Your Right to a Jury Trial
After depositions are completed, we will request a trial date and at that time, you have the right to select a trial by jury or a non-jury trial (also known as a “bench trial”). It is your constitutional right to a jury trial, and we want to make sure you have all of the information that you need to make this decision.
We will explain both options (i.e., jury or non-jury trial) and make our recommendation. However, we are only making a recommendation and you have complete authority to make the choice that you feel is best for your case.
What is a Trial by Jury?
A jury consists of 8 persons who are randomly selected to listen to the witnesses and evidence and decide what witnesses and evidence are credible and worthy of belief. At the end of the trial, 2 of the jurors are excused (known as “alternate jurors”) and 6 of the jurors are sent to the deliberation room to decide upon a verdict.
Once they complete their deliberations, the jurors will render a verdict that determines whether you win or lose your trial. 5 of the 6 jurors must agree upon the verdict.
What is a Non-Jury Trial?
You have the right to waive your right to a jury trial. When all of the parties (i.e., plaintiffs and defendants) waive their right to a jury trial, the facts and evidence will be heard by a Judge—this is known as a “bench trial”.
During a bench trial, there is no jury and the Judge is the sole finder of fact regarding the truthfulness of the witnesses and evidence. Instead of 6 jurors reaching a verdict, there is only 1 person, the Judge, who will render the final Decision that determines the outcome.
Differences between a Jury Trial and Non-Jury Trial
Juries can be very unpredictable. Even when the facts and evidence appear strongly in your favor, juries may disregard the evidence and base their verdict upon facts that are irrelevant.
Juries tend to have biases against personal injury victims due to publicity that inaccurately portrays our civil justice system, i.e., McDonald’s spilt coffee case. Many of the prospective jurors have pre-conceived notions that malpractice lawsuits are frivolous. For these reasons, you may begin the trial with the odds strongly favoring the defense.
On the other hand, Judges tend to be rational, logical and much more predictable than juries. Most judges have presided over many trials during their career and as a result, they tend to be very good as assessing the merit of a case. Judges rarely have pre-conceived biases and prejudices against malpractice and personal injury law that jurors often have.
Overall, non-jury trials tend to have fewer courtroom theatrics from defense counsel and result in more rational and predictable outcomes.
We believe that non-jury trials are better for your case. For this reason, we recommend that our clients waive the right to a jury trial. Of course, if you want a jury trial, we will respect your decision.
Even when you waive your right to a jury trial, the defense also has the right to a jury trial. It is very likely that the defendants will serve a “Demand for a “Jury Trial” within 15 days of a waiver of your right to a jury trial and if they request a jury, you will have a jury trial.
Please confirm your choice for a jury or non-jury trial by placing a checkmark next to the appropriate box below, sign and date below your decision and return this acknowledgment to John H. Fisher, P.C., 278 Wall Street, Kingston, New York 12401, Attn.: Corina Skidmore.
Thank you for the opportunity to represent you.
I want a jury trial: ___
I want a non-jury trial ___
_________________________________ Dated: ___________________
Our Medical Records Checklist
Name of Patient and Medical Facility
Name of Patient: _____________________
Medical Facility: _____________________
Dates of Treatment: _____________________
Date of Request: _____________________
Records Received on: _____________________
Records Requested Records Received
Nurse Progress Notes:
Physician Progress Notes:
Medication Record (“MAR”):
History and Physical:
Consent for Surgery:
Request Satisfied by Medical Facility: YES__ NO__
Corina Skidmore, Paralegal
John H. Fisher
Our Rules for Social Media
Social media posts, photographs and video can be full of damaging information that the defense lawyers will use against you. As soon as you file your lawsuit, the defense lawyers will be searching through your social media profiles (i.e., Facebook, Twitter, Instagram, etc.) for damaging information about you. Additionally, defense lawyers will be searching the social media profiles of your family, co-workers and friends.
We strongly recommend that you take the following three (3) steps to prevent the unwanted disclosure of damaging information from your social media profiles.
#1: Set the highest levels of security and privacy to all of your social media sites, so nothing can be viewed by the general public.
#2: Stop posting any photographs or other information on social media until the case has resolved.
#3: When in doubt, remove or “take down” photographs or postings from social media sites.
All social media content, even if set to private, may become subject to a court order and eventually have to be produced.
Any postings or photographs that are removed should be printed and preserved before they are removed. Even when you delete or remove posts on your social media profile, they will still exist on the timeline of your friends and followers and you should not assume that your social media posts are unavailable to the defense lawyers.
If you need help following Our Rules for Social Media, please call us.
Please sign Our Rules for Social Media, where indicated, to acknowledge that you read, understand and will follow Our Rules for Social Media.
Our Rules of Engagement for Referrals
PURPOSE: To make expectations clear to lawyers who refer cases to us.
We would not be in business without your referrals and we are grateful that you entrusted your client’s case to us.
We have 3 basic beliefs about lawyer referrals:
#1: You will not hear, “We didn’t know you referred it”, from our firm.
#2: Once a client has been identified in our case management system (Trialworks) as having been referred by you, any future case which that client, or the client’s family members or friends, may refer also counts as a referral from you, even if they contacted us directly.
#3: Since we only handle medical malpractice and catastrophic injury cases, we refer all clients back to the referring attorney for all other legal matters.
Our Rules of Engagement are intended to lay out exactly what you can expect from us as well as your rights as our referral partner.
RULE #1: CONTACT WITH CLIENT
Clients referred to John H. Fisher, P.C. shall be contacted within 24 hours of the referral.
John H. Fisher, P.C. shall notify our referral partner that we either:
- Contacted client and declined,
- Contacted client and the potential is “under consideration”, or
- Unable to contact client.
If the client is declined, John H. Fisher, P.C. shall send written correspondence (i.e., print letter sent via regular mail) stating that John H. Fisher, P.C. decline to pursue the case and a copy of such correspondence shall be sent to our referral partner.
For cases that are “under consideration”, we will need more information to evaluate the case. Usually this means that we will need to review the medical records and/or consult with a physician. Cases are moved to “under consideration” in our case management system if we do not decline the case after the initial contact with the client.
If we are unable to contact client, the client did not respond to our phone calls and/or emails.
RULE #2: OUR CASE EVALUATION
In almost all cases, “Under consideration” cases will be evaluated by John H. Fisher AND a physician who is board certified in general surgery. The evaluation of “under consideration” cases involves a review of the medical records and a face-to-face meeting between John H. Fisher and the physician/surgeon.
For “under consideration” cases, you will receive an email specifying the work done on the case. In most cases, our email update will specify that we:
- Obtained the medical records,
- Reviewed the records with a physician/surgeon, and
- Our expert’s opinion regarding the merit of the case.
With our Case Evaluation, you will be able to address the specifics of the case with your client and the reasons that we are continuing to evaluate the case or have declined the case.
RULE #3: RETAINER AGREEMENT
Upon acceptance of a case (i.e., a decision has been made to file a lawsuit), you will receive a Retainer Agreement and a Memorandum Concerning the Division of the Fee.
John H. Fisher, P.C. shall enter into a retainer agreement with the client which complies with the New York Rules of Professional Conduct. Our retainer agreement is attached. The Retainer Agreement will specify that the case was referred to us by you and that you will share in the division of the legal fee.
The division of the legal fee will be specified in the Memorandum Concerning the Division of the Fee, and a signed copy will be attached to the client’s Retainer Agreement. Our Memorandum Concerning the Division of the Fee is attached.
RULE #4: STATUS OF THE LAWSUIT
For cases that we accept for litigation, you will be notified when:
- Summons and complaint are filed,
- Trial date is scheduled, and
- Settlement or Judgment
Upon your request, we will provide you with a compact disc (“CD”) that contains the complete case file, including the pleadings, discovery responses and demands, deposition transcripts and internal memoranda. Alternatively, we will send the entire case file to you via Dropbox.com.
RULE #5: MALPRACTICE INSURANCE POLICY
Upon request, we will provide you with a copy of our malpractice insurance policy.
RULE #6: SETTLEMENT
John H. Fisher, P.C. will contact our Referral Partner before finalizing the settlement to confirm expenses and liens.
Upon settlement, a copy of the Settlement Statement signed by the client approving the settlement shall accompany the settlement check. The Settlement Statement will reflect the attorneys’ fees, disbursements, liens and the client’s net recovery.
JOHN H. FISHER, P.C.
_____________________________ Dated: ____________________
John H. Fisher
Our Rules of Engagement
PURPOSE: To make expectations clear to lawyers to whom we refer cases.
