“Everything you’ve been told about building
an injury law practice is wrong”

Our Team’s Playbook

Our Team’s Playbook

John H. Fisher, P.C.

278 Wall Street

Kingston, New York 12401

845-802-0047

JFisher@FisherMalpracticeLaw.com

www.ProtectingPatientRights.com

www.UltimateInjuryLaw.com

Table of Contents

Introduction:       Our Best Advice for You

Chapter 1:          Why We Exist: Our Purpose, Values and Mission

Chapter 2:          What You Can Expect: A Day in the Life of Our Law Firm

Chapter 3:          Your Responsibilities: What You Must Do

Chapter 4:          Your Benefits

Chapter 5:          Our Goals: How We Will Succeed

Chapter 6:          Our Office Rules: How We Behave

Chapter 7:          Client Communication

Chapter 8:          New Case Calls

Chapter 9:          Discovery, Motions and Liens

Chapter 10:        Medical Records

Chapter 11:        Depositions

Chapter 12:        Paperless Office & Scanning

Chapter 13:        Trial Preparation

Chapter 14:        Settlements

Conclusion:                  Make Every Day Your Masterpiece

Introduction

OUR BEST ADVICE FOR YOU

Our Team’s Playbook was written to give you answers to almost all of your questions. We leave almost no rock unturned, so when you have a question you know where to turn to find our policies and procedures.

The best advice we can give you is to read and re-read Our Team’s Playbook. You may be tempted to read Our Team’s Playbook once, put it aside and forget about it. This would be a mistake! We suggest that you keep Our Team’s Playbook on your desk and read parts of it at least once a day. It stinks when we have to answer questions about policies and procedures that are already covered in Our Team’s Playbook.

Our goal is that you will be intimately familiar with our policies and procedures so that, at some point, you don’t have to read Our Team’s Playbook, except maybe to keep them fresh in your mind. Once you know our policies and systems inside-out, you will be a “pro” with our policies and you will be ready to teach new team members about our systems. That is our #1 goal for you!

OUR CULTURE: HUNGRY AND HUMBLE

There is one critical difference between those team members who succeed and fail at our law firm (or any law firm): the successful team members give more than they take.

There is no better example of our philosophy of giving than our world-class paralegal, Corina Skidmore. Corina is not just a great worker—she is 100% committed to our clients’ causes. Corina doesn’t leave the office or take time off until her work is done, even when she is sick or has planned a well-deserved day-off. In some cases, this means that Corina works late or comes to the office on weekends—whatever it takes to get the job done.

Corina’s total commitment and dedication to our clients (HUNGER) makes her an invaluable member of our team and she always gives far more to our law practice than she takes. This is why Corina is an amazing team member and she personifies our philosophy of “giving more than you take” better than anyone I have ever worked with. I recommend that you watch and learn from Corina—not just in terms of her work ethic, but her total commitment to our clients.

In our firm, no one is better than anyone else—we are all equals (HUMBLE). We do not pull rank, gossip or bad-mouth each other. We are brutally honest and transparent with each other.

Ask Questions and Speak Up

If you disagree with a policy or system, don’t hesitate to tell us—you could very well be right (hey, we’re far from perfect). We will not improve without team members who question our policies and strive to make our systems better every day. We encourage you to speak up and let us know, “Hey, that doesn’t make sense”, or “This needs fixing”.

We are far from perfect and your input about our systems and policies is always welcome, even if we don’t agree. If you don’t like a policy or think of ways to improve our systems, don’t be afraid to speak up!

CHAPTER 1

WHY WE EXIST: OUR PURPOSE, VALUES AND MISSION

Our Purpose, Values and Mission are the reasons we exist. Our Purpose, Values and Mission are your guide for your daily behavior, namely, how you should act and what you should do. But our Purpose, Values and Mission are just a bunch of words without your commitment to guide your daily actions by them.

When you have a tough decision to make, look to our Purpose, Values and Mission for guidance. Think, Can I apply our Purpose, Values and Mission to this question? If so, you know what to do.

Our Purpose

Our Purpose is the north-star that never changes and is the motivating force behind everything we do. You can always look to our Purpose for guidance when you’re struggling with a question and you don’t know what to do.

While many things change over time, our Purpose will always be:

Stopping Medical Injustice

Why it’s done this way: The reason we are in business, above anything else, is to stop medical injustice. There should never be any doubt why you come to work every day. Stopping Medical Injustice is why we exist.

Our Core Values

Our 5 Core Values are our Bible that we use for decision-making. Whenever a tough decision must be made, you should ask, “How does this fit with our Core Values?” If the decision does not fit without the basic principles of our Core Values, we know it’s something we can’t do.

The list of our 5 Core Values is the most important part of Our Team’s Playbook. You should read the Core Values as often as you can and make sure you can recite them to us on a second’s notice. Let’s face it, if you don’t know our Core Values, you won’t be living by our rules.

Why it’s done this way: Living by a set of core values is what separates great law firms from the mediocre. We realize that other law firms aren’t doing any of this and that is precisely why we do.

Core Value #1

We only practice catastrophic injury law

Real Life Example: Mr. Harris, corporation counsel for an international corporation, calls to hire us for the defense of a commercial lawsuit. It’s tempting to take on the case—the money is good and the litigation will last years. Defending a big corporation will provide a steady stream of $ for our cash flow.

I explain to Mr. Harris that we only handle cases involving substantial or catastrophic injuries and a commercial lawsuit is not what we do. I tell Mr. Harris that his corporation will be better served by another lawyer, and I refer him to someone else. Pleasantries are exchanged and a big pay day is turned away.

Why it’s done this way: Hey, it’s hard enough doing one thing well—we don’t need to make things complicated. Yes, we could make $ taking cases outside of our niche practice, but why bother? By focusing on our niche practice area, we earn the reputation of specialists and the “lawyer’s lawyer” for medical malpractice.

Core Value #2

We never agree to confidential settlements

Real Life Example: On the first day of a big trial, the defense lawyers make an excellent settlement value and our clients want to accept, but there’s one catch: the defense lawyer insists upon confidentiality as a condition of the settlement. Without hesitating, I reject the offer and tell him that we will not agree to confidentiality under any circumstances. Eventually, the defense lawyer backs off on his demand for confidentiality and the case settles.

Why It’s Done This Way: First, confidential settlements can be taxable income to our clients. We might be committing legal malpractice by agreeing to a confidential settlement and for this reason, we will NEVER agree to confidentiality.

Second, we hope to raise the standard of care for patients in the future. This cannot be accomplished when a settlement is confidential and no one knows about it. If we agree to confidentiality, we are doing nothing to improve the quality of medical care for future patients. This is an even bigger reason why we will never agree to a confidential settlement.

Core Value #3

We do not accept cases having questionable merit

Real Life Example: A potential client, Ms. Jones, is referred to us with a new birth injury involving enormous physical and mental disabilities of her newborn son. We send the medical records to the top medical experts in the country and closely evaluate the potential case for merit.

The medical experts tell us that there were deviations from the standard of care, but it will be a battle proving that the negligence caused the baby’s handicaps. It’s a close call whether we should accept the case, but in the end analysis, the experts are not crazy about the case and we know the case will probably be lost. We decline the case.

Fast forward a few years later, we learn that Ms. Jones found a lawyer willing to take her case and he settles her case before trial for megabucks. Even with questions about the merit of the case, Ms. Jones’s lawyer scares the defendant into paying a big settlement.

Did we make a mistake in turning down this case? In hindsight, it might seem that way. But when malpractice cases have questionable merit, it is very rare that they settle. Crappy cases are almost always tried to verdict and there’s a strong chance the plaintiff will lose (plaintiffs lose 75% at trial in malpractice cases), and we will be out a ton of our time and money.

Why it’s done this way: If our team is not 100% committed to our clients’ case, we won’t do a good job for them. And the only way we can throw our complete support behind a case is when we know our client has a great case and are willing to take the fight all the way through trial (instead of praying for a settlement). It’s much better to let other lawyers handle marginal cases, and it’s good for our conscience and our bottom line.

Core Value #4

We strive for continuous improvement

Real Life Example: We schedule a half-day Quarterly Strategic Meeting every 90 days for our quarterly strategic meeting. At the Quarterly Strategic Meeting, we do not discuss case management or lawsuit tactics, but strategic initiatives that will improve our law firm. The topics might range from the integration of Infusionsoft for the management of new case intakes, our system for the creation of new content for our websites or tactics for getting cases to trial within the next 12 months.

The Quarterly Strategic Meeting lets us step back and take a look where we can do better. It’s hard to get our team working toward the same goal without the Quarterly Strategic Meetings and this gives us permission to take time to look at the big picture.

Why it’s done this way: Investing our time and money on personal and professional improvement is what we’re all about. We can either adapt or our law firm will die. Continuous improvement is what separates the winners from the wannabes.

Core Value #5

We are completely transparent and brutally honest with our clients

Real-Life Example: On the final day of trial, the defense lawyer makes a good settlement offer, but our client refuses at first. We have a conversation with our client that is brutally honest, i.e., “You may lose this case and if so, you’ll get zero. Juries can be very unpredictable.” Eventually, our client changes her mind and the case is settled for a healthy $.

Why it’s done this way: We don’t hold back anything from our clients or each other. Yes, we may hurt a few feelings along the way, but it’s never personal. It just works better than keeping your thoughts to yourself and we find it is much more productive and builds stronger relationships.

Our Mission

Our best cases are referred to us by lawyers, a/k/a our “referral partners”. Without referrals from other lawyers, we go out of business. There is nothing more important for our law firm than growing and nurturing our relationships with our referral partners.

Our Big, Hairy, Audacious Goal (“BHAG”) is simple:

To be the #1 law firm for lawyers referring medical malpractice cases in Upstate New York.

Our “Mission” is our 4-year goal to grow our business. Our Mission is very precise and is more than a little stretch for us. Our 5-year mission is to increase the number of referral partners from 124 (as of October 19, 2013) to 500 by December 31, 2018. Every annual goal is a “Base Camp”.

Base Camp #1: 2013=124 Referral Partners

Base Camp #2: 2014=185 Referral Partners (+61)

Base Camp #3: 2015=265 Referral Partners (+80)

Base Camp #4: 2016=365 Referral Partners (+100)

Base Camp #5: 2017=500 Referral Partners (+135)

As of January 22, 2017, we have 257 referral partners and a long way from our goal of 500 by October 19, 2017. On the bright side, we doubled the number of our referral partners in just over 3 years from 124 to 257.

We should acknowledge and have a small celebration whenever a new referral partner refers a case.

Why it’s done this way: Our real clients are lawyers, not injury victims. Injury victims have a single case and we will only make $ from them once. But our referral partners can send us more than a single case and if we do right by them, they will send us a steady stream of new cases for the next 20-30 years.

CHAPTER 2

WHAT YOU CAN EXPECT: A DAY IN THE LIFE OF OUR LAW FIRM

We begin every day with a brief meeting that starts exactly at 9:15 a.m. The purpose of this meeting is to set the specific agenda for the workday—what we call your Top 3 for the Day. You will be expected to prepare your Top 3 for the Day before the meeting and come prepared to discuss what your priorities are for the workday.

This daily meeting at 9:15 a.m. is the best way to ensure that you know what I am doing and I know what you’re doing. It’s great when we’re all working with the same goals in mind and we’re rowing the boat in the same direction with our best “A” cases.

DAILY MEETINGS

Beginning Each Day with Your Positive Focus

Our daily meeting begins with your Positive Focus by each member of our law firm. Your Positive Focus is a simple and brief statement of something in your professional or personal life that you are grateful for—it could be something as simple as seeing an old friend from high school or finishing an expert response. The point is that you have something in your life—big or small-that you’re grateful for and you start the workday by giving thanks.

On occasion, a member of our team will say, “I don’t have a positive focus.” And that’s okay—better to be honest than make something up. But try to give a little thought to your Positive Focus before you get to work, so you’re ready to give thanks for the little things in your life.

Your Top 3 for the Day

The day begins on a positive note when you state your Positive Focus and now, you should be ready to tell us your Top 3 for the Day. Your Top 3 for the Day are the three goals for the day that are simple, realistic and attainable—come hell or high water, you will get them done or you won’t leave for the day (yes, we take this very seriously). You want to make sure the Top 3 for the Day are not too ambitious that you won’t have enough time to do them. On the other hand, you don’t want your Top 3 for the Day to include minor tasks, i.e., fax letter to Judge, that are simple and will only take a few minutes.

There are 3 simple rules for our daily meetings.

#1:   BE ON TIME:     The meeting should start on time at 9:15 a.m. Your time is valuable—and so is everyone’s—so don’t be late!

#2:   NO MINDLESS CHIT-CHAT: There should be no mindless chit-chat at the meeting. You are part of a world-class law firm and you should act that way. We’re here to get work done and talking about Facebook or gossiping is not part of our work agenda.

#3: BE PREPARED!:  You should think, in advance of the meeting, about your Positive Focus and your Top 3 of the Day. If you come unprepared and try to think of your goals for the day on the fly, this will be an unproductive waste of time.

