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INTRODUCTION
Deadlines - the menace of every lawyer, the one thing forcing me to manage sleepless
nights, the one thing causing me to be “cranky”, and the one thing we all endure. The
phone rings and suddenly interrupts my focus from meeting yet another deadline – this
time a race to complete and file a summary judgment response before the rural courthouse
in Western Oklahoma closes at 4:30. I angrily pick up the receiver convinced I have forever
lost the single most brilliant legal thought ever to find its way from my self-proclaimed law
review legal mind to written words that only a scholarly and judicial intellect could
recognize as the argument for victory.
As I answer the phone with a disgusting “what”, the young sorority girl I hired to answer
the phones sheepishly announces – “there is a very nice ‘old’ lady on the phone that wants
to speak to a lawyer.” “Fine – I’ll take it”, I sarcastically announce. Rather than greeting
my potential client with a hello or canned introductory statement I have rehearsed for the
last 20 years, I simply state “This is Franklin. I’m a lawyer.” After a few seconds of
awkward silence, I hear a soft frail voice on the other end of the telephone line whisper,
“hello?” The voice, nameless at this point, seems faint and distant and I struggle to hear
her words. As I carefully strain to recognize the simplicity of her speech, I find myself lost
in an amazing story and I recognized this phone call changed my life forever…..
I. Case Intake, Pre-Suit Investigation
“If the law is on your side, argue the law. If the facts are on your side, argue the facts. If
neither the law nor the facts are on your side, just argue.”
We all hear the same question much too often, “do I have a case?” The truth is most
everyone has “a case”. There are several factors and numerous items to consider when
deciding to engage in the representation of a potential client and “take the case.”
However, a detailed plan to carefully and thoughtfully evaluate the potential case becomes
the foundation for a successful result. A basic plan to consistently follow in evaluating all
potential cases entails learning about your client, carefully listening to your client’s story
and conduction some basic legal research to determine if there is just enough law to support
a legal theory that both a judge and jury will believe.
A. Case Screening.
We instinctively need to believe everything a prospective client reveals as they detail the
facts of their case during the initial contact. However, we cautiously recognize there are
two sides to every story. It is impossible during the first interview not to think, if only for
a moment, this is a “million-dollar” case. We become entrapped in the believability of a
clear wrong that needs our help to make right and empower true justice. Unfortunately,
we often only listen to the positive facts as they are described. Liability seems clear and
the damages are off the charts. We find ourselves energized with the excitement of a new
case. We rush around the office and tell our colleagues about the new case and proclaim
we cannot wait to get the Petition filed as soon as possible.
Caught in the frenzy, we picture ourselves standing in front of a jury as we make a detailed
blueprint of an opening statement. We visualize an exhilarating cross-examination of an
untouchable expert. We plan for the moment during the final argument as the jury is
mesmerized by the skillful case we have presented before hearing the judge announce
victory. If only it were that easy!!
In reality, the hastily filed case often concludes with an adverse ruling by a judge or a
defense verdict from a jury. Why? And, what can we do to minimize the risks of such a
result. No case is flawless but with a thoughtful pre-suit investigation, we may hedge our
risk and save ourselves some disappointment.
Perhaps the best place to begin screening our potential case is to refresh our memory of the
jury instructions. Usually, we glance at the jury instruction as the case approaches the trial
date rather than at the beginning of a case. More typical, however, we first glance at the
jury instructions in a state of panic. Our panic is the result of yet another deadline we failed
to plan for as our legal assistant proclaims, “the proposed jury instructions are due in Smith
v.Jones today.” After a few expletives and a hollow promise to never let this happen again,
we instruct our trusty legal assistant to copy and paste the jury instruction from “that case
we tried a few years ago!!”
The Oklahoma Uniform Jury Instructions (OUJI) identify the essential elements of each
legal theory we encounter. A quick refresher course at the pre-suit stage assists our focus
on the elements of the case and facts we should gather to have a successful case. The jury
instructions are easy to find and easy to read. Although we might think of the jury
instructions as the last thing the jury hears at the conclusion of the evidence, they are an
important tool to utilize at the beginning of the case for the lawyer and they provide a
valuable guide to develop the theories of our case.
