Personal Injury and Malpractice Law


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A personal highlight video of rookie mistakes one would like to erase lingers in the mind of every individual who has started a law firm.   Rookie mistakes result from a lack of perspective and are rooted in fear: the fear of not being good enough and the fear of losing business.  The fear of losing business causes the rookie to take cases that she ought not, resulting in a cascade of negative consequences, the least of which is loss of the business anyway.  The fear of being not good enough prevents the rookie from learning from her mistakes and also inhibits her from getting paid a fair wage for your work. 

Disavow the Doctrine of Infallibility

The quintessential rookie mistake, of course, is not allowing yourself the right to make mistakes.  If you are convinced that the doctrine of infallibility applies to you, then when you make that first mistake, your eyes will roll back, your head will spin 360 degrees and you will speak in ancient, indecipherable languages.  In short, you will not be able to deal with the mistake.   If you work for yourself, you must be able to trust your own judgment.   Reliable judgment is the product of unemotional analysis of mistakes and an unflinching readiness to evaluate your own performance.  Examine unsatisfactory outcomes with the cold eye of a pathologist.  Sometimes the mistake was entirely your own; so own it.  Indeed, you must stand on your right to make mistakes in order to learn your strengths and weaknesses. 

Consider what happened to one young attorney: The rookie thought her client was the salt of the earth, because he reminded her of all they hard working guys she grew up with.  The jury of 6 women awarded this plaintiff a grand total of $20,000 for his surgically fused vertebrae after finding the defendant 100% liable.  What was the rookie mistake?  The mistake was her misjudgment of how a Manhattan jury would perceive this plaintiff from the outer boroughs.  After the trial, the jurors explained,  “your guy reminded us of Joey Buttafuco and his kids did not even look like him – we didn’t trust him any farther than we could throw him.”  The slicked back hair and black shirt open at the collar just did not work on this side of the Staten Island Ferry.  That was the lawyer’s mistake in failing to ensure compatibility between the jury and the plaintiff – do not blame either the plaintiff or the jury for that error.

You must understand that your staff will also make mistakes.  If your staff is afraid to tell you about the mistake they make or the mistake they have discovered, then the mistake will be buried, instead of exposed and corrected.  You now have a time bomb in your file, which will tick away until the staff member is long gone, and will explode when you open the file at the time of trial or some similarly inconvenient moment.   When you discover the mistake made by your staff member, do not throw any heavy items, do not twist or shout or foam at the mouth.  Expressing your sense of frustration at the situation in a hostile manner will hurt you in the long run - so don’t do it.  To the extent possible, the staff member should make the correction himself (an attorney must have all contact with the client on the matter, if it gets to that.)  Distribute appropriately corrective memos to the staff, with language that conveys the seriousness of the issue without identifying the staff member who made the mistake.  If you determine that the loss of confidence is so great that the staff member cannot remain with the firm, be sure that the process of separating the employee does not deter other staff members from reporting errors to you.  

Don’t let files turn to Kryptonite. 

When you take a case that you should not have taken, or you make a mistake on a case, the file will have a tendency to turn to Kryptonite.  As you recall, Kryptonite is that eerie green rock that rendered Superman weak and helpless - he shrunk from it.  The file with the problem becomes like Kryptonite and Super-Attorney becomes helpless in the face of the Kryptonite file.  Fear causes the file to remain unopened and the problem grows.  Recognize when this is starting to happen - face it head on and open the file, pull out the Kryptonite and eliminate it.  As a last resort, call on your pal Jimmy Olsen or Lois Lane to open the file and deal with the Kryptonite for you.  Failure to do this will ultimately cause you fatal wounds in the form of a subpoena to the Disciplinary Committee.  On this issue, never fail to return a client’s telephone call within 24 hours, no matter what.  If you have not done what you were supposed to get done, deal with the client about that and give the client a realistic assessment of when the work will be complete.  Prosecutors at the Disciplinary Committee repeatedly warn small firm practitioners that the most common source of prosecution begins with the chronically ignored client telephone calls.