Your Final Thoughts

Before our daily meeting ends, everyone gets a chance for your Final Thoughts. We end our daily meetings by asking:

“Are there any comments, questions or concerns you want to raise before we end?”

This is your opportunity to raise any idea, questions or concerns that you may have—it can be just about anything. No issue is off-limits with your Final Thoughts and you are encouraged to speak freely and candidly.

Your Final Thoughts might be, “Defense counsel has been difficult with scheduling the depositions in Ms. Jones’s case—any suggestions?” We are here to help you, but we’re not mind-readers, so let us know if there’s something we can do to help. Don’t be shy!

WEEKLY MEETINGS

Our Goal Meeting

On Monday mornings at 10:00 a.m., we have our weekly Goal Meeting where you and every member of our team states their Top 5 goals for the week. You should be prepared to state your Top 5 goals for the week and your TOP 1 of 5. These are the TOP 5 things you must get done this week and the TOP 1 OF 5 is the most important goal of your TOP 5. You write down these goals on a large poster board. Now, everyone knows what everyone else will be doing for the week.

Each task gets a number assigned to it: #1 is the TOP 1 OF 5 of your goals and you work from there to define your TOP 5 goals for the week. Yes, there will always be more than just 5 things you need to do and that’s fine. The extra stuff you should call your “SHOULD DO LIST”—things you should be doing, but they are not crucial and can wait if you don’t get them done.

Our weekly Goal Meetings are limited to 60 minutes. No random chit-chat allowed—just laser-beam focused conversation on a specific agenda and once the meeting is supposed to end, you leave the room. You keep a written log of exactly who is going to do what and when, the goal to be achieved and your log is reviewed at the Accountability Meeting held every Friday. You will be held accountable to five very specific goals.

Be Specific and Realistic with your Top 5 Goals

Your Top 5 Goals should be realistic and specific. It’s tempting to put more on your plate than you can possibly do—and big goals are admirable—but you want make sure you don’t stretch too far. Our deposition scheduler, for example, might schedule a TOP 1 of 5 goal of scheduling the depositions of the plaintiff and defendants in the Jones’s case and confirm the stenographer and videographer.

It’s not enough to simply have your goals on a poster board that you review once a day. Throughout your workday you should remind yourself of your TOP 5 for the week by holding the index card of your TOP 5 goals in front of your face every 60 minutes. It is crazy how this will keep you focused on your goals for the week. This is a great way to avoid the distractions and little “emergencies” that always seem to get in your way to a productive day.

Accountability for Your Top 5 Goals

At our weekly Goal meetings on Monday, we review the prior week’s Top 5 goals for each team member to hold him/her accountable and find out who’s accomplished their TOP 5 goals—we call this our Accountability Meeting. We keep a written log who accomplished their TOP 5 for the week and everyone receives a grade for each task in her TOP 5.

The points for each goal on your Top 5 will range from:

1:      Nothing accomplished

2:      Project started, but little done

3:      Half of the project completed

4:      Project is almost complete

5:      Mission accomplished!

For all five of your weekly goals, your total score will range from a low of 5 (you accomplished nothing for any of your Top 5 Goals) to a high of 25 (all five goals were met for the week). You can also receive 3 bonus points for each goal that you accomplished on your Should-Do List.

Your goal should be to accomplish 85% of the tasks on your Top 5 Goals for the week. And just in case you’re a few points short of 85%, you can earn an extra 3 points for every goal you accomplish on your Should-Do List. Hey, you might even top 100% if you meet a few of the goals on your Should-Do List.

Read this Book before You Start

Our system for daily and weekly meetings is based upon the Verne Harnishe’s book, Mastering the Rockefeller Habits. The best way that you can prepare for a day in the life of our law firm will be to read, and re-read, Mastering the Rockefeller Habits—it is a great primer on the simple and basic office procedures that world class companies follow.

CHAPTER 3

YOUR RESPONSIBILITIES: WHAT YOU MUST DO

Your “Position Contract” explains with crystal clarity the specific job responsibilities and goes from general (“answer phones, schedule depositions”) to specific (“arrive no later than 8:45 a.m. and do not leave before 5 p.m.) We try to be as specific as possible when writing the Position Contract.

But just having the Position Contract is not enough. We have given you two originals of the Position Contract before you begin your employment and we ask that you review the Position Contract and sign them. You should sign both originals, keep one for yourself, preferably posted prominently in front of her desk and return one original to Corina Skidmore. These are the rules that you agree to live by and yes, these are YOUR RULES.

You now have a clearly defined set of tasks and duties that leaves no room for discretion or judgment.   If there is any doubt as to what you are expected to do, all you have to do is look at the Position Contract for answers.

To give you an example of a Position Contract, the Position Contract for our Director of Client Relations (a/k/a “Problem Solver and Happiness Maker”) is set forth in the remainder of this chapter.

POSITION CONTRACT FOR TRAVIS VAN DE WATER

Travis, 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 Contact as often as you can.

Ultimately, our goal is that you move on to bigger and better things than 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.

OUR PROTOCOLS

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 workweek, 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 indicates that you completed part of the 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 refuse to cooperate in scheduling depositions (a common problem). Corina and I will help answer your question and point you in the right direction.

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

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 is the Bible that governs 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”, I may ask 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 our Core Values.

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.

RESPONSIBILITY #1

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 case 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

Scheduling Depositions

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.

I 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.”

When confirming defendants’ depositions confirm by phone and in writing that the original medical record will be at 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.

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 me (jfisher@fishermalpracticelaw.com) that specifies the purpose of the phone call.

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 me or Corina. Most times callers have a simple question that you can answer.

RESPONSIBILITY #2

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.

RESPONSIBILITY #3

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
  • 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!

_______________________________ Dated: January 23, 2017

Travis Van De Water

_______________________________ Dated: January 23, 2017

John H. Fisher

CHAPTER 4

YOUR BENEFITS

Why do you come to work? Earn a few bucks and pay the grocery bills and mortgage? Of course, making money and paying the bills are important, but why are you really here?

I hired you for one reason: you are a superstar! That’s right, you are the absolute best at what you do and you will be treated that way. You deserve to be treated like a superstar, but what does that mean?

You will have resources available to you that no other law firms offer their employees at no charge. But it will be up to you to take advantage of this opportunity for self-improvement and growth. We will not force self-improvement upon you. But if you’re our kind of person (and if we hired you, you better be), our guess is that self-improvement is your goal too.

Your Health and Nutrition

We take physical fitness and nutrition seriously. As part of your employment, you have the right to the following fully paid benefits:

  • Personal trainer,
  • Nutritionist, and
  • Membership in a gym.

You can select the personal trainer, nutritionist or gym of your choice, or if you prefer, we will be happy to make recommendations.

Our “You’ve Got to Read This Book” Club

Mark Twain once wrote, “A person who doesn’t read has no advantage over a person who can’t read.” We agree wholeheartedly. If you read just 10 pages a day of a great book, your life will change forever and we want to help get you started.

We recommend that you start by reading just one of the books listed below. Each one of these books is a classic that has the power to change your life…and each one of them is sitting on the book shelf in my office. Go grab a book, take it home and get started!

Our Recommended Reading List

These are some of the books in our library that are recommended reading for our team.

The Power of a Growth Mindset

Mindset: The New Psychology of Success, by Carol S. Dweck, Ph.D.

The 7 Habits of Highly Effective People, by Stephen R. Covey

How to Win Friends and Influence People, by Dale Carnegie

How to Stop Worrying and Start Living, by Dale Carnegie

Be Obsessed or Be Average, by Grant Cardone

The One Thing, by Gary Keller

The Slight Edge, by Jeff Olson

The Go-Giver, by Bob Burg

Never Eat Alone, by Keith Ferrazzi

Feel the Fear…and Do It Anyway, by Susan Jeffers, Ph.D.

The 10X Rule, by Grant Cardone

Made to Stick, by Chip Heath & Dan Heath

Switch, by Chip Heath & Dan Heath

The Magic of Thinking Big, by David J. Schwartz, Ph.D.

Secrets of the Millionaire Mind, by T. Harv Eker

Give and Take, by Adam Grant

Drive, by Daniel H. Pink

Take the Stairs, Rory Vaden

The Millionaire Next Door, by Thomas J. Stanley, Ph.D.

Start with Why, by Simon Sinek

Time Management

Essentialism, by Greg McKeown

Multipliers, by Liz Wiseman

The 4 Hour Work Week, by Timothy Ferris

No B.S. Time Management for Entrepreneurs, by Dan Kennedy

Leadership

Tribal Leadership, by Dave Logan, and others

Leaders Eat Last, by Simon Sinek

EntreLeadership, by Dave Ramsey

No B.S. Ruthless Management of People & Profits, by Dan Kennedy

A Game Plan for Life, by John Wooden

Wooden on Leadership, by John Wooden

Wooden, by John Wooden

The Four Obsessions of an Extraordinary Executive, by Patrick Lencioni

Client Communication/Happiness

Delivering Happiness, by Tony Hsieh

Zombie Loyalists, by Peter Shankman

Fish! A Remarkable Way to Boost Morale and Improve Results, by Stephen C. Lundin & Harry Paul

The Fred Factor, by Mark Sanborn

Managing for Success

The 12 Week Year, by Brian P. Moran

Mastering the Rockefeller Habits, by Verne Harnish

The E-Myth Revisited, by Michael E. Gerber

Good to Great, by Jim Collins

Great by Choice, by Jim Collins

Built to Last, by Jim Collins

Getting Naked, by Patrick Lencioni

The Five Dysfunctions of a Team, by Patrick Lencioni

Death by Meeting, by Patrick Lencioni

So you don’t have time to read? Just make time to read 10 pages of one of these books every day and in just 3 months, you’ll have read 3 life-changing books.

To prove how strongly we believe in the power of reading, we will pay you for every book you read. Just for reading the book and writing a one-page book summary, we will pay you $100 for every book review. You get to read a great, life-changing book and make some spare cash at the same time!

Your Time Off: Vacation, Sick and Personal Time

We refer to your vacation, sick and personal time as your “Time Off”. We do not differentiate between vacation, sick and personal time—it’s all considered Time Off. You get to choose whether you use your Time Off for vacation, sick or personal time—if you’re not in the office on a workday for any reason, you’ve taken a day from your Time Off.

The number of days for your Time Off varies by the number of years that you’ve worked with us, and does not include the public holidays when our office is closed. In the first year of your employment (i.e., the first 12 months), you will receive 18 days of Time Off and after your first year of employment, you will receive an additional 5 days Time Off for each additional year only through your third year of employment.

First 12 Months of Employment:    18 Days

Second 12 Months of Employment:         23 Days

Third 12 Months of Employment:   28 Days

With rare exception, your Time Off is a maximum of 28 days per 12 months.

If you do not use the allotted number of days for Time Off by the end of the end of the calendar year, you will be compensated for those days during the final week of December. For example, if you use 14 out of your allotted 18 days of your Time Off in the first year of your employment, you will receive a check for the unused portion of your Time Off at the end of the calendar year, i.e., pay that is equal to 4 days of work (8 hours/day x billable rate x 4 days of unused Time Off).

Why it’s done this way: In many law firms, the staff will take a good chunk of their sick, personal and vacation days in December if they are not paid for their unused Time Off, or not allowed to carry over their unused Time Off to the next year. This inevitably results in a skeleton crew of paralegals and secretaries between Thanksgiving and New Year’s Day. We’re busy in December and we don’t want that to happen.

Rather than forcing you to “use or lose” your vacation, sick or personal days, it’s better to pay you for your unused Time Off…and give you a nice added bonus in December!

Observance of Public Holidays

Our office will be closed on the following holidays:

  • New Year’s Day
  • Presidents’ Day
  • Memorial Day
  • Independence Day
  • Labor Day
  • Columbus Day
  • Thanksgiving
  • Christmas

If you do not celebrate Christmas, we respect your right to take time off from work to observe the religious holiday(s) of your faith.

Your Self-Improvement Seminars and Workshops

For every 12 months of your employment, you have a budget of $5,000 to spend on self-improvement seminars. We want you to grow and learn and make our firm a better place for all of us. It’s up to you to find seminars and workshops for self-improvement—and we have a few suggestions for you—but if you don’t attend any seminars, don’t blame us.

Let’s get started with a list of seminars and workshops available to you at no charge:

Dale Carnegie Institute: Dale Carnegie is the premier self-improvement training in the world. If there’s ever anything you thought impossible, Dale Carnegie will train you to tackle those challenges. Simply stated, Dale Carnegie is life-changing if you implement their principles.

So, what’s stopping you? Take us up on this offer of free Dale Carnegie training and you will never look back…and your life will never be the same.

Great Legal Marketing: Great Legal Marketing and its founder, Ben Glass, Esq. have changed my life. If you get a chance to attend one of Ben’s seminars, just go. Ben is the premier business development and marketing expert for lawyers in the country.

If you’ve ever dreamt of operating the best law firm, Ben will give you the blueprint and teach you how to get home in time for dinner with your family.

ICON: There is no better small business marketing machine that Infusionsoft in Chandler, Arizona. Infusionsoft is a world-class, small business marketing company that presents an annual convention known as ICON. The enthusiasm and spirit of those attending ICON is off the charts.