A review of recent verdicts and settlements similar to the subject matter of our potential
new case is extraordinarily valuable and provides invaluable insight in the screening
process. There are several resources available to review this information. For example,
numerous paid publications are available on websites or from private mediators. Other
compilations can be obtained through Thompson/Reuters or Lexis/Nexis. Although these
publications are useful tools, a phone call to a colleague that knows the judge and has
practiced in the county is the best resource. You may learn the judge presiding in the
county typically disfavors certain types of cases or simply has not experienced the subject
matter of your potential case. The local lawyer will also know the demographic makeup
of your potential jury and address the dreaded words “conservative” jurors.
We can all agree access to information has changed over the past several years and
continues to change daily. Not too many years ago, a facsimile or fax was new and
innovative. We all believed this cutting edge technology would revolutionize our ability
to communicate at speeds which seemed unimaginable. No one had heard or could even
define the word internet. As we all experience, information today is only a click away. One
of the biggest changes, obviously, is the use of social media.
It continues to be increasingly important to closely monitor social media and use it as a
tool in your case screening process. Each of us has experienced both positive and negative
implications of social media. Social media allows us to reconnect with friends and stay
connected to family. However, it has become a fertile source for trolling for the opposing
attorney and finding surprises your potential client failed to disclose. It is well worth a few
moments of your time to look at your potential client’s use of social media.
A recent trend with some lawyers includes sending an introductory email before the first
face-to-face meeting. The introductory email outlines the expectation of the lawyer and
the firm’s communications policy. The introductory email can explain the firm’s
procedures and methodology for case evaluation. Finally, it serves as a reminder to the
prospective client to bring important documents to the meeting. All of which, further the
goal of the case evaluation.
If the initial contact with a potential client and a quick analysis of potential legal theories
remains viable, schedule a face-to-face meeting. The purpose of the initial client interview
is to gather additional facts, confirm information you have already gathered and prepare
for the prospects of signing the client to a fee agreement.
B. Initial Client Interview/Questionnaire
Perhaps the single most important question to ask ourselves before taking any potential
case is – Can I sell my client? In September of 2014, Forbes published an article by Kristi
Hedges entitled “How Important is Your First Impression Really?” Hedges’ article cites to
research conducted by Malcomb Gladwell which concludes that “our first impressions are
fairly accurate and stand the test of time.”
Our initial impressions of prospective clients are usually accurate too. The research
conducted by Gladwell emphasis the need to carefully evaluate our potential cases within
a basic framework of a fundamental question. Will a potential jury like my client and will
they want to help them?
We all can likely recall a few unfortunate instances where a great set of facts and damages
were painstakingly prepared with hours of research, witness interviews and deposition
testimony. The fruits of our labor, however, are rewarded with a defense verdict. We
instinctively begin to second guess ourselves, second guess our strategy and ask the
question of what could I have done differently. Despite these valid questions and concerns,
the jury’s decision is actual the product of simply not liking or wanting to help your client.
Our evaluation of a potential client begins the moment we introduce ourselves at the first
interview. We have heard the cliché “you can’t judge a book by its cover” but our initial
impression of the potential client will likely be the same first impression a juror will have
of our client.
Equally important is carefully evaluating the client’s version of the story. Does their
version seem plausible? Does their explanation contain details or do they describe events
in generalities? Does the client’s description reach conclusions or describe facts? Answers
to these questions allows us to ask the right questions to gather all the facts and develop
the possible themes of the case. Often times, the theme for the entire case is derived from
the initial interview.
The initial interview also allows for the opportunity to review specific documents the client
brought to the meeting. If the client was involved in an auto accident for example, the
accident report prepared by the investigating officer contains valuable information.
Probing questions of the client about information contained within the accident report can
serve as useful tool to test the client’s memory of important details of the accident. Medical
records from a treating physician in a medical negligence case often reveal assessments of
the client’s medical condition much different than the client’s version of the same events.
Nevertheless, the information gathered from the records compared to the client’s memory
of the events is essential in the pre-suit investigation.