Don’t Make Enemies By Taking A Bad Case. 

Early in your career working for yourself, you will be tempted to take cases that lack merit, because you want to make the referral source happy.  Don’t do it.  You will not be able to get the results you want, the file will turn to Kryptonite, and you will alienate both the client and the referral source.  Over time, you will learn that it is possible to turn down a case and keep the referral source and even the rejected client for future business.  To reject a case and keep the source you must take the time to talk to the potential client, understand the client’s needs and explain to the client clearly, honestly, and directly the reason why you are turning the case down.  Generally the reason is money.  Explain the realities to the client, commiserate with the client, but don’t take a losing case. 

Keep the self-help pamphlets from the Small Claims Court in your office and mail them off to the clients that you turn down, explaining that it would cost them more to retain you than they could recover from their $400 dispute.  Keep handy the number of the Attorney General’s Consumer Fraud Division (800-771-7755) and the complaint department of the New York State Department of Education (800-663-6114) for complaints against doctors and hospitals.  When you turn down a case, call the referral and explain the reason why you turned the case down.  Do not take a case thinking the case will get better.  Do not take a case thinking that you will think about it for a while.  A client and a referral source may be disappointed when you turn a case down initially, but that does not compare to the anger when you turn it down after sitting on the case for seven months.  

Similarly, don’t take the case that is lucrative, but you are unprepared to handle.  Assess the time, skill and financial resources required for the case.  If you are not prepared, call up the best attorney you know to handle the matter and give the case to her.  You cannot keep every penny that comes through the door. 

Get Paid For Your Work: Charge For Consultation and Get A Retainer. 

You did not cause the injustice that has befallen your potential client, and it is not your obligation to soften the blow of repairing the problem by reducing or waiving your fee.  You must weed out the clients that do not want to pay you by charging a consultation fee and by obtaining a sufficient retainer at the time you agree to perform the work.  Make sure your retainer agreement is clear about what work you are performing and what work you are not performing.  If you spoke with the client about several matters and are agreeing to represent the client in only some of them, be sure to state in unmistakable terms that you are only performing the work outlined in the retainer.  

Clients who are unwilling to pay a consultation fee or are unwilling to pay a retainer will be unwilling to pay fees later.  To the extent that someone asks you to work for free, he is asking you for a donation.  Consider whether you prefer to donate to your cousin who is buying a new Co-op in Queens and want to save a buck on the closing costs or whether you prefer to donate to Housing Works, the ACLU or Meals on Wheels.  Consider whether your cousin donates his time by working for free for his employer.  If, in the end, you decide to reduce or waive your fee, be sure to provide your client with the written statement of the actual cost of your services, as well as the special rate for cousins.

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If you own your own business you are a capitalist.  The best way to make money in a capitalist system is to hire an employee and extract the surplus value of his labor.  In this instance, hire a paralegal, or a part time per diem attorney, to move your cases for you.  You will bring in more money and keep your client happier than if you try to do everything yourself. 

Don’t Burn Your Bridges. 

The small firm practitioner is readily distinguishable from the attorney who works for someone else.  The small firm practitioner knows that today’s adversary is tomorrow’s co-counsel.  The associate you are dealing with today may be a court attorney tomorrow.   Your landlord may have annoyed you today, but next year you will be negotiation the 5-year extension on your space. 

Develop Your Antenna. 

The small firm practitioner knows that today’s client may decide to sue you tomorrow.  You must record each interaction with the client and you must document all agreements.  You will learn when your client is about to become your adversary and you will learn to watch your back - at that time all conversations must be documented, most often with a follow up letter to the client. 

The Final Word

Keep breathing.  Learn from your mistakes.  Your most useful tool is reliable judgment and the ability to look at your practice with a cold eye.  Do this and the highlight film from your rookie days will be one you will be willing to share with your friends.