- All clients referred to attorney or firm (hereinafter referred to as our “Referral Partner”) shall be contacted within 24 hours of the referral.
- Our Referral Partner shall notify John H. Fisher, P.C. that they either:
- Contacted client and declined,
- Contacted client and made appointment, or
- Unable to contact. If unable to contact, John H. Fisher, P.C. shall attempt to make sure such referral is not lost.
Such notice to John H. Fisher, P.C. shall be sent to our paralegal, Corina Skidmore, via email at email@example.com or via fax at 845-802-0052.
- If the client is declined, our Referral Partner shall send written correspondence (i.e., print letter sent via regular mail) stating the attorney or firm as well as John H. Fisher, P.C. decline to pursue the case and a copy of such correspondence shall be sent to John H. Fisher, P.C.
- If the referral is accepted and the lawsuit will be filed in New York State, our Referral Partner shall enter into a retainer agreement with the client which complies with the New York Rules of Professional Conduct. A retainer agreement similar to the attached is acceptable. John H. Fisher, P.C. must approve any retainer agreement used by our Referral Partner for clients referred.
- If the referral is accepted and the lawsuit will be filed in a venue that is outside of New York State, our Referral Partner shall enter into a retainer agreement with the client which complies with the Model Rules of Professional Responsibility and/or the ethical rules applicable to fee sharing in the venue where the lawsuit will be filed.
- Upon request, our Referral Partner shall provide a copy of their malpractice insurance policy to John H. Fisher, P.C.
- When referring a client, John H. Fisher, P.C. expects our Referral Partner to keep in communication with the client. The client may, but should not have to, contact John H. Fisher, P.C. for status on their case.
- If our Referral Partner accepts the referral for litigation, the summons and complaint shall be filed within forty-five (45) days of the acceptance of the case for litigation.
- A copy of the filed summons and complaint shall be provided to John H. Fisher, P.C. upon filing.
The date-stamped summons and complaint should be sent via email to Corina Skidmore at firstname.lastname@example.org or by fax at 845-802-0052.
- Our Referral Partner shall contact John H. Fisher, P.C. at least once every six (6) months concerning the status of the referred case, i.e., “Depositions have been completed, a note of issue has been filed, and we will request a trial date at the next court conference.”
We expect to receive an update from our Referral Partners when the following occur in a referred case:
- Acceptance of the case for litigation,
- Filing of the lawsuit,
- Completion of Discovery,
- Scheduling of the trial date,
- Settlement or Jury Verdict
John H. Fisher, P.C. will always appreciate more frequent updates from our Referral Partners about the status of the referred case.
- Our Referral Partner shall contact John H. Fisher, P.C. before finalizing the settlement to confirm expenses and liens.
- Upon settlement, a copy of the Settlement Statement signed by the client approving the distribution of the settlement shall accompany the settlement check. The Settlement Statement shall reflect attorneys’ fees, disbursements, liens and the client’s net recovery.
_____________________________ Dated: ____________________
(Attorney and Name of Firm)
PURPOSE: To determine whether the legal fee justifies the expense of litigation.
There are three categories of case expenses: (1) Pre-Lawsuit Expenses, (2) Discovery Expenses, and (3) Trial Expenses. The “Pre-Lawsuit Expenses” are incurred before the filing of the lawsuit. The “Discovery Expenses” are incurred between the filing of the lawsuit and the filing of the note of issue, and the “Trial Expenses” are incurred between the filing of the note of issue and the completion of the trial.
The lawyer, paralegal, and secretary should prepare, review and sign the Case Budget before every lawsuit is filed. The total expenses of the Case Budget, the settlement value and the ratio of the legal fee to expenses should be entered in the Client/Retainer tab in Trialworks, and the Case Budget should be scanned into the Miscellaneous tab in Trialworks.
#1: Pre-Lawsuit Expenses
(Expenses Incurred Before Filing of Lawsuit)
Expert Witness Fee*: $_______
Medical Records Fees: $_______
Consultation Fee of Charles Gabelman, M.D.: $_______
*An expert witness should not be retained until we receive a written estimate of their fee and the expert confirms that he/she will not exceed the amount of the estimate without prior authorization from us.
#2: Discovery Expenses
(Expenses between the Filing of Lawsuit to Note of Issue)
Filing Fees: $_______
Process service Fees: $_______
Subpoena Fees: $_______
Medical Records—Photocopy Fees: $_______
Postage—Federal Express Fees: $_______
Fees of Consultant, Charles Gabelman, M.D.: $_______
Number of Depositions: _______
- Stenographer fees for depositions: $_______
- Videographer fees for depositions: $_______
Number of Expert Witnesses:_______
Life Care Planner:_______
- Review of File by Expert: $_______
- Lawyer’s Meeting with Expert: $_______
TOTAL Expert Witness Fees*: $_______
#3: Trial Expenses
(Expenses between the Filing of the Note of Issue and Trial)
Expert Witness Fees:
Number of Expert Witnesses: ________
- Transportation and Lodging: $_______
- Review of File by Expert: $_______
- Lawyer’s Meeting with Expert: $_______
- Trial Testimony: $_______
TOTAL Expert Witness Fees*:$_______
Focus Group Expenses: $_______
Process Service Fees: $________
Subpoena Fees: $________
Fees of Consultant, Charles Gabelman, M.D.: $_______
Editing Fees for Videotape Depositions: $_______
Playback of Videotape Depositions at Trial: $_______
Courtroom Exhibit Fees: $_______
Transportation, Meals and Lodging Expenses for Attorney: $_______
Transportation, Meals and Lodging Expenses for Paralegal: $_______
Court Reporter Fees for Trial Transcripts:$_______
Summary of Expenses
- PRE-SUIT EXPENSES: $_______
- DISCOVERY EXPENSES: $_______
- TRIAL EXPENSES: $_______
TOTAL EXPENSES: $_________
Ratio of Legal Fee to Expenses
Settlement Value: $________
Total Legal Fee: $___________
Legal Fee to John H. Fisher, P.C.: $_______
Ratio of Legal Fee to Expenses: _______[Goal: Ratio of 10 to 1 for Legal Fee/Expenses]
Letter to Expert Witness
Thank you for agreeing to provide your objective and independent evaluation of the records. We appreciate the opportunity to work with you.
We hope you appreciate that we must budget carefully for the expenses of each case. In order to avoid unexpectedly large expert fees, we created this agreement for the purpose of setting forth our expectations for your invoices and in those cases where you agree to testify at trial, what we expect from you in the preparation for depositions and trial.
This agreement covers the following:
#1: Budget for the Initial Case Review,
#2: What to Expect After the Initial Case Review,
#3: Billing Procedures
If this agreement is acceptable, please keep a signed copy and review it from time-to-time as a reminder of our billing procedures and expectations. We look forward to working with you and appreciate your understanding and acceptance of our policies.
#1: Budget for the Initial Case Review
We will send you the medical records in the format of your choice (email, Drobox or paper copy) and we ask that you send an email to our paralegal, Corina Skidmore (email@example.com) with an estimate of your time and anticipated fee for the initial review of the records, i.e., “Will need 5 hours review the records at an hourly rate of $400. I expect to complete the review for $2,000.” The estimate of your fee is the “budget” for the initial case review.
If your budget for the initial review of the records is acceptable, Corina Skidmore will respond with an email to you that accepts your budget and authorizes the work. Please do not begin your review of the records until you receive approval from Corina Skidmore.
Do Not Exceed the Budget Without Prior Approval
Please do not send an invoice exceeding the budget without prior written approval from Corina Skidmore or John Fisher. For example, if the budget is $2k, we do not expect to receive an invoice exceeding $2k, unless you have obtained prior approval.
We understand that there will be occasions that you may under-estimate the length of time to review the records. If you under-estimate the length of time, please send an email to Corina Skidmore with an estimate of the additional time and fees, i.e., “Seeking approval for an additional 2 hours at my hourly rate of $400 to complete the review of the records.” With rare exception, Corina Skidmore will authorize the additional time and expense.
If there are certain records that were not included in the records provided to you, please send an email to Corina Skidmore (firstname.lastname@example.org) and specify the records that were not provided.
#2: What to Expect After the Initial Case Review
If you express an opinion that the case has merit and you agree to be an expert witness, there are three distinct phases of work after the Initial Case Review:
- Review of Deposition Transcripts,
- Preparation for Trial, and
- Attendance at the Trial.