It doesn’t hurt that the Infusionsoft conventions are held in sunny Arizona in the late winter. Just go and be amazed at the outside-the-box marketing and self-improvement skills you will get from the leaders of Infusionsoft.

Why it’s done this way: If you simply earn money for us and nothing else, we haven’t done justice for you. Our goal is to make you a better person through self-improvement seminars and workshops that are designed to make you a better employee and give you a better life as a committed spouse and parent.

All of our team members receive training from Dale Carnegie, Dave Ramsey (EntreLeadership), Infusionsoft (ICON) and Ben Glass, Esq. (Great Legal Marketing) for free. So, it’s up to you to take advantage of this great opportunity for growth and self-improvement.

And even if you don’t want to attend these seminars, you have $5,000 in spending money every year to attend the seminars of your choice. The $5,000 in spending money for self-improvement seminars is part of your compensation package.

 CHAPTER 5

OUR GOALS: HOW WE WILL SUCCEED

Goal setting is what separates successful law firms from those that just hope for the best and wonder why they struggle. We set goals for every lawsuit in terms of the “3 Key Performance Indicators for a Lawsuit” and a Budget for Case Expenses. When we meet our goals for a lawsuit, you will receive performance-based bonus compensation based upon the terms of your Position Contract.

THE 3 KEY PERFORMANCE INDICATORS FOR A LAWSUIT

How can we tell if we are accomplishing our goals? How do we track your performance?

There are four metrics (Key Performance Indicators) that you should track in every lawsuit in four categories:

  1. Discovery Responses;
  2. Depositions;
  3. Completion of Discovery; and
  4. Completion of the Trial.

#1:   Discovery Responses: How many days does it take between (a) our receipt of the defendants’ discovery demands and the (b) service of the plaintiffs’ discovery responses?

#2:  Depositions: How many days does it take between the (a) service of the plaintiffs’ discovery responses and the (b) first deposition?

#3:   Completion of Discovery: How many days does it take between our (a) receipt of the defendants’ answer and the (b) filing of the note of issue?

#4:   Completion of the Lawsuit: How many days does it take between the (a) filing of the lawsuit and the (b) first day of trial (or the settlement of the case if that occurs)?

In every lawsuit, it is your job to document the number of days that it takes for each of the four categories and generate a memo in Trialworks listing the number of days that it took to complete each of the four categories of “Key Performance Indicators”. For example, if we receive the defendants’ discovery responses on September 30th and we serve the plaintiffs’ discovery responses and bill of particulars on November 7th, then it took 38 days for us to serve the plaintiffs’ discovery responses (Category #1: Discovery Responses).

By the end of the lawsuit, you should have documented the number of days that it took to complete each of the four “Key Performance Indicators”. For example, you should prepare a memorandum that states the number of days that it took for service of the plaintiffs’ discovery responses and bill of particulars (category #1), the number of days between the service of the plaintiffs’ discovery responses and the first deposition (category #2), the number of days between our receipt of the defendants’ answer and the filing of the note of issue (category #3) and the number of days between the filing of the summons and complaint and the first day of trial (category #4).

Your memo should have the subject line, “The Key Performance Indicators for this Case” and list the number of days that it took for each of the four categories.

Why it’s done this way: From the beginning of the case until its end, EVERYTHING MUST BE MEASURED! We do not measure our success just by the end result, i.e., the amount of money recovered for the client. Our success is measured by the number of days that it took to get the result. A great outcome for the client isn’t so great if it took five years to get it.

Our Key Performance Indicators for Lawsuits

Our goal is simple: GET TO TRIAL AS QUICKLY AS POSSIBLE. Our clients will not get a result until the trial date (or in some cases just a day or two before the trial date), so it is our NUMBER ONE GOAL to get the case to trial as quickly as possible.

So, how do we accomplish our goal? Simple, we must comply with deadlines.

Am I referring to deadlines imposed by the court in a Preliminary Conference Stipulation and Order? No! Those deadlines are too lax and are constantly violated by defense lawyers. If we simply live by the rules of the Court and defense counsel, we are playing right into their hands, i.e., we can expect long delays and adjournments of the case. This does not work for me!

The deadlines that we must live are created by me. My Rules are not unrealistic, but you will not accomplish these goals by sitting back and letting the defense lawyers control the progress of the lawsuit.

There are specific measurable goals for each of the four “Key Performance Indicators”. The goals for each category are:

#1:   Discovery Responses: How many days does it take between (a) our receipt of the defendants’ discovery demands and the (b) service of the plaintiffs’ discovery responses? 30 DAYS

#2:   Depositions: How many days does it take between the (a) service of the plaintiffs’ discovery responses and the (b) first deposition? 90 DAYS

#3:   Completion of Discovery: How many days does it take between our (a) receipt of the defendants’ answer and the (b) filing of the note of issue? 180 DAYS

#4:   Completion of the Lawsuit: How many days does it take between the (a) filing of the lawsuit and the (b) first day of trial (or the settlement of the case if that occurs)? 1 YEAR AND 6 MONTHS

At the end of every lawsuit, you will complete a Flow Chart that lists the number of days that it took to complete each of the four Key Performance Indicators for the case. Now, I know it’s not easy and there are certain things outside of your control (like the court’s trial calendar), but you are working at an exceptional law firm and we have exceptional standards and expectations. You should always seek to meet each of the four Key Performance Indicators.

At the end of every lawsuit, you should complete the Flow Chart listing each of the four Key Performance Indicators and sign and date the Flow Chart and email the completed Flow Chart to me. Until I review the Flow Chart, the case is not over.

One word of caution: we do not control the scheduling of the trial date. In some counties in New York, it will not be possible to get a trial date that is within one year of the filing of the note of issue. But in most counties, it is realistic that our trial date will be scheduled at least within 12 months from the date that the note of issue was filed.

Why it’s done this way: We must have measurable, attainable goals for our cases. Now, you should have no questions about the deadlines for each of the four Key Performance Indicators.

BUDGET FOR CASE EXPENSES

Every case that we “accept” must have a budget. A case is “accepted” when three things occur: #1: the client signs a retainer agreement; #2: the case is moved from “under consideration” to “in suit” in Trialworks; and #3: we file the summons and complaint. It is not necessary to have a case budget for cases that are “under consideration” in Trialworks, i.e., we have not made a decision to accept the case and file the lawsuit.

Once a case is “accepted”, a case budget must be created in the Memorandum tab in Trialworks. The case budget has three phases:

  1. The Discovery Phase;
  2. The Trial Preparation Phase; and
  3. The Trial Phase.

Discovery Phase: The Discovery Phase includes all expenses between the filing of the summons and complaint and the filing of the note of issue. The Discovery Phase will include, among other things, estimated expenses for filing fees, stenographer and videographer fees for depositions, expert fees for reviewing the case, and fees of damages experts for a Life Care Plan and an economic report of damages.

Trial Preparation Phase: The Trial Preparation Phase will include all expenses between the filing of the note of issue and the first day of the trial. The typical expenses in the Trial Preparation Phase include expert witness fees, expenses associated with courtroom exhibits, and the fees of medical experts to examine our client before trial.

Trial Phase: The Trial Phase includes all expenses incurred between the first day of the trial and the conclusion of the lawsuit. The Trial Phase typically includes fees for the trial testimony of expert witnesses, the fee of the court reporter for transcripts of trial testimony, and the hotel and travel expenses of our expert witnesses and fact witnesses.

The case budget will be prepared by the paralegal assigned to the case and reviewed by the lawyer. It is important to try to be as precise as possible with the estimated costs. If, for example, you are trying to estimate the fee of a neurosurgeon for trial testimony, you should call the neurosurgeon’s assistant to ask for an estimate of all of his fees, including his time spent reviewing the file for his trial testimony, hotel and travel expenses, and his time spent at the trial. If the expert has a standard form listing his fees, you should ask the expert to email or fax the form to you and you can then use the expert’s form for your estimates of the expenses.

Why it’s done this way: Before accepting a case, I need to decide whether the new case will provide a good “ROI”, or Return on Investment. The “Return on Investment” can only be determined by comparing the anticipated legal fee to the estimated case expenses and the ideal ratio between the legal fee and the case expenses is 10 to 1. I cannot determine the ratio between the anticipated legal fee and the case expenses without a case budget.

YOUR PERFORMANCE-BASED COMPENSATION

We have a performance-based program for incentives and bonuses for each member of our team who is assigned to a case.

The performance-based system for bonus compensation is based upon three crucial factors:

#1: TIMING,

#2: COST-EFFECTIVENESS and

#3: RESULT.

All three of these factors must be satisfied in order to qualify for a bonus in an individual case.

#1: Timing

The four Key Performance Indicators relate to the speed within which you can complete various phases of a lawsuit. For example, the third Key Performance Indicators, “completion of discovery”, specifies a deadline of 180 days from the receipt of the defendants’ answer until the filing of the note of issue. If, for example, you file the note of issue no more than 180 days after our receipt of the defendants’ answer, you’ve satisfied the third Key Performance Indicator.

Of the four Key Performance Indicators, the most important is the 1 year and 6 month deadline for the completion of the lawsuit from the filing of the lawsuit until the first day of the trial or settlement. The one year and six month deadline for the “completion of the lawsuit” is the gold standard by which your performance will be measured. When a lawsuit is completed from the filing of the lawsuit until the first day of trial, or settlement within one year and six months, you have satisfied the most important Key Performance Indicator.

In order to qualify for bonus compensation, the lawsuit must be completed within 1 year and 6 months from the filing of the lawsuit until the first day of trial. There will always be factors outside of your control, such as the court’s congested trial calendar or adjournments of trial dates and depositions by the defense lawyers, and that’s why this is the most difficult of the three performance-based factors for bonus compensation.

Why it’s done this way: Every lawsuit is a “race against time”. The defendants’ lawyers will stonewall and delay you at every opportunity, but our job is to get the lawsuit to trial as quickly as possible. One year and six months is not an easy deadline to meet for the completion of the lawsuit and you will face obstacles at every juncture of the lawsuit. But if you get the case to trial within one year and six months from the filing of the lawsuit, you have met the first of the three performance-based factors for bonus compensation.

#2: Cost-Effectiveness

Every case must be managed within a pre-determined case budget. The case budget is based upon anticipated case expenses during discovery and trial. At the end of every lawsuit, you must compare our legal fee to the disbursements (a/k/a case expenses) to determine whether the result meets the criteria for performance-based bonus compensation for an individual lawsuit.

Our goal is to resolve the case with a legal fee to our firm that exceeds the disbursements by a ratio of 10 to 1. If, for example, our legal fee (after payment of referral fees) is $150,000 and the disbursements are $15,000, then the ratio of the legal fee to the disbursements is 10 to 1.   This is a successful outcome and meets the second of the performance-based factors for bonus compensation.

If, on the other hand, our legal fee is $150,000 and the disbursements are $25,000, the ratio of the legal fee to the disbursements is 6 to 1 and that does not meet our second factor for performance-based bonus compensation.

Why it’s done this way: Our goal is to be smart with our clients’ money. When we spend money on a lawsuit, we are really spending our clients’ money, so we need to be careful and keep expert witnesses within a strict budget. Your performance will be based in part upon whether we keep each case within a budget and meet our goal of our legal fee that exceeds the disbursements by a ratio of 10 to 1.

#3: Result

The most important of the performance-based factors for bonus compensation is the RESULT. The “RESULT” is the amount of money that we recover, whether by settlement or judgment, for our client.

At the beginning of every lawsuit, there will be two numbers assigned to each case: #1: the settlement goal; and #2: the settlement value and a number for the settlement goal and the settlement value will be entered in the “Case Value” tab in Trialworks, so you will always be able to tell what those numbers are.

The settlement value is the “rock bottom” final number that sets the floor for settlement negotiations. The lawsuit will not be settled for less than the settlement value unless there is some unforeseen development in the case, i.e., the death of our client.

The settlement goal is just what the words says—this is the goal for the case. The settlement goal reflects the highest, realistic value for the settlement and it is always higher than the settlement value.

In order to qualify for bonus compensation, the amount of the recovery, whether by settlement or judgment, must equal or exceed the settlement goal. Let’s say, for example, that the settlement goal for a case is $1,500,000 and the settlement value is $1,250,000. If the case settles for $1,750,000, you exceeded the settlement goal by $250,000 and you’ve satisfied the third criteria for performance-based bonus compensation.

Why it’s done this way: Even if you meet the first and second of the performance-based factors for bonus compensation, it will not necessarily mean a successful outcome for our client unless the RESULT meets our pre-established goals. Ultimately, the most important factor for success is the net amount of money that we recover for our clients and hence, the RESULT is the most important of the three performance-based criteria for bonus compensation.

Reporting the Results at the End of the Lawsuit

At the end of the case, you need to track the results.

When the lawsuit is over, you should prepare a memorandum in Trialworks showing the results in the three categories of Timing, Cost-Effectiveness and Results. Your memorandum should state, for example:

#1: Timing: From the filing of the lawsuit until the settlement or judgment, how long did it take? (remember, our goal is one year and six months)

#2: Cost-Effectiveness: What is the ratio between the amount of the settlement and the disbursements (the ideal ratio is 10 to 1).

