All The Scary Bad Stuff Lawyers Do To Their Clients

 Posted on October 11, 2022 in For Lawyers

Snidley Whiplash, Esq.

I continue to believe that most lawyers are mostly good at their jobs and mostly work hard to make a living for themselves and their families. Then, there are the bad apples that crop up in every profession. Some are greedy, some are thieves, some are addicts or alcoholics, and some just lose their way. I have known good lawyers and bad ones, winners and thieves.

Nevertheless, every month or so, the PA Disciplinary Board shoots out a newsletter (sic) detailing the latest rogues gallery of lawyer offenses. The easiest way to end up on the list is by developing an addiction and dropping out of criminal cases while they are ongoing. The second easiest way is to steal and I mean steal money from your escrow account. As personal injury lawyers, I often have huge dumps of money coming and going from my escrow account. At the end of a case, State Farm may send me a check for $600,000. Of that, I pay the client, myself, my expenses, and usually a health care lienholder. But, I can see lawyers lying to their clients and simply stealing the money. It takes an honest and non-desperate person to hold the money for the client. If your world is falling apart, financially or otherwise, having $600,000 sitting in a bank account is a recipe for disaster and disbarment.

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Know When To Hold ‘em, Know When To Fold ‘em

 Posted on October 04, 2022 in Case Matters

I field a lot of calls from members of the public who believe that they have a case worth pursuing. After a brief listen, I can tell that they do not, because I have been doing this for a while. Nevertheless, the callers will often persist that there was a violation of the standard of care, or that laws were broken, or that something else caused them harm. Usually, they are right, but they are missing the critical factor of damages or some elementary issue of law that torpedoes their case. You can only learn this stuff by being a lawyer for a while. My physician wife used to spend a lot of time dealing with people who had done well-intentioned research of the internet but were missing about 10 years of medical training. It’s similar with my callers.

On the other hand, I was talking to a contractor friend recently and said that I would like to be a stone mason in retirement. It seems nice and peaceful to me. Place mortar, place brick, repeat. He laughed and said, my father was a stone mason, my brother was a stone mason, etc. It’s hard back breaking work outdoors etc. So, things are not always what they seem and very, very little is easily learned from the internet. Remember, the prosecutor trying to undermine Vinny’s wife in my cousin Vinny?

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Judge Max Baer Died

 Posted on October 04, 2022 in For Lawyers

Judge Max Baer, the Chief Judge of the Pennsylvania Supreme Court died over the weekend. He was, by all accounts, a good judge who had risen to the highest level of the judging part of our profession. I expect that there will be a big fight over the next person elected to the Supreme Court. Judge Debra Todd, by virtue of her seniority on the Court, will become the new Chief Justice of our Court and will be the first female Chief Justice in history. Judge Baer’s replacement will likely be appointed by Governor Wolf and must be confirmed by 2/3 of the Pennsylvania State Senate. While we mourn the passing of Judge Baer, who gave his professional life to the Court, the next appointment matters and is worth a fight.

In my opinion, the Court’s recent makeup has benefited the individual in innumerable ways against the oppression of big business and the non-sense wrought by republican efforts to gerrymander their way out of generational declines in popularity and impose the will of a minority of crackpots on the centrist majority of the people of Pennsylvania.

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The New Normal: Are You Going Back To The Office?

 Posted on October 04, 2022 in For Lawyers

So, as far as I can tell, we are in the new normal and that involves hybrid work environments for lawyers. I was visiting lawyers recently and their office park in Montgomery County was 90% empty of cars. That is the same for my large suburban office park. This should not be news to youse. This is my experience as well. Something is lost by not being in the office, but it is along the lines of productivity or efficiency or institutional sharing of information and experience. Every large employer I hear about is trying to nudge its employees back to work on some regular basis.

