Winning big: a small-firm lawyer's secrets to success.
To stay competitive, you have to be quick, you have to be good, and it doesn't hurt to know a few tricks of the trade--those so-called secrets to success. Here are eight that I've discovered can help the sole or small-firm practitioner gain that all-important edge in any case.
In a perfect world, you represent Mother Teresa, whose car was hit in the rear by a car driven by George Steinbrenner. The collision occurred at an intersection where the Mormon Tabernacle Choir happened to be performing a street concert, and each choir member witnessed the accident. Mother Teresa's treating physician is Michael Debakey, the "father of heart surgery," who recently perfected his artificial heart and donated all of the proceeds to AIDS research.
Now, you pinch yourself and settle back into the imperfect world of litigation. You look over from the counsel table to see the marshal taking the cuffs off your client so he can sit next to you. His drug rehabilitation counselor has suggested that you not agitate him.
Your only question is, do you lead off with the plaintiff or your only eyewitness, a suspected terrorist who was recently released from custody after a hung jury decided there was not enough evidence to link him to the World Trade Center bombing? You hope your client's treating physician, Dr. Jack Kevorkian, will be paroled in time to testify.
Welcome to the real world.
These are, of course, extreme examples. But they illustrate how the "baggage" that every client brings to a case can affect its outcome, often for the worse. What lawyer hasn't asked himself or herself during jury selection, "How did I get here? What was I thinking when I took this case?"
It is imperative that in today's less-than-advantageous financial environment, we give careful thought to case selection. If a potential client makes you uncomfortable at the first interview, take a pass.
Think like a businessperson.
If a case doesn't have the elements to be a winner, don't take it. A former ATLA president once said that when deciding whether to take a case, lawyers should keep in mind an adage pilots use to help them decide whether to fly in questionable weather: It is far better to be down here wishing you were up there than to be up there wishing you were down here.
Any case you take should have the following elements.
* Evidence of liability. Do not be blinded by a client's injuries, even if they are serious. Make sure there is sufficient evidence that the injuries were caused by another's misconduct to warrant seeking compensation.
* Sufficient damages. Even if there is solid evidence of liability, you must also determine if the injuries suffered by the client warrant taking the case. A sign in front of the world-famous Cyclone roller coaster at Coney Island, New York, says, "You must be this big to ride." Set a similar damages standard for your cases. It is hard to explain to a potential client who was rear-ended at a stoplight, taken to the hospital, and forced to miss three weeks of work because of injuries that there is no case. But sometimes this has to be done.
* A source for collection of the judgment. You must find out if it will be possible to collect any potential judgment. The defendant's insurance coverage and financial viability should be determined before you take any case.
* A friendly environment. Some clients simply will not present well to a jury. Some causes, no matter how just, will do your pocketbook more harm than good. For example, a young, healthy-looking plaintiff may have a hard time conveying the full extent of his or her pain and suffering to an elderly jury. Take the pulse of your community and decide if you would do your client or yourself more harm than good in taking the case.
Find the hidden value.
Many cases have a hidden value--an overlooked theory of liability, an unseen injury, or an unexamined source of collection. These hidden assets must be uncovered to maximize a case's value.
For example, in evaluating liability issues in a case where your client's car was rear-ended, you need to look beyond the obvious negligence of the driver. Examine the quality of the roadway to determine if signs and lighting are adequate. When inadequate signage or lighting is a proximate cause of a collision, potential additional defendants include municipalities and utility companies.
Is crashworthiness an issue? Did the vehicle's design contribute to the accident? Did air bags or seat belts or the lack of these cause injury? If the answer to these questions is yes, the car's manufacturer is a potential defendant.
When assessing a client's damages, be careful not to disregard "hidden" injuries. Too often, we miss serious but easily overlooked injuries like the following.
* Closed-head trauma. A client who had a good work record and happy family life before the accident but who is now irritable, no longer responsible at work, and having troubles with family relationships may be suffering from a closed-head injury. A client's domestic troubles should not just mandate a referral to a matrimonial lawyer; a neuropsychological workup may also be in order.
* Emotional distress suffered by immediate family members. When a person who witnessed the injury of an immediate family member was close enough to the injury-causing event to have also been in danger, that person may be able to recover damages for emotional trauma even if there are no accompanying physical injuries. Many jurisdictions allow this recovery based on a theory called the "zone of danger" rule.
* Loss of enjoyment of life. It has always been difficult to show proof of economic loss when an injured party is a student or unemployed spouse. Trial consultants tell us that awards for pain and suffering seem to be losing favor with jurors. In the case of an unemployed client, concentrate on obtaining compensation for the loss of enjoyment of life. For example, ask in jury selection if the potential juror has a hobby. Would the juror agree that a deprivation of the ability to partake in the hobby, even though it produces no income, is a compensable loss?