#3: Results: Did the settlement (or judgment) exceed the settlement goal for the case?

So, how did we do? If we meet the three categories for performance-based bonus compensation, you will receive bonus compensation based upon the terms set forth in your Position Contract.

Why it’s done this way:   You should be rewarded for great performance! The three factors for the performance-based bonus compensation are not easy to meet, but they are attainable.

SETTING OUR PRIORITIES: OUR A,B,C RULE

We rank cases on a scale as an “A”, a “B” or a “C”. The “A” cases are the top third of our cases which have the best value and will make the most money for us. The “B” cases are the middle third of our cases—you might say the “good, but not perfect client”, and you guessed, the “C” cases are dead last in terms of value and profit.

“A” cases have a settlement value of $1 million or more; “B” cases have a settlement value between $500k and $1 million; and “C” cases have a settlement value between $300k and $500k. A “D” case has a settlement value less than $300k (let’s hope we don’t have more than one or two of those).

We expect our team to make it a top priority to dedicate their time and work to the “A” cases over the “B” and “C” cases. Our “A” cases are put on the “fast track” of litigation, which means we focus all of our energies and time to getting those cases to trial as quickly as possible.

The “B” and “C” cases will always take a back seat to our “A” cases. As a team, we will agree upon our top value cases, i.e., our “A” cases, and ask you to focus your attention on those cases. We want you to dedicate your time on our best cases that will make the most money for our firm—not the smaller cases.

When we identify a new case as an “A” case, this means that you drop everything else to the preference of this case. This can’t just be my focus—it has to be your focus too.

Your goal is to get the “A” cases to trial as quickly as possible. Keep in mind that our clients won’t see a resolution to their case until the trial date, so getting the case to trial as quickly as we can is always the primary goal.

CHAPTER 6

OUR OFFICE RULES: HOW WE BEHAVE

Whenever I hire a new secretary and a mistake is made, I get the same response, “You didn’t tell me to do it that way.” I wrote this book so you will know exactly what is expected of you. There will be no confusion about what is expected of you or what your duties are.

Your job is not to create more work for me. Your job is to eliminate the endless interruptions to my productive work time, so I can focus my time and energy on the 20% of cases that will make the most money for us.

What is the best way to prepare for your job with me? You should read Our Team Playbook as often as possible…then come ready to work.

This means, for example, that should never ask me for a “status report” on a case. If you want to get the status of a case, you should check the “notes” tab in Trialworks, where I enter updates of almost every phone conversation, court appearance and “to do” jobs. If you ask me to give you the “status” on a case, you are creating more work for me and I don’t like that!

Our “Don’t Do” List

My goal is to focus on the work that ONLY I CAN DO and have you do everything else. For instance, I would never ask you to handle a malpractice trial or deposition because that’s my job and you are not licensed to practice law. There are certain things that only I can do, and those are the only things I should be doing.

Besides malpractice depositions and trials, there’s not a lot more that only I can do. I like to prepare expert responses, the allegations of negligence in the bill of particulars and, but that’s only because I like doing it.

Your job is to do everything else. This includes getting medical records, communicating with clients, preparing discovery responses, scheduling depositions and making sure deadlines are met.

Your Authority to Take Action

You have authority to act without interrupting me. Do not ask me, “Should the expert witness fly into LaGuardia or JFK Airport?” I don’t care. I trust you to make the right decision.

DON’T ASK ME FOR PERMISSION. Do what you think is right and we’ll make adjustments as we go along. You are not a problem reporter. You are a problem solver. You should never ask me a question if you can get the answer without asking me. I ENCOURAGE YOU TO TAKE MORE RISKS!

Use your judgment and make your best decision. This is my official written permission for you to fix all problems without contacting me. I am empowering you to make decisions for me without asking for my permission and you have my permission to make mistakes.

I don’t want you to ask questions throughout the work day—I do not need the constant interruptions. If you have questions that must be addressed by me and you cannot solve on your own, write them down and set up a time to speak with me. If you can get your written questions to me in advance, I will set up a time to speak with you between 4 p.m. and 5 p.m.

E-Mail Use

E-mails are for the most part a waste of my time so I do not best to avoid them completely. I only check e-mail twice a day, once at noon and again at 4 p.m. I never check my e-mail first thing in the morning, so don’t expect a response.

If I respond to each e-mail I get, I would get no work done. And it’s always tempting to respond to e-mails as a thoughtless interruption to work. I just avoid e-mails completely with the exception of two times a day. Even if I read your e-mail, there is a strong chance I won’t respond to it, so this is not a great way to get my attention.

Internet Use

The internet is a great way to avoid doing work. Let’s face it—the internet is the greatest temptation. It’s so easy to rationalize that you will only spend a few minutes on Facebook checking out what your sister did last weekend. There should be no web surfing at work.

We monitor internet use at our office. If you surf the World Wide Web, we will know when you are doing it, what web sites you are going to, and how long you spend on the internet. So don’t think for a minute that we don’t know you are on the internet.

The following is our firm’s policy concerning the use of email and the internet. While all aspects of the policy are of equal importance, you should pay special attention to items numbered 2 and 3. The firm’s computer system permanently records every email that is sent or received and every website that is accessed from the firm’s computers. Copies of this information is backed-up and kept at a secure off-site location.

With regard to website access, the system records the name of the person who visited each website, the date and time the website was accessed, and the length of time the person visited the website.

  1. All systems and equipment are the property of our law firm and are to be used only for business purposes;
  2. You should not have any expectation of privacy when using our systems and equipment;
  3. All systems and equipment will be monitored and employee use of the systems and equipment constitutes consent to monitoring;
  4. Email for personal purposes is prohibited;
  5. Use of the internet for personal purposes is prohibited;
  6. All information and data stored on the systems or equipment is confidential and is the exclusive property of our law firm;
  7. No information or data stored on the systems or equipment shall be used, copied or transferred, by any means, for any reason that is not directly related to the business purposes of our law firm.

Please sign this policy to acknowledge that you are fully aware of our law firm’s policies regarding the use of email and the internet.

Cell Phone Use

You should never text or make calls on your cell phone unless you have a family emergency. A family emergency would be your son just had an accident and is en route to the emergency room.

Dress Code

You should not dress like a slob. You should never wear jeans, t-shirts or sneakers. If you have nose rings, remove them. You should be dressed conservatively as though you plan to attend a funeral.

You will often be asked to come to court to meet witnesses or deliver exhibits during a trial. If you appear at the trial, you don’t want to look like you just got out of bed. It is difficult to predict when you may be called to assist at the courthouse, so the best bet is to dress professionally all the time.

No Gossip Rule

We have a NO GOSSIP RULE. If you’ve got the urge to gossip, trouble is heading your way. If you’ve got a complaint about a co-employee, everything stays in-house. You should never bring the gossip or work issues outside of the office.

Personal Errands and Timeliness

Your job is to make my job and my life easier. If I ask you to pick up lunch for me, don’t question why. As the Nike commercial says, “Just do it”.

It won’t happen often, but when I have a trial, you may be asked to do personal errands, like bringing lunch to my expert witness or driving the witness from my office to court. That is part of your job, so get over it.

You are expected to be on time. If you start work at 9 a.m., you should be at your desk and read to work with your computer on at 9 a.m. If your work day ends at 5 p.m., you shouldn’t begin packing up your things at 4:55 p.m. You should be working at your desk until 5 p.m. sharp.

Personal Errands

You should never do personal errands at work…PERIOD!   During your work hours at the office, you should not be paying your bills, getting an oil change for your car, or making day care arrangement for your kids.

Your personal errands should be done in your FREE time, not when you are supposed to be working. Unless you have a medical emergency with your family, you should never do personal errands during work hours.

If it is completely unavoidable, you must ask for permission from me to do a personal errand during work hours. You do not have my permission to do personal errands until you ask by e-mail and I respond, “Okay”. Otherwise, the answer is “no”.

Completing Assignments

If I tell you that a work assignment must be completed before the end of the day, you should not leave work that day without completing the assignment. If you cannot complete the assignment by the end of the day, you must ask for my permission to do the work the following day.

Document Preparation

You should prepare all documents in Microsoft Word 2007 or 2010. I do not use Microsoft Word Perfect because it is outdated and barely used. You should not create any documents in Microsoft Word Perfect.

You should create documents using the Ariel font, type size “12”. If you create documents in another font or type size, I will have to convert them and that’s a waste of my time.

You should double space all documents. The only time you should single space is for a block quotation within a document.

Your Vacations

You should not schedule a vacation the week before a trial. The week before a trial is the time when I need you the most.

You should not call in sick on a day that falls on the week before a trial. If you are sick enough to call in sick on the week before a trial, you better be in a hospital.

My Vacations

If I am away on vacation, you should not call me unless it truly is an emergency. I do not check my e-mail or text messages during vacation because I do not want to be interrupted. You get the picture.

Profanity in the Office

You should never use profanity in the office. But if you are tempted and you just can’t resist, you should leave the building and go somewhere that no one will hear you, before you shout profanities at the top of your lungs. You are part of a world class business and profanities have no place in our business.

When I am out of the Office

When I am out of the office and a client calls for me, the receptionist will forward the phone call to you. You should answer our client’s questions and address their concerns. Do your best to answer our client’s questions so I do not have to call them.

You should keep me informed about your contact with our clients by sending me an e-mail briefly describing the situation, i.e., “Mr. Jones requested copies of his bill of particulars and I gave them to him.”

Never Use the Word, “IME”

A physical examination of our client done at the request of the defense lawyer should never be called an “IME”. I never want to hear or see those words. You should always call the defense examination by its correct name, “defense medical examination” or “DME”.

Even if the Judge refers to the defense medical exam as an “IME”, you should never use that word or include such a term in a proposed Scheduling Order.

Why it’s done this way: The abbreviation, “IME”, portrays the defense examination as an independent exam, when in fact it is never independent. I do not accept his bogus jargon and neither should you.

Our Philosophy about Non-Personal Injury Cases

If a new client calls with a type of case that we don’t handle, i.e., a personal bankruptcy, you should not tell the client that we cannot handle their case. You should explain to the new client that you will find the right lawyer for their case and then ask me for the name of a lawyer to whom you can refer the new client.

Why it’s done this way: The only reason we get referrals from other lawyers is that we refer cases to them. The best thing you can do to nurture referral relationships with other lawyers is to send them new cases, even if there is no referral fee that we can get. Lawyers love referrals from us and it is your job to help me send referrals to other lawyers.

Fax Cover Sheets

You should not hand-write the transmittal sheet for faxes. You should always type the fax transmittal sheet on the form in our network. A handwritten fax transmittal sheet looks unprofessional.

Criminal Background Checks of New Clients

When I accept a new case (this means I decide to file a lawsuit), you should send a written request via facsimile to the Office of Court Administration for a criminal background check on our client. You should never assume our client has been honest about his past. In fact, you should assume our clients will lie to you.

You should always confirm with the Office of Court Administration that our clients do not have a criminal background. This is not a discretionary decision on your part—you should do a criminal background search for all of our clients, including our church-going elderly clients.

Social Media Background Check of New Clients

After I accept a new client’s case and file a lawsuit, you should check our client’s social media profiles, i.e., Facebook, Twitter, for inappropriate content (i.e., a profile photograph of our client pointing a gun into his mouth) and send me an e-mail if you find any embarrassing content.

Out-Sourcing the Grunt Work

If you are up to your neck in work and don’t know what to do, I have an answer: OUT-SOURCE. That’s right, there’s nothing wrong with out-sourcing the mundane, data entry projects to persons outside our law firm.

We use Elance.com to outsource data entry projects and there are a bevy of workers across the globe just waiting to do your work for very small fees. Not only do we approve out-sourcing your work, we applaud you for delegating the menial, data-entry projects that should not be consuming your time.

You have our absolute permission and authority to out-source work. If out-sourcing will make you more efficient, there is no need for you to ask my permission. We have a number of secretaries and paralegals who I’ve hired through Elance.com and we will give you their contact information as soon as you want to begin out-sourcing.

Here’s how it works: On Monday afternoon, you outsource a project to a paralegal on Elance.com or Guru.com, and on Tuesday morning when you return to the office, VOILA!, your work is done and ready for your review in your e-mail box. This is, in essence, the 24-hour law office and it’s truly a thing of beauty. Instead of the typical 8 hour workday for 99% of law firms, we become a 24 hour working machine. All it takes is one taste of out-sourcing and you will be sold.

If you ever think, “I have way too much work than I can get done”, you shouldn’t ask us what to do. You’ve got my answer, OUT-SOURCE! Hell, we’ll even give you my credit card information—just let us know when you spend $20 to outsource the next big project sitting on your desk.

When all else fails, DO THIS!

Here’s a basic office rule: if your door is closed, we will not open your door or knock. You will be left alone in complete silence.

When the door to your office is closed, that means you want no interruptions at all and need complete quiet to get your work done. You have our permission to close your door when you want to. We would far rather than you be productive than worry about hurting our feelings.

