November 21st, 2007

Personal Injury Law Round-Up is Back!

As readers know, I stopped doing the personal injury law round-ups because it was too much to sustain for one person on a weekly basis if I also wanted to write about other stuff (and have a law practice).

So thanks to Brooks Schuelke, who has picked up the ball to run with it. In this abbreviated week, he did a great job right out of the box and also introduced me to blogs I’ve never seen.

So head over to Personal Injury Law Round-Up #37. And please, if you have your own blog, let your own readers know with a link. Those links are a small thank you for the time that was put in creating the round-up.

If others would like to take a turn spinning around the PI blogosphere one week, or be part of a weekly rotation, please let me know. You can email me at Blog [at] Turkewitzlaw.com

 

November 21st, 2007

Happy Thanksgiving


It’s a safe bet that anyone reading this blog is more fortunate than most of the world’s population. So it’s a good time to count your blessings.

And be thankful you’re not a turkey.

Links to this post:

tips for negotiating conversation at the thanksgiving table
i kicked off the thanksgiving holiday season last evening by having an argument with my friend and neighbor the rocket scientist about extraordinary rendition and the effect of immigrant workers on the economy. …
posted by [email protected] (Victoria Pynchon) @ November 21, 2007 10:24 AM

 

November 21st, 2007

Why Medical Malpractice Panels Fail

Over at Point of Law, Walter Olson points to a story on medical malpractice panels in New Hampshire and Maine. So I wanted to share New York’s experience with the panels before they were disbanded in the mid-1980s shortly after I started practicing law. I did a few of these before they hit the trash heap.

These panels included a judge, an attorney experienced in handling medical malpractice cases, and a doctor from each speciality that was sued. If there was a unanimous finding, the finding would go to the jury.

The first, and most significant, problem was finding doctors to sit on the panels, which is what caused years of delay to an already protracted litigation system.

The second problem was that, unlike jurors, there was no way to question panelists regarding any biases they might have, the way a juror might be questioned.

The third problem was that that no live witnesses appeared before the panels and there was no cross-examination. Submissions were made confidentially, and a short hearing was held that might last an hour at most. This format made it it impossible to resolve disputed issues of fact.

The fourth problem arose when, if a unanimous panel finding went to the jury, the losing side would invariably subpoena the doctor that appeared, and then cross-examine the physician on the flaws in the hearing that took place. Essentially, that the panel never saw a single witness and was therefore unable to resolve disputed factual issues. (This, in turn, made it even less likely that doctors would want to sit on panels.)

The end effect was years of delay, more expense, and more complicated trials.

It was, in essence, a resounding failure.

Links to this post:

How a personal injury lawyer views the medical malpractice system
How a personal injury lawyer views the medical malpractice system. Personal injury lawyer Eric Turkewitz responds to my recent USA Today piece on fixing the medical malpractice system. by Eric Turkewitz. In a USA Today op-ed, …

posted by Kevin @ November 18, 2009 2:00 PM

medical liability screening panels
two years ago new hampshire adopted such a system, following the lead of neighboring maine. doctors in both states are strongly supportive, but critics among lawyers say the panels are slow and costly. the manchester union-leader …
posted by Walter Olson @ November 21, 2007 12:18 AM

 

November 21st, 2007

Some Good Practice Tips

An article that appears today in Legal Times by Stewart Weltman (via Law.com) is chock full of good practice tips. I’d like to highlight two. Since the article’s vantage point is what defense lawyers can learn from plaintiff’s lawyers, it is equally good reading for both sides.

1. [T]he most direct route to obtaining a favorable settlement is to ignore the prospect of settlement and instead prepare from the outset as if your case is going to be tried.

Since I come from the world of medical malpractice, I know that very few cases settle early (see: No, your medical malpractice case will NOT settle fast). If settlement occurs it is often only after a trial has started. And the defendant can see if you are truly ready or not. So my training was always to prepare for trial, because any other type of lawyering was too risky. If I ignored the possibility of settlement and was ready for verdict, I could negotiate from strength if the other side starts to talk about resolutions. Conversely, if you aren’t really ready, you panic and may be forced to take the inadequate offer.

