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Case selection: resolving the threshold question.

One of the most important decisions a plaintiff's personal injury lawyer makes is whether to accept a case. With contingent-fee cases, this decision is essentially a judgment that the case's ultimate value will be worth the time and effort expended and the necessary out-of-pocket expenses that must be advanced.

As juries have been affected by negative publicity about lawsuits, plaintiffs have been winning fewer personal injury cases. A recent study confirmed that their success rates in these cases has fallen during the last six years from 61 percent of cases that went to trial in 1987 to 52 percent that went to trial in 1992.(1) This trend makes it imperative to carefully evaluate each potential case with thoughtfulness, common sense, and a working knowledge of the applicable law. Here are points to consider when deciding whether to accept a case and issues you may confront along the way.

Meeting the Prospective Client

Many cases require investigation beyond the initial client interview before the decision to accept or reject can be made. Be prepared to share certain information with the prospective client and to resolve certain logistical issues at the interview.

Sharing information. Before concluding the interview, explain whether you plan to accept the case, reject it, or investigate further. If you decide to investigate, be sure the client understands that you have not yet accepted the case.

Describe the scope of the investigation. For example, tell the prospective client if you need to contact witnesses and ask whether there are any, special circumstances that might make this inappropriate. In a medical negligence case, explain that a letter from your office requesting a physician's records may prompt inquiries regarding whether the doctor will be sued, and this may affect the doctor's willingness to treat the client and family members.

You should also explain the focus of the investigation and why you need additional information. For example, in an accident resulting in exacerbation of a preexisting condition, explain that you are able to accept the case only if the treating physician believes the accident caused a serious and identifiable separate injury and is willing to say so in a letter.

It is usually a good policy to give the client an overview of the relevant law. If the case presents an unusual or esoteric legal question, do not hesitate to say that you will need to do some research before deciding whether to accept the case. Of course, if the subject matter is wholly outside your expertise, you will need to refer the case to another attorney.

Be sure to explain the approximate time frame of the investigation. If it is likely to last for several months, explain what you will be doing and why it will take so long. Most important, during this time, return all the prospective clients' phone calls and keep clients updated on the status of the case.

Resolving fee issues. Out-of-pocket expenses can mount quickly, especially in complex medical negligence and products liability cases. Establish early on whether the client will reimburse your office for those expenses and whether there will be a fee for time spent if you ultimately reject the case. These terms should be set forth in a letter.

Don't ask a client to sign a contingent-fee agreement while you are still investigating the case. Doing this may confuse clients about whether you arc representing them and may even create a binding obligation to prosecute the case, depending on the wording of the agreement. Have the client sign the agreement only after you have decided to accept the case.

Handling questions. The client may ask about the case's potential value. Any dollar figure you provide will become a floor in die client's mind, and any short-fall at the end will be seen as a failure on your part. Conversely, giving what seems to clients a low figure may, signal that you do not fully appreciate the value of the case and are not "on their side."

The best way to answer this question is to explain that many factors are involved in valuing a case and that you need more information before you can make a realistic estimate. Avoid giving the person an opinion before you have all the necessary facts on liability and damages.

The client may ask what conduct is expected of him or her during the pendency of the case. These questions often will begin with, "Would it hurt my case if..." or "Would it help my case if..." Perhaps the most frequent question is, "Should I return to work?" The only ethical response is to refer the client to his or her physician. Explain that the physician's advice should guide decisions on health-related issues.

Valuing the Case

Determining the value of any case requires assessing both liability and damages. As a general rule, accept only those cases you would be willing to handle all the way to trial. If a case would be cost-effective only in the event of a settlement, it is likely to be a case you will wish you had rejected. The case may not settle for a number of reasons, and you may be forced to try the case.

Evaluating liability. At the outset, determine whether you have time to properly investigate the case before the statute of limitations runs. If there is some doubt as to whether it has already run, be sure to advise the client and take this into consideration when evaluating the case. Include in your investigation whether there arc any precise notice requirements, tolling provisions, discovery rules, or exceptions that might apply.

If the case depends on the testimony of a witness, be sure to interview that person before accepting the case. For example, if you represent a bystander who was injured by a third person's use of a product lacking a safety device, you would not want to find out at deposition that the user would not have used a safety mechanism even if the product had one.

In a products case, determine whether the product is still available. If it has been altered or destroyed, the case may be too difficult to prove.

Medical negligence cases raise special considerations. Review afl original records carefully and ask the client what subsequent medical providers have said about the quality, of care provided and whether the original care made a significant difference in the medical outcome. Subsequent physicians often express opinions on these subjects. If the subsequent treating physician believes the defendant's negligence did not substantially affect the patient's outcome, that is a significant burden to overcome. Conversely, many patients seek the advice of an attorney only after they have been told to do so "off the record" by a physician.

Remember that you will need an expert to help you evaluate the case and to testify at trial. In jurisdictions where the locality ride applies, it may be difficult to find a doctor in the community willing to testify against the defendant'

Even if you get an expert to testify, causation may be difficult to prove if the defense plans to argue that the patient would have suffered the same injuries regardless of the alleged negligence. Be sure you can overcome these obstacles before agreeing to take the case.

Assessing damages issues. During the initial interview, ask the client about all prior injuries, illnesses, accidents, hospitalizations, workers' compensation claims, and lawsuits. For your own protection, it is important to have this information documented in your file. This mill prevent the mistake of claiming that the client never had any previous injuries when that is not the case.

If the plaintiff has had a prior lawsuit, obtain all documents, such as medical records, pleadings, correspondence, and settlement documents, from the prior attorney.