We would like to create an estimate of your fees for every aspect of the lawsuit. Similar to the budget for the Initial Case Review, we ask that your time and fees stay within a budget for your review of the deposition transcripts, preparation for trial and attendance at the trial.
Following your Initial Case Review, please provide us with your “Fee Schedule”. The Fee Schedule should provide your fees and hourly rates for the review of records, meeting(s) with the lawyer, travel and hotel fees, and your fee for your attendance at the trial. Your Fee Schedule should specify whether your fees are partially refundable in the event the case is resolved before the retainer fee is spent.
If you do not have a Fee Schedule, we ask that you send an email to Corina Skidmore (email@example.com) with an estimate of your time and anticipated fee as you continue to work on the case.
Review of Deposition Transcripts
Following the completion of depositions, we will send the deposition transcripts to you via Drobox or regular mail and we ask that you send an email to Corina Skidmore (firstname.lastname@example.org) with an estimate of your time and fee for reviewing them, i.e., “Will need 5 hours to review the deposition transcripts at my hourly rate of $400 for a total fee of $2k”. Corina Skidmore will respond by email in order to approve the additional time and work.
There are no depositions of expert witnesses in New York State.
Meeting with Lawyer Before Depositions
In almost every lawsuit, John Fisher will meet with you at a location of your choice one week before the deposition of the primary defendant (the “primary defendant” is typically the first-named defendant in the caption of the lawsuit). This meeting will help John Fisher prepare for the deposition in terms of the questions that should be asked as well as the defendants’ anticipated testimony. We expect that you will be thoroughly prepared to discuss the deposition of the primary defendant at the meeting with John Fisher.
Scheduling Your Trial Testimony
We will notify you of the trial date usually 6-9 months in advance. We will notify you of the date that the trial will begin and in most cases, we will ask you to testify on the second or third day of the trial. For example, if the trial begins on January 16th, you will be asked to testify on January 17th or January 18th.
We have limited flexibility in terms of scheduling your trial testimony, and for that reason, you should call us (845-802-0047) ASAP if you cannot testify on any of the dates that we propose for your trial testimony. We can arrange for your travel and hotel accommodations upon your request.
Preparation for Trial
At trial, we expect that you will be thoroughly familiar with the medical records and deposition transcripts. Being thoroughly familiar with the medical records and deposition transcripts is the most important thing you can do.
About one to two weeks before the trial date, John Fisher will meet with you at a location of your choice to prepare for trial. At this meeting, it is very important that you are ready to discuss your anticipated testimony, including:
- Specific deviations from the standard of care by each of the defendants,
- Whether the deviations from the standard of care were a substantial factor in causing the injury/death, and
- Anticipated counter arguments/excuses from the defense.
Please do not come to the meeting with John Fisher if you are not prepared to address these issues.
Attendance at the Trial
After you have been notified of the trial date and you agree to set aside a day to testify, we cannot change the date of your trial testimony. If you cannot testify at the trial (for any reason), you must inform us in writing at least 3 months before the trial date.
Your attendance at the trial is not optional or discretionary. The lawsuit will almost certainly be dismissed if you do not attend the trial.
Bring the Case File to Trial
In New York, Judges require that you bring the ENTIRE case file with you to court. You may not be permitted to testify at trial if you do not bring the entire case file to trial.
The case file consists of all of the documents that you have been provided, including:
- Medical Records,
- Deposition Transcripts,
- Expert Responses and Bills of Particulars,
If you are unsure whether a particular document is part of the case file, please bring the document to the trial or send an email to Corina Skidmore (email@example.com) for clarification.
Please keep in mind that all of the documents in your case file will be inspected by the defense trial prior to cross-examination, and you will likely be asked about your billing records and hand-written notes during cross-examination.
Retain the Case File
Please do not discard the case file until you receive our written permission.
#3: Billing Procedures
Please keep your billing current within 30 days of the date that you spent time on the case.
Please itemize the time in your invoices, i.e., “45 minutes: review of deposition transcript of non-party witness, John Smith”. We must be accountable to our clients for case expenditures, and consequently, we must be able to show that every expense benefitted their case.
Please Sign Our Agreement
Thank you for your understanding and consideration of our need to carefully budget for the expenses that we incur for expert witnesses.
If the terms of this agreement are unacceptable, we will respect your decision. If the terms are acceptable, please sign this agreement, where indicated, and return it to us via email (firstname.lastname@example.org).
James Smith, M.D.
John H. Fisher
Our Online Employment Advertisement
Amazing Opportunity for the Right Person—Director of Client Relations for the Law Firm of John H. Fisher, P.C.
Our Director of Client Relations, also known as our Problem Solver and Happiness Creator, is the front-line of our medical malpractice law firm. You will be expected to make our clients happy and solve their problems.
You will be responsible for obtaining medical records, scheduling depositions, answering the phone and taking new case intake calls over the phone. Excellent keyboarding and computer skills are an absolute must! Prior experience in a plaintiffs’ personal injury law firm is preferred, but not required.
We hire motivated people, set high expectations and give our people room to be remarkable. We have a beautiful office in historic, uptown Kingston, and a culture that is stimulating and unique. You will have massive amounts of responsibility and freedom and you will be rewarded for being a human, not a cog in a machine.
What You Will Get
You will get challenges and responsibility and the best money and benefits in the market. We have an exciting and fun workplace and you will get to play an important role in improving the lives of severely, disabled persons. We offer plenty of opportunity for your professional and personal development.
You will receive:
- Medical Insurance (employee premiums 100% covered),
- 18 Paid Days Off in your first year,
- Healthy Lifestyle Program with a personal trainer and nutritionist at your disposal (cost is 100% covered),
- $5,000 allowance every year for personal development programs, and
- Dream Initiative Program with a Dream Manager at your disposal (cost is 100% covered).
What We’re About
We are a team of people who love to read books, listen to podcasts and ask 10X more questions than we give answers. We believe in building systems and policies for our work so we don’t have to do the same task over and over again. Getting the work done isn’t the goal, getting the system built that gets the work done is.
It’s not just about our law firm. It’s about YOU. We take care of each other and are back to back in the bunker willing to take shots for each other.
We want you to set new dreams and surpass them. We want you to become the best version of yourself!
We do not hire people who are:
- Smokers, and
- People who are scared to make decisions, need a job, or wish you would hand them a To-Do list.
You should send your resume and a cover letter to us via Federal Express. The subject line for your cover letter should read, “Why I am the Perfect Candidate to be Your Director of Client Relations”. Please include the contact information for three references (we will not contact them without first getting your permission).
Your cover letter should be addressed to Corina Skidmore, John H. Fisher, P.C., 278 Wall Street, Kingston, New York 12401.
Our Case Debriefing
Name of Lawsuit: Smith v. Hospital, et al.
Length of the Lawsuit
Date of Filing of Lawsuit: March 5, 2015
Date of Settlement/Judgment: December 7, 2016
Length of Lawsuit: 1 Year, 9 Months, 2 Day
Goal: 1 Year, 6 Months
Goal Accomplished? NO
# of Days Past Date of Goal: 3 Months, 2 Days
Legal Fee to Disbursement Ratio
Legal Fee (after deducting referral fee): $225,298.43
Ratio of Fee to Disbursements: 3.69/1
Goal Accomplished? NO
Settlement Value: $1.4 M
Settlement Goal: $1.5 M
Actual Settlement: $1,000,000
Goal Accomplished? NO
Amount of $ Below Goal: $400k
While we did not meet our settlement value, we avoided a defense verdict and our client’s net recovery will exceed $700k. Our client will have $ for her daughters’ college tuition and a retirement account. This is a positive!
Although we did not meet goal #1 for the duration of the lawsuit, we came close. Great job getting the case through discovery! We must NEVER agree to adjourn trial dates or court-ordered dates for depositions.
The disbursements were excessively high, primarily due to Dr. Jones’s ridiculously high fee of $25k. The ratio of the legal fee to disbursements of 3.69/1 is not close to our goal of 10/1.
We must have our expert witnesses agree to a budget for their fees for all of their work, not only the initial case review. Our experts should be asked for an estimate of their fees for the following:
- Initial case review,
- Review of deposition transcripts,
- Trial preparation, and
- Trial testimony.
If the expert cannot give a budget at the outset of the case, we need to prepare a budget that places limits on their fees, i.e., “Do not submit an invoice exceeding $2,500 for your review of the deposition transcripts without our prior approval in writing.”
Once we retain an expert witness and agree to their hourly rate, we are essentially stuck with them. Before we retain an expert witness, we should determine whether they have estimated fees for their services, i.e., trial testimony, etc. We may be able to create a budget based upon the expert’s fee schedule.
