The Attorney Privilege

People who are not lawyers often ask me why I became a lawyer. They assume the answer is money; it's not. They assume the answer is that I'm stubborn and like to argue; that's partially true (just ask my wife). Then they become befuddled. Why on earth, then, would you want to become a lawyer? The answer is easy: people like you.

I have always wanted to help people. Although being a lawyer has always been an option in my mind since about the eighth grade (thank you, John Grisham), in high school I seriously considered being a police officer or a Marine. Those options were ruled out when I realized being shot at might not be the best thing going. Then I realized being a lawyer allows me to still protect and serve the public, I just don’t get to wear a snazzy uniform or a Batman-like utility belt to work (without odd looks from colleagues, that is). The law is one of those unique professions that gives me the ability to further my goal of helping people and at the same time make a difference in society overall.

Many people also point out that it must be frustrating dealing with "the system" all the time and doubt they could do the same. It can be. But, our legal system and constitution bring stability and structure to our society and I am proud to be a part of that. Despite its flaws, we can always work to correct them and its still one of the best systems out there. It's a privilege and a noble thing to be able to fight for another person's rights within that system, and to sometimes improve both that person's life and the system at the same time.

You may dislike attorneys. That's fine and you are in good company with a good portion of society. Lawyers sometimes don't even like lawyers. But, while you may not like lawyers, most of us became lawyers because we like people like you; and serving the public is not a privilege we take lightly.

You've Got Issues

Soft tissue cases are a staple in personal injury law. Among the most common cases for the Plaintiff’s attorney, these cases can also be the most problematic in terms of convincing a jury to side with the client’s cause. The minimal impact soft tissue (MIST) case is perhaps the most problematic because jurors have difficulty believing that such a minor impact can cause injury; this is especially so when the injury is one that typically cannot be seen on an x-ray or other diagnostic imaging test.

A soft tissue injury arises whenever the client has an injury that does not involve a fractured bone or significant neurological defect. The most common type is the strain and sprain to the neck or lower back. Jurors and insurance companies alike often view these injuries with a skeptical eye given the lack of objective diagnostic findings to support such an injury. Often still, the physician’s objective findings during the client’s physical examination typically involve a subjective component (e.g., painful range of motion testing) that leads to speculation of greed, exaggeration, and/or malingering on the part of the client.

Despite these obstacles, soft tissue cases can be won even in venues harboring the most defense-oriented jury pools. A favorable verdict rests in large part upon a properly prepared client, effective use of the client’s medical records, and the utilization of effective trial techniques to aid the attorney in advocating the client’s cause.

Most auto insurers have taken a hardball approach to these cases. The largest and most profitable companies, such as Allstate and State Farm, have adopted tough take-it-or-leave-it strategies when dealing with MIST claims. In this trial lawyer’s experience, these companies routinely extend settlement offers that are either well below the medical expenses incurred and/or offer nominal amounts to compensate the Plaintiff for their pain and suffering. This leaves the client in the unfortunate position of either gambling with a jury or accepting an offer that could potentially leave them still owing medical bills through no fault of their own. It leaves the attorney in the unfortunate position of having to expend serious cost to take the case to trial with uncertain outcome, or recommend a settlement that may not be beneficial to the client. Unfortunately, some cases tend to settle for these inadequate offers because the attorney does not wish to take the case to court because the trial may not prove cost-effective or profitable.

The MIST case is easy for the plaintiff’s attorney to discount. The damages at issue and potential fee from these cases are small compared to cases involving more serious harms and losses. It is important, however, for the attorney to remember while these cases may be small to them, it is often the most important and only case their client will ever have. Even though there is never a guaranteed outcome in any case, MIST cases can be won despite their issues. If you find yourself confronted with issues that a soft tissue injury can present in negotiating with the insurance company, then you should give considerable thought consulting with an attorney and firm that understands and regularly deals with those issues.

Dollars and Sense

At some point in every case I handle the client will ask me, "What's my case worth?" That's a difficult and complicated question to answer. Case valuation, in my humble opinion, can often be the most difficult aspect of the case.

A variety of facts are considered in assessing the value of a personal injury case. Among them are the venue, the types of injuries, the permanency of the injuries, the property damage done to the vehicles, the parties, the witnesses, and the amount of economic losses the plaintiff suffered. This is by no means a comprehensive list. Using these factors, your lawyer should be able to provide you with a well-reasoned estimate of what your case may be worth in front of a jury or other tribunal. But, an estimate is all it will ever be.

