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COMMON SENSE PRACTICE POINTERS

SPRING 2004

Copyright 2004 MAJ and T. Joseph Kane Crumley

Lawyers are not known for keeping things simple. Rather than the straightforward, easy answer, lawyers are enamored of the complex. Why say something simply, when you can sound more impressive using legal mumbo-jumbo? In law school, one of your editor’s professors went out of his way to teach this: He acknowledged the truth of the Plain English answer the student recited, but then exhorted all the pupils to “learn to phrase your answers in a more lawyerly manner.” That is, add legalese to your answer!

Many excellent lecturers have tried to correct this mis-training by drilling trial lawyers on the concept of K.I.S.S. - “Keep It Simple, Stupid.”

Of course, not all problems are solved by the simple answer. Lawyers might not even be necessary in a world where all problems were simply solved.

But because of our training and experiences, and perhaps because we want to impress our clients and colleagues, we often fail to consider the simple, common sense approach. Why do something simply, when you can complicate it? Because often the simple approach beats the complicated approach. This article presents your editor’s idea of a few common sense solutions.

Opponent Relations – You catch more flies with honey. Many pundits promote a hard line approach to dealing with opposing adjusters and lawyers. As a younger lawyer, your editor even titled a CLE seminar “Hardball No-Fault Arbitration Strategies.”[1] While there are certainly situations where a ‘no prisoners’ approach is appropriate, the simple approach sometimes gives a better answer.

No Fault Arbitration timing. The aforementioned seminar makes a good example. Claimant’s attorneys were exhorted to hit the insurer with an arbitration immediately after the adverse exam. The speaker reasoned that the insurer should be immediately punished by forcing them to immediately spend a thousand dollars for filing fees and an attorney on top of the thousand dollars they’d just spent on the adverse exam. Theoretically, this would be a disincentive for further no-fault cut-offs on their cases.

Maybe.

On the other hand many lawyers found problems with this “Immediate Arbitration” approach, when they ended up arbitrating miniscule claims. Some Claimants simply stopped treating after the adverse exam, others treated so little that the bills totaled less than the filing fees. Your editor once ‘won’ an arbitration where the entire $79 claim was awarded, along with $42 in costs. The somewhat angry arbitrator, miffed about wasting his morning, required the parties to split his fee. Imagine the client’s delight in finding the 100% victory on the benefits and costs resulted in a net loss of $89! Never mind the lawyer and paralegal time wasted in this windmill-tilting endeavor.

Common Sense: Why not simply monitor the medical care, and file arbitration when the overdue benefits approach or reach a significant milestone, such as $1000?

The only downside I’ve seen to this approach is that the claims can slip out of control and suddenly exceed $10,000. If you’ve got so many open files that you, your staff, the doctors and the client can’t figure out the difference between $1,000 and $10,000, you need to reduce your caseload.

Liability Adjusters. Similarly, many lawyers take a hardball approach with liability adjusters. Admittedly, it is irritating to field insurers’ constant demands for bills, records and updates. Meanwhile, your requests for copies of property damage photos, witness reports and liability limits disclosure go mostly ignored. Why should we help them build their file, when they give us nothing?

Some lawyers take a hardball approach, sending a stern letter demanding discovery of investigative materials, and dictating to the adjuster just what they will be willing to share on a quid pro quo basis. Others advise a scorched earth approach. Give them nothing, and put the case into suit. “That’ll show them who’s boss!”

Maybe.

I have spoken with adjusters about this problem. While they acknowledge that this makes their life difficult, it does not “teach them a lesson.” Universally, they indicated that they, too, immediately dropped into a “War Mode.” Why should they make any accommodations or provide any information to lawyers that treated them poorly? Most importantly, they all said they would never make higher offers to lawyers who treated them disrespectfully. Sounds like a good approach, if you want to try every single case that you have. It does not sound like an approach that benefits the client.

On the other hand, the approach may actually reduce the plaintiff's lawyer’s level of preparedness. Your editor and other plaintiff lawyers have found themselves approaching trial on such “no prisoners” cases. Because they correctly felt that demand would not produce a reasonable offer, they simply skipped drafting a demand and put the case directly into suit.

But if you usually prepare a demand on every case, you may not realize the importance of that step in your case preparation. Preparing a demand is a sort of ‘dry run’ of how the file looks, on the whole. Because they had not put the case through the "crucible" of preparing a demand, they found that there were gaps in their file. These gaps would certainly have come to light and been corrected had they stuck with their typical discipline of preparing a demand on each case.

Common Sense: Why not simply treat adjusters like people? After all, they are usually just doing their jobs. Be polite, even friendly. Ask about their vacations, their families, their backgrounds. Provide them the materials they need to reserve their file, along with any other reasonable requests for information that is ultimately discoverable anyhow.

If there is something that you will not provide, explain your reasoning in a polite manner. You can even apologize to them that your responsibilities to your client outweigh your desire to provide them everything that they need to make a high reserve.

What about insurers that make a corporate decision to go to war against plaintiffs by making miniscule or nonexistent offers on all cases? It is certainly reasonable to deny those insurers assistance. Why help them properly reserve the file if they will never make a reasonable offer? However, it is those adjusters that probably need reasonable, friendly treatment more than any others. Those adjusters are truly besieged, with corporate supervisors giving them unreasonably low authority on the one side, and plaintiff lawyers screaming at them from the other side. What's wrong with commiserating with them a bit? “I know it’s not your fault the company has taken this position. I hope you don’t take it personally, I know your job is tough these days, but your company has declared war on plaintiffs, and I really can’t help you out.”