With rare exceptions (such as a neurosurgeon), a medical expert should not charge more than $10k for all of his/her work, including trial testimony.
Our Written Request for Medical Records
Thursday, April 20, 2017
Re: Request for Medical Records in Electronic Format Only
Date of Birth:
Dates of Service:
We represent [name of patient]. We are enclosing a HIPAA-compliant medical authorization allowing us to obtain the medical records of this patient.
We are requesting that you provide the patient’s medical records to us in an electronic format only, e.g., compact disc. We will not pay for paper copies of the patient’s medical records.
If you are unable to provide the medical records in electronic format, please notify us as soon as possible.
If your fee exceeds $25, please notify us via e-mail (email@example.com) in advance before sending the records. If you do not receive our prior approval for an expense exceeding $25, we will not pay the amount of your invoice that exceeds $25.
Please provide us with a Compact Disc (“CD”) that contains the complete medical record/chart of the above-named patient relative to the patient’s treatment for all dates of treatment of service specified above and all materials or information, including, but not limited to,
All medical records, hospital records, physicians’ records, surgeons’ records, consultation records, operative reports, physical therapy and other therapy records, x-ray(s), CT scan, MRI, PET scan and reports and other diagnostic studies; laboratory reports; patient information and history questionnaire; physicals and history; discharge summary; progress notes; prescriptions and medication records; nurses’ notes; correspondence; consent for treatment; and any other materials (whether written or stored, created or maintained in any other form) relating or pertaining to this patient, including documents and records received from or that were created by another provider.
If you are unable to transfer the medical records onto a compact disc, we ask that you email the medical records to our paralegal, Corina Skidmore, at firstname.lastname@example.org.
If you prefer to send the medical records via secure email, you can send them to our paralegal, Corina Skidmore, at email@example.com. If the medical records cannot be sent via email, we ask that you send the records to us via the website, www.Dropbox.com.
Under the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), health care providers are required to provide every patient a copy of their electronic health records, in a format of their choice, at a reasonable cost. Significantly, the HITECH Act preempts New York State law.
The HITECH Act provides that the individual making the request for protected health information (“PHI”) can designate a third-party to receive the information , i.e., an attorney. The enclosed HIPPA-compliant authorization designates the law firm of John H. Fisher, P.C. as the third-party who is authorized to receive the information. The HITECH Act also applies to personal representatives of the Estate of a deceased person.
The personal health information requested by an individual must be provided in the form requested by the individual, including in a readable electronic form if the covered entity uses electronic health records.  This can be a .PDF, compact disc, or as commented by the Department of Health & Human Services, via email if the individual is warned of the security risk associated with unencrypted email. 
Reasonable Cost-Based Fees
Under the HITECH Act, any fee that the covered entity may impose for providing an individual with a copy of electronic personal information shall not be greater than the entity’s labor costs in responding to the request for the copy.  The fees must be reasonable and cost-based. What is reasonable and cost-based should be determined on a case-by-case basis.
An entity’s labor costs for providing electronic records can only include: (1) labor for copying, whether in paper or electronic form, (2) supplies for creating the paper copy or electronic media; (3) postage if the individual has requested the information be mailed, and (4) if an individual has requested or agreed to an explanation or summary, the costs associated with preparing an explanation or summary of the PHI.
Deadline for Responding
Aside from some exceptions, a covered entity must act on the request no later than thirty (30) days from the receipt of the request by: (1) providing the requested information, or (2) providing the individual with written denial of the information.
If you are unable to comply with the thirty (30) day deadline for providing the requested medical records, we ask that you contact us in writing before the deadline expires. In your letter, you must provide a written statement of the reasons for the delay and the date by which you will provide the medical records. Under the HITECH Act, you are only provided one such extension of time.
Penalties for Non-Compliance with the Act
There are substantial monetary fines and penalties for failing to comply with the HITECH Act. The Office of Civil Rights of the Department of Health and Human Services can investigate complaints and levy fines for violation of the Act. If a healthcare provider is found to have “willfully neglected” a provision or provisions of the Act, the Office of Civil Rights of the Department of Health and Human Services will impose mandatory fines of up to $250,000 and up to $1.5 million for repeat or uncorrected violations.
Thank you in advance for your cooperation.
Very truly yours,
JOHN H. FISHER, P.C.
Rules of Communication for Email—The Email Auto Responder
WARNING! I rarely review email because I am focused on doing work and putting my heart and soul into our current cases. If you would like a quick response, please call us at 845-802-0047.
Special Message for Our Clients
If you are one our clients, the work that we do on your case always comes first and I cannot let distractions (like email) get in the way. If I spent all the time necessary to respond to email, I wouldn’t have time to do our best work on your case. We hope you understand.
If you would like an update about your case, please call us at 845-802-0047 and ask for Travis Van De Water, our Problem Solver and Happiness Maker. Jane will be happy to answer all of your questions.
If you’d like to speak with me, we can talk by phone or we can meet face-to-face. Please send an email to Travis (firstname.lastname@example.org) that explains the purpose of our phone call or meeting and he will schedule a date and time that is convenient for you. Your email will help make our phone call or meeting much more productive.
As a friendly reminder, attached is a copy of “John’s 3 Rules of Communication”.
Special Message for our Referral Partners
If you are one of our referral partners, we are grateful for your referrals and you can call me any time on my cell phone. If you do not have my cell phone number, please call my office at 845-802-0047 and if I am not available, Travis will give you my cell phone number.
If you would like an update about the status of a referred case, please call us at 845-802-0047. If I am not available, ask for our world-class paralegal, Corina Skidmore. Corina is intimately familiar with our cases and she will be happy to give you an update.
Message to Sales People
I do not accept cold-calls. If you’d like to speak with me, you must have an appointment.
To make an appointment, you must first send an email explaining the purpose of the phone call. You should send the email to Jane Doe at email@example.com. If I agree to speak with you, Jane Doe will contact you to schedule a date and time for our phone call.
The Reason We Exist: Stopping Medical Injustice
What You Are Expected To Do
PURPOSE: To clarify what we expect from you during your lawsuit.
We are grateful for the opportunity to represent you. We set very high standards for your case and we expect that you will hold us to those standards.
We can’t do our job without your help. We want you to know what your responsibilities are and what we expect from you. If this seems inconvenient or your lawsuit might not be a top priority for you, please tell us before you sign the retainer agreement. We are extremely selective and only work with clients who are responsive, cooperative and committed to giving their lawsuit the best chance for success.
The Goal for Your Case
The goal is simple: to get your case to trial as quickly as possible. To get your case to trial, we try to complete the “discovery” phase of your lawsuit as quickly as possible. The discovery phase of a lawsuit is the paperwork and depositions that take place between the filing of the lawsuit and when we ask for a trial date, i.e., filing of a note of issue.
Discovery consists of:
- Exchange of medical records,
- Defense medical examination(s) and
- Exchange of documents known as “discovery demands and discovery responses”.
The goal is to complete the discovery phase of your lawsuit in six months. But keep in mind, the defendants’ goal is to delay and postpone your lawsuit whenever possible, and if we do not provide the defense will all of the medical records and discovery responses, your lawsuit will face a series of postponements and delays…and that is never good. The best way to avoid delays is to give the defense lawyers a complete set of medical records and discovery responses as quickly as possible.
Your Responsibility #1: Getting Your Records
There is a lot of paperwork that is gathered and provided to defense counsel during the “discovery” phase of your lawsuit. The most common records are your medical and employment records and we ask that you provide us with a complete list of your medical providers (hospitals, doctors) with dates of treatment and the places of your employment with addresses and dates of employment.
Attached is our Pre-Litigation Checklist that lists the documents that we need. If you have any of the documents listed on the Pre-Litigation Checklist, please send them to us via email, Dropbox.com or regular mail and we will scan them into our electronic case management system and return paper copies to you. This will make our job much easier.
If you possess your medical records, tax returns and/or W-2 statements, please provide copies to us. If you do not have these records, we will ask you to sign a Power of Attorney form that authorizes us to request your medical and employment records. It is very important that you sign and return the Power of Attorney to us as soon as possible.
Your Responsibility #2: Your Deposition
Once the paperwork is exchanged with the defense lawyers, we will schedule your deposition. At your deposition, the defense lawyers will ask questions under oath about your past medical history, treatment with the defendant physician and your injuries and loss of income. John Fisher will make sure the defense lawyer does not ask improper questions at your deposition.
