OTLA Trial Lawyer Winter 2021

56 Trial Lawyer • Winter 2021 if I am cold and judgmental. Rest assured I have three goals in mind: the prosper- ity of your practice, the welfare of good people who are not well-served by being led into failure, and enhancing our image as lawyers who do not take frivolous cases. None of these warnings is conclusive. Any one of them might be over-ridden by compelling counterweights. But if a case has a combination of any of the fol- lowing, be aware that you may be about to drop tens of thousands of dollars and maybe hundreds of hours of time, into a sink hole. Even worse, you may stir pub- lic opinion against the important work we all do and thereby diminish the value of a host of similar cases. Vast pre-existing medical conditions While this is not always a disqualifier, it is so in many cases, especially those of comparatively low value. A case with boundless pre-existing conditions is a defense lawyer’s dream. It is a “discovery heaven” in which the defense attorney can bill the insurance company for bot- tomless discovery requests directed at you as the plaintiff ’s attorney. Making these discovery requests carries little or no risk to the defense attorney but ties up your valuable time reading an expanding web of interlacing prospective defenses pop- ping up like ghosts from the past. Low property damage While this is also not always a dis- qualifier, it often is. If you must use a magnifying glass or enlarge a digital photo of a client’s car to find the prop- erty damage—or if the client has already described to medical providers a physical impact that cannot possibly have come from such a slight bump — decline the case at the first interview, unless you have compelling reasons to accept the case. (Ironically, a fragile, pre-existing condi- tion that easily could be aggravated by such a low impact is perhaps the only place where two negatives, a pre- existing condition and a low impact, might combine to produce a positive result, assuming the client is like- able.) Otherwise, you will find soon enough that a chi- ropractor with all his or her pretend- ed cha rm c an never persuade a jury that all that treatment could have come from that little scratch. If you pin your hopes on keeping the property damage photos out of evidence on the basis of some obscure trial court ruling in the Midwest, I have some nice Nebraska ski property I would like to sell you. The angry client In his book “How to Argue and Win Every Time,” Gerry Spence says anger is like blood— it is better for the other side to spill it. An angry client puts off a jury almost as much as a client who denies obvious facts or exaggerates injuries. If you sense a client is driven by anger more than justice, do not get involved. Noth- ing you achieve will dimmish the client’s inherent pre-existing anger, and in due course that anger is likely to turn against you. Excessive treatment In too many cases, some financially motivated medical providers, especially chiropractors, prolotherapy hacks and even physical therapists, will heap on endless treatment at gouging prices, hop- ing insurance will pay. Anticipating from experience that insurance companies won’t pay, these gougers have their pa- tients — our prospective clients – sign liens for remaining balances. If you take on such a client, be aware that in the end you will likely have to compromise your fee and ask the medical providers to compromise theirs, just to get the client something to settle the case. Then, de- spite all your good faith and extra efforts, your client may resent you taking any fee and the medical providers will almost certainly be angry at both you and the client. (Beware of such medical providers referring cases to you. In most cases they are motivated by their own financial interests and not your prospective client’s welfare.) Unreal expectations A few prospective clients expect an outcome you will never be able to achieve. One of them might tell you of their aunt in Florida who has a friend in Michigan who knew someone fromNew York who had an injury just like hers and got millions. Most of the time you will be able to let the air out of such inflated fantasies, but sometimes — if you care- fully watch body language — you will discern the prospective client trusts her aunt more than you. If you pick up on this dynamic, do nothing to feed it. The time waster The amount of time some clients demand has nothing to do with the magnitude of their harms. I have repre- sented quadriplegic and paraplegic cli- ents who request less face-to-face time than clients who have suffered minor Beware the client who takes up a disproportionate amount of your time. Clients who just “drop in” to your office to discuss their cases can be more trouble than they’re worth. Warning Signs Continued from p 55