Law firms on the other hand are having a harder time of it, particularly where the more senior lawyers prefer working from home. I would guess it is pretty tough to convince a new law school grad that it is important to their career development that they come into the office, when their partner level colleagues are still working from home. I have spoken to a series of newly minted lawyers who found it very disorienting working from home as new lawyers. They had no idea how to be a lawyer, what their job was, what to do etc. While we could chalk it up to training failures, really, lawyering is often learned by knocking on someone more senior’s door and asking how to handle a situation.

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I Know I Am Winning At A Deposition When Defense Counsel Starts Barking Nonsense At Me

 Posted on September 28, 2022 in Case Matters

Defense Counsel barking at me on the right.

We have thick skins as lawyers. I operate every day in a professional world where someone on the other side is paid to try to make me look bad or prove I am wrong or argue that I am lying to them. So, I am used to pushing my view loudly and forcefully. Sometimes, when faced with lawyers on the other side, who don’t know the case well or are unprepared or who have not prepared their clients well, the opposing lawyer’s response is to criticize me, my style, or how I am conducting a deposition. So, recently, a lawyer in a slip and fall case started talking over me and telling me all I was doing was asking leading questions and that was inappropriate in a deposition. Or, often, defense counsel will start whining that questions are asked and answered or other similar objections that while okay in court are simply silly in the deposition setting.

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The End Of Personal Injury Law As We Know It?

 Posted on September 28, 2022 in Auto Accidents

As Michael Stipe sang about 20 years ago, it’s the end of the world as we know it…. Well, that was 20 years ago or 40 and we are still here. So, that may be a bit much, but the one thing we learned from the covid pandemic was that it is prudent to spend a little more time thinking about future planning for the black swan or unexpected occurrence. So, on the way TO THE OFFICE today, I was in my car like a good suburbanite and listening to a CNBC guest talking about GM’s push into self-driving cars. I really do think that self-driving cars will be the end of personal injury law. It may be 40 years down the road, but the self-driving car totally obviates the negligence of the average driver causing a car accident. These cases are the bread and butter of personal injury law practices. They are what keeps our skills sharp and allow us to take bigger risks on more challenging cases. So, I think that if the self-driving car goes away, this practice will go away too. Simple as that.

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Productivity and Lawyering

 Posted on September 28, 2022 in For Lawyers

I was recently taking my required CLE or continuing legal education and happened to hear a lecture about productivity for lawyers. Productivity or efficiency is just always a struggle for me. I like to get deep into my cases, like a pig rooting around in mud or a bear picking over garbage. But, only really at trial do you have the luxury of doing that on a single case. Otherwise, you may have a day to prepare for a deposition. I learn quickly and mostly know the facts of every case, but the details need refreshing.

Nevertheless, I am fascinated to see people who are productivity mavens and have their time blocked to answer phones, check email, etc. I recently started using MS To Do, which is free with MS Office 365. It is pretty easy to use and like a lot of task programs, but I like it so far, if you are looking for something to focus your time and day.

Since I am a lawyer working on contingency, I do not keep my time or hours. It is a great luxury of my side of the fence as many lawyers come to hate keeping their time every day. But, it also permits time to slip away. I always try to do the most unpleasant task of the day before lunch along with those things that require rapid intellectual effort. So, what are those things? Calling a client and telling them that I don’t think that they have a case worth pursuing. Or, calling and conveying a $1,000 offer to someone in a limited tort case. Basically, it means I am going to either drop the client or refer them to a lawyer who wants those sort of cases. Or, dealing with a claim rep at an insurer who is stuck at a crazy lowball number. Essentially, anything that is emotionally unpleasant, I do before lunch. My wife makes fun of me that my epitaph will read, “He loved lunch.” In the past this was true because I was often eating meals with people and lunch was more enjoyable. Covid has made that less frequent.

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Patience Young Grasshopper: Cases Take a While to Resolve

 Posted on September 20, 2022 in Case Matters

I like to know the ending of things before they get going. In Kung Fu, the old master is always reminding the student to be patient above all things along the path of life. I am not patient. I have been waiting for tomatoes in my garden to turn red for a month now and am tired of waiting. Nevertheless, a green tomato is not for me, no matter how much they like them down south.

