Experienced Litigators, Taking On Challenging Cases Since 1994

How To Add Value To That Which Is Priceless

How to value that which is priceless is the title of Chapter Four in Nicholas Rowley & Courtney Rowley’s new book, Running With The Bulls, How To Win Top – Dollar Settlements.  As the book begins, the point is made that many lawyers undervalue personal injury cases for two main reasons.  First, many lawyers are afraid to say “no” to unreasonably low offers and take their clients case to trial. And second, those who do reject unreasonable settlement offers often fail to spend the time it takes to get to know the story of the “human” they represent.

As the book warms up, the Rowleys ask the reader to write out how they would calculate the answer to the following question, “How much money would be reasonable to give you (the reader) in trade for a year of chronic pain in your left foot?”  The reader is instructed, “…you cannot continue reading this book until you answer these questions.” 

I followed the instruction.  Here is my analysis on how I would calculate a trade of money for a year of chronic pain in my left foot.  As a hopeless optimist I am sure I have way underestimated the impact chronic pain would have on my life.

In this hypothetical question, I assume I would notice this sharp pain on a daily basis and it would be the kind of pain that would make it hard to do my job.  Because I enjoy being productive at work and how this pain may affect my ability to think, would make the amount of money I would accept rise significantly. There are few things I enjoy more than a good night sleep, waking up early with a clear head, drinking a cup of black coffee and working for three hours without interruption. Chronic sharp ankle pain would no doubt affect my ability to get a good night sleep.  I have had pain that wakes me up at night and it is frustrating to not wake up refreshed and sharp in the morning.  The unknown of how chronic ankle pain would affect my ability to work happily and productively requires significant monetary compensation – $200,000.

Chronic ankle pain would also impact the Orange Theory Fitness classes I currently enjoy once a week.  The typical class consists of about 20 to 25 minutes of running on a treadmill. Chronic ankle pain and running do not agree with one another.  So I take $500 per class, times four classes a month, or $24,000 for the reduced ability to enjoy my Orange Theory exercise routine.

When traveling with my family, there would be increased ankle pain as a result of all of the luggage I carry through the airport for my family.  We average three plane trips a years; the added aggravation of hauling carry on luggage through the airport with pain in my ankle, three times a year, $1,500 per trip or $4,500.

About once a month, I enjoy going for a jog or brisk walk up to Phoenix Lake which is about two miles up a road near my home.  This activity is a good way to clear my head and get some fresh air. Sometimes my wife and I go together, and the result is some good quality time with my wife without interruption.  Chronic ankle pain would certainly dampen the fun of this activity. My doctor may not even allow it as the running and hiking may cause even more injury. Losing this mind relaxing activity and time with my wife, $1,000 per outing, time 10 times a year, $10,000.

During the work week I take the stairs for extra exercise, to get my heart rate up, and generally wake me up during the work day.  Stair climbing would cause extra ankle pain and would likely be something I would now avoid during a year of chronic pain, $100 per week, or $5,000 per year.

Each winter, our family skis on average five to seven days.  I may be able to still ski in pain, depending on what my doctors says. But there is no doubt that the impact an ankle joint takes skiing moguls would be painful, and potentially aggravate the injury.  Skiing would not be as much fun. $1,000 per lost ski day or $5,000.

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My evenings at home with my family would be impacted.  I would be less focused on my wife and kids as I tried to suppress the chronic pain while talking.  The pain would make it more difficult to be present with my wife and kids. Evenings at home also involve standing, helping to make dinner, and then doing the dishes, activities that may aggravate the ankle pain.  At $300 times five nights a week, or $1,500; times 50 weeks a year totals $75,000.

Impact on ability to think clearly at work: $200,000

Impact on OrangeTheory Fitness Routine: $24,000

Added pain with Family Air Travel: $4,500

Outdoor time in Marin: $10,000

Avoiding stair exercises during work week: $5,000

Reduced ability to enjoy skiing: $5,000

Pain at home doing chores and being present with family: $75,000

TOTAL: $323,500.00

This all assumes I knew with 100% certainty that the pain would go away after twelve months.  Not knowing if the chronic pain was going to get better after 12 months would make the amount needed to go through all of this much greater.

Have I not ever settled a case or tried a case where I have asked for $323,500 for one year of ankle pain?  This exercise made me think. If I put such a high value on a pain free life, why am I not putting this same value on the lives of my clients?  That seems to be the point Nick and Courtney are making in Chapter Four. More to come as, I continue to read Running With The Bulls.