And by the way, if you need a day or two to get caught up with your work, just send me an email stating, “No interruptions please for two days” and voila!, you just got two days of uninterrupted work time.

Why it’s done this way: We understand that you need peace and quiet to get your work done. So, don’t be bashful—close your door and we will leave you alone to get your work done. This is perfectly acceptable with us.

E-MAIL

Transferring all E-Mails to Trialworks

All e-mails should be created and sent through Trialworks, so there is a record of the e-mails applicable to each case. You should not send e-mails through Outlook.

If you or I receive an e-mail through Outlook, you should ALWAYS transfer the e-mail from Outlook to the e-mail tab in Trialworks. In the upper corner of Outlook, you right-click the tab for Trialworks, identify the case where you will transfer the case and voila, the e-mail is transferred from Outlook to Trialworks.

Why it’s done this way: When you go to the e-mail tab in Trialworks, you will be able to review a complete list of every e-mail applicable to the case. Just as letters and motions must be organized and put in the appropriate tab in Trialworks, the same is true for e-mails.

Responding to E-Mails

I will include your e-mail address on all e-mail that I receive and send. When an e-mail is received from a client or lawyer, you should respond to all that you can, and send me a copy of your responding e-mail. You should filter my e-mails, so I do not have to respond to every e-mail I receive. Answering e-mail is a huge waste of my time.

If you can answer my e-mail for me, just respond without asking for my permission. You have my complete permission to respond to e-mail as you consider appropriate. Do not worry if you make a mistake. If you’re not sure whether you should respond, just do respond and keep me in the loop by sending a copy of your e-mail to me.

Urgent Matters-Do Not Use E-mail

You should not send me an e-mail if you need me to respond to an urgent e-mail. I don’t check e-mail often and it is likely I will not even read your e-mail if you need a response urgently. I only check e-mail at Noon and 4:00 p.m. every day.

MAIL

What You Should do with Mail

You should not give me hard copies of mail. Incoming mail should be scanned by you into Trialworks and e-mailed to me as soon as you receive the mail. If you leave hard copies of mail in my office, they will be forever lost or ignored—so you should NEVER leave hard copies of mail in my office.

Under no circumstances will it be acceptable to e-mail the incoming mail to me on a day after it is received.

Why it’s done this way: If you e-mail my mail to me a few days after you received it, my mail may become outdated and stale. For example, on December 29th, we receive a letter from defense counsel stating that a tractor trailer will be available for inspection on January 3rd. Instead of e-mailing the letter to me on December 29th (when you received it), you e-mail the letter to me on January 4th. As a result, I missed a crucial opportunity to inspect the tractor trailer and our client’s case will now be more difficult to prove. You get the picture.

Junk Mail and Solicitations

I do not need to read junk mail. If I get a solicitation in the mail and you think it’s junk that I don’t need to see, throw it away without asking for my permission.

Responding to Mail

You should review my mail. If you can answer my mail, then answer it. You should respond to all of my mail that you can without bothering me. If you believe a letter should be addressed by me (i.e., a letter making a settlement offer), then bring this letter to my attention by e-mail.

If you can respond to my mail, then prepare the letter, sign it and mail the letter with your signature. DO NOT ASK FOR MY APPROVAL. Your job is to make my life as easy as possible and that includes addressing as much of my mail as you can.

Phone Calls from Salespersons

If a salesperson calls for me, ask them to state the reason for their call in an email and I will only consider speaking with them if they follow this procedure. I will consider scheduling a phone call with the salesperson only after I get their email and I decide to schedule the phone call.

I will not accept unscheduled phone calls from salespersons.

Out-of-State Travel for Meetings

When I ask you to schedule out-of-state travel for me, there are three rules of thumb:

Rental Cars: I only rent cars from Enterprise. The economy or budget car is just fine—I don’t need a fancy car to impress anyone. Even if another rental company has a lower fare, I still prefer Enterprise.

Air Travel:  I prefer to fly on JetBlue and if you cannot book a flight on JetBlue, my second favorite is Southwest. I always prefer paying the extra $50 for the seats with extra legroom (called “Economy Comfort” or something similar). I try to avoid every airline that’s not named JetBlue or Southwest.

I hate layovers during air travel. Unless it is completely unavoidable, you should always reserve a direct flight from my home airport to the final destination.

Hotels: I prefer Hilton Hotel or any of their branch hotels. If there is no Hilton Hotel in the area where I am traveling, you can reserve a hotel room at the hotel offering the lowest available daily rate.

My “Closed Door” Policy

If the door to my office is closed, you should not knock or open my door unless it is an emergency. When my door is closed, this means I am busy working and I do not want to be bothered. An “emergency” means, “The statute of limitations will expire today if you don’t file the summons and complaint” or “Are you available to drive me to the hospital—I’m about to have a baby.”

You should limit your contact with me to specified times during the day, i.e., between 4:00 p.m. and 5:00 p.m. I do not have an “open door” policy.

Why it’s done this way: It is impossible to get work done if I have a constant flow of interruptions. If you have something that is important, send me an email and schedule a time to speak with me later in the day between 4:00 p.m. and 5:00 p.m.

Blocking Out Time in the Calendar

If I block out time in the calendar, i.e., 9:00 a.m. to 11:00 a.m. is blocked out in Microsoft Outlook, which means I am busy working on a specific project and I will not accept any interruptions. This means you should not bother me.

Scheduling Appointments in Microsoft Outlook

You are responsible for scheduling all of my appointments.

If the time slot is not blocked off in Microsoft Outlook, i.e., the time slot between 2:30 p.m. and 3:30 p.m. has no appointments, I am available and you can schedule an appointment for me. You should not ask for my permission to schedule an appointment. If the time slot is open in Microsoft Outlook, I am available and you can schedule an appointment without asking for my permission.

You should not simply block out time in Microsoft Outlook for my appointments. Rather, you should state the specific time of the appointment in Outlook. You should schedule my appointments in Microsoft Outlook as follows: “JHF—court conference at 9:30 a.m. (name of client)”.

You should be as specific as possible when scheduling appointments in Microsoft Outlook. For example, if a new client requests a 30-minute phone appointment to discuss questions about the retainer agreement, you should enter the appointment in Microsoft Calendar as, “JHF-phone appointment with new client, Mr. Jones, to discuss his questions about the retainer agreement”.

Why it’s done this way: If you block out sixty minutes in Microsoft Outlook for my appointment, i.e., block out sixty minutes between 9:30 a.m. and 10:30 a.m., I will be forced to guess whether my Court conference is at 9:30 a.m., 10:00 a.m. or 10:30 a.m. I hate guessing. It is far better for you to specify the exact time of my appointment in Microsoft Outlook. That removes the guesswork and makes it easy for me to know the time of my appointment.

Keeping Me Posted about Your Work

When you complete a task or job assignment, you should send me an e-mail stating the task has been “done”. For example, you can simply state in an e-mail, “rejection letter to client—DONE” or “Medical records requested by mail”.

I want to know everything that you are doing and it is better to keep me informed. I don’t want to waste time reviewing the file to make sure you have done an assigned task.

            Why it’s done this way: Your emails will let me know that a task has been completed and can be crossed-off my “to-do” list. Otherwise, I will have to review the file to make sure you are doing your job and that’s not a good use of my time.

CHAPTER 7

CLIENT COMMUNICATION

On the first day that a client arrives to meet with us, he should be handed our “Shock & Awe” package for new clients. The Shock & Awe is a welcome package for new clients that set the standards and rules between our client and our law firm and helps educate them about the procedures to expect in their lawsuit.

The “Shock & Awe” package is intended to accomplish exactly what it’s called, namely showing up like no one else. The Shock & Awe package consists of the following items:

  • Our book, The Seven Deadly Mistakes of Malpractice Victims. The books should be signed by me and personalized for each client, i.e., “Dear Mary”;
  • Audio CDs: “How to Win a Lawsuit against your Doctor”; “The Top 3 Mistakes made by Injury Victims when hiring an Injury Lawyer”;
  • Binder of our team’s policies, including: 3 Rules of Communication, Your #8 Basic Rights (How to make sure your Injury Lawyer is doing his job), and Rules for Protecting your Privacy and Confidentiality Rights.

3 Rules for Communication

The 3 Rules of Communication explain our communication policies with new clients.

From day one, it is important that our new clients understand that:

  • I do not take unscheduled phone calls (yes, the new clients must schedule a time to speak or meet with me);
  • I do not accept “walk-in” appointments. If a new client just shows up and expects to meet with me, they will be told to schedule an appointment (if I am available to meet with them); and
  • I do not respond to email. My entire day would be wasted answering email if I bothered answering email throughout the workday.

If our clients don’t have a clear understanding of our communication policies, we will face an endless stream of phone calls and emails from them. It’s just better that our clients understand our rules for communication from day one, so they are not disappointed when I don’t take their unscheduled phone calls.

Your 8 Basic Rights

The #8 Basic Rights explains the rights of the client in a way that no other lawyer will do. Yes, this includes the right to fire your lawyer and the right to get a complete copy of the case file. No other lawyer educates clients about their rights like us.

Rules for Protecting your Privacy and Confidentiality Rights

The Rules for Protecting your Privacy Rights explains our office procedures for handling medical records and preserving our clients’ rights to confidentiality and privacy. This is a compilation of the ten most frequently asked questions by clients about their privacy and confidentiality, such as the rules governing disclosure of case information to family members (we don’t do this without your permission).

Why it’s done this way: The goal is to be different from every other lawyer. How many lawyers do you know who educate clients about their rights and explain the inner-office procedures? I don’t know any. The Shock & Awe package instantly sets us apart from every other law firm and answers our clients’ questions, which in turn results in fewer questions and interruptions from our clients.

Client Communication Policy

When a new client contacts our office and I agree to move their case to “under consideration” in Trialworks, you should mail the seven-page document entitled, 3 Rules of Communication to the client. In your cover letter, ask the client to sign the last page of the 3 Rules of Communication, initial the bottom right corner of the first six pages and return the original document in an enclosed self-addressed stamped envelope.

When you get the signed 3 Rules of Communication back from the new client, you should scan the original into the Memorandum tab in Trialworks and keep the original in a red well with the client’s name on it.

I do not accept unscheduled or unplanned in-bound phone calls from clients (or just about anyone for that matter). If a client wants to speak with me, you should schedule an appointment for the client to call me between 4:00 p.m. and 5:30 p.m. and allot at least 15 minutes for the phone appointment. You should ask the client how much time he thinks he needs for the phone call, and if our client wants more than 15 minutes, you can allot 30 minutes for the phone appointment.

You should ask the client to send an e-mail or fax to me that specifies the purpose of the phone call. If the client is elderly or does not have a fax machine or internet connection, you should ask that he specify the reason for the phone call to you and you should send me an e-mail with this information.

Why it’s done this way: If I accept unscheduled phone calls, I would waste my entire day speaking on the phone without getting any work done. Phone calls are usually a very unproductive use of my time. That’s why I do not accept unscheduled phone calls.

John’s VIP List

There are a very select group of persons who I will accept an unscheduled phone call—I call this my “VIP List”. With the exception of those on my VIP list, I do not take unscheduled phone calls and you should not ask me if I want to take unplanned calls from anyone not on this list.

My “VIP List” includes:

  • Lawyers referring a new case,
  • Claims adjusters with whom I am discussing a settlement,
  • Judges, and
  • My family members…and sometimes I don’t take their calls.

My Policy about Home Visits with Clients

When a disabled client requests a meeting with me, I always meet with them at their home. You should not schedule an office meeting with a disabled client, unless the client specifically requests it.

Why it’s done this way: I want to get to know our client away from the office so I can get a sense of what their life is really like and how their disability affects their everyday life. The only way to do this is home visits. Our clients appreciate the personal touch of a home visit and it conveys the impression that we care enough to meet them in their home environment.

Interaction with Clients

You should call our clients regularly, i.e., weekly not monthly, which will build a more personal relationship with each of them. Our clients should have a feeling of being “special”, a feeling that we care about them and their case. The best way to do this is to communicate with our clients on a regular basis.

If our client has questions about the case, you should not refer the phone call to me. You should do your best to answer the questions. Your job is to hold our client’s hand and take as much work off my plate as possible. If you’re not sure about the status of the case, you should ask the client to schedule a time to speak with you later that day.

E-mails are not the same as a personal phone call. Your communication with our clients should be done primarily by phone or face-to-face. E-mails are fine as long as you are not communicating with our clients solely through e-mail.

Our Client’s Privacy Rights

It is not uncommon that family members of our clients will call you asking for information about the case. Unless our client gives his permission, you cannot even tell family members that we represent our client. To keep it simple, you cannot convey any information about our client’s case to his friends and family members and they should not even be told that we represent their friend or family member.

If there is any doubt at all as to who and why someone is asking questions about any aspect of a case (pending or closed cases), no information should be given, even to acknowledge that there is a case. This would be a breach of our clients’ rights and our duty to keep such information confidential. When in doubt, you should always ask the attorney handling the file to speak with the person before any information is given.

Why it’s done this way: If you convey any information about the case to our client’s family or friends, you are violating our client’s privacy rights.

What you should do with a “Problem Client

A “problem client” is a client who does not follow our rules.