It is hard to be an impatient litigator. It’s almost like you are going against your personality grain. Nevertheless, I have tried to learn and train myself to be more patient and to take developments in cases as they come. Very, very little in personal injury law happens quickly. Few, if any, significant emails are responded to quickly. Depositions are regularly cancelled once or twice before they actually occur. Even the Federal Courts, which are comparatively “speedy” compared to State Courts, will take 12 months to go from start to finish in a case.

How do you explain this to a modern-day client? Well, generally people who are impatient on the client side generally have lower value cases. Someone with a serious case, knows that they had a bad injury and with some discussion will understand that their case has to go to court to be resolved for a fair value. I just had a client in my office last week, who was picking up a large settlement check and the last time she and I saw each other in person was three years ago and before the entire pandemic. It was a nice reunion, but we had been working together on zoom for depositions and by phone and email over the course of three years.

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HEAVEN CAN WAIT: WHAT HAPPENS IF YOU DIE WITHOUT A WILL AND YOU HAVE A CASE ONGOING?

 Posted on September 20, 2022 in Case Matters

First, it is fairly routine for regular practitioners to pursue claims for dead clients. Lots of things go into dealing with the deceased client who was a plaintiff or had a claim. So, what happens? First, for ethics reasons, I have to notify the other side that the client died. You cannot negotiate saying the client is damn sure coming to court and then have to fess up that he died. Why not? Well, who is going to sign the release for the dead client???

Here is an example of how things play out. I had a client die of COVID during the pandemic. The process of settling his case had begun and was being negotiated when he passed unexpectedly. So, what happens? Well, first, I had to analyze whether his death was due to the accident he was involved in. I concluded that his injuries from the accident may have contributed a little bit to his immobility but not to covid causing his death. So, I was able to discuss settling his case with the claims adjuster, but did not have to claim that the accident caused his death. It made the case easier to resolve, because if we had claimed that the accident caused the death, we would have had to file the lawsuit and find a doctor to claim that fractures following the crash somehow caused him to contract covid and die. That would have been tough to do and would have prolonged resolution of his case for the family.

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OTHER SPECIAL RELATIONSHIPS (HIPAA)

 Posted on September 08, 2022 in Uncategorized

HIPAA, the Health Insurance Portability and Accountability Act, is the basis for the forms you sign when you go to your doctor’s office. Your signature indicates that you agree that it is okay for your doctor to share your health information with insurers, who pay for your care, hospitals, other doctors, etc.  People periodically are incensed and call me complaining that their health information was improperly shared and they are looking to sue the provider that did the perceived improper sharing. So, what does this look like as a case? Well, for example, perhaps you go to your primary care doctor during divorce proceedings with your spouse and reveal that you have a minor drug addiction and also test positive for a sexually transmitted disease. Your doctor is supposed to only communicate that to your insurer or other doctors. However, by happenstance, your records are available on an online portal to your spouse, whom you are trying to divorce or to their lawyer, and now your custody rights are affected. Do you have a case? Nope. Why? For unknown reasons, HIPAA does not provide a civil remedy for people harmed like in the above hypothetical. Weird, but true. Your only recourse is to lodge a complaint with the Federal Government through the Department of Health and Human Services and they will, may, or probably will not investigate. So, those are easy calls to field. The only time that you hear about HIPAA violations being successfully pursued is when celebrities’ medical records are viewed and disclosed in large hospital systems, where a nurse or other person is looking at records and revealing them for non-treatment reasons. Say, Brad Pitt or Emily Ratajkowski, who may or may not be dating, are hospitalized following treatment for side effects of botox use or liposuction or whatever makes them look perfectly perfect. Perhaps the stars would not want that information revealed and perhaps a hospital employee sells that information to the Enquirer. Can the stars sue the hospital system? Nope. But, they can file a complaint with DHS! Will they find counsel to claim a defamation and pursue that route? Perhaps, but it won’t be me taking that case.

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