To prepare for your deposition, we will ask you to do three things:
- Review your Bill of Particulars (a copy will be given to you),
- Meet with John Fisher one-week before the deposition, and
- Tell us everything about your past that could be surprising or damaging to your case, i.e., unfiled tax returns, personal bankruptcy, criminal conviction, etc.
At your meeting with John Fisher, you will be told what to do expect at your deposition and the type of questions that the defense lawyer will ask. If you don’t have time to meet with John or you hide information from us, your deposition will not go well. Taking the time to prepare for your deposition is crucial to the success of your lawsuit.
We Can’t Do Our Job without Your Help
We will do most of the work in your lawsuit, but we can’t do this without your help. If you don’t respond to our emails or phone calls and provide the documents that we need, your case will face an endless series of delays and adjournments from the defense lawyers. And if you are continually non-responsive to our emails and phone calls, we may be forced to end our attorney-client relationship. We hope that won’t be necessary.
If you are willing to accept your responsibilities for your case, please sign and date this agreement where indicated and return the signed agreement to us by email (firstname.lastname@example.org), fax (845-802-0052) or regular mail.
Thank you in advance for taking this agreement seriously. We look forward to getting your case to trial and getting the best results for you.
Signature of Client
The Litigation Checklist
As each task is completed, check the appropriate box and bring the Litigation Checklist to our weekly Goal Meetings for review and signing by each team member.
#1: Pre-Litigation Checklist: ____
#2: “Records to Defense” Letter: ____
#3: “Deposition” Letter: ____
#4: “Discovery” Letter: ____
#5: “Original Chart Review” Letter: ____
#6: “Discovery Owed” Letter: ____
#7: Schedule Meeting with Client to Prepare for EBT: ____
#8: Schedule Meeting with Expert Witness: ____
#9: Schedule Stenographer and Videographer for EBT: ____
#10: “Original Chart to Deposition” Letter: ____
#11: “Additional Discovery” Letter: ____
#12: “Materials to Expert” Letter: ____
9 Basic Rules for Answering the Phone
These are the 9 basic rules at our law firm for answering the phone. We laminate our rules and ask that our receptionist keep them facing her at her desk. These rules are a constant reminder of how we expect our receptionist to answer the phone and deal with our clients. If you do not have simple rules for answering the phone, your receptionist will create her own rules…and you might not like what you hear.
We see our clients as invited guests to a party and we are the hosts. It’s our job every day to make every part of our clients’ experience a little better.
Rule #1: Answer the Phone in 3 Rings
Why it’s done this way: If it takes more than 3 rings to answer the phone, the caller will hang up and call the next lawyer.
Rule #2: Greet the Caller
Example: “Thank you for calling the law firm of John H. Fisher, P.C. How can I help you?”
Why it’s done this way: You are doing 2 things at the moment you answer the phone: #1: you are showing appreciation for the phone call and #2: you are extending an offer to help the caller. You should always answer the caller this way.
Rule#3: Use the Caller’s Name
Example: “Thank you, Mary, for calling us…Mary, do you have any other questions?”
Why it’s done this way: Everyone loves the sound of his or her name. You should use the caller’s name at the beginning of the phone call, at the end of the phone call and as often as you can during the call.
Rule #4: Be Empathetic
Example: In a death case, “I am very sorry for your loss.” In injury cases, you might express compassion by saying: “I am very sorry to hear this. We’ll do our best to help you.”
Why it’s done this way: We are not just another cold, faceless injury law firm. We care about our clients and our commitment to caring should be conveyed as soon as you learn about the caller’s loss (especially in death cases).
Rule #5: Smile!
Example: Put a mirror next on your desk and look at the mirror every time you answer the phone. Try to make sure you smile every time you answer the phone. Yes, this is strange at first, but this almost forces you to be in a positive, happy mindset with every phone call.
Why it’s done this way: Above all else, you should exude a welcoming, happy attitude with every new phone call. Looking at yourself in the mirror will show whether you are, in fact, happy and positive when you answer the phone.
Rule #6: Listen Without Interruption
Example: Do not speak until the caller stops speaking.
Why it’s done this way: Everyone hates being interrupted while they’re speaking–not to mention it’s rude. Be patient with the caller and let them finish what they are saying before you speak.
Rule #7: Confirm Satisfaction
Example: “Is there anything else we can help you with?”
Why it’s done this way: You want to confirm that you’ve answered all of the caller’s questions.
Rule #8: Take Ownership
Example: If the caller complains, take ownership by acknowledging our mistake and assuring them we will do better, i.e., “I am so sorry we did not get back to you sooner.”
Why it’s done this way: If the caller is unhappy, you should apologize and offer to make things right. The caller is not always right, but you should treat them as if they are.
Rule #9: Say “Thank you” and Invite Them Back
Example: “It was my pleasure speaking with you, Mary. Please don’t hesitate to call us if you think of any other questions.”
Why it’s done this way: You should always end the phone call by: #1: showing appreciation for the phone call, and #2: making a final offer to help again. This ends the call on a positive note.
We are very excited to begin working with you! We believe you will make an excellent addition to our team.
Why Your Position Contract Exists
In order to give you guidance and help you succeed, we prepared this “Position Contract” to describe the basic duties and tasks you will have as our “Problem Solver and Happiness Maker” (yes, that is your official title). Our paralegal, Corina Skidmore, will always be available to answer your questions.
More than anything, your Position Contract is your Roadmap for Success. We want you to know exactly what it will take to succeed with our law firm, as well as the high expectations that we set for you. We suggest that you read the Position Contract as often as you can.
Ultimately, our goal is that you move on to bigger and better things that our law firm. And we are here to help you achieve your goals and ambitions. Strive to continue your personal development every day—attend seminars and workshops, go to a personal trainer and nutritionist, start jogging, participate in our Dream Manager Program, etc. Let us know what we can do to help you get to the next step in your career, even if that means leaving our law firm.
With this Position Contract, we are giving you two books, “Fred Factor” and “Fish!” These books illustrate the “WOW” client service that we expect from you. We strongly recommend that you read the books and re-read them from time to time as a reminder of our commitment to a “WOW” service.
Weekly Goal Meeting
We meet every Monday at 10 a.m. for our “Goal Meeting”. At the Goal Meeting, you should be prepared to do two things:
#1: Your “Positive Focus”: Tell us something in your life—personal or professional–that you are grateful for (your “positive focus”). When you start each day from a positive frame of mind, nothing bad can happen; and
#2: Your “Top 5 Goals”: Tell us your Top 5 goals for the week and your “Top 1 of 5”, i.e., your most important goal for the week.
The Top 5 Goals sets the agenda for your work week, i.e., what you want to accomplish. We suggest that you make your Top 5 Goals for the Week realistic, but not too easy—you want to stretch and accomplish more than you expect.
On the following Monday’s Goal Meeting, we will review the prior week’s goals and give you a score for each of the five goals ranging from 1 (nothing done) to 5 (goal was achieved). Scores in the range from 2, 3 and 4 reflect that you were partially successful, but did not complete, a goal. A top score for the week is 25.
In addition to your Top 5 Goals, you may have other goals that you’d like to accomplish—we call this our “Should-Do” List. You will receive 3 points for each goal that you accomplish from your “Should-Do” List.
Our Daily “Huddle”
At 9:15 a.m. every work day, we meet to discuss your Top 3 goals for the day. Similar to the weekly Goal Meeting, come ready with a “positive focus” and the Top 3 goals that you want to accomplish for the day.
At our Daily Huddle, there will be time for you to raise any questions or problems that you’re having, i.e., defense counsel refuses to cooperate in scheduling depositions. Corina and I will do our best to answer your question.
Arrive on time for the Daily Huddle no later than 9:15 a.m.—we do not want to have to get you. Don’t hesitate to speak up if there is a process or system in our office that we can do better. You will likely have insights that we never thought of.
How to Succeed at Our Law Firm
Your job is to provide our clients and referral partners with an amazing, “WOW!!!” experience that they’ve never had at any other law firm. We want our clients to love you and tell us how wonderful you are. Be proactive and take the initiative to call our clients and referral partners.
My best advice for you: make yourself indispensable. Give 10X more value than you receive. Think of ways to reduce our costs or increase our revenues. Always look for new cases to bring to our firm.
Make a decision, be proactive and don’t ask for permission. I am giving you permission to make mistakes. As long as you work hard and are completely committed to our clients, mistakes are acceptable.
No gossip or drama. We are brutally honest with each other and expect the same from you.
