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How to Avoid a Defense Verdict...Before You File Suit

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You are sitting alone in an empty courtroom long after the jury announced a verdict for the defense. There are papers and exhibits strewn across the counsel’s table, and there’s just minutes before the court officer will kick you out of the courtroom, but for just a few moments, you ponder, How the hell did this happen?

While you’re packing up your files in the empty courtroom, you’re struck by the simple realization that the case was lost long before the trial. The trial wasn’t lost by a lousy cross-examination or closing argument—the case was lost when you accepted a case that had danger points that you did not spot when you filed the lawsuit. Finding the holes in your case, before the lawsuit is filed, is the key to avoiding a defense verdict.

Do Your Homework Before Filing Suit

When you first meet your client, there are fuzzy feelings and you’re convinced you just signed up your next seven-figure case. Through rose-colored lenses, you see only the strong points of the case, i.e., liability is strong and the damages are humongous, and you rush to file the lawsuit. But once the lawsuit is filed, you spot cracks (craters really) in the liability and damages. You discover that your “perfect” client did time in Sing-Sing for stealing from the mentally ill or bungee jumps off bridges in his spare time, but by then it’s too late, you already filed the lawsuit.

Get every record that has any bearing on the liability and damages and evaluate the case from the defendants’ point of view.

  • Set expectations with your client via email and written policies, and educate them about your rules of communication.
  • Spot problems with a Pre-Litigation Checklist and a new client questionnaire.
  • Create a budget for the case based upon every anticipated expense, determine a realistic settlement value and compare the ratio of your legal fee to the expenses.

Step #1: The Introductory Email

Also discover: Why are Successful Lawyers Successful?

Set expectations from Day #1 with an introductory email that explains your process for evaluating a new case. In an auto case, you might explain the process of getting the police accident report, medical records and witness statements and the time that each step will take.

In medical malpractice cases, you should explain your process for screening cases:

How We Evaluate Your Case

On the first day that we speak with you, we will either: (a) decline your case, or (b) move your case to “Under Consideration” in our case management system. When a case is “Under Consideration,” this means that we don’t have enough information to determine whether your case has merit—in most cases, we need your medical records.

Once your case is moved to “Under Consideration”, there are 3 steps in our evaluation:

  1. We get the medical records,
  2. We review the medical records.
  3. Our attorney has a face-to-face meeting with a board certified surgeon to review the medical records and discuss his opinions about the merit of your case.

Send an email with your Rules of Communication so your clients understand that you do not take unscheduled phone calls and do not respond to email or texts. Make sure your clients understand that they must schedule an appointment to speak with you and that you expect them to specify the purpose of the phone call in advance.

Next, you want to give your new clients periodic updates about the status of your case evaluation. With customer relationship management software (CRM), you can send email updates to your clients at every milestone of the case with the click of a button. Even when you’re in trial and your staff is busy, your clients will receive automated emails about every milestone in the case evaluation, i.e., “Today, John spoke with a surgeon about your case and we will schedule a time for him to speak with you.”

Step #2: Your New Client Questionnaire

Once your client has an overview of your process, tell them what you need with a new client questionnaire. Don’t ask for the world—ask for 5-8 tidbits of information. For a soft-tissue neck/back injury auto case, you can find out whether your client has a “serious injury” with just 4 questions in your questionnaire:

  • Have you had a MRI or CT scan of your back/neck?
  • Have you had surgery or do you anticipate having surgery?
  • Did you have any prior injuries to your back/neck?
  • When was the last time you treated for your injuries?

Make the process easier for your staff and give instant feedback to new clients by automating the process with an introductory email, a series of update emails and a new client questionnaire. And just to make sure your clients are happy, make sure your staff calls new clients at least once a month just to say “hi.”

Step #3: Your Pre-Litigation Checklist

Let’s say you love the new case and you want to file the lawsuit now. First, create a Pre-Litigation Checklist that lists all of the information you need and have your staff complete the checklist, sign it and submit it for your review. The Pre-Litigation Checklist covers:

  • Names and Addresses of Medical Providers (pre and post-accident),
  • Names and Addresses of Employers and Tax Records,
  • Names and Addresses of Witnesses, and photographs and videotape of the injuries and accident site,
  • Social Media Search to check for incriminating photos, etc.
  • Criminal Background Search
  • The beauty of a Pre-Litigation Checklist is that you’re getting the documents that you’ll need for the lawsuit and once you’re flooded with discovery demands, you’ll be ready to serve a complete response.

The Power of a Mastermind

Step #4: Your Clients’ Responsibilities

Make sure your clients understand their responsibilities from the get-go. Ask your clients to sign an agreement acknowledging that they will have to jump whenever you ask, i.e., respond to your phone calls within 24 hours, spend time preparing for their deposition and trial testimony, etc.

Your Responsibilities

We will do most of the work in your lawsuit, but we can’t do this without your help. If you don’t respond to our emails or phone calls and provide the documents that we need, your case will face an endless series of delays and adjournments from the defense lawyers. And if you are continually non-responsive to our emails and phone calls, we may be forced to end our attorney-client relationship. We hope that won’t be necessary.

Okay, you’ve got the records you need for litigation and your client understands her responsibilities, but you’re not quite ready to file the lawsuit.

Step #5: The Case Budget

Before filing suit, you should sit down with your staff to estimate the expenses of each phase of litigation. The expenses are broken down into 3 categories:

  • Pre-Lawsuit Expenses,
  • Discovery Expenses (filing of lawsuit to note of issue),
  • Trial Expenses (note of issue to conclusion of trial)

The expenses include filing fees, consultation fees with experts, photocopy fees for medical records, stenographer and videographer fees for depositions, transportation, meals and lodging of experts, courtroom exhibits, expert witness fees for reviewing the file and trial testimony, etc. Be as precise as possible in estimating the costs.

Once you have a total estimate of costs for the lawsuit, you place a realistic settlement value (the bottom line # that you will recommend for settlement). With the settlement value, you can then calculate your legal fee and the ratio of your legal fee to the total expenses (the ratio of your legal fee to case expenses should be 10-1).

Step #6: Meeting the Client

There is nothing that beats the personal touch of a home meeting with a client. You’re showing that the client isn’t just a number to you and that you are willing to spend the time to get to know her. And you might not like what you see—perhaps your client hasn’t fed her children in three days or has a Confederate flag hanging from her front porch—but isn’t it better that you find out before you file her lawsuit?

Deliver a “Shock & Awe” package of educational materials that explains the inner workings of your practice. The “Shock & Awe” package might consist of a pocket folder that contains your firm’s policies:

  • Rules of Communication
  • 8 Basic Rights
  • Rules for Protecting Your Privacy and Confidentiality Rights
  • Educational books, DVDs and CDs

Annex the Case Budget to the retainer agreement so your client knows how much money you will be spending on their case. If your client is humble, nice and passes the vetting process, it’s time to file the lawsuit.

A Small Gift for You

If you’d like to get our intake forms (i.e., Pre-Litigation Checklist, Case Budget, Clients’ Responsibilities, etc.), send an email to our Problem Solver and Happiness Creator, Alyssa Marcello, at receptionist@fishermalpracticelaw.com and we will be happy to email them to you.

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