If you are having difficulty with a client, you should send me an e-mail about the client. I may want to be relieved as counsel by the Court. We can’t waste our time with clients who do not respect our time and the value we provide them.

Unplanned Phone Calls

I don’t take unscheduled, in-bound phone calls. If someone wants to speak with me, they need to request a time to speak with me between 4 p.m. and 5:30 p.m. each day.

On average, I receive between 10-15 phone calls a day and each call lasts on average 15 minutes. If I accepted every phone call, I would spend more than half of my day just answering the phone.

So I solve this problem simply by refusing to allow the interruption of unscheduled phone calls.

I will be completely accessible to them, but on my terms and when I am available. Anyone wanting to speak with me should specify the purpose of the call (ideally set forth in an email) and schedule a time to speak with me when I am available between 4 p.m. and 5:30 p.m. You should explain that I will always make myself available to our clients, but only on my schedule and when I am available to speak with them without interruption.

Keeping in Touch with Clients

You should be the primary resource for our client. This means that you call our client at least once a month to ask how they are doing and give them a status report on their case. At least once a month, you should call our client to ask if he has had any recent medical treatment so you can send the request for updated medical records.

There may be long stretches of time that I am not available to speak with clients due to trials or depositions, so my secretary should be in contact with them on a regular basis.

Our clients may think nothing is happening with their case if they don’t hear from us. Of course, we know there is a lot of work taking place behind the scenes, but our clients don’t know that.

It’s even a good idea to mail the client copies of their bill of particulars and discovery responses, so they can see for themselves the work that is going on. They will appreciate the updates and goodwill with our clients is always a good thing.

We want you to develop an emotional bond with our clients. By the end of the case, we want our clients to be raving about you—not me. That’s the type of feedback we’re looking for.

CHAPTER 8

NEW CASE CALLS

When a new client calls our law firm, we have one guiding principle: while the client is not always right, it is your job to make him feel that way.

Do not disagree or argue with clients— keep in mind that they have never been through a lawsuit before and have little understanding, if any, how a lawsuit works.

It is your job to show caring in everything that you do. From the way that you answer phones to the way that you greet a client when they come to the office, your caring attitude should shine through. The goal is to give our clients a “WOW” experience that they’ve never had from a lawyer.

What should happen when a New Client Calls

When a new client calls the office, the receptionist should first ask, “How were you referred to us?” The new client’s answer will determine what happens next.

  • If the new client answers, “I was referred by an attorney”, the receptionist should transfer the call immediately to my paralegal. The initial screening of the new case is done by my paralegal. New clients referred by a “referral partner”, i.e., a lawyer, should always be given EXTRA SPECIAL ATTENTION.
  • If the new client was referred by some other source, such as an advertisement and was not referred by a lawyer, the phone call should be transferred to Legal Intake Professionals in Nashville, Tennessee.

Why it’s done this way: 99% of our income is derived by lawyer referrals, so clients referred to us by my “referral partners” get extra special attention.

What you should say during the initial phone call with new clients

In every case, the first question asked by my paralegal should ALWAYS be, “May I ask how you were referred to us?” The new client may say my websites (i.e., www.ProtectingPatientRights.com or www.UltimateInjuryLaw.com), social media (i.e., LinkedIn, Facebook, Google My Business or Twitter), word of mouth from former or present clients, a referral from a lawyer, my newsletters (i.e., Lawyer Alert).

Regardless of how the new client was referred to me, you should document in the Intake Case Manager in Trialworks how the case was referred to me and identify the specific person, i.e., “Sally Jones”, who referred the new client to us.

Why it’s done this way: If I don’t know how new clients are referred to me, it will be impossible to determine what marketing is working for me. If, for example, I receive a new seven-figure case from LinkedIn, I know that my social media is getting results and I will put more of my time and money into social media. It is CRUCIAL to determine from the beginning of the initial phone conversation with the new client how he was referred to me.

It is your job to act as a filter to screen new calls that have no merit. Often, new “clients” call who are only trolling for free information, i.e., no real injury, or they just want to learn more about malpractice lawsuits. I do not want to take these calls—they are a waste of our time. You should not transfer the “no merit” calls to me.

The SCRIPT for New Case Calls

When answering the phone, you must follow a script. You must answer the call exactly as my script is written—yes, that means word for word.

Our script is not meant to be a suggestion for you, or show you how you might want to answer the phone if the mood strikes you. If you were an actress in a movie, you would read your script exactly as it is written and yes, the same applies to answering the phone.

Answering the phone with a smile on your face is an absolute must. You must be warm and welcoming to our clients and the best way to do that is, you got it, SMILE. If you find this hard to do, you should place a mirror in front of you and focus your attention on the mirror when you are on the phone—this is the best way to remind yourself to smile.

You want to convey a caring and compassionate tone of voice when speaking with new clients.

Step #1: “Thank you for calling Fisher Malpractice Law. This is [name of receptionist]. I can help you.

Why it’s done this way: By saying, “I can help you”, you are starting the initial phone call with a client with a helpful tone that is unique and different from 99% of law firm receptionists who answer, “Law Firm. Please hold.” Remember, our goal is to be different from everyone else.

Step #2: “May I ask your name. [First name of client], let me be the first to welcome you. Who can we thank for referring you?”

Why it’s done this way: The first thing you want to learn from the new client is the name of the referral source, whether that is a lawyer (most common), or a former or current client. It is crucial to get the name of the referral source, so referral fees can be paid to referring lawyers in many cases. Since I have a referral based law practice, the source of the referral of the new client is critical information that you must get early in the phone conversation.

By asking how the new client was referred to us, you accomplish two things: (a) you are instilling in the mind of the new client that we have a referral based law practice, i.e., hopefully the client will refer new cases to us; and (b) we can document the referral with a letter and send a personalized “thank you” letter to the referring lawyer.

Saying “thank you” to referral sources should be a daily part of our routine. You should remind me to write a hand-written thank you letter to the referring lawyer on the same day that we receive a call from the new client.

Generally, you should always try to call the client by his first name as frequently as possible during the phone conversation—everyone loves the sound of their name and this conveys a personal touch to the phone call. Your goal is to begin a very personal relationship with the client.

Step #3: “That’s interesting. Most of our clients are referred to us by lawyers.

Why it’s done this way: Once again, you are reinforcing in the mind of the new client that we have a referral based practice and that we welcome referrals from our clients.

Step #4: “What prompted you to call us? [after the client tells you the reason for the call, you should then ask the client]. I have some questions to ask you so that we can determine what the next step is for you. Would that be alright?

In medical malpractice cases, you should get the date of the incident, i.e., date of a botched operation or the date that the client believes his medical condition was misdiagnosed, the name of the doctor who treated the client, the nature of the injuries, and the theory of negligence against the doctor. You should enter this information in the Intake Case Manager in Trialworks.

Why it’s done this way: The first issue in a new case is whether the statute of limitations has expired. If the statute of limitations has expired, there is no need to get additional information about the case.

By getting the names of the treating physicians and hospitals, you will know where to send release authorizations to get the client’s medical records. In complicated cases with multiple treating physicians, you should ask the client to send an e-mail or letter with the names and addresses of treating physicians and hospitals, the approximate dates of treatment with each doctor and hospital and a statement of the client’s complaint against the doctor or hospital (this communication is protected by the attorney-client privilege). This will help us make sure we get all of the relevant medical records.

You should ask the following questions:

  • “Have you discussed this case with any other lawyers?”
  • “When did this happen?”
  • “Where did this occur?”
  • “Tell me exactly what happened.”
  • “What were the injuries from the malpractice?”
  • “Do you have any of the medical records concerning your treatment?”

Additionally, you need to get the client’s full name, address, e-mail address, date of birth, social security number, home, cell and work phone numbers and the name of the injured party (if different from the caller). The client’s biographical information should be entered for every new case call in the New Intake Manager in Trialworks.

Practice Tip: Always get the caller’s e-mail address! With the e-mail address, we have a way to communicate immediately with the client after the phone call, i.e., “Thank you again for calling us. We will mail John’s book, The Seven Deadly Mistakes of Malpractice Victims”, to you today. Just in case you want the book right away, we are attaching an electronic copy of John’s book with this e-mail. As always, please do not hesitate to call us if you have any questions.” New clients will appreciate the immediate feedback by getting an e-mail after the initial phone call.

Very Important!!: If the new client sustained a catastrophic injury or the new case involves death, find me and get me on the phone! Nothing is more important. If I am on the phone with a Judge, interrupt me! In BIG cases, you should schedule a home visit THAT DAY so I can meet with the client. If you tell the client that we will get back to him soon, he will call the next lawyer with the biggest advertisement in the yellow pages.

Step #5: You should always explain the next step in the process. For example, you might say, “We will e-mail a HIPAA power of attorney form to you that you should sign before a notary public and return to us by mail. Once we have the HIPAA power of attorney from you, we will request your medical records from the physicians and hospitals. It usually takes two to four weeks to get the medical records.”

Why it’s done this way: By explaining the process, the client will know what to expect and how long it will take before we contact the client again. You do not want to end the conversation without making sure the client knows exactly what will happen next. You should send an e-mail to the client immediately after the phone call to reinforce the next step in the process.

Step #6: “By the way, have you read John’s book? John is the author of the book, ‘The Seven Deadly Mistakes of Malpractice Victims’. May I send you John’s book?

Why it’s done this way: The book offer hammers home the concept that the new client found the right lawyer, i.e., the guy who “wrote the book”.

Step #7: “We look forward to working for you. If for some reason you decide that you do not want us to work for you, will you let us know?

Why it’s done this way: You want the client to make a verbal contract that he will not hang up the phone and call another lawyer. I don’t want to spend time and money on a new case if the client is “lawyer shopping”. Getting the client to say “yes” to the verbal contract gives at least some commitment by the client that he’s not going to call the next lawyer he sees in a TV lawyer commercial.

Step #8: “Did I answer all of your questions? Is there anything else I can help you with? Thank you again for calling.

Why it’s done this way: I call this the “WOW” closing. By this point, you want the client to believe that there is no question he has found the best lawyer for his case.

What makes a Good Case?

A common element in a good case is a big injury. A big injury is one that is disabling and will have a long-lasting impact on our client’s life. If the client has a significant injury that had only a temporary impact, I will not take that case 99% of the time.

A “BIG” case is defined by injuries that meet one of five categories:

  • Death;
  • Partial or complete paralysis;
  • Blindness;
  • Loss of limb; or
  • Brain damage.

When you take a phone call from a new client, the thought in the back of your mind should always be, “Does this person have a big injury?” If not, it’s very unlikely that I will be interested in his case.

Unscheduled Office Visits by our Clients

I do not take unscheduled, walk-in appointments…for anyone. If a new client arrives at our office without an appointment, you should get his information, i.e., name, address, phone number, etc., and the basic information about his case. If the new client has a case that might have merit (fat chance in most cases), you should tell the client that he should call our office to make an appointment to speak with me (just like everyone else).

Why it’s done this way: Unscheduled walk-in appointments are never acceptable. These clients are high maintenance and virtually never have a case that I will accept. Unscheduled, walk-in appointments are an interruption to my workday and I do not accept them.

How to Enter Data from New Case Calls

Before you transfer a phone call from a new client to our paralegal or Legal Intake Professionals, you should make sure you enter the client’s background information, i.e., name, address, phone number, etc., in the Intake Case Manager of Trialworks, also known as the “Intake Wizard”.

Why it’s done this way: I do not want to enter the client’s background information every time a new client calls—this is a waste of my time. You should always enter this information in the Intake Case Manager of Trialworks before you transfer the phone call to me.

Every incoming call from a new client (whether the new client has a personal injury, DWI or divorce case) should be entered into Trialworks through the Intake Case Manager (see upper right corner of the Trialworks screen for the “Intake Wizard” icon). Even if you know that we will not accept the case, you should enter the client’s information in the Intake Case Manager in Trialworks.

A “client” is anyone calling my office asking for advice, even if they are only trolling for free information and mentally unstable.

When you take a phone call from a new client, you should always enter the client’s name, address, e-mail address, date of birth, social security number, the name of the injured person, the date of the incident, the type of case (medical malpractice, motor vehicle accident, premises liability, etc.) the date the statute of limitations will expire (if you know), and a brief summary of the relevant events. You should enter this information in the Intake Case Manager in Trialworks.

In the “Comments” tab of the Intake Case Manager, you should enter your name (so I can tell who entered the information), the date that you spoke with the new client, and your initial plan of action for the case, i.e., “verbally rejected the case and will follow up with a rejection letter” or “will get medical records and open a new case in Trialworks”.

In section two of the Intake Case Manager, you should always ask new clients how he was referred to the firm, i.e., internet, lawyer referral, client referral, yellow pages, etc. Once you have this information, you should document in the new case call intake the source of the new business in the Intake Case Manager of Trialworks.

Why it’s done this way: We must keep careful track of every new client who calls us, even if they want to sue McDonald’s for having soggy French fries. This will allow us to keep track of the number of new case calls, the source of new clients and what type of marketing is generating the best new cases.