* Loss of earning capacity. Economic stress often forces people back to their jobs despite pain and disability. However, that should not preclude recovery for economic loss due to future pain and suffering. When a person has a permanent partial disability, his or her work-life expectancy is reduced. That means the person is likely to lose the last few years of potential earnings, often the years when the person's pay rate would be at its highest. These losses can be substantial and should be pleaded and proven.
* Loss of insurability. Often, a worker's benefits package is overlooked in determining the scope of losses suffered. Insurance and insurability are significant benefits. Their loss can have a catastrophic effect on a person's life.
* Likelihood of re-injury. Another aspect of any personal injury case that is often overlooked is the possibility of reinjury. For example, a person with a limp, even a slight one, is much more likely to fall in snow or inclement weather. Experts in human engineering can calculate a person's increased risk of re-injury based on his or her disability.
* Loss of consortium. Modesty must be put aside if we are to represent our clients to the fullest. The loss of intimate relations is a serious injury that can lead to other problems in the family. It is up to us to find a sensitive method of approaching the loss, keeping in mind that there is always a risk of upsetting a juror. Remember, too, that many jurisdictions have yet to legally recognize "significant other" or homosexual relationships. Consequently, loss of consortium may not be recoverable for clients in these types of relationships.
Make your office a fine-tuned business machine.
To steal a phrase from the sports pages, we must become lean, mean fighting machines. That means we have to take advantage of technology and other advances in law office management.
Upgrading to the latest technology is no longer prohibitively expensive. Every small-office lawyer should learn to do the following.
* Use modems. Computer modems allow you to work from home and have access to all the material in your office computers. A modem is an inexpensive and indispensable accessory to office computer hardware.
* Use computer libraries. Computerized research has made the expensive and space-eating book-based library obsolete. CD-ROM technology or online services provide access to up-to-date material at the press of a button. Computers also can expedite case investigation. In many states, records that are kept by motor vehicle departments, such as insurance and registration information, are available online. Information about a person's assets, including real property, may also be available.
* Use file management programs. While customized file management programs are excellent and easy to use, these can be expensive. Many off-the-shelf programs, though, can be adapted to the needs of the small-office practitioner.
* Use office accounting programs. Accounting software programs like Quicken that sell for under $50 can easily replace a bookkeeper or payroll service. These programs also can make closing statements and disbursement accounting less time consuming.
* Use document assembly programs. Document assembly programs take two forms: One is the cut-and-paste method, and the other is the fill-in variety. Use whichever is best for your practice, but be sure to index your work. Nothing is more frustrating than knowing that you have drafted a document similar to the one you are working on and being unable to find it. Avoid reinventing the wheel.
* Use per-diem employees and students. To avoid unnecessary overhead costs, make judicious use of temporary lawyers and law students. For example, pleadings, if not created with document assembly programs, can be drafted by law student interns. While the time spent in proofreading their work and training them can be extensive, it is an investment that can pay off in the future. Law clerks who are trained and treated well often become appreciative colleagues once they become members of the bar.
* Provide alternatives to the traditional workday. To be competitive in this tight labor market, you must consider alternatives to the traditional nine-to-five workday. Offering flex-time, part-time, and job-share work arrangements is an excellent way to keep good workers who need some flexibility in their schedules. Also, look into allowing work to be done at home. The computer age makes this easy to do, and many people find they work more efficiently in the quiet of their own homes.
* Aggressively seek settlements. Nothing is more important to the trial attorney than the settlement. Weeks out of the office spent on trial will never be profitable. Make use of settlement brochures and videos, which can help you achieve the best settlements for your clients.
* Do not overspend. The costs of litigation have been steadily increasing. Because demonstrative evidence is one of the most expensive elements of any case, consider using generic, reusable exhibits. Sharing medical models with other attorneys is also something to consider. Try making your own exhibits. Using equipment like a poster maker or an overhead projector and 3M overlay sheets, you can make your own exhibits at a moderate cost.
* Do not overreach. Certain cases require special expertise. Prescription drug litigation or airplane cases are best referred to firms that specialize in those cases. If you do not have expertise in medical malpractice or products liability cases, carefully consider if they will prove too burdensome to take on. Consider the costs of discovery, investigation, demonstrative evidence, and experts. And remember that defendants in these cases often have virtually unlimited resources.
Understand the `new juror.'
The 1990s have not been a "kinder, gentler" time for the trial attorney. The leisurely pace of Clarence Darrow's orations would bore many jurors today.
At least since the advent of the television remote control, the attention span of the average American and, consequently, the average American juror, has been shrinking quickly. To illustrate, compare the content of a Perry Mason show to an episode of The Practice.