Before the conclusion of the initial meeting, present the client with a new client
questionnaire. The new client questionnaire should not be complicated or complex.
Generally, ask for basic contact information such as mailing address(es), telephone
number(s) and email address(es). It is essential to gather this information at the outset.
A new client questionnaire can also be used to gather other important facts. In a medical
negligence case for example, requesting dates of treatment, names of health care providers
and wage/salary information will prove useful as the evaluation process continues. It is
also important to secure a medical authorization. The medical authorization will allow you
access to the client’s medical records. Obtaining a copy of the medial records is necessary
so both you and an expert can determine if your client’s health care provider practiced
below the recognized standard of care.
Finally, the new client questionnaire makes the process easier for the staff. The staff will
need the same information to create the file on the firm’s practice management software.
Additional information related to the fee and responsible attorney can easily be included
within the new client questionnaire to assist the billing staff and check list for the fee
agreement and payment of expenses.
C. What You Can Find Out Before the Claim.
The best way to maximize the value of the case is to work hard to gather facts. It may seem
like a very basic point but we often miss a great opportunity to structure the case or claim
at the right time. After the gathering the information from the client intake and interview,
we are armed with the resources to develop the essential facts of the case. A quick reminder
and glance at the jury instructions is also helpful.
The items available for us to obtain at point include:
 Names and Addresses of Medical Providers (pre and post – accident)
 Names and Addresses of Employers and Tax Records
 Names and Addresses of Witnesses
 Photographs and Videos of the injuries and accident site
 Social Media Search
 Criminal Background Check
 Review of OSCN
With an executed medical authorization, an evaluation of the medical records is possible.
There are numerous ways to gather the medical records which range from hiring a third
party vendor securing the records with the help of the support staff. Once the medical
records arrive, they should be carefully reviewed, organized and if necessary, request
supplemental records.
In a medical negligence case, for example, a qualified medical expert must review the
records to determine if the target health care provider provided appropriate medical care
within the accepted standard of care. Medical records also identify each and every person
making contact with the client while under their care. A quick follow-up with these
individual provides yet additional useful information to your case.
An accident report contains a wealth of information too. Typically, the accident report will
describe the event in question. It will identify witnesses to the accident and often will
contain witness statements. Locate the witnesses on the accident report and ask to speak
directly to them. Is the memory of the witness consistent with the statement they prepared
at the time of the accident? Did the investigating officer accurately describe the witnesses’
account of the accident based on the interview we conduct?
Most important, the documents and information we gather before the filing of the claim
assists in formulating the damage model. The jury instructions provide a value guideline
for the items of damages available for the jury’s consideration. The documents gathered
at this point also serve as the initial draft of the witness and exhibit list. We all recognized
that in most cases, there are two or three key witnesses and less than ten documents
essential to the case. Identifying them early and being prepared before the lawsuit is filed
lowers the anxiety level as the case moves forward.
D. Funding Litigation
Like most things, the costs of funding litigation continue increased over the years. Who
funds or pays for the litigation expenses? What are the expense typically associated with
litigation?
Establishing a budget is a good first step before filing a lawsuit. Budgets obviously are
benchmark and can easily be adjusted in the event of surprises or unforeseen events.
Typically, however, the budget should include an estimate for the following expenses:
 Pre-Lawsuit Expenses
o Costs of obtaining medical records
o Costs of obtaining accident reports
o Costs of obtaining medical examiners records
o Witness fees – especially law enforcement
o Expert witness fees (accident reconstruction – medical doctors)
 Discovery Expenses
o Deposition Costs
o Filing and Service Fee
o Cost of document production
o Expert Witness fees
o Witness fees
 Trial Expenses
o Courtroom Exhibits
o Trial Presentation/Production
o Expert Witness fees
Most often the expenses associated with each phase of the litigation falls on the shoulders
of the firm. There are instances, however, where the client will assist with some or all of
the litigation expenses. The process of analyzing a budget allows for a necessary
evaluation of the case from an economic perspective – is the likely value of the case worth
the cost of prosecution.