Our culture is HUNGRY and HUMBLE. We are highly motivated (hungry) and treat each other as equals (humble) and we hope you will embrace our culture. If a specific task or goal isn’t done by 5 p.m., it’s okay to stay until the job is done (we don’t mind).
Our Core Values
Our Core Values are the equivalent of the Ten Commandments that govern our conduct. You should become intimately familiar with our 5 Core Values:
#1: We only practice catastrophic injury law
#2: We never agree to confidential settlements
#3: We do not accept cases having questionable merit
#4: We strive for continuous improvement
#5: We are completely transparent and brutally honest with our clients
At our daily “Huddle”, we encourage you to tell us how you’ve implemented one of our firm’s core values. Core values mean nothing unless they are discussed and continually reinforced—we want you to show us how you have implemented value or two.
Our purpose that governs every decision that we make is, “Stopping Medical Injustice”.
Raises, Promotions and Probation
You will never be given a raise because of how long you work here. If you want a raise or bonus, earn it! Don’t just do your job—we already pay you fairly to do that. Produce more than we pay you do to, exceed our expectations and work to “WOW” our clients and referral partners. The responsibility to earn more money is on you.
The first six months will be a probationary period. In six months, we hope you will be doing more for our law firm than just the job we hired you to do.
YOUR THREE MAJOR RESPONSIBILITIES
You will have three major responsibilities:
Responsibility #1: Answering the Phone;
Responsibility #2: Getting Medical Records; and
Responsibility #3: Opening, Scanning and Emailing Correspondence
In this Position Contract, we’ve set forth your responsibilities in detail so you have a clear understanding of what we expect from you. Our office manual (“Our Team’s Playbook”) that is annexed to this Position Contract provides a complete set of our law firm’s policies and procedures. You should keep Our Team’s Playbook by your desk and refer to it whenever you are not sure what to do.
ANSWERING THE PHONE
You will be the front-line for answering our phones and scheduling appointments. The phone calls to our law firm generally consist of three types of phone calls and for purposes of clarity, the three types of phone calls are divided by category as follow:
Phone Call #1: Calls from New Clients
“New clients” are persons calling about a new case or attorneys referring a new case.
Phone Call #2: Calls from Existing Clients
“Existing clients” are our clients who have an active or potential ase with us.
Phone Call #3: Scheduling Depositions
Phone calls to schedule a deposition.
PHONE CALL #1
Phone Calls From New Clients
There are two kinds of new case calls:
(1) New cases that are NOT referred by an attorney; and
(2) New cases that are referred by an attorney.
The handling of the new case call will vary depending on whether the case is referred by an attorney. When a new client calls our law firm, the first question you should ask is: “How were you referred to us?”
If the new client was not referred by a lawyer, then follow the steps set forth in the category, “New Cases that are NOT Referred by Attorneys”.
If the new client was referred by a lawyer, then follow the steps set forth in the category called, “New Cases that are Referred by Attorneys”.
New Cases that are NOT Referred by Attorneys
When a new client calls with a potential case, the phone call should be transferred to our intake service company, Call Ruby. On the right-hand side of your phone, there is a button labeled, “Intake”, that you can press to send the new client directly to Call Ruby.
Once you determine that the client is calling with a new case, and was not referred by a lawyer, you should explain to the new client: “Will you mind holding for a moment while I transfer you to our Intake Specialist?” You should then press the button on your phone to transfer the client to Call Ruby. Your job is done after transferring the phone call.
New Cases that are Referred by Attorneys
When a case is referred by an attorney (what I call our “Referral Partners”), the call should be transferred to me. If I am not available to take the phone call, you should transfer the call to Corina.
I place the highest value on new cases referred by lawyers and I always want to speak directly with the lawyer when a new case is referred to us.
If I am not available, and Corina is not available, then you should schedule a time for me to speak with the Referral Partner (i.e., lawyer referring a new case) by phone or face-to-face. When scheduling an appointment, please check our Calendar in Microsoft Outlook to determine if I am available for the phone conference or meeting. I generally prefer to schedule phone appointments and meetings between 4 p.m. and 5:30 p.m.
There is no need to ask for my permission to schedule an appointment for me. If the Calendar has an opening for me, this means that I’m free and you can schedule the appointment.
When you schedule an appointment, please send me an email confirming that you scheduled an appointment for me.
If Corina and I are not available to speak with the client, you should enter all of the client’s contact information in the Intake Wizard in Trialworks (click the middle box in the upper right corner of Trialworks). The information from every new client should be entered into the Intake Wizard in Trialworks.
PHONE CALL #2
Phone Calls from Existing Clients
When an existing client calls to ask for information about the status of their case, you should try to answer their question. At first, this will be impossible since you are not familiar with our cases, but as you get familiar with the cases and our civil case management software program called Trialworks, you will be able to answer most of their questions.
The typical questions asked by clients vary and can range from: “What is the date of my deposition? When can I meet with John to prepare for my deposition? Have you received my settlement check?”
Our clients are typically severely disabled or handicapped. The most important thing is to express compassion and understanding. Our clients are sometimes difficult to handle and may be unreasonable, but you should treat them as though they are “always right”. By the time our clients’ case is over, you want to have a strong, lasting friendship with them.
If you can’t answer the clients’ questions, you should feel free to transfer the call to Corina. However, keep in mind that you should try to answer any questions whenever you can—so Corina is not interrupted by phone calls throughout her workday.
PHONE CALL #3
The procedure for scheduling depositions is contained in Chapter 11 of Our Team’s Playbook. Please don’t hesitate to ask questions of Corina or me about these procedures.
Corina will give you a list of cases where you will be asked to schedule dates for depositions with the secretaries of defendants’ attorneys.
We place the highest priority on our “A” cases, since they will have the highest monetary value. Every case has a “Priority Code” of either an “A”, “B”, “C” or “D” case and you can find the Priority Code in the “Case/Retainer” tab of Trialworks for every client with an Active Case (an “Active Case” is a case in which the lawsuit has been filed).
“A” cases: A settlement value over $1 million (our highest value cases that make the most $ for us);
“B” cases: A settlement value between $500k and $1 million;
“C” cases: A settlement value between $300k and $500k; and
“D” cases: A settlement value less than $300k.
Of all of the duties you will have at our law firm, the scheduling of depositions is the top priority. Our cases will not progress to trial until the depositions have been scheduled and completed and hence, we always want to avoid delays and adjournments of depositions.
We strongly recommend that you confirm dates for depositions with a letter to defense counsel, i.e., “Per our telephone conversation, the deposition of our client, Ms. Jones, will be held on June 15, 2017 at 10:00 a.m. at Valley Reporting Service in Kingston.”
In addition to confirming the deposition by phone and with a letter, you should also confirm in writing that the defendant will bring the original medical record to the deposition.
Call Forwarding When You’re Not in the Office
When you leave the office to do an errand, phone calls will be answered by our answering service, Call Ruby. There is a button on your phone that you can press to send all incoming phone calls to Call Ruby, so the calls will be answered while you are out of the office. Corina will show you how to transfer the calls to Call Ruby when you are out of the office.
When you leave the office at the end of the day, you should press a button your phone that directs all incoming phone calls to Call Ruby. When you leave the office, Call Ruby will answer the phone calls for you.
Ruby will take messages for us. The messages are sent to our office by e-mail. Please return all of these calls when you return to the office.
Unscheduled Phone Calls for John H. Fisher
Unless the caller is on my “VIP List”, I do NOT accept unscheduled phone calls.
My VIP List includes:
- Lawyers referring a new case (our “Referral Partners”),
- Claims adjusters with whom I am discussing a settlement,
- Judges, and
- My family members.
If the caller is not on my VIP List, you should tell them that I am unavailable and ask them to schedule a time to speak with me between 4:00 p.m. and 5:30 p.m. You should then enter the appointment in Google Calendar and send me an email informing me of the new phone appointment.
If a caller is not on my VIP List, ask them to send an email to you that specifies the purpose of the phone call. You should make a decision whether to schedule a phone call based upon the information provided.
If the caller is not on my VIP List and does not want to schedule an appointment to speak with me, you can always refer their call to Corina. However, I will not accept the phone call.
You should try to handle all calls that come into the office for Corina or I. Most times callers have a simple question that you can answer.
GETTING MEDICAL RECORDS
You will be responsible for requesting medical records. Our procedures for getting medical records are set forth in Chapter 10 of Our Team’s Playbook, entitled “Medical Records”.
