Improving Your Personal Injury Practice and Service to New Clients
Insurance companies do not pay money even on good cases unless plaintiff's counsel is properly prepared. Preparation for the case begins during the initial telephone call by the perspective client to your office. Your secretary should ascertain the person's name, who referred them, and what type of matter (i.e. automobile, fall down, medical malpractice, products liability). If you are in the office, you should then speak to the person immediately and try to find out more about their case, then schedule an appointment. If you are not in the office, your secretary should schedule the appointment. People want to speak to an attorney, not support staff. Don't lose a good case because you don't want to talk to a potential client.
INITIAL INTERVIEW AND PRE-COMPLAINT WORK
In the initial telephone conversation, you should also determine the type of matter involved. It is also my practice to try to speak to potential personal injury clients over the telephone to determine the liability issues. If it is questionable liability, we still may bring in the person for an initial consultation but we do not to spend a substantial amount of time working with the case unless we feel we have a winner. If there is a Statute of Limitations problem or if it is a type of case that you do not handle advise the caller you will not handle the case and save time and energy. We accept only good cases and reject more cases than we accept. If you don't even want to office interview the caller, politely end the conversation, thank the person for the call and provide them with the telephone number of the Lawyer Referral Service in the event they wish to proceed with their matter. If there is a potential case but you do not handle it, give the telephone numbers of attorneys you know in that field of law. Beware of people who want to know how much their case is worth over the phone.
Appointments should be scheduled within 24 hours following the initial telephone call. You should instruct the potential client to bring with them some of the following information: (1) police report; (2) declaration sheet; (3) health coverage; (4) property damage information; (5) photographs of the car accident site; (6) bills and business cards of health providers; (7) any other papers they have in connection with their accident. You should ask potential clients to bring this information with them because we want to make an early determination as to whether or not the client will cooperate and listen to instructions. You must make a determination early on if you even want the case. This is important in all cases, not only personal injury matters. Is the potential client a jerk or uncooperative? This client will be in your office for 1-3 years so you want to evaluate personality.
THE INITIAL INTERVIEW
You should develop a Personal Injury Interview Form which your entire staff should use in all cases so relevant information is placed in the same location in each file. You should ask all the questions contained in interrogatories at the first interview to obtain a complete background of injuries, doctors, witnesses, and circumstances of the accident. When my Personal Injury Form information is transferred to the computer, the program I developed automatically creates a Personal Injury Fact Sheet which answers most of the standard Interrogatory questions. The computer program we created also generates our own Motor Vehicle Complaint and Jury Demand. We use little match box cars for clients to help explain how an accident took place.
You must be prepared for each new potential case that you interview. We followed the suggestion of past ATLA NJ President Harrison Gordon, to have folders with retainers and medical authorizations. (See Gordon & Lynch, "Preparing the Personal Injury Case to Win," Trial Lawyer, page 81, March 1991.)
If you make the decision to accept the case at the initial interview, you should have the client sign medical authorizations, employment/wage authorizations, a retainer agreement, an insurance application, and any extra standard interrogatory questions. Explain when they sign the retainer that you will not charge for legal services if you do not recover anything for them, but you are required to remind them that the costs will be their responsibility. You must also explain to them the option of hiring you on an hourly rate rather than contingency.
If the client does not have photographs of his injuries or property damage, you should take photographs during the initial interview. In fall down cases, photographs of the defective location should be taken as soon as possible in the event the store or property owner corrects the problem. Immediately travel to the fall down site yourself. Your clients want action, not words. In accident cases, I often go with my client to photograph and video tape the accident location. As stated earlier in my office we only take cases where we feel we can obtain excellent results for the client. Personal observations are important, never rely entirely on what a client tells you. The "dangerous condition" is usually not as bad as your client describes it.
You must explain to clients how medical bills should be submitted to the car insurance company (PIP) and also to any health insurance companies. Make the clients understand they have responsibilities to cooperate. Explain to clients they must provide your office with the names and addresses of all new doctors. It is a good idea to explain that "letters of protection" and "liens" mean that the client eventually will have to pay medical bills out of their share of the settlement. Not all medical bills will be paid by insurance. Explain if the case settles for $12,000.00 and there are $4,000.00 in unpaid bills, the unpaid doctor bills still must be paid out of the injured person’s share.