Conclusion
Spending time to investigate your potential client and case before filing the litigation is
an important component to success. A thorough case screening process, client interview
and budget planning are great first steps on the path to successful recovery; not only for
your client, but for you.

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Auto Injury Litigation From Start to Finish

  • 1. INTRODUCTION Deadlines - the menace of every lawyer, the one thing forcing me to manage sleepless nights, the one thing causing me to be “cranky”, and the one thing we all endure. The phone rings and suddenly interrupts my focus from meeting yet another deadline – this time a race to complete and file a summary judgment response before the rural courthouse in Western Oklahoma closes at 4:30. I angrily pick up the receiver convinced I have forever lost the single most brilliant legal thought ever to find its way from my self-proclaimed law review legal mind to written words that only a scholarly and judicial intellect could recognize as the argument for victory. As I answer the phone with a disgusting “what”, the young sorority girl I hired to answer the phones sheepishly announces – “there is a very nice ‘old’ lady on the phone that wants to speak to a lawyer.” “Fine – I’ll take it”, I sarcastically announce. Rather than greeting my potential client with a hello or canned introductory statement I have rehearsed for the last 20 years, I simply state “This is Franklin. I’m a lawyer.” After a few seconds of awkward silence, I hear a soft frail voice on the other end of the telephone line whisper, “hello?” The voice, nameless at this point, seems faint and distant and I struggle to hear her words. As I carefully strain to recognize the simplicity of her speech, I find myself lost in an amazing story and I recognized this phone call changed my life forever….. I. Case Intake, Pre-Suit Investigation “If the law is on your side, argue the law. If the facts are on your side, argue the facts. If neither the law nor the facts are on your side, just argue.” We all hear the same question much too often, “do I have a case?” The truth is most everyone has “a case”. There are several factors and numerous items to consider when deciding to engage in the representation of a potential client and “take the case.” However, a detailed plan to carefully and thoughtfully evaluate the potential case becomes the foundation for a successful result. A basic plan to consistently follow in evaluating all potential cases entails learning about your client, carefully listening to your client’s story and conduction some basic legal research to determine if there is just enough law to support a legal theory that both a judge and jury will believe.
  • 2. A. Case Screening. We instinctively need to believe everything a prospective client reveals as they detail the facts of their case during the initial contact. However, we cautiously recognize there are two sides to every story. It is impossible during the first interview not to think, if only for a moment, this is a “million-dollar” case. We become entrapped in the believability of a clear wrong that needs our help to make right and empower true justice. Unfortunately, we often only listen to the positive facts as they are described. Liability seems clear and the damages are off the charts. We find ourselves energized with the excitement of a new case. We rush around the office and tell our colleagues about the new case and proclaim we cannot wait to get the Petition filed as soon as possible. Caught in the frenzy, we picture ourselves standing in front of a jury as we make a detailed blueprint of an opening statement. We visualize an exhilarating cross-examination of an untouchable expert. We plan for the moment during the final argument as the jury is mesmerized by the skillful case we have presented before hearing the judge announce victory. If only it were that easy!! In reality, the hastily filed case often concludes with an adverse ruling by a judge or a defense verdict from a jury. Why? And, what can we do to minimize the risks of such a result. No case is flawless but with a thoughtful pre-suit investigation, we may hedge our risk and save ourselves some disappointment. Perhaps the best place to begin screening our potential case is to refresh our memory of the jury instructions. Usually, we glance at the jury instruction as the case approaches the trial date rather than at the beginning of a case. More typical, however, we first glance at the jury instructions in a state of panic. Our panic is the result of yet another deadline we failed to plan for as our legal assistant proclaims, “the proposed jury instructions are due in Smith v.Jones today.” After a few expletives and a hollow promise to never let this happen again, we instruct our trusty legal assistant to copy and paste the jury instruction from “that case we tried a few years ago!!” The Oklahoma Uniform Jury Instructions (OUJI) identify the essential elements of each legal theory we encounter. A quick refresher course at the pre-suit stage assists our focus
