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New Personal Injury Lawyers: You Can Always Phone a Friend

In the lead up to the launch of Signup to Settlement: A Personal Injury Law Boot Camp, we asked our followers what their number one F.E.A.R. (False Expectation Appearing Real) was about beginning to practice personal injury law. One response was, “I am afraid I will make a mistake and lose the case.” Another lawyer responded, “I don’t want my client to lose, based upon my lack of knowledge and skill.” Let’s unpack these two answers and see what we can learn.

Practicing personal injury law is like a baseball game: generally, you will have time to think about what you need to do, before you are forced to act.

Let’s imagine you are the shortstop for your baseball team. It’s the bottom of the ninth inning, the bases are loaded with no outs, and the game is tied. Suddenly, you realize you have no idea what you are going to do if the ball is hit to you! What should you do? Call “time out”, meet with your teammates and determine a strategy. Problem solved. Now you know what to do, play the infield in and, if the ball is hit to you on the ground, throw home for the force play.

When practicing law, you can always “phone a friend”. Remember the television show Who Wants to Be a Millionaire? If a contestant did not know the answer to a question, they could phone a preselected friend. When practicing tort law, you can phone anyone you want! This includes other plaintiff personal injury lawyers.

Here is the beginning of a solution:

 Step one, when starting out as a new personal injury lawyer, is to have lunch with three of four established plaintiff personal injury lawyers.

These face-to-face meetings will open the door for you to call or email these lawyers with questions. Further, the Consumer Attorneys of California and the American Association of Justice have list servers that allow you to post questions to hundreds of plaintiff lawyers at the same time. Caveat. All new personal injury lawyers need to familiarize themselves with their jurisdiction’s applicable statutes of limitations for personal injury, property damage, professional negligence, medical malpractice, government liability, fraud, breach of contract, and product liability cases. Some jurisdictions have very short government claims limitations. Also, you never know when a person will decide to contact you the day before the applicable statute of limitations is running. You need to be able to identify those circumstances.

 Second, with serious injury cases, be careful to protect and preserve any product that could potentially give rise to a product liability case.

It’s hard to make a product liability claim without the product. In serious car accident cases, the vehicles need to be properly recovered and stored. Automobile crashworthiness or defect cases depend on an analysis of the vehicle post-accident, to determine a theory of liability. If a fire was arguably caused by a defective product, that product needs to be properly preserved and stored. When first talking with prospective clients, keep an eye out for evidence that needs to be preserved while the potential for a claim is being investigated.

In summary, most automobile and premise liability personal injury claims are straightforward and can be handled by newer lawyers that have taken the time to educate themselves about the basics of personal injury law. Remember, if you are unsure of what to do next, phone a friend. If you are interested in learning more about what it takes to be a competent personal injury lawyer, check us out at http://signuptosettlement.com/bootcamp.

Three Keys To A Successful Personal Injury Trial

Preparing for your first personal injury trial can feel like a daunting task. Feelings of overwhelm and fear are normal. Welcome these feelings and get comfortable hanging out with them. Nelson Mandela said, “courage is not the absence of fear, but the triumph over it.”

Preparation can reduce our anxiety level. Let’s look at three key things to focus on pre-trial that will reduce our anxiety level and help make your personal injury trial a success.

1. Have you connected with your client yet? Can you relate to what she has gone through? Have you see the pain yourself? Atticus Finch teaches, “You never really understand a person until you consider things from his point of view, until you climb into his skin and walk around in it.” Have you done this with your client yet? If not, start with a trip to the scene of the accident. From the accident scene walk through with your client what they did after the crash, at the scene and when they left the scene. Spend some time in the area of your client’s home where they recovered from their injury. Share a meal together. This time spent with your client will give you the ability to stand up in front of a jury and begin to articulate the loss. Go spend some uninterrupted time with your client, it will make your trial preparation much easier, because you will start to care!

2. Have all of your witnesses been disclosed to the other side and are they all aware of the trial date? You do not want to have one of your witnesses excluded at trial because they were not disclosed. Review your written discovery responses and make sure you have listed each of the witnesses you intend to call at trial in the responses. It is safer to over disclose your potential live trial witnesses. Every case will have a motion in limine to exclude evidence not produced in discovery. My article in Plaintiff Magazine, “What Trial Teaches Us About Discovery” is a good way to learn more about the subject of undisclosed witness exclusion.