Request complete, page-by-page copies of the medical records, including records for several years before the accident, to establish the absence or presence of any preexisting condition. If there is a preexisting condition, obtain all relevant medical records, no matter how far back they go. You will need to determine how difficult it will be to separate previous or later injuries from the injury the client has come to see you about.

Decide whether it is appropriate to speak directly with your client's physician about the causal relationship between the accident and the injuries, the extent of the injuries, and the client's prognosis. Speaking with a physician is a good idea in any case where the medical causation is less than perfectly, clear. If you decide this would be helpful, obtain the client's written authorization and send it to the doctor a few days before calling the doctor.

Where the primary damages are lost wages and loss of earning capacity, consider whether the client has had a stable and documented work history including whether the client's full earnings are reflected in tax returns. Warn clients who would testify that then, earned more than they reported that they are exposing themselves to possible criminal prosecution and penalties for tax evasion.

In a third-party case involving workers' compensation, be sure you have reviewed the results of ann, investigation by the workers' compensation carrier. There may be some critical piece of information that would affect your decision. For example, the client may have given a statement that would be important to have at the beginning of the case. Interview coworkers who were present at the time of the accident and who may have witnessed it to determine whether there are differing accounts of how the accident happened.

Finally, consider the impact of any legislation limiting damages, eliminating joint liability, or prohibiting prejudgment interest that could severely restrict recovery.

Weighing other tissues. Consider whether you have any potential conflict of interest, and err on the side of caution. For example, in most motor vehicle cases, you should not represent both the passenger and the driver - even if they are family members - if there is any chance the driver could be considered at fault.

Your instincts about, and impressions of, prospective clients are invaluable. The overwhelming majority are decent, honest people. However, if you sense a client is being less than forthcoming, reject the case no matter how tempting it sounds. Your professional reputation is too important to risk.

Some cases merit special consideration even though they fall short based on your assessment of liability and damages. For example, you might be persuaded to accept a more modest case if you believe doing a good job will result in future referrals. Similarly, you might handle a new case with limited damages for a former client as a professional courtesy.

Finally, you might decide to represent a client with a modest but meritorious case if you believe he or she would have difficulty finding competent representation or if a small recovery would have a major positive impact on the person's life.

Rejecting the Case

A decision to reject does not end your responsibility to the prospective client. For example, some courts have held an attorney may be liable for discouraging a client from pursuing a case and then failing to advise the client to seek other counsel.(2)

The best course of action is to explain in a letter to the client that you do not wish to pursue the case, that there is a statute of limitations running, and that the client should consult mother lawyer promptly if he or she would like to proceed with the case. This may serve as important protection if the client later files a lawyer negligence suit.(3)

Whether the standard of care requires you to advise rejected clients of the date you believe the statute expires probably depends on the practice of attorneys in the community and the circumstances of the case. If the limitations period is about to expire, it is probably safer to give that advice.

On the other hand, you may suspect there is a "hidden" defendant or less obvious cause of action that would extend or shorten the statute or require special notice. Without further investigation, you may not be in a position to advise the client on the specific date or circumstances after which the case will be barred.

In those situations, you should explain that there is a time period in which the lawsuit must be filed or notice given, that you are not in a position to advise the client what the time period is, and that the client should consult another attorney immediately in order to protect his or her rights.

Do not investigate a case for an unreasonable amount of time without telling the client whether you will accept it. Remember to leave sufficient time for the person to consult another attorney - who will need to conduct a further investigation - before the statute of limitations runs.

Where there is probably negligence but the damages do not justify taking the case to trial, it may be appropriate to suggest options to filing suit, such as writing complaint letters to a state medical board, the Consumer Product Safety Commission, the headquarters of a store, or an elected official.

In some cases, you may find the prospective client just needed an explanation about why the incident occurred. For example, in a medical negligence case, you may be the first to explain what went wrong and who was responsible. Your investigation may have provided vital information even for the patient who does not pursue a lawsuit.

It is important to educate prospective clients about what really happens in personal injury law and how juries decide cases. Remember that even when you reject a case, you have an opportunity to make a favorable impression about lawyers on a person who may end up on a jury or may form part of a constituency to influence whether critical legislation is passed.

Accepting a case may have consequences for you and your office for many years. Any decision needs to be undertaken carefully and should be seen as an important aspect of your professional responsibilities. Just as you would dedicate substantial effort to a case once you represent a client, you must devote substantial effort to evaluating a potential case.

Neil Sugarman is a partner at Sugarman and Sugarman, in Boston. Valerie A. Yarashus is an associate in the law firm.

Notes

(1) Juries Display Less Sympathy in Injury Claims, WALL ST. J., Mar. 21, 1994, at B1. (2) Sec, e.g., Togstad v. Vesely, 291 N.W.2d 686 (Minn. 1980); see also Brizak v. Needle, 571 A.2d 975 (N.J. Super. A.D. 1990) (jury verdict upheld against attorney for lawyer negligence finding that if the defendant attorney had undertaken a reasonably diligent investigation of the facts, he would have had enough evidence to commence a timely medical negligence action against the doctor). (3) See, e.g., Sherotov v. Capoccia, 555 N.Y.S.2d 918 (A.d.3d 1990) (even though the plaintiff and defendant attorney had signed a retainer agreement, attorney could not be held liable in lawyer negligence suit where the evidence established that he was not representing the plaintiff when the applicable statute of limitations expired because he had reviewed the medical records and rejected the case).
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Author:Yarashus, Valerie A.
Publication:Trial
Date:Apr 1, 1995
Words:2528
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