  • 3. on the elements of the case and facts we should gather to have a successful case. The jury instructions are easy to find and easy to read. Although we might think of the jury instructions as the last thing the jury hears at the conclusion of the evidence, they are an important tool to utilize at the beginning of the case for the lawyer and they provide a valuable guide to develop the theories of our case. A review of recent verdicts and settlements similar to the subject matter of our potential new case is extraordinarily valuable and provides invaluable insight in the screening process. There are several resources available to review this information. For example, numerous paid publications are available on websites or from private mediators. Other compilations can be obtained through Thompson/Reuters or Lexis/Nexis. Although these publications are useful tools, a phone call to a colleague that knows the judge and has practiced in the county is the best resource. You may learn the judge presiding in the county typically disfavors certain types of cases or simply has not experienced the subject matter of your potential case. The local lawyer will also know the demographic makeup of your potential jury and address the dreaded words “conservative” jurors. We can all agree access to information has changed over the past several years and continues to change daily. Not too many years ago, a facsimile or fax was new and innovative. We all believed this cutting edge technology would revolutionize our ability to communicate at speeds which seemed unimaginable. No one had heard or could even define the word internet. As we all experience, information today is only a click away. One of the biggest changes, obviously, is the use of social media. It continues to be increasingly important to closely monitor social media and use it as a tool in your case screening process. Each of us has experienced both positive and negative implications of social media. Social media allows us to reconnect with friends and stay connected to family. However, it has become a fertile source for trolling for the opposing attorney and finding surprises your potential client failed to disclose. It is well worth a few moments of your time to look at your potential client’s use of social media. A recent trend with some lawyers includes sending an introductory email before the first face-to-face meeting. The introductory email outlines the expectation of the lawyer and the firm’s communications policy. The introductory email can explain the firm’s
  • 4. procedures and methodology for case evaluation. Finally, it serves as a reminder to the prospective client to bring important documents to the meeting. All of which, further the goal of the case evaluation. If the initial contact with a potential client and a quick analysis of potential legal theories remains viable, schedule a face-to-face meeting. The purpose of the initial client interview is to gather additional facts, confirm information you have already gathered and prepare for the prospects of signing the client to a fee agreement. B. Initial Client Interview/Questionnaire Perhaps the single most important question to ask ourselves before taking any potential case is – Can I sell my client? In September of 2014, Forbes published an article by Kristi Hedges entitled “How Important is Your First Impression Really?” Hedges’ article cites to research conducted by Malcomb Gladwell which concludes that “our first impressions are fairly accurate and stand the test of time.” Our initial impressions of prospective clients are usually accurate too. The research conducted by Gladwell emphasis the need to carefully evaluate our potential cases within a basic framework of a fundamental question. Will a potential jury like my client and will they want to help them? We all can likely recall a few unfortunate instances where a great set of facts and damages were painstakingly prepared with hours of research, witness interviews and deposition testimony. The fruits of our labor, however, are rewarded with a defense verdict. We instinctively begin to second guess ourselves, second guess our strategy and ask the question of what could I have done differently. Despite these valid questions and concerns, the jury’s decision is actual the product of simply not liking or wanting to help your client. Our evaluation of a potential client begins the moment we introduce ourselves at the first interview. We have heard the cliché “you can’t judge a book by its cover” but our initial impression of the potential client will likely be the same first impression a juror will have of our client.
