"Everything you've been told about building
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How to spot a diamond in the rough

(and make money on medical malpractice cases)

Here’s the scenario: A client calls you with news that his wife was misdiagnosed by a physician and he wants to bring a medical malpractice lawsuit. Your mind races with thoughts.

The first question is whether you simply tell your client to call a medical malpractice lawyer or perhaps bring the client in for a meeting at your office.  Should you tell the client that you don’t handle medical malpractice? Should you try to get information about the claim?

The worst thing you can do

The absolute worst thing you can do is tell the client that you don’t handle medical malpractice and give the client the name and phone number of a malpractice lawyer.  So, what’s so wrong with this?  Lots.

The malpractice lawyer will screw you out of a referral fee if he can. Trust me, I see it happen all the time with cases that I refer to attorneys outside New York.  The malpractice lawyer will thank you over the phone for the referral, but you will never hear from him again. The malpractice lawyer is hoping you trust him and that you will forget to confirm the referral in writing.  You are completely screwed if you do this!

If you want a referral fee (and you should), you must get the referral memorialized in the retainer agreement and a separate written agreement between you and the malpractice lawyer that specifies the division of the legal fee. You are not entitled to a referral fee unless you do those two things.

The worst thing you can do is trust that the malpractice lawyer will honor your rights to a referral fee. Bad assumption! (I’ve been burned, trust me)

The first thing you should do

Okay, now you know what you don’t want to do with the new malpractice case.  But what is the best way for handling a new malpractice case even though you don’t handle malpractice cases and you are not sure what questions to ask?

The first words out of your mouth should be, “I can help you with that.”  When the client asks whether you handle medical malpractice cases, you should answer, “I work closely with attorney [fill in the blank of a medical malpractice lawyer] on medical malpractice cases and he and I will be happy to meet with you.”  As the referring lawyer, you are jointly responsible with the malpractice lawyer for the handling of the case and in my book, that means you better work closely with the malpractice lawyer–otherwise, both of you will be on the hook if the case is not handled well.

You want the client to stop his lawyer shopping.  If the client thinks you don’t handle medical malpractice cases, he will pick up the Yellow Pages and turn to the next lawyer on the list.  You want to stop this from happening.

If the client sustained a catastrophic injury or death, you should cancel your appointments immediately and go to the client’s house to meet them.  Everything else is small potatoes.  You need to lock down this new client immediately and the only way to do that is a face-to-face meeting.

Three Basic Questions to Ask the New Client

The first question for the client is, “When did this happen?” If the malpractice occurred more than 2 1/2 years ago (2 years in a wrongful death case), the statute of limitations expired and the conversation ends there. You need to determine whether the statute of limitations has expired–that’s step #1.

The second questions is, “Were you physically injured by the malpractice?”  I know this seems basic, but many clients want to sue even though they were not injured, i.e., “I’m okay now, but you won’t believe what happened to me at the hospital.”  Yeah, sure, but without a substantial or catastrophic injury, it doesn’t matter what happened at the hospital or doctor’s office.

The third question is, “Do you still have problems with this injury?” If your client had an injury, but has completely recovered, the case will not be worth pursuing. You need to make sure your client has a long-term, permanent injury to make the case worthwhile.

Many clients will answer third question by saying, “Oh, yes, I have horrible pain all the time.”  That’s fine, but you have to ask, “When was the last time you treated with a doctor for this injury?” You will be surprised by the answer: “I haven’t treated for over a year.”  See yah! If your client is not actively treating with a doctor for his injury, it’s very unlikely the injury is debilitating or painful as your client claims.

Why these Questions are so Important to a case evaluation

Medical malpractice cases are not cheap. The case expenses in a medical malpractice case typically range from $30,000 to $75,000, and in complex cases with multiple medical experts, the disbursements can exceed $100,000.  Even in the most basic and simple malpractice case, you can expect to spend at least $15,000.

Not to scare you, but there’s more bad news. Malpractice cases are never easy.  Even in the most clear-cut malpractice cases (yes, even in “foreign object” cases), the doctors and hospitals will fight like crazy to beat you up and convince you that your case stinks. The theme of every case is either: (1) it’s the patient’s fault; or (2) the other doctor screwed up, not me.  The doctor will never admit a mistake–that only happens on TV.

The bottom line for you is simple: Unless the liability is clear and the damages substantial, your client probably doesn’t have a case that is worth pursuing.

How to keep the client happy while giving him the bad news

It’s not easy breaking the bad news to the client that you can’t accept his case. Instead of simply mailing a rejection letter (which is a cold and impersonal way to reject a case), you take a more compassionate approach. You call the client.

In the cases where you got the medical records and had the case reviewed by a physician, you should let the client know the details about the case evaluation, i.e., “Your medical records were reviewed by a board certified orthopedic surgeon and he does not believe there was a deviation from accepted medical standards.”  Your new client will appreciate the time and attention you devoted to his case.

But in many cases, it just isn’t financially worthwhile to have the medical records reviewed by a doctor.  Just be straight with the client, i.e., “The statute of limitations on your case expired six months ago” or “The damages in your case are not enough to justify a malpractice lawsuit.”  Instead of a bogus story that you have a conflict of interest with the potential defendant (yes, I hear that one all the time from other malpractice lawyers), your client will appreciate your candor and honesty.

What all clients want (it’s not what you think)

At the end of the day, most new clients are all seeking the same thing (and no, it’s not money or justice): ANSWERS.  New clients want to know whether the injuries that they sustained were caused by preventable medical negligence, a/k/a “malpractice”.

Even when you reject a case, if you give clients the answers they are seeking, you’ve done your job and you increase the odds that your client will call you with his next case…hopefully the “diamond in the rough” that will fund the purchase of your vacation home in the Virgin Islands.

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