Requesting Medical Records
In all of our cases, our clients sign a power of attorney that allows me to sign a release authorization on their behalf. A copy of the Power of Attorney is located in the Miscellaneous tab in Trialworks. With this Power of Attorney, our clients do not need to sign a release authorization since I am authorized to sign the release authorizations for them.
When I request medical records, I will send you an email that reads, “Please get Mr. Jones’s updated medical records from Dr. Smith from February 1, 2013 to the present”. It will be your job to prepare the release authorization for my signature and send the release authorization with the Power of Attorney to the treating physician or hospital. The request for the medical records should be mailed within 24 hours of the time that I ask you to get the medical records.
Follow-Up with Doctors and Hospitals
Most importantly, it will be your job to make sure that we receive the requested medical records form the physician or hospital. Oftentimes, the doctor or hospital will ignore our request for medical records for months.
Under section 18 of New York’s Public Health Law, the physician or hospital has ten (10) days to send the medical records to us. You should follow up with phone calls and letters to the physician or hospital if we have not received the medical records within ten days of our request.
We suggest that you follow up with the physician or hospital about the medical records within the following timeframes from the date of our initial request:
- 10 days
- 21 days
- 31 days
If we do not have the medical records within 31 days of our initial request to the physician or hospital, please notify Corina and me by email, i.e., “It has been more than 31 days since our request for Dr. Smith’s updated medical records and he has not responded.”
When we receive new medical records, you should scan the new medical records into the Medical Records tab in Trialworks. See page 96 (Chapter 10) of Our Team’s Playbook for additional procedures when receiving new medical records.
OPENING AND SCANNING MAIL
When you get the mail from the mailbox (mail arrives between 12:30 and 2:00), your top priority should be to:
- Sort mail before opening
- All non-client related mail goes to Corina (Rondout Savings, CDPHP, credit card bills…)
- Open the mail
- All invoices go to Corina
- Date-stamp when appropriate (items that are not stamped: original documents such as wills, death certificates, official court documents, original documents signed by clients like POAs)
- Scan the mail to the appropriate tab in Trialworks (see pages 126-130 of Our Team’s Playbook for the tabs in Trialworks where documents should be electronically filed)
- Email the correspondence to the intended recipient (John, Corina or both of us)
- No original mail goes to JHF.
This procedure for mail has the highest priority and everything else is second in priority. It is never acceptable to postpone the opening and scanning of new mail because you are busy doing something else. Mail should not be left sitting on your desk after it is received.
When we receive a fax, scan the fax to the appropriate tab in Trialworks and email the correspondence to the intended recipient.
We are a paperless office. If a document is not scanned into Trialworks AS SOON AS IT IS RECEIVED, our paperless office will not function.
All outgoing mail must be delivered to the Post Office by 4:30 pm every day.
Final Tips for Your Success
Random Acts of Kindness
Wowing our clients and referral partners is the #1 priority for you as our Problem Solver and Happiness Maker.
Our clients and prospective referral partners will get their first impression of our law firm from you. A friendly smile and a nice personal touch (i.e., “It’s great to hear from you.”) make all the difference. You should smile every time you answer the phone—a warm smile guarantees that you’re happy to speak with our clients.
You should do at least one “Random Act of Kindness” every day that will convey a warm, personal touch. The warm touch might be a handwritten “thank you” letter or a box of chocolates or flowers; your “random act of kindness” can be anything—use your imagination and be creative. You have my complete permission to perform “Random Acts of Kindness” as often and whenever you see a chance to “WOW” our clients and referral partners.
John’s Email Policy
I only review email twice a day—once at noon and again at 4:00 p.m. (some days I do not open Microsoft Outlook at all). I cannot be effective unless I have large blocks of uninterrupted work time and email is a constant annoyance.
If you have an urgent matter that requires my immediate attention (i.e., the Judge wants to speak with you right away), you should buzz my phone or come back to my office to tell me. Email is not an effective way to communicate urgent information to me.
Corina’s Executive Assistant
Whenever Corina asks for help, please do whatever she asks. The errands consist of getting the mail, delivering a document to another lawyer’s office, picking up an expert witness at the airport, picking up lunch for our clients/experts, or just about anything.
If the errand involves travel with your car, please keep track of your miles and tolls and you will be reimbursed for your travel expenses. Corina will provide you with an “Expense Reimbursement” sheet, which you can complete and get reimbursed by our bookkeeper.
Read Before You Sign
Read this Position Contract and let us know if you have any questions or disagree. When you are ready to commit yourself 100%, please sign each page of this Position Contract, return one original to us and keep one original.
Let’s get to work!
John H. Fisher
The Dream Manual
“What’s Your Dream?”
Purpose of the Dream Manual
We believe in the power of dreams and helping you achieve your dreams. But you may not wish to participate and if so, we respect your wishes. The Dream Manager program is optional and may not be for everyone.
For those who want to take the leap, this Dream Manual outlines the process for the Dream Manager program.
Your Dream Book
Begin by writing a list of 100 dreams in your Dream Book. Dream big and without limitation.
Next to each dream in your Dream Book, enter the date that you wrote the dream and when you plan to achieve it. The duration of a dream can be short-term (“ST”): less than one year; moderate-term (“MT”): 1 to 5 years; long-term (“LT”): more than 5 years. When you achieve a dream, mark the date in your Dream Book and add bigger dreams.
Glance through your Dream Book for a few moments every day just as a reminder of your dreams.
Your dreams may fall into any of 12 categories:
#1: Physical: lifestyle habits, addictions, exercise
#2: Emotional: relationships, security, helping others
#3: Intellectual: reading, learning, continuous improvement tasks
#4: Spiritual: peace with yourself
#5: Psychological: overcome fears and insecurities, develop willpower
#6: Material: home ownership, purchase a vehicle
#7: Professional: a promotion, develop a new product/service, sales/income goals, join Toastmasters
#8: Financial: become debt-free, investment goals, financial freedom
#9: Creative: explore the arts, write a book
#10: Adventure: mountain climbing, exotic holiday, take scuba diving
#11: Legacy: instill values in your children, volunteer, charitable giving, save the world
#12: Character: develop patience, walk the talk, earn respect, be worthy of trust
Your Dream Manager
The Dream Manager will help in articulating your dreams and formulate a plan for achieving your short-term, moderate-term and long-term dreams. The Dream Manager will help you design a savings plan and assess your financial situation.
The role of the Dream Manager:
#1: Meet with every employee,
#2: Discuss and give permission to pursue their dreams,
#3: Avoid judgment,
#4: Provide tools and accountability,
#5: Develop a plan to achieve their dreams,
#6: Meet to review their progress
Your Dream Sessions
You will meet with the Dream Manager for 30 minutes once a month to discuss your future and dreams. You may want to add more ambitious dreams to the list at the monthly dream sessions.
Just talking about our dreams moves us in the direction of them.
Matthew Kelly, The Dream Manager
Your spouse and children can join in the Dream Sessions, and you may want your spouse and children to have their own Dream Book.
Our Dream Fund
$1k is deposited in the Dream Fund from every settlement.
For each goal that a settlement meets, an additional deposit of $1k is made for the Dream Fund. The 3 goals consist of the Settlement Goal, Legal Fee to Disbursement Ratio and Duration of the Lawsuit:
#1: Settlement Goal: The settlement meets or exceeds the Settlement Goal for the case set forth in the Client/Retainer tab in Trialworks,
#2: Legal Fee to Disbursement Ratio: The legal fee to our firm (after deducting referral fees) exceeds our disbursements by a ratio of at least 10/1,
#3: Duration of the Lawsuit: The lawsuit is completed within 1 year and 6 months from the filing of the lawsuit until the first day of trial.
If all 3 goals are met, an additional bonus of $1k is deposited into the Dream Fund. When all 3 goals are met in a single case, $5k is deposited into the Dream Fund. In addition to provide funding for dream grants, the expenses of the Dream Manager Program (i.e., fees of the Dream Manager, bank fees) are paid through the Dream Fund.
Each employee can apply for a grant from the Dream Fund. The grant application should specify the amount being requested, the dream that the grant will be used to fund, and how the funds will be spent (i.e., airfare, hotel for trip). All participants in the Dream Manager program, including employees and management, vote to see who gets the grant.
The categories for grants are:
A grant from the Dream Fund is not intended to pay all of the expenses of a dream, but to fund a portion of it, i.e., 25%-35% of the total costs. We want to be your partner in achieving dreams, but the bulk of the saving and planning will be up to you.
When a grant is approved from the Dream Fund, payment will be made directly to the vendor providing the service; you will not receive a check from the Dream Fund.