ACCEPTING THE CASE
At the initial interview, I personally open up the file on the computer. I want to show the client that I begin working for them immediately and put their case as a priority. Computer technology is essential to provide competent representation and to handle litigation files today. We now have approximately 60 Form Letters used in Litigation Files. You should also give your clients information that explains their duties to cooperate and not discuss the case with individuals outside of the law office. After the interview we mail our client a detailed letter explaining the Personal Injury process from claim letter to complaint to discovery. If we decide not to handle the case a No representation letter is sent out by certified mail.
A claim letter is next dictated to the defendant and also to the defendant's carrier. In the claim letter to the defendant, you should request information regarding the insurance company, policy number and policy limits. A return, stamped post card for the defendant should be enclosed with the letter, otherwise they will not respond.
Occasionally, after sending out the letter to the insurance company listed on the police report, they respond that the policy was canceled for non-payment. Occasionally the defendant has responded to our claim letter with a different policy number. You want to confirm insurance coverage or put your client's carrier on notice of a uninsured motorist claim if their insurance policy provides for uninsured or underinsured motorist coverage. If your claim letter to the defendant is returned for "Moved, left no address", you should write to the State Division of Motor Vehicle and local Post Office to obtain a correct address for the potential defendant.
POST INTERVIEW: THE NEXT WEEK
You should send letters to accident witnesses requesting that they call you. If it is a questionable liability case or a serious injury case, you should have an investigator directly speak with the witnesses and obtain a statement. You should also send a letter to the client's car insurance carrier requesting a copy of the declaration sheet, inquiring as to whether or not the provisions have been modified and confirm the coverages and limitations. Immediately prior to filing the complaint, we write to the Plaintiff's car insurance company requesting a copy of the entire insurance file. If they fail to comply we send the insurance carrier's claim representative a Subpoena to obtain documents in the file. Since the Defendant's carrier will probably also subpoena these records, you want to know what was obtained by the insurance carrier. When requesting hospital records or medical records, we request certified copies.
If your potential defendants are governmental agencies, immediately send out notices to them by certified mail and also complete any of the state entity's Claim Forms.
CONTESTED LIABILITY AND DEFENDANTS
You must identify all potential defendants. It is more difficult in fall down cases to determine all responsible parties. Property owners and their Insurance companies are often uncooperative in admitting control or ownership. We thus file suit and force the property owner to identify other responsible parties.
We use private investigators to conduct interviews and obtain statements. They will bring an unbiased opinion and will help you make any early determination whether to pursue a difficult contested liability case (ex. tavern assault, fall down). You may have professional photographers take photographs of fall down or car accident sites.
TO DO LISTS
Once a month, hold your calls and touch every file. Make a "to do" list and have a secretary/clerk take notes on calls to be made and things to be done. The next month do your list again and see what you have completed and what still needs to be done. Avoid malpractice and unsatisfied clients. Lazy attorneys give our legal profession a bad name.
While insurance companies brag in their advertisements of their claimed service and commitment to the policy holders, they often provide little cooperation once their policy holder is injured. If the insurance carrier fails to pay medical bills within 60 days, you may consider filing a insurance suit or demand for insurance arbitration and obtain counsel fee.
Write to the Municipal/ Police Court where the accident took place to determine the disposition of any Motor Vehicle summons. If snow or other weather conditions are in issue, obtain daily weather reports.
You and your staff have to be on top of your files. We also keep in constant contact with our clients, keeping them informed of progress.
If your clients will be out of work for at least 2 weeks, assist your clients in applying for state temporary disability benefits and insurance disability benefits. Even if our client is only going to miss a few days of work, obtain verification of wages from Plaintiff's employers and wage stubs from your client.
Obtain Certified copies of all hospital records and bills. Write for all medical, diagnostic and physical therapy bills and records, together with property damage estimates. If these providers don't respond or demand exorbitant fees for photocopies, subpoena the records and documents once the complaint is filed.
Keeping clients informed and happy goes a long way to improving the public perception of the Legal Profession. Work hard and keep your clients happy.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also editor of the ABA Elder Law Committee Newsletter. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA-YLD Service to the Bar Award.