. Keep them apprised promptly of case developments. Be direct and objective in your opinions and recommendations. Confirm your significant recommendations in writing, i.e., case evaluation and recommended demands and settlements. I find it very helpful to provide my case evaluation in writing to my client, explaining my reasoning and inviting their questions and input. This lets the client know early in the settlement process exactly what you think the case is worth, and why. It also presents them with the chance to ask questions or challenge your opinions earlier rather than later.
Provide Early Damages Information to Claims Representatives
Insurance companies, by law, must maintain reserves on every claim. The earlier you can impress an adjuster as to your claim’s potential upside value, the higher they will set the reserves and the easier it will be to settle the case later.
Avoid Long-Winded Demand Letters and Mediation Summaries
I have learned from claims adjusters and mediators alike that they do not want, nor do they read, long-winded argumentative demand letters. Stick to the relevant facts and attach the most important records. I prepare medical record and bill summaries in all my cases and include those with settlement or mediation packages. Stick to the issues that directly address case value and risk exposure, and present those issues in a clear, organized and quantitative fashion.
Obtain Expert Reports and Forensic Medical Evaluations Early
In premises, medical, products liability or complex automobile cases, retain a liability expert early while the evidence is still fresh. Obtain a preliminary report if feasible. This is very helpful in convincing a claims representative early in the process that you are prepared for the liability issue and have an expert ready for trial.
In addition, prior to making a demand or engaging in mediation, if the client is done treating, and if the treating physician has not or will not provide a useful narrative (or perhaps your client has been to many different doctors, chiropractors, etc.), send your client for your own forensic medical evaluation, including a permanency rating, and have that report ready for settlement negotiations. In short, you need to be willing to invest resources in your client’s case if you want to maximize value for your client and yourself.
Adjusters Are People, Too
Most claims representatives are professional and reasonable. There are exceptions, but I have found 95 percent of the time that treating an adjuster with respect and providing him or her with useful and clear case evaluation information goes a long way in helping you achieve a fair and early resolution to your client’s case. You will do much better in your practice and for your clients if you help adjusters do their jobs by providing them with timely and useful case data, rather than threatening or acting like a bully.
Pigs Get Slaughtered
Be realistic in your own view of your claim’s value and share that realism with your client. If you need help evaluating a case, reach out to other experienced practitioners for their thoughts. We all hear war stories about the few big verdict cases, but we rarely hear about the hundreds of cases brought to trial that result in defendant’s verdicts or verdicts significantly lower than the last offer left on the table. Your job is to maximize your client’s recovery while minimizing risk.
I hope that by keeping these tips in mind, you will achieve a high rate of successful settlements for your clients and will, as I try to do, leave each client better off than they were when they first met you.
Peter Hutchins has been practicing personal injury law for 30 years. He was formerly a partner at Wiggin & Nourie and since 2010 has been running his own plaintiff personal injury firm in downtown Manchester.