A Few Final Suggestions
Read Matthew Kelly’s book, The Dream Manager, and listen to the audio book—there is no better primer about the Dream Manager program.
Don’t be shy about talking to others about your dreams. There is nothing more powerful than sharing your dreams with others and asking them to hold you accountable.
You might want to celebrate moments of progress by posting photos of dreams achieved in our copy room or sharing them with your friends on Facebook. We all need to celebrate small moments of progress and as you conquer small dreams, move on to bigger and bolder dreams.
There are just two final questions you have to answer:
What’s your dream and why aren’t you living it?
Our Law Firm’s Annual Letter to Clients
The sunshine of a new day spreads warmth on our faces as I say “hi” to an acquaintance at a marketing conference in Scottsdale, Arizona. After the customary exchange of pleasantries, I tell this acquaintance that I finally bit the bullet and opened my own law firm. The acquaintance congratulates me and asks when I took the big step. After a moment in thought, I respond, “Today is my first day in business.”
That was 4 years ago. Seems strange to many that my first day in business would be spent at a marketing conference in Arizona (I actually spent 3 days at the convention), but what can I say? I love marketing and I couldn’t think of anything better for the long-term growth of my new firm. So sue me!
Fast forward 4 years. As I’m walking out of a defense lawyer’s office, I’m chatting with Mr. Defense Lawyer and I compliment the professionalism of him and his staff. Seemingly out of nowhere, Mr. Defense Lawyer stops walking and looks at me square in the face and says, “I’ve never seen you so happy.” Wow, didn’t see that coming, but it comes close to summing up my thoughts after 4 years as a self-employed small business owner.
Some Ups and Downs…a Lot of Gratitude
But to quote Rocky, “The world ain’t all sunshine and roses.” We had 2 defense verdicts in 2015 and looking back, we just have to take the medicine, learn valuable lessons (never sue in Schoharie County!) and move ahead to our next trial. And when I’m a little down, I think of the kind words of Mr. Defense Lawyer and everything seems okay.
Besides, I have a helluva lot to be grateful for. Our law firm is run by an amazing paralegal, Corina Skidmore, who wears many hats and does everything except opening statements without a single complaint. I worked with Corina at our former law firm in Albany, but I never appreciated her commitment and dedication until we took the big plunge 3 years ago. I can’t imagine where I’d be without Corina (and I refuse to think about it).
2016 looks to be our best year. Over the next 9 months, we have 11 trials of high quality cases (hey, it’s good to be busy, but this is insane). Our trial schedule is booked solid and our marketing pipeline is bringing new cases every day. While the internet has been good to us, our highest quality cases are still referred by other lawyers.
Why We Exist
We remain committed to a single purpose: “Stopping Medical Injustice”. And we finally ironed out the details of our firm’s core values that will guide our law firm forever (damn, this wasn’t easy):
- We only practice catastrophic injury law
- We never agree to confidential settlements
- We do not accept cases having questionable merit
- We strive for continuous improvement
- We are completely transparent and brutally honest with our clients
On a personal note, my wife, Lisa, loves being a Supreme Court Justice. Our 3 little “angels”/triplets, Alek, Tim and Lily, are juniors in high school, and they never fail to remind me that they know the answers to all of the world’s problems…and that I’m dumb.
We Wouldn’t Be Here Without You
Most of all, I am grateful for YOU. You’ve taken a big chance with us and put your futures in our hands. Hey, we’re far from perfect and make mistakes, but we’ll continue to give everything we’ve got for you. Thank you for trusting us with your future.
Even after tough days, there is one thing that makes it all worthwhile: when one of our clients says “thanks” (with the occasional hug). No matter what anyone tells you, there’s nothing better in the practice of law.
Response to Medicare Lien
VIA CERTIFIED MAIL & FACSIMILE (405-869-3309)
P.O. Box 138832
Oklahoma City, Oklahoma 73113
Name of Beneficiary:
We represent Mr. Jones.
In the present action, the plaintiffs’ claims have absolutely nothing to do with the recovery of medical expenses. The plaintiffs’ verified bill of particulars and amended verified bill of particulars clearly indicate that the plaintiffs did not seek medical expenses in the lawsuit. We are enclosing copies of the plaintiffs’ verified bill of particulars and amended verified bill of particulars. Therefore, Medicare does not have a right of reimbursement with respect to the settlement proceeds.
Our position that Medicare has no right of reimbursement against the proceeds of the settlement is supported by federal law. Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010); Denekas v. Shalala, 943 F.Supp. 1073 (S.D. Iowa 1996)(Medicare is precluded from recovering from payments made to plaintiffs where the plaintiffs did not claim any medical expenses). Under existing law, Medicare is not authorized to recover any settlement proceeds received by the plaintiffs because the plaintiffs’ claims did not seek medical expenses. Bradley & Denekas, supra.
We are providing you with documents in order to confirm that Medicare does not claim a right of reimbursement against the proceeds of the plaintiff’s settlement. If you disagree and intend to claim a right of reimbursement, kindly provide us with written confirmation within ten (10) business days of your receipt of this letter.
Very truly yours,
Response to Treating Physicians re: Meetings with Defense
Re: Henry Jones
Date of Birth: July 1, 2016
Dear Dr. Smith:
We represent your patient, Henry Jones, in a legal action which is currently pending. With respect to that case, you may have recently received, or you will shortly receive, requests from the law firms of [insert name of defendants], along with authorizations that we have signed on behalf of your patient.
Those attorneys wish to private interview you, either in person or by telephone, concerning the medical condition, treatment and prognosis of Henry Jones. Please be advised that, although we are required to sign the above-mentioned authorization, Henry Jones prefers that you do not engage in such private discussions with anyone except us concerning any aspect of his medical condition, treatment or prognosis.
While such an authorization and request is permitted under New York State law, many federal courts have rendered decisions holding that such authorizations and ex parte discussions are prohibited by federal law (HIPAA) and that federal law preempts state law regarding these issues. In re Vioxx Prods. Lib. Litig. 230 F.R.D. 473 (E.D. La. 2005); Croskey v. BMW of N. Am. Inc., 2005 WL 1959452 (E.D. Mich. Feb. 16, 2005); Crenshaw v. Mony Life Ins. Co., 318 F.Supp.2d 1015 (S.D. Cal. 2004); EEOC v. Boston Mkt. Corp., No. CV-034227 (LDW)(WDW), 2004 U.S. Dist. LEXIS 27338 (E.D.N.Y. Dec. 16, 2004).
Hopefully, the defendants’ lawyers will make it crystal clear in their request that you are in no way obligated to engage in private, ex parte discussions with anyone from their office or to risk violating federal law. Rather, New York State case law and the authorization simply state that you are permitted (but not required) to speak with someone from their office, if you wish. It is your decision to make.
You may wish to consult with your own attorney before deciding whether or not to agree to any request by the defendants’ attorneys.
Should you decide to discuss your treatment of Henry Jones with the defendants’ lawyers, please notify us immediately, as my firm would like the opportunity to be present for any discussion.
Thank you for your attention to, and cooperation, in this matter.
Very truly yours,
 C.F.R. section 164.524(a)(1)
 45 C.F.R. section 160.203; 45 C.F.R. section 160.202
 42 U.S.C. section 17935(e)(1)
 45 C.F.R. section 164.502(g)(1), (2); 45 C.F.R. section 164.502(g)(4)
 45 C.F.R. section 164.524(a)(1)
 45 C.F.R. section 164.524(c)(4)(i-iv)
 45 C.F.R. section 164.524(c)(2)(i); 42 U.S.C. section 17935(e)(1),(2)
 78 Fed. Reg. 5636, at page 5634 (January 25, 2013)
 42 U.S.C. section 17935(e)(2)
 45 C.F.R. section 164.524(c)(4)
 78 Fed. Reg. 5636 (January 25, 2013)
 45 C.F.R. section 164.524(c)(4)(i-iv)
 45 C.F.R. section 164.524(a)(2)(i-iv)
 45 C.F.R. section 164.524(b)(2)(Ii)
 45 C.F.R. section 164.524(b)(2)(i)(A)
 45 C.F.R. section 164.524(b)(2)(i)(B)
 45 C.F.R. section 164.524(b)(2)(ii); 42 U.S.C. section 17935(e)(1),(2)
 45 C.F.R. section 164.524(b)(2)(ii); 42 U.S.C. section 17935(e)(1),(2)
 42 U.S.C. section 1320d-5
 42 U.S.C. section 1320d-5