 

Advice to a Younger Me

My journey as a self employed trial lawyer began in August of 1994, the day I got fired from my first job as a lawyer.  Getting fired is not as bad as you might think. It happened around midday, when I was asked to go see Francine Curtis, the firm’s managing attorney for the plaintiff’s asbestos law firm of Brayton Gisvold and Harley (BGH).  I walked into Fran’s small office which was packed with legal files and documents. Fran was behind her desk and David Donadio, the managing attorney in training, was seated to my left. I learned quickly that I would no longer be working at the firm. I was handed an envelope with a $2,500 check inside and told that I was free to go.

I have no memory of what I said to Fran and David at that moment.  I did take a look at the check; $2,500 seemed like a lot of money to me in 1994.  I was told to get my stuff, which was nothing, and go. I was stoked to walk out the door of the law firm on that beautiful summer day in 1994.  I got into my 1981 Toyota Celica and drove back to my apartment on Buchanan Street in San Francisco’s Marina district.

The Law Office of Albert G. Stoll, Jr. was officially open for business.

I felt no sadness the day I got fired by Francine Curtis.  The moment I realized I was being fired, a warm feeling of happiness and joy permeated my body.  “Thank you, I feel much better now. I am free.” sums up what I would have said to Fran and David that day.  I had no worry in my body, just excitement and a strong desire to get to work being a plaintiff’s personal injury lawyer.  Fran and David helped me on my journey. It would have been much harder to walk into Fran’s office and quit.

But it was time to get to work.  The days began to fly by, one after another, in the blink of an eye.  I would go to work, and look at my watch and it was already 5 pm. I was working hard to start my law firm and learning how to be a trial lawyer.  I loved it!

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This was the first time in my life I had been fired.  It did not seem like the kind of thing I should advertise.  I was not straight with my parents. I told my parents something like, “I decided to quit my job and start my own law firm.”  I could hear the concern in my parents’ voices, “Are you sure about this.”? My parents were too positive to say, “You mean you no longer have a job and you are going out on your own? Are you crazy.”  But I could tell from their voices that they were concerned about my purported career move.

Advice to 26 year old self.  Face the music and tell your parents the truth. Yes, it may be a bit scary. It’s your first lesson as a young trial lawyer. Don’t avoid the truth; face the truth.  “But, but”, my younger self would say, “Can you imagine if I had told my parents the truth. I just got fired from my first job as a real, licensed lawyer, likely because I was not a very good writer, and now I am going to open my own law firm.”  As a recently rejected 26 year old, I was scared of facing the truth. At the time, I did not understand how taking the opportunity to be open, honest, and vulnerable would be a sign of strength that would connect me with my parents and be a skill that would help me succeed as a trial lawyer.

A Big Win with “High Low Binding Arbitration”

It was 1995, I was 27 years old, suddenly I had a check for $64,000 in my pocket.

This is the story about my first big win as a new personal injury lawyer.  It’s a story of how curiosity and hustle come together to form a big win for our client and my first big attorney fee check.  This is a story about experts, alternative dispute resolution and settlement.

It was 1995, back then, I was single, living in an apartment in the Marina district of San Francisco.  Our apartment was just off Lombard Street near our restaurant of choice, Jack In the Box. I was living with my good friend Jay Campbell and working round the clock.  When I would come home on Friday nights Jay would greet me with his big warm smile and great sense of humor and say, “It’s Friday, only two more work days until Monday!”  His joke did not affect my desire to work less on the weekends. I was having fun. Each day flew by in what felt like a series of flashes and before I knew it the day was gone in what felt like moments.  I did not realize it at the time, but I was in the state of flow, doing what I wanted to do and loving it.

I had heard the term vocational rehabilitation expert, and was interested in meeting an expert that worked in this area.  Someone mentioned Ona Schissel’s name to me. At the time Ona was working as a vocational counselor and rehabilitation expert.  Her office was on Montgomery Street in San Francisco. I called her up and asked if she would meet with me and tell me about the kind of work she did and what it meant to be a vocational rehabilitation expert.  At the time my office was at 126 Post Street in San Francisco, Ona’s office was a short walk away. When I arrived Ona and I talked about her work, I asked some questions and she shared with me how a vocational counselors can help an injured person who can no longer work effectively in their chosen occupation due to the effects of an injury.  Ona looks at a person’s background, work history, aptitude and formal education and makes recommendations about fields of work they can still do post-injury. She helps people determine what types of work they have the aptitude and can actually do, given their post-injury physical ability. The level of post-injury physical ability is referred to as a person’s functional capacity.  There are health care providers that provided functional capacity testing for injured people who need to change jobs after an injury.