Many of these companies have been stocked with young (corporate-speak for inexpensive), less experienced adjusters. They’ve been taught that plaintiff’s lawyers are a bunch of greedy jerks. Why play into that stereotype?

Those that don't quit will probably be around for most of your career, and a decent working relationship will come in handy in the future. Eventually, every company eventually loosens the purse strings when the “War” approach overwhelms their staff and legal costs with unsettled cases. Many adjusters will have switched companies. In both those circumstances, it may pay dividends to have a good relationship with the adjuster. At least, that’s what the adjusters tell me.

Clearly, there are insurers who deserve no pre-suit disclosures, no authorizations and no demand. But the adjusters should still be given respect, whether they’ve earned it or not.

Quality of Cases. How much of your time is spent working on your high-quality, clear liability, serious injury cases, compared to your dogs? Which ones bring in more legal fees? Most lawyers find that they make most of their money on the good cases, but spend most of their time hacking away on the poor cases. And yet, fearful of having no cases to work on, we continue to take poor-quality cases. You can’t make a silk purse out of a sow’s ear.

And how is the quality of your work affected? I would submit that the work on the good cases is being affected almost as much as the bad cases. Admit it, you could do a better job of on your good cases if you didn't have all those bad cases wasting all your time. You'd probably make more money, too.

Common sense: Just Say No! to crappy cases. And close the crappy cases that you do have (as long as there are no impending statute of limitations issues that would prejudice the client.) There are young lawyers just out of school that will be glad to take the referral of a few of these cases. They need the experience, you’ve already had it!

Unless you find yourself twiddling your thumbs at your desk with nothing to do, there is no good reason to take a new case that will be in your bottom 25 percent. Work harder on better cases!

Appeals - Bad Facts or High Standards of Review Make Bad Law. On the list serves, there was a rather heated discussion of a recent appeal result. Plaintiff’s counsel had sought a Writ of Prohibition when the judge had allowed discovery of the client's mental health records. For those of you who do little appellate work, the Writ of Prohibition has a very high standard of review. The court will have to find the district court judge abused their substantial discretion.

With the sensitivity of a sledgehammer, your editor wrote a message intended not to be a specific, but a general criticism (in ALL CAPITAL LETTERS)

WHY OH WHY DO WE BRING BAD FACTS UP ON APPEAL, ESPECIALLY

WHEN THE STANDARD IS SO HIGH??[2]

It has been my experience that the courts are not content simply to rule that the plaintiff did not satisfy the high standard. No, the Court seems to want to justify the decision as if it would stand under any standard. The court will write a decision that uses any arguments that support the result: Thus we read recitation of one-sided rationalizations, bad case law, bad analysis or just plain wrong-headedness, all under the lovely imprimatur of the Court of Appeals .

I’m no Wil Fluegel, but even I know that the standard of review is so high on interlocutory appeals, specifically the Writ of Prohibition, that you better have great facts and law, or you’ll lose in dramatic style, spilling ugly anti-plaintiff language all over the rest of us. I have strained my brain trying to remember a positive result of a Writ of Prohibition, and I can’t. It is pretty clear to me that that unless the District Court judge orders your client to perform unnatural acts, that you take your lumps and go on with your trial, and save your appeals till after the trial.

Bad Facts. We’ve all seen bad facts go to the up on appeal. I’ll repeat my list serve confession of my own rather minimal (but public and published) involvement in such a transgression: Why would anyone appeal to the Supreme Court the dismissal of a minor dram shop case for minor questionable-causation injuries in the slip and fall of an admittedly intoxicated woman, who fell while being escorted out of a bar by the bouncer? Apparently, only to dramatically establish that the ‘but for’ test is not the proper legal standard in such cases![3]

The usual result of an appeal on bad facts, or an interlocutory appeal on less than overwhelmingly good facts, is bad law. There is no ethical requirement that lawyers bang their head on the wall by bringing a doomed appeal.

Common Sense: Take your lumps and don’t appeal bad facts. You’ve got a right, and perhaps an obligation, to counsel your client against making such an appeal. As a happy side effect, you won’t spill your mess on your fellow trial lawyers out there in the trenches.

Obviously, there are many cases that need to be appealed. In fact, the lawyers that are not taking cheap offers, taking the good cases to trial and to appeal if necessary, are the Vanguard of the plaintiff’s bar. They should be congratulated for their hard work and not stabbed in the back by hind-sight-full columnists for their failures. On the other hand, I think we can all learn from the mistakes of others.

Just a reminder: If you have a case you wish to appeal, I strongly urge that you contact MAJ's Amicus Committee. At worst, you'll get a good second opinion on the merits of your appeal. At best, in rare circumstances, MAJ may be able to file an Amicus brief and provide some assistance in your appeal.

Conclusion. Some of these suggestions may be somewhat controversial. Obviously, I have named no names, and don't intend anything in this column to be a criticism of any specific case or attorney. Rather, these are more general suggestions, perhaps inspired by my experiences and those of my friends.

On the other hand, if anyone wishes to voice their disagreement with my concept of Common Sense, or just express an alternative point of view, please feel free to write a short letter to me to MAJ, or e-mail me at KaneCrumley@comcast.net. If I receive good responses, you may get your name in print in the Fall issue.

To those of you who have submitted Practice Pointers in the past, we thank you. Please keep sending them; we will try to get as many of them into the magazine as possible.









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