After you take the background information from the new client, you should transfer the phone call to me. I will complete the rest of the information about the new client’s case in the Intake Case Manager in Trialworks.

However, it is often the case that I will not be available to speak with the new client. If I am not available to speak with the client, you should take a statement describing the nature of the claim, i.e., what happened and the injuries sustained by our new client.

What You Should Do AFTER the Phone Call

After you enter the data about the new client in the Intake Case Manager in Trialworks, you should do one of two things:

  • If I reject the case, you should mail a rejection letter to the client and send a copy of the rejection letter to the referring lawyer. A copy of the scanned original of the rejection letter should be electronically filed in the Shared “F” file in the network.
  • If I want to review the case for merit, you should send an e-mail to our receptionist asking her to open the new file in Trialworks as “Under Consideration”. After a new file is created for the case in Trialworks, you should not enter any new information in the Intake Case Manager in Trialworks for the file.

I will make a decision whether to reject a new case or transfer the new case to “under consideration” in Trialworks on the first day the new client calls us. I will give you clear directions on whether I want to reject the case or open the case in Trialworks on the same day that we receive the phone call.

When a new case is entered in Trialworks as “under consideration”, you should mail my introduction letter to our new client together with my audio CD, “What you can expect to happen next in your injury case”. This CD describes the procedures of a personal injury lawsuit from beginning to end.

Why it’s done this way: The introduction letter and the audio CD answer most of the questions posed by new clients, so you and I will not need to spend time answering the same questions. Additionally, new clients get a little surprise present in the mail that no other lawyers send. This creates an impression with our new clients that they hired a unique lawyer (which hopefully they have).

Opening a New Case in Trialworks

When you create a new case in Trialworks, you should always open the case in the name of the client who will bring the lawsuit. You should not create the new case in the name of the decedent in a wrongful death case or the name of the child in a case involving a minor.

Tracking New Case Calls

On the first Friday of every month, you should send me an e-mail listing the number of new case calls for that week and the source of the new clients, i.e., website, social media, lawyer referral, client referral, newspaper advertisement, etc. Your e-mail to me should indicate how many new cases were opened in Trialworks as a potential, a/k/a “under consideration” and how many were rejected.

Why it’s done this way: I need to keep track of how I am getting new business and without this information, I won’t be able to tell what marketing is working. My marketing dollars are budgeted and I need to know what marketing sources are getting new clients to call me.

Procedure for a New Case that is “Under Consideration”

On the first day that a new client calls us, I will make a decision. Either: (a) the new case is rejected and a rejection letter is mailed to the client; or (b) the new case will be opened in Trialworks as “under consideration”. There is no third option.

If I tell you to move a new case into Trialworks as “under consideration” (option “b”), you should call or e-mail the client to ask that he do two things: (#1) write a narrative summary that explains in detail the nature of the new case, i.e., the basis of the complaint; and (#2) ask the client to write a list of all medical providers, including hospitals and physicians, who treated him with dates of treatment.

The narrative summary form, or “Intake Form”, asks nine questions:

  • When did the medical mistake occur?
  • Name the physician, hospital or medical provider responsible for the medical mistake?
  • Describe the medical mistake in as much detail as possible.
  • List the names and addresses of the doctors and hospitals that treated you for your injuries.
  • Have you recovered from your injury?
  • Do you have any permanent injury caused by the medical mistake? If so, please describe the continuing injury that you have.
  • When was the last time that you received medical treatment for your injury?
  • Do you have any of the medical records? If so, please provide us with a copy of the medical records.
  • Are you still treating with the doctor who made the medical mistake? If not, when was the last date that you received medical treatment from the doctor?

You should explain to our new client that the information contained in the narrative summary, or “Intake Form”, is protected by the attorney-client privilege and will not be disclosed to anyone outside of our law firm. You should also explain to our new client that he should shred any copies that he makes of the narrative summary in order to ensure that it is not disclosed to others.

Why it’s done this way: The narrative summary will help me get a better grasp of the new case and the issues that the client wants me to focus on. The list of medical providers will help us get all of the medical records. No need to worry—both documents are protected from disclosure as attorney-client communications. This just makes our job easier.

Procedures for a New Motor Vehicle Accident Case

I expect that you will handle all of the initial steps in a new car accident case. I should not be involved at all in the initiate set up of a new case involving a motor vehicle accident. It is your job to prepare and mail the paperwork in the initial set up of the new case.

There are six steps that you should take in every new motor vehicle accident case (without asking me what to do):

  • Mail the application for no-fault insurance benefits to the no-fault insurer;
  • Send a letter to our client’s underinsurance (“SUM”) insurance carrier informing it of our client’s potential underinsurance claim;
  • Obtain a copy of the police accident report and get photographs of the vehicles and the accident scene/location. You should ask for my permission before you hire a private investigator;
  • Mail a “letter of representation” to the tortfeasor’s insurance carrier to inform it that we represent the client and ask for the disclosure of the tortfeasor’s insurance coverage for bodily injury;
  • If a traffic tickets was issued to the tortfeasor, you should send a letter to the justice court where the ticket is pending in order to notify the court that our client sustained a significant physical injury in the accident. You should find out the date and time of the court appearance relative to the traffic ticket and you should make sure that someone from our office attends the court appearance.

Why it’s done this way: If you do not notify the court about our client’s physical injuries, it is very likely the court will accept a plea reduction of the traffic ticket to a trivial offense, i.e., parking on pavement or failure to wear a seat belt. If the court is aware that our client sustained a physical injury in the accident, the court will not accept a plea reduction and the tortfeasor will be forced to plead guilty to the driving infraction. The tortfeasor’s guilty plea to a violation of the Vehicle and Traffic Law is very helpful in proving liability in our client’s lawsuit.

You can get the names of the tortfeasor’s insurance company from the insurance code on the police accident report. You should also check the bottom of the police accident report for the names of eyewitnesses to the accident. If there were eyewitnesses, you should send me an e-mail to ask whether I want to assign a private investigator to get a sworn statement from the eyewitness.

You should ask our client to e-mail or fax the declaration page from his automobile insurer, so you can verify our client’s coverage for bodily injury and underinsurance. You should always send a notice of underinsurance coverage to the underinsurance auto insurer, even if you have no idea whether underinsurance applies.

You should have the new client sign a power of attorney allowing us to sign release authorizations for their medical records, and request a list of our client’s medical providers. You should then send written requests for all of our client’s medical records that relate to the treatment only from the date of the accident to the present.

When a new motor vehicle accident case is accepted, you should take the following six steps without asking me to do anything. I expect that you can take these six steps without any help from me. I should not be involved in the initial set up of new motor vehicle accident cases.

Why it’s done this way: Particularly in new cases, you should mail copies of our correspondence to our client. The correspondence keeps our clients informed of the work we are doing for them and reduces the phone calls we get from clients asking what is going on with their case.

Procedures for a Medical Malpractice Case

These are the three steps you should take in every new medical malpractice case (without asking me):

  • Ask our new client to provide a narrative summary of the key issues that he would like us to focus our attention and provide the names and addresses of the medical providers;
  • Send a power of attorney to the client, preferably by e-mail, with a written request that the client sign the power of attorney before a notary public and return the fully signed and notarized power of attorney to us by e-mail and regular mail;
  • Mail written requests for the medical records from the date of the incident to the present.

Practice Tip: In order to limit the expenses of voluminous medical records, I will almost always limit our requests to specific medical records and dates of treatment. For example, my typical e-mail will state something like, “Please get the informed consent, operative report and discharge summary from Kingston Hospital for the operation on May 1, 2010.”

If I did not specify the specific medical records that I want you to get, you should send me an e-mail that reads, “What parts of the medical records do you want?” It is always important to limit the costs of getting medical records, particularly when I haven’t determined whether the new case has merit.

Retainer Agreement

You should not send a retainer agreement to a new client until I have accepted the case. The case is “accepted” when I send an email or tell you that I intend to file a lawsuit.

Once I inform you that I have accepted the case, you should prepare the retainer agreement in triplicate and the Memorandum regarding the Division of Fees. The retainer agreements should be mailed to the client for signing and the client should be instructed to keep one original and return two originals to you.

You should then mail one original retainer agreement and two memoranda regarding the division of fees to the referring lawyer for signing. You should instruct the referring lawyer to sign the original memorandum concerning the division of the fee, keep one original for his records and return one original to you.

You should always identify the referring lawyer by his name, i.e., “John Smith, Esq.”, rather than the name of his law firm unless the referring lawyer asks that you list his law firm as the referring lawyer.

Why it’s done this way: Protecting the rights of our Referral Partner to a referral fee is extremely important. If we don’t protect the rights of our Referral Partners, we won’t get another case referred from them.

Rejection Letters

Every case that is rejected should be memorialized in a rejection letter. The form letter for the rejection letters should be used for every rejection letter. You should not change the content of the rejection letter.

You should scan and sign copies of rejection letters and keep them in a digital format instead of paper copies. The fact that the letter is signed serves as an indication to us that it was sent to the client.

You should scan all documents provided by the potential client into Trialworks in the appropriate tab, scan the signed copy of the rejection letter into Trialworks, return to the potential client any personal papers they provided and shred the remainder of the file.

If the case was referred by a lawyer, you should always “cc” the referring lawyer on the rejection letter and mail a copy of the rejection letter to the referring lawyer. You should always keep the referring lawyer informed about our decision, whether we accept or reject the case.

In some cases, I may create a case-specific rejection letter for cases referred by a referring lawyer. It is only in this rare situation that the content of the rejection letter will be changed and only I will make the changes.

Why it’s done this way: If there is no rejection letter, we have no proof that we did not reject the case. This leaves our law firm open to legal malpractice claims that we missed a statute of limitations by failing to file the lawsuit.

Referring Lawyers

When a new case is referred by a lawyer, you should ask the referring lawyer whether he wants to be listed as “co-counsel” on all documents served and filed in the lawsuit, i.e., pleadings, discovery responses, motions, etc. If the referring lawyer wants to be listed as “co-counsel” on the litigation documents, you must send copies of all litigation documents upon the referring lawyer.

By listing the referring lawyer as co-counsel on the summons and complaint, you will ensure that the referring lawyer receives copies of all documents served by the defendants during the lawsuit. It is the rare situation that a referring lawyer wants to be listed as “co-counsel”, but you should let them know that this is an option for them before we file the summons and complaint.

Why it’s done this way: Our goal is to keep the referring lawyer informed about the status of the case. Hence, I have no problem with the designation of the referring lawyer as “co-counsel” on all documents that are served in the lawsuit.

Acknowledgment of Referral of a New Client from Lawyers

When I receive a referral of a new case from a lawyer, you must confirm the referral with a letter mailed to the referring lawyer within 24-48 hours of the new referral. The form letter acknowledges the referral and thanks the referring lawyer for the new case and promises to keep him informed of our decision whether to accept or reject the case.

Why it’s done this way: Referring lawyers are the life-blood of my business and it is crucial to keep them informed of the status of our work. The ultimate measure of success is a committed referral partner, so you want to keep our referral partners informed of the status of the case as often as possible.

Tracking Referrals to Other Counsel

When we refer a new client to another law firm, you should always memorialize the referral relationship in a letter to the outside counsel. The letter should read, “I am referring Mr. Jones to you on a referral basis” and specify the division of the legal fee. My customary referral fee is one-third of the total legal fees.

I have a database in Trialworks used only for the purpose of tracking cases that I refer to other counsel. After a new case is referred to other counsel, you should send a letter to the outside counsel once every twenty-one days ask if a decision has been made whether to accept the referral.

If the outside counsel accepts the referral of the new client, you should always ask the outside counsel to list me as “co-counsel” on all documents that are filed in the lawsuit and most importantly, on the summons and complaint.

Why it’s done this way: When I am listed as “co-counsel” on all of the litigation documents, the defense counsel and the court will be required to send copies of all of their correspondence, motion and discovery responses to me. By doing this, I will be kept informed of the status of the case, even I never get any updates from the outside counsel with whom I referred the case.

You should also insist that I be listed as the referring lawyer in the retainer agreement and that the division of the legal fee is specified in a separate agreement between the outside lawyer and me.

If the referral relationship is not set forth in a written agreement, I am not entitled to a referral fee (that means we don’t get paid and go out of business in short order). The outside attorney will screw me out of a referral fee unless I protect my rights by documenting the referral of the case, and the amount of the referral fee, in a written agreement that is signed by the outside attorney.

After the outside lawyer has accepted the referral, you should mail a letter requesting an update about the status of the case once every four months.

If the outside lawyer isn’t doing his job, then neither am I. The legal malpractice of the outside lawyer is the same as legal malpractice by yours truly, i.e., if the outside lawyer is missing deadlines during discovery, then I am “on the hook” for his legal malpractice. That’s why you should check with the outside lawyer for a status of the case once every four months.

Referrals to Out-of-State Lawyers

When a new client needs an attorney outside of New York, you should never tell them that “John doesn’t practice in your state”. Instead, you should explain to the client that I accept new cases across the country and that I “co-counsel” with lawyers in cases that are brought outside New York State.

You should then send me an e-mail asking for the name of a lawyer to whom I can refer the new client.

