Vol. 77, No. 4, April
2004
Handle Personal Injury Practice with Care
Why is personal injury practice the source of one-fourth of legal
malpractice claims? An experienced PI lawyer-turned claims counsel
offers his insight.
by Ann Massie Nelson
Ann Massie
Nelson is a regular contributor to Wisconsin Lawyer
and communications director at Wisconsin Lawyers Mutual Insurance
Co.
Like the proverbial fish that got away, the personal injury case that
cannot be brought to trial because of the lawyer's negligence just grows
bigger and better with time and retelling.
Very few personal injury claims result in a jury trial. Nearly all
claims are settled through negotiation, mediation, or arbitration.
But the plaintiff who loses the opportunity to be heard in court
because of the lawyer's error - real or perceived - will forever believe
that his or her case was "the big one."
Juries, increasingly aware of exorbitant awards and dubious claims,
have lowered average awards in recent years, particularly in cases
involving soft-tissue injury claims, which are more difficult to
value.
"You can tell clients that juries are not as sympathetic as in the
past, but you always have uncertainty with a jury trial. The jury is the
wild card," says Brian C. Anderson, who practiced personal injury law
before joining Wisconsin Lawyers Mutual Insurance Co. (WILMIC) as claims
counsel.
Plaintiffs who aggressively pursue an injury claim can be equally
aggressive in pursuing a legal malpractice claim when they are
disappointed with the results, Anderson says.
Personal Injury is Highest Risk Area
Statistics kept by the National Legal Malpractice Data Center show
that legal malpractice claims arising out of personal injury practice
account for about one-fourth of claims made against lawyers, more than
those arising from any other single area of practice.
WILMIC's claims experience mirrors that of insurers nationwide. Since
1990, malpractice claims resulting from personal injury representation
have comprised 24 percent of the claims made (frequency) and 33 percent
of defense and indemnity dollars spent (severity).
According to Anderson, several common and often interrelated missteps
factor into making PI practice high risk, including:
- Missed statutes of limitation. Failure to file a
personal injury claim within the applicable statute of limitation is the
most common error cited. "An injured person may treat for months or
years. In the meantime, the plaintiff's lawyer waits to file the claim
until the medical records and bills are in and the value of the injury
claim is known. Sometimes the lawyer waits until the last day to file,
then discovers a calendaring error," he says.
- Failure to recognize intermediate deadlines, such
as those for naming expert witnesses, paying jury fees, or obtaining
independent medical examinations. "Clients often have difficulty
scheduling a vocational assessment or an appointment with a doctor to
determine permanency. Without these expert reports, the client doesn't
have a case," Anderson says. "If the case is dismissed, the client may
blame the lawyer."
- Practicing out of jurisdiction. The statute of
limitation for filing personal injury claims varies by state. For
example, a person injured in Beloit, Wis., has three years from the date
of the accident in which to file a claim, but someone injured across the
border in South Beloit, Ill., has only two years.
"Lawyers must ask clients exactly where and when the injury occurred.
Then, they need to ask themselves if it is wise practice to take a case
in a state where they are not licensed to practice law and cannot file a
lawsuit," Anderson notes.
- Inadequate preparation. Personal injury claimants
who advance to become legal malpractice claimants often say the lawyer
did not adequately prepare the personal injury case. The client who
doesn't want to pay for expert testimony or discovery in the underlying
personal injury case may forget that the lawyer recommended these
measures. "Wise lawyers document their advice to clients in writing,
particularly when the client chooses to act otherwise," Anderson
says.
- Unavailability of experts. Patients may see several
different doctors or health care providers during a course of treatment,
making it difficult for any one professional to become an expert on the
plaintiff's case. Consulting fees of $500 an hour or more and
unwillingness to testify or commit time further restrict access to
expert testimony.
- Doctors' distrust of lawyers. Doctors often are
wary of lawyers, whom they perceive as promoting medical malpractice
claims and litigation. "The medical profession needs the legal
profession, the legal profession needs the medical profession, and the
clients need both professions," Anderson says. "Without a good working
relationship between the two professions, the client suffers."
- Over-inflated expectations. Advertising by personal
injury law firms and highly publicized awards have many people believing
that filing a personal injury claim is an easy way to win big money.
Clients need to hear early on that they will be required to undergo
medical exams, complete paperwork, and testify at hearings or
mediations. "They devote a considerable amount of time and effort with
no guarantee of a good result. When they are disappointed with the
verdict or settlement they receive, they often look for someone to
blame," Anderson says.
- Tenuous attorney-client relationship. In some
personal injury practices, the lawyer-client relationship is more akin
to a blind date than a true relationship. Clients who choose their
lawyer based on a yellow pages ad and don't meet him or her until
moments before a hearing or mediation are unlikely to feel empathy when
the lawyer makes a mistake.
- Lawyer's share or lion's share? If the lawyer's
fees exceed the client's recovery, the client likely will be unhappy and
resentful. "The client will say, 'I'm the one who's injured, but my
lawyer made all the money,'" Anderson notes. In his private practice,
Anderson discounted his fees when the client's net recovery was less
than his fees.
- Dollars are not pain relievers. A settlement can
compensate a plaintiff for financial loss, but the pain, physical
limitations, and change in lifestyle as a result of a personal injury
remain. Sometimes, people who are suffering lash out at any available
target, including their lawyers who are attempting to help them.
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