No matter how good or bad the case, it is ultimately only worth what the jury says it is worth. Aside from medical bills, lost wages, and other economic losses, a jury is instructed by the judge to base their award on the same logic and common sense they use in their everyday lives. There is no mathematical formula (i.e., no "multiply everything by two" or "multiply everything by three") that they are required to follow. It's all based on their common sense...the same common sense they use when they choose to watch Snooki on MTV's Jersey Shore tonight. Scared? Don't be. I believe for the most part jurors take their job seriously.

The point is that we have no way of knowing what your case is truly worth until the jury tells us. There are no guarantees with trial and going to trial is a risk and a gamble. Fortunately, the risk is often a calculated one. The decision whether to settle your case with the insurance company or to go to trial is not one that should be taken lightly and it should a well-informed decision you are comfortable with.

Say What?

Let me share with you what annoys me about Starbucks. First, a medium coffee now costs $2.01. The extra penny is entirely unnecessary. The second thing that annoys me about Starbucks are the beverages that are everything but coffee. You know the drinks I am talking about: Venti skinny no whip caramel macchiato. Grande extra whip no syrup cinnamon dolce latte. Orange mango banana Vivanno smoothie with extra whip. Supercalifragilisticexpialidocious. I order coffee, not just because I love coffee, but also because even attempting to order these other concoctions makes my tongue knot, eyes cross, and brain hurt. I presume the language in which I am ordering the drink is English, but I have absolutely no idea what any of it means.

It occurs to me as I sit writing this in my favorite Starbucks that the same things that annoy me about the coffee company annoy you about lawyers. That is, we’re expensive and often don’t make any sense. It’s not our fault for the most part, however. In law school, we learn a language called “Legalese.” It’s a bastardized and pretentious version of English that the folks at Rosetta Stone haven’t developed a program for yet. The language ruins our ability to communicate with so-called normal people and angers our friends and family when we use it. Have you ever told your wife to “please comply forthwith?” I highly recommend that you don’t. If you do, I know of a personal injury firm you’ll likely need to call afterward.

You see, after three years of the linguistic odyssey known as law school, most lawyers can’t help themselves any longer. Good lawyers know that the key to client service and persuading a jury is to talk with said people as if they are actually people. To use English. But, all joking aside, we lawyers are people; imperfect people with hard to break language habits drilled into us by precedent and a profession steeped in tradition. This trial lawyer has seen lawyers in depositions act like American tourists in a non-English speaking country:

Lawyer: Please describe with particularity the events comprising the incident described in your Complaint.

Deponent: I don’t think I understand the question.

Lawyer: PLEASE…DESCRIBE…WITH…PAR-TIC-U-LAR-ITY…THE…EVENTS…COMPRISING…THE…IN-CI-DENT…DESCRIBED…IN…YOUR…COMPLAINT!

Rather than translating the Legalese (e.g., “Tell me what happened”), the lawyer thinks it will be beneficial and an understanding of the “language” will suddenly be achieved if they just talk louder and slower to the person. To treat the person as if they were deaf and dumb. Luckily, this happens fairly infrequently in my expereince, but it’s still annoying.

The key to a successful attorney-client relationship is communication. If you do not understand something, then you should let your lawyer know and keep asking questions until you get an answer you understand in plain English. If you are the lawyer, then please remember to speak plainly and clearly for the benefit of everyone involved.

Please comply forthwith.

Disclaimer: This blog post is not intended to convey any personalized legal advice upon anyone. The views of the author are his own. Parts of this post were intended to be humorous for the benefit of Monday morning. The author apologizes if the reader did not laugh and took everything seriously. Legalese is not a recognized language. The message contained herein regarding ensuring that you understand the legal advice given to you by your lawyer, however, is serious. For the record, the author loves Starbucks and thinks they have the best coffee around.

What the Evidence Won't Show

When I speak to jurors after one of my trials, at least one of the twelve members always asks me, “Why didn’t insurance take care of this?” That’s a good question. The truth of the matter is in most personal injury cases insurance is involved all the way through satisfaction of any judgment entered on the jury verdict. Who do you think pays for that defense attorney? The insurance company does. They have a contractual duty to defend the policyholder under the policy should they be unfortunate enough to get sued by somebody like me.

Even though insurance is involved, the jury never gets to hear about it in the majority of cases. North Carolina has a rule and much case law establishing a prohibition against mentioning the existence (or non-existence) of insurance at trial. The prevailing theory behind this prohibition is the Courts are afraid the monetary resources of the insurance company, rather than the evidence presented at trial, will be what serve as the basis for any verdict. In short, the Courts are afraid that the jury might use the existence of insurance as an excuse to compensate the victim without hurting the wrongdoer (or, not compensating the deserving victim to avoid hurting the uninsured wrongdoer). They’re afraid that a jury will award an amount just because the company made big profits last year and Dennis Haysbert tells us we’re “in good hands” at least twice per hour during primetime television (read: really expensive advertising slots). This fear may or may not be unfounded. Some jurors have told this trial lawyer that it would impact their decision. On the other hand, in one trial where evidence of insurance was allowed to be considered by the jury (there are exceptions to the rule), one juror stated that the fact there was insurance didn’t even come up in deliberations.

