OTLA Trial Lawyer Winter 2021

57 Trial Lawyer • Winter 2021 injuries in read-end collisions. If you have a client who rudely insists upon too much of your vitally precious time, ex- plain the importance and courtesy of valuing one another’s time. If the prob- lem persists, release the client from the fee contract and focus on your other cases. This is not to say you should not spend a lot of time with clients. It is to say be sure your time is well-spent and of your own choosing based upon your sound judgment. In general, don’t toler- ate the client who “drops in” without an appointment and expects you to rear- range your day to talk about a recent chiropractic visit or whether it will hurt the case if he or she goes back to work. The convicted criminal If within the last 15 years a client has been convicted of a felony, or of a mis- demeanor involving false statement, that evidence is admissible in a civil trial. If you are an attorney who has represented clients in criminal court, perhaps you have forgotten the shock ordinary folks feel when a client with a criminal convic- tion is asking for a lot of money. Unless the client has a powerful story of redemp- tion and reform, accompanied by good works and devoted service to others, the stench of the conviction will likely taint all jury deliberations both on liability and on damages. The welfare client You will usually be able to keep a cli- ent’s receipt of welfare out of evidence, especially if you do not claim lost wages or impaired earning capacity. But be aware of other ways the defense can get welfare into evidence. Before you take the case, carefully think through every possible scenario the defense may use to try to get welfare into evidence. Con- tinually guard any back doors by not making claims that will open them. Many taxpayers resent their tax dollars going to people they perceive to be lazy or irresponsible. Don’t take on any case where the defense can make the client appear to seek what George W. Bush despairingly called “jackpot justice.”This is the client who the defense can make appear to celebrate his or her good luck to have been injured because he or she now has a case. The tax cheat If a client has worked “under the ta- ble” or otherwise not reported taxable income, and now wants to claim lost wages or impaired earning capacity, the client’s oozing hypocrisy will overwhelm the case and leave you not only with no lost wages or impaired earnings, but likely with no favorable verdict at all. If the client can’t or won’t understand this fact, say goodbye in whatever language you wish: sayõnara, adiós, au revoir. Absent rare good luck or extraordinary circumstances, you will not win a claim for a known tax cheat. The case outside your wheelhouse Sometimes it is tempting to take a case in an area of law we know almost nothing about. Perhaps we are drawn to the case because of its size or its novelty or because we know the client or think the case will open a new area of our practice. What often happens, instead, is we neglect the case, because we don’t know what we are doing and don’t have time to learn. If, for example, you are used to handling motor vehicle injury cases and decide to accept a workers’ compensation case, you have a mountain of steep learning to climb just to handle that one case. The same can be said if you handle primarily medical malpractice and take on a mold case. In his book “FromGood to Great,” JimCollins refers to Isaiah Berlin’s famous essay “The Hedgehog and the Fox.” In that essay Berlin divided the world into “hedge- hogs” and “foxes.” According to an an- cient Greek parable, “the fox knows many things, but the hedgehog knows one big thing.” While a few attorneys pride themselves on having a general practice, the attorney who specializes in one area of law — and knows it well — will almost always outperform the gen- eralist. Closing thoughts When Jack Welch became the CEO of General Electric in 1981, the over- bloated company was known primarily for its appliances and light bulbs. Under his leadership, the company enlarged to manufacture jet engines and manage fi- nancial services. GE’s value rose 500% between 1981 and 2001. While I loathe much of what Welch came to be known for, including his unmitigated greed and an ear deaf to the poor and downtrodden, he perhaps gives us some wise advice in case selection. In his book “Straight from the Gut,” Welch recommended that managers each year rank all their employ- ees and then fire the bottom 10%. He justified this seemingly cruel practice by saying that employees in the bottom 10% would do better, and eventually be hap- pier, in other jobs to which they were better suited. We might profitably consider going through all our cases at least once a year and cull out the bottom 10%. Some of these will be cases we took when our judgment was skewed (for whatever reason) or we were unaware of devastat- ingly bad case facts. We will do ourselves a huge favor if we stop bleeding time and money on unwinnable cases and instead focus on improving the quality of the remaining 90%. At the same time, we will enhance our public image as lawyers who don’t ever make frivolous claims. It all starts by remembering old Jones’ advice: You make money on the cases you don’t take. Kelly Andersen represents individuals in- volved in personal injury and wrongful death cases. Andersen contributes to the OTLA Guardians of Civil Justice at the Stalwarts level. His office is located at 1730 E. McAndrews Rd., Ste. A, Medford, OR 97504. Andersen can be reached at 541- 773-7000 or [email protected].