In days gone by, Perry spent a full hour bringing one case to conclusion. During a typical one-hour episode of The Practice, two or three cases are completed and at least one love affair consummated. Jurors today demand instant gratification. The trial lawyer must adjust or perish.
According to polls, jurors today have three major complaints about lawyers. The first is that lawyers waste too much time. They do not get to the point, and they repeat themselves.
The second complaint is that lawyers confuse the issues. Lawyers do not speak plainly; they confuse jurors with excess verbiage.
The third complaint is that lawyers are not believable. The credibility of the profession has been undermined by many factors, including the public's misunderstanding of cases like the McDonald's coffee case and misinformation about the reasons for high insurance rates.
Adopt a new trial attitude.
To counter juror complaints, you must embrace three cardinal principles when presenting cases.
* Be brief. Jurors have no patience for pedantic and verbally wasteful presentations. Repetition is disastrous. The old wisdom of repeating critical points will simply breed juror resentment. Questions on direct examination should be like con tests, 25 words or less. They should convey one thought at a time.
* Be graphic. We live in a visual world. The studies are unanimous: Comprehension and retention rates increase dramatically when visual impact is added. A variety of media can be used to make a point visually. Word pictures are extremely effective as long as they convey a powerful and recognizable image. By using visualization, you can repeat an idea without violating the brevity rule.
* Be credible. No matter what form the presentation takes, it must be credible. "Slick" does not sell in today's courtroom. Sincerity is the most important attribute for the trial lawyer. You must be credible not only in what you say but in how you act and look. To do this you must be passionate about and committed to your client's case. Above all, you must be yourself.
Use demonstrative evidence, but keep it simple.
Don't make the mistake of reserving demonstrative evidence only for catastrophic injury cases. That practice will have catastrophic effects on the bottom line of the small-office practice. Demonstrative evidence helps the jury follow the issues and aids the attorney in advancing the client's position.
You can use demonstrative evidence effectively even in the average bread-and-butter case, if you keep the KISS (keep it simple, stupid) rule in mind. Exhibits should be clear, concise, and (here's that word again) credible. If an exhibit looks too slick, it will hurt instead of help your client's case.
Elaborate video animations can appear overproduced and contrived. A simple scale enlargement of an accident scene using magnetic or stick pin vehicles can be much more effective. The plaintiff can leave the witness chair and show the exact point of contact of the vehicles. Then, working backward, the plaintiff can show why he or she couldn't see the defendant's vehicle approaching the intersection.
Demonstrative evidence must be accurate. If there is a discrepancy between the facts and the Way an exhibit depicts an accident scene and defense. counsel can show that if accurate the exhibit would show a different result, the plaintiff is far worse off than if no evidence had been proffered.
Take advantage of your best weapon--yourself.
The one thing that most lawyers do best is communicate. Words have power, and we must be careful how we choose them.
To illustrate, a number of studies show that in the context of litigation most men associate the word "victim" with a defendant being sued for injuries caused by an accident. On the other hand, most women associate the same word with the injured party.
Take another example. The defense bar uses the word "accident" in tort cases to imply blamelessness. Studies show that jurors who hear that word may be less likely to assign fault to a tortfeasor who has caused injury to another person as a result of negligent, if unintentional, conduct.
As master communicators, we have to help jurors get beyond language barriers like these. Our words must conjure up experiences and emotions that jurors can relate to. For example, saying your client is in pain may not convey the suffering the client endures. But if you tell the jury that your client's pain is like a pounding headache that won't go away, or a broken bone that won't heal, you're likely to get the point across.
The attack on every American's right to obtain fair and adequate compensation for injuries caused by the negligence of others is reaching fever pitch. In the guise of tort "reform" initiatives, powerful insurance and corporate interests are seeking to avoid their responsibility to consumers.
The cumulative effect of years of insurance industry misrepresentations about the facts of high-profile cases has taken its toll. The small-firm trial lawyer facing big-gun defense firms must stay on the cutting edge if injured parties are to have a chance.
For further reading
These articles also provide useful information for small-office practitioners:
Gary R. Gober, Person to Person: Reclaiming the Lawyer-Client Relationship, TRIAL, Mar. 1997, at 46.
Frank Herrera Jr. & Sonia M. Rodriguez, Courtroom Technology: Tools for Persuasion, TRIAL, May 1999, at 66.
Nancy Byerly Jones, Building a Successful Legal Team, TRIAL, Aug. 1999, at 58.
Mary Alice McLarty, Secrets of a Successful Small Office Practice, TRIAL, Apr. 1998, at 82.
John Tredennick Jr., Computer Technology: Grabbing the Early Advantage, TRIAL, June 1997, at 41.
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|Author:||Pillersdorf, Gary B.|
|Date:||Feb 1, 2000|
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