Some clients become upset with this rule. They feel it’s unfair to them and that it deceives the jury. This is a reasonable belief. But, the defendant and the insurance carrier could say the same thing about another rule established by the North Carolina courts. The collateral source rule prohibits evidence from being introduced of payments made to the Plaintiff by health insurance plans, Medicare, Medicaid, medical payments coverage, and many other different sources of payment. This benefits the Plaintiff because it allows the Plaintiff to recover the entire amount of the bills incurred even if health insurance or some other benefit has paid out already (in some cases the health plan has a right to reimbursement for what it has paid) and the jury will likely never know some of the bills were paid. This rule, of course, usually results in more money to the client.

Insurance plays a big part in any personal injury case. Despite its large role, the jury most likely will never know of its existence and will be specifically instructed by the Court in most cases to not assume that it is or is not there. Insurance, ladies and gentlemen, is what the evidence at trial won’t show.

What's That Got to Do with Anything?

My clients often become annoyed (to say the least) when we reach the discovery phase of the litigation process and they are suddenly bombarded with questions concerning their criminal background, prior accident history, prior legal and insurance claims, and prior health history. At some point, usually very early on in the process, they roll their eyes and exasperatingly inquire, “What’s that got to do with anything?” Well, let me tell you.

Rest assured that most of your prior criminal mistakes, accidents, and claims have little to do with your current case and may not even make it into evidence at trial. In discovery, however, the legal standard in North Carolina is not that which is actually admissible, but rather that which may potentially lead to admissible evidence. Therefore, you must disclose most of the information requested even if a jury never gets to hear it. If you do not disclose it, then the likelihood of the jury hearing it increases exponentially because the defense will be conducting an investigation on you of their own, find it, and then confront you with it. At that point, they impeach your credibility for not fessing up and the jury will now probably not like you for failing to tell about it. In short, they’ll think you’re now a liar and that you tried to hide something (even if you innocently forgot).

The defense is interested in your prior criminal history because there may be something in your past that theoretically bears upon your “character for truthfulness.” In short, if you’ve been convicted of something like embezzlement in your past then the defense may be able to use that in the judge’s discretion to argue to the jury that you’re not necessarily the most truthful person and therefore they should not believe you. The defense is interested in your prior insurance and legal claims because they are interested in making you look litigious. Our current society tends to disfavor litigiousness. People are too quick to sue, says the prevailing public sentiment. Let’s ignore the fact that it’s your legal right to assert valid claims when necessary and that the tens of thousands of dollars you pay in insurance premiums over the course of your lifetime are suppose to go to paying for such claims. These are just a few of the reasons why you are asked these questions.

One of the essential elements of a negligence claim is the element of “causation.” You (we) must prove, by the greater weight of the evidence, that your neck, back, shoulder, knee or [insert other body part here] injury is related to the accident. This is where your prior accident and prior health history become relevant. For example, if you’re suffering from lower back pain after the collision and you’ve only been to the doctor once before in the past few years for the flu, then your case for causation is pretty strong because you have no similar symptoms in the past and it’s more likely that the accident caused your pain. If, however, you’ve had a multi-level spinal decompression and fusion surgery to your lumbar spine in the past few years, then your case for causation is probably not great. Regardless, it will ultimately be up to your doctor to educate and assist the jury in determining which of your symptoms are related and what treatment was necessary due to the accident.

Ultimately, if you’re concerned about how something from your past may affect your current case, speak with your attorney about it. Tell us up front and right off the bat. We’re here to help you in anyway we can and it’s best for us to be prepared if there is something potentially harmful in your past. As J.R. Solly said, “be frank and explicit with your lawyer…it is his business to confuse the issue afterwards.”

Coffee Talk

I have yet to pick a jury where I didn’t hear the phrase “McDonald’s coffee” at some point in the voir dire process. The case has become the poster child for the Tort Reform movement and virtually everyone in the country (and perhaps the world) has heard about it at some point in their life. But, was the verdict truly the most ridiculous verdict in the nation’s history? Were those twelve jurors really that stupid? Before you answer, consider the following facts about Liebeck v. McDonald’s that many people do not know:

1. Stella Liebeck, the “coffee lady,” placed the Styrofoam cup between her legs as her grandson stopped the car so that she could add cream and sugar to her coffee (have you noticed how McDonald’s does this for you now?). Many people believe she spilled the coffee as she was driving herself and while the car was in motion.