You do not want to have to move your trial date because one of your key witnesses is going to be out of town during the trial. Before your trial setting conference call each of your witnesses and ask if they have any upcoming vacations or work trips which may conflict with a potential trial date. It is never helpful to learn a week before trial that one of your your key witnesses is out of town.

3. How are you going to get your special damages into evidence? In a personal injury case your medical experts play an important role in the admissibility of both your client’s lost earnings and the amount of medical care and treatment a jury can consider. Does your medical expert know and understand how the plaintiff’s injury affected their ability to work? Does the testifying doctor understand the physical requirements of plaintiff’s job? The nexus between the level of injury, the expert is willing to testify was caused by the accident, and how that injury affected your client’s ability to carry out their job duties, is the basis for an opinion about how much time off work was reasonable. Next, do you know if your testifying medical expert is willing to give an opinion that the charges for the treatment caused by the accident were reasonable? If so, what is that opinion based on? If you do not know the answers to these questions set up an in person meeting with your client’s treating doctor and ask.

If you are interested in learning more about making your personal injury trials a success, check out my free video, “20 Steps To A Successful Personal Injury Trial.”

Three Common Rookie Mistakes New Personal Injury Lawyers Make

Rookie mistake are avoidable errors that new lawyers without the perspective of experience will often make. Expert witness discovery is an area of personal injury law where new lawyers can make mistakes. Here are my top three rookie mistakes applicable to expert discovery in a personal injury case.

– Rookie mistake #1 – failure to understand the distinction between a retained treating doctor and a non-retained treating doctor. Not having a clear understanding of the ramifications of these distinctions can result in a host of problems for the new PI litigator. In this context the term “non-retained” means a doctor that has not been hired and paid to review medical records and provide opinions. It gets tricky because treating doctors are both experts and percipient witnesses. A treating doctor acquires, independent of the litigation, personal knowledge of relevant facts, and has training, skill, and experience which enables them to form an opinion about those facts. The case of Schreiber v. Estate of Kiser (1999) 22 Cal. 4th 31, explains the ramifications of this distinction.

– Rookie mistake #2 – Failure to meet with your client’s treating doctor before a trial date is set to determine if they are willing to act as a retained treating doctor in the case. Meeting face to face with your client’s treating doctor well before deadlines and cut offs are present improves the chances that the treating doctor will agree to review the records and prepare to give a meaningful deposition. Not waiting until the last minute shows the doctor by the example of your preparation, that you will be easy to work with when the trial date is scheduled. At your face to face meeting you may learn that the treating doctor is not willing to review the medical records and provide opinions for trial. Guess what! Because you found this out early, you now have plenty of time to go hire another expert to review your client’s case and give opinions at trial. Finding out a treating doctor is not willing to cooperate is something that needs to be learned early on in the case, otherwise a host of problems will occur.

– Rookie mistake #3 – Not making your retained experts available for a meaningful deposition. Retained expert witnesses must be produced for deposition. A subpoena is not needed to compel a retained expert to show up for their deposition. If noticed, it is the obligation of the party who has retained the expert to reasonably make their expert available for a meaningful oral deposition. The best way to do this is by securing some good dates for your expert’s deposition before your expert is formally disclosed. This puts you ahead of the game.

Don’t wait for the deposition notice from the defendant to arrive before trying to secure some workable dates and times. By then it may be too late. Remember doctors are busy, they see lots of patients and do lots of surgeries. Be proactive and send a letter to your opposing counsel which sets forth the dates that will work for your expert’s deposition. If scheduling becomes difficult, you will have written proof that you provided available dates for your expert’s deposition early on in the expert discovery time window. Preparation and forethought equals less drama, less drama equals less stress!

If you are interested in learning more about rookie mistakes new plaintiff personal injury lawyers can avoid, check out my free video, “The Top 10 Rookie Mistakes And How To Avoid Them.

ABC’s of Becoming A Successful Trial Lawyer from Day One

A. Embrace who you are. Do not try and become someone who you think you are supposed to be. For example if you are a calm reasonable person stay that way. It will serve you much better to stay true to your personality. Don’t try and turn yourself into an argumentative Mr. Tough Guy, because that’s the way Hollywood characterizes lawyers. If you are nice, then stay nice, and take advantage of the fact that you can catch more flies with honey than with vinegar.