  • 5. Equally important is carefully evaluating the client’s version of the story. Does their version seem plausible? Does their explanation contain details or do they describe events in generalities? Does the client’s description reach conclusions or describe facts? Answers to these questions allows us to ask the right questions to gather all the facts and develop the possible themes of the case. Often times, the theme for the entire case is derived from the initial interview. The initial interview also allows for the opportunity to review specific documents the client brought to the meeting. If the client was involved in an auto accident for example, the accident report prepared by the investigating officer contains valuable information. Probing questions of the client about information contained within the accident report can serve as useful tool to test the client’s memory of important details of the accident. Medical records from a treating physician in a medical negligence case often reveal assessments of the client’s medical condition much different than the client’s version of the same events. Nevertheless, the information gathered from the records compared to the client’s memory of the events is essential in the pre-suit investigation. Before the conclusion of the initial meeting, present the client with a new client questionnaire. The new client questionnaire should not be complicated or complex. Generally, ask for basic contact information such as mailing address(es), telephone number(s) and email address(es). It is essential to gather this information at the outset. A new client questionnaire can also be used to gather other important facts. In a medical negligence case for example, requesting dates of treatment, names of health care providers and wage/salary information will prove useful as the evaluation process continues. It is also important to secure a medical authorization. The medical authorization will allow you access to the client’s medical records. Obtaining a copy of the medial records is necessary so both you and an expert can determine if your client’s health care provider practiced below the recognized standard of care. Finally, the new client questionnaire makes the process easier for the staff. The staff will need the same information to create the file on the firm’s practice management software. Additional information related to the fee and responsible attorney can easily be included
  • 6. within the new client questionnaire to assist the billing staff and check list for the fee agreement and payment of expenses. C. What You Can Find Out Before the Claim. The best way to maximize the value of the case is to work hard to gather facts. It may seem like a very basic point but we often miss a great opportunity to structure the case or claim at the right time. After the gathering the information from the client intake and interview, we are armed with the resources to develop the essential facts of the case. A quick reminder and glance at the jury instructions is also helpful. The items available for us to obtain at point include:  Names and Addresses of Medical Providers (pre and post – accident)  Names and Addresses of Employers and Tax Records  Names and Addresses of Witnesses  Photographs and Videos of the injuries and accident site  Social Media Search  Criminal Background Check  Review of OSCN With an executed medical authorization, an evaluation of the medical records is possible. There are numerous ways to gather the medical records which range from hiring a third party vendor securing the records with the help of the support staff. Once the medical records arrive, they should be carefully reviewed, organized and if necessary, request supplemental records. In a medical negligence case, for example, a qualified medical expert must review the records to determine if the target health care provider provided appropriate medical care within the accepted standard of care. Medical records also identify each and every person making contact with the client while under their care. A quick follow-up with these individual provides yet additional useful information to your case. An accident report contains a wealth of information too. Typically, the accident report will describe the event in question. It will identify witnesses to the accident and often will
  • 7. contain witness statements. Locate the witnesses on the accident report and ask to speak directly to them. Is the memory of the witness consistent with the statement they prepared at the time of the accident? Did the investigating officer accurately describe the witnesses’ account of the accident based on the interview we conduct? Most important, the documents and information we gather before the filing of the claim assists in formulating the damage model. The jury instructions provide a value guideline for the items of damages available for the jury’s consideration. The documents gathered at this point also serve as the initial draft of the witness and exhibit list. We all recognized that in most cases, there are two or three key witnesses and less than ten documents essential to the case. Identifying them early and being prepared before the lawsuit is filed lowers the anxiety level as the case moves forward. D. Funding Litigation Like most things, the costs of funding litigation continue increased over the years. Who funds or pays for the litigation expenses? What are the expense typically associated with litigation? Establishing a budget is a good first step before filing a lawsuit. Budgets obviously are benchmark and can easily be adjusted in the event of surprises or unforeseen events. Typically, however, the budget should include an estimate for the following expenses:  Pre-Lawsuit Expenses o Costs of obtaining medical records o Costs of obtaining accident reports o Costs of obtaining medical examiners records o Witness fees – especially law enforcement o Expert witness fees (accident reconstruction – medical doctors)  Discovery Expenses o Deposition Costs o Filing and Service Fee o Cost of document production o Expert Witness fees
  • 8. o Witness fees  Trial Expenses o Courtroom Exhibits o Trial Presentation/Production o Expert Witness fees Most often the expenses associated with each phase of the litigation falls on the shoulders of the firm. There are instances, however, where the client will assist with some or all of the litigation expenses. The process of analyzing a budget allows for a necessary evaluation of the case from an economic perspective – is the likely value of the case worth the cost of prosecution. Conclusion Spending time to investigate your potential client and case before filing the litigation is an important component to success. A thorough case screening process, client interview and budget planning are great first steps on the path to successful recovery; not only for your client, but for you.