General Practice, Solo & Small Firm DivisionMagazine

 
VOLUME 19, NUMBER 2 MARCH 2002

TRIAL PRACTICE

Contingency Fees: Weigh the odds

By Kenneth P. Nolan

When clients are shopping for attorneys, you cannot be too negative or they will look elsewhere. My mantra is: "I can tell you what you want to hear, or I can tell you the truth." You have to be positive and realistic at the same time. I never tell them the value of the case. Too often I have said, "It's worth between $100,000 and $250,000 depending on this or that factor." Two years later, when the offer is $200,000, the response is always, "But you said it was worth $250,000." No one remembers the lower number.
Be direct and honest. Tell them that you do not know if you can take their case, and tell them the weaknesses as diplomatically as possible. Otherwise, they will believe that you are going to solve their problems and make them financially secure for life. In a personal injury practice, your clients have usually suffered an injury, and they are emotional. You can play on these emotions, or you can be a professional. It may not be easy, but taking the easy route eventually leads to disappointment, resentment, and-more important-no referrals. Rarely do I have repeat business, but satisfied clients often refer others. And that is how you build a practice.
So before you take the case, investigate the facts, law, and venue, but be prepared to walk away. Some cases are too small, the clients too erratic, the jurisdiction too one-sided, and the law too harsh. No matter how tempting the case, you must be ready to admit that it is not within your expertise and you do not have the time to learn. Know your limitations. Do not be afraid, but be cautious.
Know your clients. Meet the client immediately. Go to their home, their office. There is a correlation between credibility and home and work environment. Assess them. Who is with them? Who is asking the questions? In a wrongful death case, is the spouse in charge? Determine who is calling the shots. Often there is a relative or close friend who exerts authority. Tragedy brings out various qualities in people. Some family members look to profit even if they are not entitled to recover. If they are at the first meeting, you will have to deal with them and begin the process of separating your client from the nefarious relative.
In a nice way, cross-examine your client; look for holes in the narrative. You may as well know the weaknesses and the strengths immediately. In most cases, I eventually learn more about the client's life than 99 percent of their family know. So will your opponent. Eventually, the defense will obtain the medical records, the tax returns, the employment file. If your client exaggerates or is a malingerer, it will be discovered. Ask about the skeletons.
Over time, people and their goals change. Those who were livid at their treatment may evolve to acceptance. Those who could not deal with tragedy may now insist on a trial. Meet with your clients regularly. You will learn about the case and about life.
Investigate. Spend the money and hire an investigator to go to the scene and take photos, witness statements, measurements. No matter how minor a fender bender, if you are going to become involved, do your homework. Without immediate documentation of conditions at the accident site, cases become more difficult.
Almost every case demands experts, so find one and hire her right away. Assess the value of the case, and determine whether a quick settlement is possible. If not, you might as well pay the money and have the expert educate you on the medicine, the product, the engineering. Meet with the expert yourself.
Call me old-fashioned, but I want to see and hear the clients, the experts, the witnesses. You will not have time to have a doughnut with every witness, but you must do so with those crucial to the litigation. The impeccable expert is worthless if she cannot communicate. Maybe your adversary will be impressed, but the juror from the hog farm thinks bow ties are funny and cannot understand a word from that Princeton big shot.
Litigate for trial, not settlement. The insurer investigates immediately. You do the same, and better. If possible, visit the scene of the collision yourself. Certainly do so before depositions so that you have a clear picture of where every landmark is. Photos and videos are good, but personal experience is better. Know your facts and know them early.
One of my earliest cases involved a call from a friend whose neighbor had died of a heart attack a few hours after he was seen in the emergency room and sent home. I immediately visited my friend's office to meet the widow. Because I was young and eager, I then traveled to the emergency room to obtain the records. While I was there, a young doctor approached me and admitted that he had treated the decedent and had not done so properly. "Don't worry," I told him, "if there's a case, I'll only name the hospital since you're an employee. But thank you very much, Dr. Neubauer." After the suit was filed, I requested the names of all those who saw my client and those who were in the ER while my client was there. I received 15 names of nurses, technicians, doctors-but no Dr. Neubauer. I asked again for all employees. Dr. Neubauer was not on the list. After I noticed his deposition, the defense attorney's reaction was, "Oh, so sorry, it was just an oversight, you know these municipal hospitals." Speed is imperative.
Venue. Facts are paramount, but clients and geography win close cases and add zeros to verdicts. Shop for the best jurisdiction possible. The corporations prefer federal court with judges from the Ivy League and white-shoe firms. After all, most federal judges represented defendants. I want a judge who is from the street, who has not forgotten where he was raised and recalls waiting for hours in an emergency room before receiving a superficial exam. Such judges are usually found in state courts, and they are not in awe of some firm with 300 partners.
Look at all the procedural maneuvers to start suit in a plaintiff's jurisdiction in front of a plaintiff's judge. Examine all potential parties. Do not just knee-jerk the suit in the county where you have your office. Research all potential venues and judges. Speak to the locals who are there every day. Start it in the most favorable court, whether convenient or not. If you have to hire local counsel, do so. Spend the money to find a good local lawyer who knows the courthouse.
Law. Of course you realize that all these factors are intertwined and must be considered together. A good jurisdiction using lousy law is useless. In multistate actions, choice-of-law analysis must be done before filing. What liability law, what elements of damages? Is there vicarious liability? Is it pure comparative negligence, and what are the hurdles in proving a products case? The court may apply one law for liability and another for damages. Who can recover, and for what? Is there a non-economic component, and how is it defined? Are punitives permitted? Copy the pattern jury charge, and refer to it during the litigation. It will remind you what you must prove.
Do not limit your analysis to American law. If foreign companies or plaintiffs are involved, research the law of domicile. Many civil code countries allow broad recoveries for non-economic damages in death actions, so you may wish to argue that foreign law should be applied-but only if you can be sure that it will be applied using American standards of compensation.
Research the law, and update it periodically so that you are aware if an opinion alters your strategy. Ask your colleagues for their thoughts. Write the briefs, and keep them with you; you can whip them out when your adversary tries to put one over on the judge.

Kenneth P. Nolan practices with the New York City firm of Speiser, Krause, Nolan & Granito.


This article is an abridged and edited version of one that originally appeared on page 26 of Litigation, Fall 2001 (28:1).


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