Go back in time to your first big case. You’re just a couple of years out of law school and a 30-something injury victim comes walking into your office. Within minutes of chatting with your new client, you quickly realize that you just might have your first injury case with huge damages, clear liability and oodles of insurance coverage. You can’t contain your enthusiasm and have to rush home to tell everyone.
You have a vision for this lawsuit. Unlike your run-of-the-mill back injury cases, you will push this case through discovery and get it to trial in no time flat. You just know that a big payday is waiting for you, but you won’t see a penny until the case gets to trial. Nothing will stop you—you’re locked, loaded and ready to kick some ass!
You have big dreams for this case, but once you file the lawsuit, you find that the defense is not quite playing ball with you. The defense lawyers aren’t available for depositions for 6 months and they serve pro forma discovery responses that seem like they were copied and pasted from other cases. That’s right, defense counsel isn’t cooperating and it seems that your vision for getting this lawsuit to trial quickly is nothing but a pipedream.
Let’s begin with a simple, irrefutable truth: you will not get paid until the trial. Even in the most clear-cut, obvious cases, the defense will not pay your client until the day of the trial (or a day before trial).
This leads to one inescapable conclusion: your only goal is to get your case to trial as quickly as possible. The sooner you get your case to trial, the sooner you will get paid. Let’s get busy then crafting a system for getting your best cases to trial.
You can expect the same thing in every lawsuit—the defense will not schedule depositions of the parties until they have a complete set of your clients’ medical and employment records. And you can’t blame them, the defense lawyers have a job to do and without all of the medical and employment records, they won’t even give you a proposed date for depositions.
“If you know what outcome you desire, the next step is to identify what type of behaviors will produce that outcome.”
Matthew Kelly, Off-Balance
The first step to avoiding delays is the Pre-Litigation Checklist. The pre-litigation checklist is an itemized list of every medical, employment and exhibit that you will need for trial, including:
Your secretary begins collecting these records on your Pre-Litigation Checklist before you file the lawsuit. Yes, it usually takes a couple of months to get these documents, but it will be at least that long before the defense serves an answer and discovery demands. You’re not hustling to respond to the defendants’ discovery demands, you’ve got everything and you provide discovery responses that give the defense everything.
Don’t wait to serve the medical and employment records with the plaintiff’s discovery responses. As soon as you receive the defendants’ answer, you should serve a complete set of your client’s medical records and release authorizations to defense counsel. For paperless offices (and there is no excuse if you’re not), this is as simple as burning the medical and employment records onto a compact disc and dropping the CD in the mail with the release authorizations.
Now, there’s no excuse for delaying or postponing the depositions—the defense lawyers have everything they need within days of their first appearance in the lawsuit. But make no mistake about it, the defense will almost always tell you that they don’t have a part of the records they need for depositions and that’s when you gently remind them that you gave them everything MONTHS AGO.
The Preliminary Scheduling Conference is your chance to impose strict so-ordered deadlines for the completion of discovery. But most plaintiffs’ lawyers agree upon outside dates for the completion of discovery that is 8-12 months away. Big mistake!
At least one week before the Preliminary Scheduling Conference, you should send a fax/email to defense counsel asking them for alternative dates that the defendants are available for their depositions. You inform defense counsel that you will ask the Judge to impose specific so-ordered dates for the depositions of the defendants and you wish to schedule dates in advance of
The Preliminary Conference Order should specifically contain dates for everything from depositions, original chart reviews, site inspections and the defense medical examination (yes, always use “DME”—not the bogus term, “IME”). With specific so-ordered dates for discovery, depositions and paper discovery cannot be adjourned by defense counsel without the Court’s approval. How’s that for a roadmap for getting your case to trial!
Almost invariably, you will receive a set of pro forma discovery responses from the defense lawyer that contain a list of meaningless, boilerplate responses. The defense lawyer will object to virtually all of your discovery demands as seeking privileged or confidential information and even when they don’t, the discovery response will state that the “information will be provided later in a supplemental response”.
As soon as you receive the defendants’ discovery responses, your secretary should review the responses to determine what’s missing. Remember, a response of “will be provided later” is not really a response. Follow up with a letter to defense regarding their worthless discovery response and insist upon a meaningful response.
“Systems drive behaviors. Certain behaviors lead to certain outcomes.”
Matthew Kelly, Off-Balance
You want to document everything and follow up with another letter if the defense does not respond to your letter. The defense won’t comply with discovery unless you hold their feet to the fire and don’t let them off easy—if the discovery response was due on July 8th, remind them. If you are lax about discovery, you can’t expect anything more from defense counsel.
It’s easy to adjourn depositions with your busy schedule and sometimes you just want a break. When you’re thinking about consenting to the defendants’ request for an adjournment, kick yourself in the ass! If you consent to one adjournment, the Preliminary Conference Order becomes meaningless.
BE TOUGH! Tell the defense lawyer that the Court has specific so-ordered deadlines and you cannot adjourn anything without a Court Order. And remember, the defense counsel will inevitably blame you for failing to comply with some aspect of discovery and you have to be ready to respond, i.e., “We gave you a complete set of medical and employment records and release authorizations 6 months ago and you have everything you need to proceed with depositions. Are you serious?”
We have a checklist of our Key Performance Indicators that measure the number of days that it takes for the most important parts of discovery. By measuring your performance, you’re not just hoping for the best—you’re holding you and your team accountable.
“The thing that continually amazes me about the very best companies in the world is that they measure everything.”
Matthew Kelly, Off-Balance
In your Key Performance Indicators, you should specifically measure the number of days:
The days that it takes to complete these 3 milestones are documented in our Key Performance Indicators, as each milestone is reached. Each milestone has a specific goal that we strive to reach. Hey, we’re not perfect, but when we don’t reach our goals, we analyze the problem so we identify where the delays occurred and how they can be avoided next time.
No, there is no magic potion for getting your case to trial quickly, but there are systems for avoiding the most common delays. The Pre-Litigation Checklist and the Key Performance Indicators are part of a system for getting your case to trial and we’re happy to share them with you. If you’d like a Word file of our checklists, just send an email to the world’s greatest paralegal, Corina Skidmore, at .
John Fisher a personal injury lawyer practicing in Kingston, NY -- see www.protectingpatientrights.com and www.UltimateInjuryLaw.com. John's practice is limited to the representation of victims of catastrophic and substantial personal injuries, including the victims of cerebral palsy, Erb's Palsy, birth injuries, delay in cancer diagnosis, heart attack and stroke misdiagnosis, legal malpractice, suicide prevention, undiagnosed infections, medication errors and nursing home neglect and abuse.
He is author of "The Power of a System: How to Build the Injury Law Practice of your Dreams," available for purchase at his website,www.ultimateinjurylaw.com. Ben Glass, Esq., the nation's leading authority on law office marketing and development calls the book, "amazing". This 334-page hardcover book is chock full of the technical, managerial and entrepreneurial "how to" secrets to building a multi-million injury law practice. When you buy the book at www.ultimateinjurylaw.com, it will be sent to you via Federal Express (at no extra charge) and you will receive a FREE three-month subscription to my monthly newsletter for lawyers, Lawyer Alert. If you'd like to get a FREE chapter of my book about internet marketing for lawyers, go to www.ultimateinjurylaw.com, and you can request an instant electronic copy of Chapter 22 ("How to Turn your Website into a Client Magnet").