2. The coffee served by McDonald’s was so hot it caused instant third degree burns to over six percent of her body. This six percent included her inner thighs, her buttocks, her genitals, and her groin. She was hospitalized for eight days as a result of her injuries.

3. Liebeck offered to settle her case with McDonald’s for $20,000.00 well before the jury returned with the now infamous $2.86 million verdict.

4. More than 700 people had been burned by McDonald’s coffee in a ten year period prior to Liebeck’s incident. Some of these people suffered substantially similar burns as Liebeck.

5. Coffee brewed at home is typically served between 135 and 140 degrees. McDonald’s coffee was served between 180 and 190 degrees. A burn hazard exists whenever a food substance is served over 140 degrees.

6. McDonald’s knew about the burn hazard, but the company’s quality assurance manager testified the company had no intention of reducing the temperature of its coffee.

7. McDonald’s argued that it kept its coffee so hot because the customers would consume it at home and work and wanted it to still be hot when they arrived there. However, the company’s own research showed that most customers would begin to consume the coffee immediately.

8. The verdict handed down by the jury was originally $200,000 in compensatory damages and $2.7 million in punitive damages. The $200,000 was reduced to $160,000 because the jury found Liebeck twenty percent at fault in the spill (of note, in North Carolina which has the doctrine of contributory negligence, this finding of fault on the part of Liebeck would have resulted in no recovery for Liebeck at all). McDonald’s made $2.7 million in coffee sales alone over a two day period at the time.

9. The trial judge reduced the $2.7 million award to $480,000, three times the compensatory award of $160,000. North Carolina has a similar law.

10. The jury that handed down the $2.86 million verdict was selected by both the Plaintiff, Stella Liebeck, and the Defendant, McDonald’s.

I’m not going to defend the coffee verdict and if you disagree with that jury that’s your right. All I’m saying is that you can probably find more “ridiculous” verdicts in American jurisprudence when you look at all the facts. It is easy for us (this trial lawyer included) to look at a jury verdict and wonder what those twelve allegedly reasonable people could have been thinking. But, the cornerstone of our judicial system is the jury. If we lose faith in our juries, then the system cannot work.

Sources: Lectric Law Library ; Economic Expert

Trivial Pursuits

Ask most people what I do for a living and they’ll say that I chase ambulances. That is false. North Carolina has a law prohibiting such conduct; and I, for one, am far too out of shape to ever hope to run and catch one. The truth of the matter, however, is that I do sue people for a living. In every jury trial I’ve done so far in my career I’ve found that the prevailing sentiment among the general public is that there are just too many lawsuits. Frivolous lawsuits. People are suing other people over trivial matters at the behest of some greedy ambulance chaser. So, why do so many people file lawsuits each year?

The answer is fairly simple from my perspective. In the personal injury context, it is often due to the behavior of the insurance companies. The overwhelming majority of my clients come into my office and say the exact same thing: “I’m not one for suing people. I’m not litigious.” Well, with all due respect to them, this is obviously not true because they're in my office and litigation is my business. But in reality, even though I am allegedly a fairly nice guy and easy to talk to, all of them would rather not have to spend an afternoon with me. The client ends up in my office for the simple reason that the insurance company involved in the case often refuses to pay for the medical bills, lost wages and other damages the client suffered through no fault of their own.

Since the 1990s, the country’s largest insurance carriers have adopted a “get tough” approach to personal injury claims. This approach focuses not on the individual consumer, but rather the profits the industry brings in every year. As a result, the company’s own policyholders (you) end up getting dragged into court by people like me for claims that in all likelihood would settled if the companies would do the responsible thing and pay the often reasonable amounts the clients lose due to the company’s insured’s negligence.

The strategy works for the insurance industry. Fighting legitimate claims with their vast financial resources discourages worthy plaintiffs from going to court. Some companies, such as Allstate, routinely make line-in-the-sand offers that are far less than the actual medical bills the client incurred in the collision with their insured. By low-balling the client, the company actually forces the case into the court system. According to one former Allstate employee, the company puts claimants in good hands by making it “so expensive and time consuming that the lawyers would start refusing to help clients.”

Not this lawyer. I routinely fight Allstate and other major insurance companies in court on behalf of my clients and will continue to do so in the future. If a person is in a collision and the greater weight of the evidence shows that they were injured in that collision, this ambulance chaser believes that they should be able to recover for what they have lost through the fault of someone else. Is that really that frivolous?


Sources: CNN and the author’s own experience in litigating personal injury claims.
Disclaimer: The views of the author are his own. It is your right to disagree with them.