Vol. 77, No. 4, April 2004

Handle Personal Injury Practice with Care

by Ann Massie Nelson

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.

Wisconsin Lawyer