2. Many top plaintiffs lawyers will jump-start this process from the outset by articulating out loud a short statement of their best case in a minute or so to see how it sounds, perhaps running it past their assistant, paralegal, associates, or co-counsel. It is a simple yet powerful process that can and should be used in defense matters.

Actually, a minute is too long. Your case should be boiled down to a single sentence, particularly in the personal injury field. When the judge asks what the case is about — and yours is one of hundreds she is handling — she will want the nutshell version. If you don’t know it, you don’t truly know your case. It should look something like this:
“Failure to biopsy a hard nodule in the breast of a 54 year old woman leading to 10-month delay in diagnosis, with bilateral mastectomy and metastasis, instead of lumpectomy.” If judges want and need more details, they will ask. More importantly, the issues have been isolated.

The article is a great little primer on keeping the focus for defense lawyers and keeping costs down by following our methods.

 

November 19th, 2007

The Ethics of Attorney Search Services

The calls come to me virtually every week from some website that advertises for lawyers and then sells or in some manner refers the names to attorneys. These sites, generally, offer to send leads from a geographical area that are typed into their site to an attorney in exchange for some kind of payment. The websites act as an advertising front for the firms, without their names being exposed unless an inquiry is made. And so the issue is: What type of ethical responsibility does the lawyer have for the advertising conduct of the service?

Today I’ll name names for what appears to me to be clearly unethical conduct.

Here are a couple of the cold-call tactics used to sell the business to attorneys:

One call from MalpracticeLawOffices.com started with this pitch, “I’m a representative of Google.com.” Now even I know that this must be false. And so the question immediately arose: If the salesman will lie, what other kinds of ethical breaches will occur while your law firm name is attached to their website? (I decline to provide a link, as I don’t want to help them improve their pagerank with Google.)

An attorney in the Bronx I spoke with told me of a company called AnAttorneyForYou.Com that came at him with this pitch: They would take a percentage of the fee for sending personal injury matters to him. The lawyer I spoke with (who asked to remain anonymous) then asked if they were attorneys themselves, since a fee sharing arrangement with a non-attorney is a clear ethical breach. The answer was no, they were not attorneys, and that this was simply a fee for the referral. When the Bronx attorney asked about the ethics of splitting a fee with a non-attorney, the response was a version of, “I only work here.”

Indeed, their own Disclaimer states:

Nothing in this website is intended to imply that anattorneyforyou.com is a referral service certified by any state bar or bar association, or that anattorneyforyou.com satisfies the minimum standards for lawyer referral services established by any state bar or bar association

The implications of attorneys outsourcing advertising to a third party that may be acting unethically represents an area of law that is unexplored by many ethics committees. The company itself is most likely not in your state and not subject to attorney disciplinary rules. So what forces the advertising company that the lawyer is using to act in accordance with local ethics codes?

The very act of engaging such an advertising service should subject the law firm to disciplinary action for any ethical violations committed by the non-attorney advertising company. With this threat hanging over the head of an attorney, it is unlikely they would take such risks with their licenses. It thus makes it impossible to turn a blind eye to any ethical breaches by any service that is used as a front for the law firms.

There is little doubt that if and when attorneys are called on the carpet for problems, they will simply play dumb and say they didn’t know. But that should not be an acceptable excuse. And this is a problem that should be nipped in the bud quickly.

Links to this post:

adam winter and thomas dicicco: lying asshats of the day
today’s asshats of the day are adam winter and thomas a. dicicco, jr. of “web guardian” (i don’t know if it’s this webguardian, but it’s probably just a boiler room in boca raton). the first time adam called he gave his full name (”adam …

posted by Mark Bennett @ July 10, 2009 3:48 PM

is sueeasy the worst lawyer idea ever?
cross posted from new york personal injury law blog: when i first heard about sueeasy, i thought it was an april fool’s joke. but it was october when it first appeared as a development concept (see 10/23/07 post: so how did you find …
posted by Eric Turkewitz @ April 18, 2008 9:38 AM