Eventually Ona asked what I was working on.  I shared with her that I had just opened my office and was focusing on trial work.  Ona looked at me and said, “I have a case I want you to look at.” She looked across her office to the top book shelf, stood up, walked over, reached up and pulled a case file off of her shelf.  She literally dusted off the cover of the file and said you should take a look at this case.

Ona was showing me the personal injury case file of Sidney Ford.  Sidney was a self employed barber from Richmond, who had slipped and fallen on the sidewalk near his shop.  The sidewalk had been ripped up by a construction company and a safe route of travel for the pedestrians. One day Sidney fell while navigating the negligently maintained construction site.  The fall caused an injury to Sidney’s back. Sidney’s treatment consisted of doctor’s evaluations and physical therapy at Kaiser hospital. Sidney was alleging that his low back had not improved after physical therapy and that he was living with chronic low back pain.  The lawyer Sidney was working with initially had substituted out of the case. This left Sidney to act as his own attorney. The legal lingo for this is that Sidney was acting in propria persona or In Pro Per. In Propria Persona is a latin phrase which literally means “in the person of yourself.”  Ms. Schissel was a consulting expert in the case and was doing Sidney a favor by helping him to find a lawyer that was willing to take on his case on a contingency fee. As is common for injured people, Sidney did not have enough money to pay an attorney an upfront retainer to work on an hourly basis to prosecute his claims in court.

That night I walked out of Ona’s office with Sidney’s file.  Shortly after, I called, we met and Sidney signed my contingency fee agreement. I became his attorney.  At the time I took over Sidney’s case, the case had already been filed with the court and all of the discovery was completed.  I recognized that the next step was to let the court know of my representation, inform the court that the discovery was complete, and that the case should be set for trial.  The court agreed and set the case for trial.

Sidney and I showed up for the first day of trial ready.  The case was venued in Contra Costa County in the town of Martinez.  Our case was called. Defense counsel and I were invited into the Chambers of trial Judge Maria Elena James.  Judge James greeted us with her warm smile, compassionate, yet pragmatic demeanor. She quickly got to work to determine what could be done to help the plaintiff and the defendant reach a settlement that did not involve a two week jury trial in her courtroom.  

Judge James determined that the parties’ views of the settlement value of Sidney’s case were far apart.  The defendant viewed the case as defensible, meaning the jury would not find any negligence. And even if they did find some negligence on the part of the construction company, the jury would also find significant comparative negligence on Sidney. They would argue that he should have seen and avoided the open and obvious condition that caused him to fall.  Further, the defense viewed Sidney’s injuries as nothing more than what the insurance industry refers to as “Soft Tissue” injuries with “no objective findings” to verify his complaints of pain. Essentially, Sidney may say he was hurt, but the jury will have to take his word for it. Because there is no objective test result (x-ray or MRI) to verify what was causing the pain inside of Sidney’s back.  The last settlement offer of the defendant was $10,000 dollars.

Sidney’s view of the case was that his life been forever changed for the worse because of the defendant’s negligence. This negligence caused his now lifelong, chronic low back pain.  Sidney would not consider any settlement offer that was not well above $100,000 dollars. It looked like the case was headed for a jury trial.

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After about an hour of discussions, the prospects of any settlement looked unlikely, Judge James raised the idea of resolving the case with an agreement for high low binding arbitration.  Her specific proposal was a binding high low arbitration with a low of $10,000 and a high of $200,000. What this meant was that instead of the case being heard and decided by a jury of 12 people in Judge James’s courtroom over the next two weeks, the parties would instead agree to hire an arbitrator.  A neutral attorney in the community would hear the facts of the case and decide the factual issues of negligence and damages. The decision would be binding, meaning a final outcome on the parties that was not appealable. Such an arbitration could be done in a few hours at the arbitrators office. The parties agreed and the case was settled.  We just needed to conduct the arbitration and the case was over.

Defense counsel and I hired Peter Elkind, a mediator and arbitrator from Oakland.  A date for the arbitration was agreed to and set for Mr. Elkind’s office in Oakland.  The case was presented based on the photographs of the scene and the relevant medical records and reports from Kaiser where Sidney had his medical care post accident.  The only witnesses were Sidney and his wife, Maddy. The length of the hearing was about two hours.

Two weeks later an envelope arrived from Peter Elkind with an arbitration award of $160,000.  After, attorney fees, case costs and the Kaiser lien were deducted Mr. Ford received a check for $86,000.  My attorney fee was $64,000. This was the first real money I made as a plaintiff lawyer.

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