B. Being a trial lawyer is patriotic. There are hard working people in this country who need your skills. The legal document that guides our dispute resolution process is called the United State’s Constitution. It’s patriotic to stand up for the rights of people in court. The work trial lawyers do helps injured people obtain the resources they need to get back on their feet and become productive in the future.

C. There are not too many trial lawyers. Corporations want you to believe there are too many trial lawyers already. This is a myth perpetuated by a few large corporations who do not want to be held accountable in court. The reality is that there are not enough good lawyers willing to stand up for the rights of individuals in court.

D. Good trial lawyers do not compete with each other. In fact, we are each others greatest resource. Trial lawyers collaborate and work together on difficult cases and help find ways to help one another succeed. The American Association of Justice, the Consumer Attorneys of California, and the Attorneys Information Exchange Group all believe in success through sharing with each other and are constantly helping trial lawyers collaborate so our clients win.

E. You can be a great trial lawyer and not go to court all of the time. The day to day existence of a trial lawyer varies greatly depending on the individual path you chose to follow. The reality of day to day law practice, when you first start out, is convincing an insurance claims representative that you have a case. Think of the claims adjuster as the first juror you have to convince. This is done, by conducting a thorough investigation of the case, getting to know your client, and communicating your client’s loss to the adjuster with a well written settlement demand letter. A good percentage of your cases will resolve successfully using this process.

F. New trial lawyers lawyers partner up with more experienced lawyers and split any fees that result. These partnerships are especially common in the area of product liability and catastrophic personal injury cases. Because of the need to retain and prepare expert witnesses, these cases can be very expensive for new lawyers to take on. A new lawyer can team up with an experienced trial lawyer and learn how it’s done. The saying two heads are better than one almost always holds true when plaintiff lawyers work together on cases.

If you are interested in learning more about being a plaintiff personal injury lawyer, a “Trial Lawyer”, check out our four part free video series, which starts with “The ABC’s of Becoming a Successful Trial Lawyer From Day One.”

Trial Lawyers: We Should Learn From Each Other, Not Compare Ourselves to One Another

Last Friday afternoon I saw trial lawyer Rick Friedman speak at the Consumer Attorneys of California State Convention in San Francisco. Rick spoke about how destructive it can be for a trial lawyer to compare themselves to another trial lawyer. Mr. Friedman was making the point that we do not make ourselves better by comparing ourselves to other trial lawyers. “Every case is different and every jury is different,” he said. Comparing our trial results to other trial lawyer’s results unnecessarily causes a loss of confidence. Stressing the point, Mr. Friedman feels much more comfortable talking with other trial lawyers about the cases he has lost. It’s good to know even legends as successful as Rick Friedman lose cases.

Many of us may unknowingly hold ourselves back, or lessen the risks we are willing to take, when we compare ourselves to other lawyers who may be having more recent courtroom success than we have had. Mr. Friedman knows jury trials are a risky pursuit and that each one of us has to fight, scratch and claw, in our own individual ways, to achieve our client’s own unique victories. The danger lies when one of us gives up or gives in as a result of a confidence draining comparison with another lawyer who we wrongly believe, “…has some intangible we simply do not possess.”

To reiterate, the dangerous thought Mr. Friedman spoke about was thinking to ourselves, “…that trial lawyer has something that I just don’t have and that’s why they are having more success.” That is a destructive thought for any trial lawyer to harbor. Mr. Friedman spoke of the lawyer with horrible social skills, horrible knowledge of the law, that can walk into a courtroom and win more often than not. Why is that? Should we compare ourselves to such a lawyer?

Mr. Friedman was not advocating that we should not watch and learn from other trial lawyers. Nor was he suggesting that trial techniques, arguments, and strategies successfully used by other lawyers should not be added to our arsenal of advocacy, if they fit our style. In fact just the opposite, the CAOC convention is an annual festival of learning from some of California’s greatest lawyers. Let’s learn from the greatest trial lawyers our profession has to offer; but don’t let their success cause anyone of us to pause about our ability to achieve similar results in our own unique ways. Great trial lawyers win hard cases, but they also lose hard cases, and each one of them does it with their own true style. The traits that are consistent among the best is an unwavering persistent belief in yourself along with a relentless desire to make yourself better in the face of victory or defeat.

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