Why it’s done this way: The referral of a personal injury case of a client to an attorney practicing outside New York State is just as good, if not better, than a New York State client. Why, you ask? I can refer the case to another lawyer and collect a referral fee at the end of the case, while doing virtually no work and spending no money on the case. There’s nothing better than that.

CHAPTER 9

DISCOVERY, MOTIONS AND LIENS

DISCOVERY

Commencement of the Lawsuit

After the summons and complaint have been served, you should diary in the calendar the defendants’ deadlines to serve answers. If we do not receive an answer from the defendants by their deadline, you should send me an e-mail informing me that the deadline for an answer expired.

It is your job to make sure all of the defendants have been served with the summons and complaint within 120 days of the filing of the summons and complaint.

You should always make sure we possess an Acknowledgment of Service from each of the defendants. If you do not possess an acknowledgment accepting service by mail from each of the defendants within 60 days after the filing of the lawsuit, you should send me an email stating, “We have not received an acknowledgment of service from defendant, Mr. Jones. I will have Mr. Jones personally served with the summons and complaint.”

Instead of asking me what to do, you have my permission to hire a process server to personally serve the summons and complaint upon the defendant if you do not receive an acknowledgment of service within 60 days of the filing of the lawsuit.

Why it’s done this way: The lawsuit will be automatically dismissed if we do not complete service of the summons and complaint within 120 days of the filing of the summons and complaint.

Pre-Litigation Checklist

Begin by creating a checklist for every new personal injury case. Your checklist for a new personal injury lawsuit should include:

  • All medical records (pre and post incident),
  • Employment records for the last five years,
  • Tax returns and W-2 statements for the last five years,
  • Criminal background search,
  • Social media search (i.e., Facebook, Instagram) for damaging content,
  • Photographs and video of injured person or decedent, and
  • Names and addresses of lay witnesses re: liability and damages.

You must check every box on your checklist, sign it and submit it for your review and signature before every new lawsuit is filed.

Caption of Pleadings

The names of the parties should be in the lower case with the exception of the first letters of their names.

Creating New Cases in Trialworks

In the “Clients” tab, where it asks for “Party”, this should be filed in as follows: if the client listed on that page is an adult without a committee or a guardian, just put in that person’s name. If the client listed on that page is a child, the party would be his or her parents as parent and natural (or legal) guardian; if the client is dead, then the party would be the administrator or executor, i.e., “John Doe, as Administrator of the Estate of Mary Doe”.

The party needs to be filed in correctly and in every case because that is the information that is used for the signature line in authorizations and other documents.

Personal Service By Mail

As an alternative to serving a summons and complaint by personally delivering it to a defendant, CPLR section 312-a permits service by mailing a copy of the summons and complaint to the defendant, by first class mail, together with two copies of a “statement by service by mail and acknowledgment”, together with a prepaid envelope, addressed to the sender, for a return of the acknowledgment.

If the defendant signs and returns the acknowledgment, the time within which to answer begins to run upon mailing of the receipt.

If the defendant fails to sign and return the receipt, you should have him served personally and I will obtain an immediate Judgment for the cost of service.

When using this method, you should keep in mind that each entity to be served (i.e., each doctor, or the doctor’s corporation) must be separately sent a complete package addressed to them.

There is a template for the Acknowledgment in Trialworks under the “correspondence” tab, which is entitled, “Personal Service by Mail CPLR 312-a”.

Why it’s done this way: Our clients will save a ton of money on process service by serving pleadings and subpoenas by mail and the defendants and subpoena recipients almost always accept service by mail. This is a no brainer!

Discovery Deadlines

Deadlines are extremely important, particularly deadlines contained in a Preliminary Conference Discovery order. I can be sued for legal malpractice for failing to timely serve discovery responses and a bill of particulars by the deadline in a Preliminary Conference Scheduling Order. You should be aware deadlines and make sure you meet them.

If there are any deadlines approaching, such as a deadline to serve opposition papers to a motion or the deadline to file a motion for summary judgment or the note of issue, you should diary the deadline in the calendar and send me weekly reminders by e-mail of the deadline.

Within one week of the deadline, you should send me an e-mail with subject line, “TOP PRIORITY—DISCOVERY RESPONSES DUE”.

Extensions of Court-Ordered Deadlines for Discovery

If you cannot complete discovery within the Court-Ordered deadline contained in the Preliminary Conference Stipulation and Order, you should call defendants’ counsel to select new dates for the completion of discovery. Once you have a new date that is agreeable to defense counsel, you should prepare a letter to the Court requesting the extension of the discovery deadline.

I hate extensions and adjournments! But realistically, there will be occasions that we need to extend the discovery deadlines and when that happens, you must make sure you request the extension of the deadline BEFORE the deadline expires.

Why it’s done this way: If we do not respect discovery deadlines in a Preliminary Conference Stipulation and Order, we cannot expect defendants’ counsel to comply with the deadlines either. Many judges, particularly in federal court, will not grant extensions of discovery deadlines UNLESS you request the extension before the deadline expires.

Adjournments

You should never adjourn anything without my permission. My goal is to keep cases on the track to trial and adjournments are the mortal enemy of this goal.

The defense lawyers will try their best to adjourn everything they can. Your job is to “just say no”. You should not adjourn anything!

Dealing with Difficult Defense Counsel

It is inevitable that defense counsel will not cooperate with you in scheduling depositions and serving discovery responses. The job of the defense is to delay and adjourn everything and they are experts at doing this. So, what can you do about it?

When you serve the plaintiff’s discovery responses and demands with the notice of commencement of medical malpractice (in malpractice cases only), the court will schedule a preliminary conference for the purpose of scheduling deadlines for the completion of discovery. Almost all defense lawyers ignore the deadlines in the court’s scheduling Order, but you should treat the scheduling Order as the Ten Commandments for the case.

When you receive a Scheduling Order, you should diary all of the deadlines in the Calendar. If you cannot serve a discovery response by the deadline in the Scheduling Order, you must send a written request to the court for an extension of the deadline in the Order before the deadline expires.

Why it’s done this way: If we do not take Scheduling Orders seriously, we look unprofessional and we cannot expect the court to enforce a deadline if we don’t meet our court-imposed deadlines. It is your job to make sure that we meet all of the deadlines in the court’s Scheduling Order.

Bills of Particulars & Discovery Responses:

A victory for our client is getting his case to trial within 18 months from the date we accept the case, i.e., client signs the retainer agreement. Our client will not get the result he deserves until the trial. Getting the case to trial is our single most important goal in every case.

Why it’s done this way: Until our client’s case gets to trial, there will be no money. Our client won’t get paid and neither will we. The goal is to move the case as aggressively as possible toward trial while sparing no delay tactics. You will face an endless number of lame excuses from defense counsel to adjourn depositions and trials and it’s your job to insist upon strict compliance with the Court’s Preliminary Scheduling Order for discovery.

Preliminary Court Conference regarding Discovery

After the Court has notified you of a date for the preliminary scheduling conference, you should fax, e-mail or mail a letter to the defense counsel asking them to provide us with at least three alternative dates that they are available for the depositions of the plaintiff and defendant as well as any non-party depositions.

In your letter, you should inform the defense counsel that you will ask the Judge to “so-order” specific dates for the depositions of the parties and non-parties and if they do not provide alternative dates to you, you will assume they are generally available on a date that you select.

Why it’s done this way: The biggest obstacle posed by defense counsel is scheduling the depositions. More often than not, defense counsel will have their secretary tell you that they refuse to even schedule the defendants’ depositions until after the plaintiffs’ depositions have been completed. This is UTTER NONSENSE! For this reason, you should always get alternative dates for depositions from defense counsel before the preliminary scheduling conference with the Court.

Three days before the Preliminary Scheduling Conference, you should send a letter via facsimile to the defense lawyers asking that they notify you via fax if they claim that are any outstanding issues in discovery, i.e., documents or discovery responses that have not been provided by the plaintiff. The letter to defense counsel states that I will assume that there are no outstanding discovery issues if the defense lawyer does not respond to my letter.

We need to know whether there are any outstanding discovery issues before the preliminary scheduling conference. By sending this letter, we will be alerted to discovery issues that will be addressed at the preliminary conference schedule before the conference. Hence, we will be prepared to discuss the discovery issue at the preliminary conference or we can hand-deliver the requested discovery responses or documents to the defense counsel on the day of the preliminary conference. The goal is to address any objections or issues raised by the defense counsel before the preliminary conference, so we can get an expedited and streamlined discovery schedule from the Court.

Scheduling Orders—Original Chart Review of Medical Records

When agreeing to scheduling orders, we should insist on a specific date for the hospital or physical to comply with our previously served demand to produce the original medical records for inspection and copying and that the records be produced at least 2 weeks before any depositions are conducted.

Scheduling Orders—Preservation of Electronically Stored Information

When the defendants possess electronically stored information that is relevant to the case, the scheduling Order should specify:

The defendants are hereby Ordered to preserve until the final resolution of this matter all information from the defendants’ computer systems, removal electronic media, and storage devices relating or pertaining to the plaintiff.

Bills of Particulars

I will prepare the allegations of negligence and the list of injuries in the plaintiffs’ bill of particulars. You do not need to do that.

You are responsible for preparing the remaining parts of the plaintiffs’ bill of particulars. You must specifically list all of the plaintiff’s medical providers with the dates of treatment.

Why it’s done this way: I do not want to spend time making sure the list of medical providers and dates of treatment in a bill of particulars are correct. This is your job. I will only focus upon the allegations of negligence and the list of the plaintiff’s injuries in a bill of particulars, and I will assume you have done a bang-up job with the rest of the bill of particulars.

If you have questions about how you should answer the demand for a bill of particulars, you should call the client. For example, how long were you confined to your home after the injury or how long were you confined to bed? You shouldn’t ask me to answer these questions. It is your job to call the client, go through the questions in the bill of particulars and provide very specific answers.

Don’t forget, I want our clients to rave about you (not me). The only way to develop a close bond with our clients is communicating with them.

The list of injuries in the bill of particulars must provide a complete list of our client’s injuries and also list the future consequences of the injuries. For example, if our client sustained a fracture of his knee, you should include among the injuries: “Increased likelihood of future arthritis in the knee”. If you do not list the future consequences of the injuries, i.e., “increased likelihood of cosmetic surgery to improve the appearance of the facial scars”, we cannot submit evidence of the future consequences of the injuries at the trial.

Discovery Responses

You should prepare all of the discovery responses and discovery demands, including a cross-notice of video deposition and a notice of the plaintiffs’ availability for a physical examination.

Deadlines for the service of discovery responses should be taken seriously. If you are unable to meet a deadline for discovery responses, you should send request an extension from the defense lawyer.

You should list all of the questions in the plaintiff’s discovery responses and provide each answer directly below the question.

Why it’s done this way: The “question and answer” format for discovery responses allows me to determine the context for every answer. When I am in trial, I do not want to hunt around for the discovery demand for every discovery response.

There is no provision of the CPLR or the Uniform Rules of Trial Courts relating to the exchange of medical records that requires that I provide copies of medical records to defense counsel in a paper format. If it is a two-page document, you should send the medical records in a paper format. Once the medical records get to be larger than 10 pages, it doesn’t make sense to send anything other than a compact disc that contains the records in electronic format.

By providing documents, i.e., medical records, in a digital format on a compact disc (instead of paper copies), we are saving the time and expense of photocopying large records. Also, printing a large document ties up the use of the large printers.

When I give you the signed discovery responses, you should serve them on defense counsel by mail on the same day that you receive them. It is not acceptable to hold onto the signed discovery responses for two or three days after you receive them.

Objections to the Defendants’ Discovery Demands

In virtually all cases, the defense lawyer will serve a discovery demand that seeks inappropriate and objectionable documents from our client, i.e., authorizations for substance abuse records or access to private social media sites.

I will do the initial review of new discovery demands, identify the inquiries that are objectionable, and then have you prepare a letter with the appropriate objections. The letter specifying my objections must be served within twenty (20) days of the service of the discovery demand.

When I object to a demand for a bill of particulars or discovery demand, I usually cite cases that specifically hold that the inquiry is improper. For example, with a request for information about lack of informed consent, i.e., what information should have been conveyed to the patient, I object and cite cases which hold that such inquiries are improper for a bill of particulars.

The reason that I object in this manner is that CPLR section 3122 specifies that any objection must state with “reasonable particularity the reasons for each objection”. I have a memo that outlines cases addressing objectionable requests in bills of particulars. I also have a memo addressing objectionable discovery demands, such as requests for income tax returns, etc. You should feel free to use any information in any memoranda that may be of any help.

You can use a form letter to specify your objections. If you have any question whether a demand is objectionable, you can send me an e-mail with your specific question.

Why it’s done this way: If you do not mail a letter to defense counsel objecting to their discovery demands within 20 days, our client waives his objections to the demands. Even if the defendants’ discovery demands seek improper disclosure, i.e., income tax returns, substance abuse or child protective service records, we waive our objection if we do not serve a timely objection upon defense counsel.

There is no question that, at a minimum, a TIMELY written objection to defense counsel is necessary. The objection MUST BE SERVED within 20 days of the date of the defendants’ discovery demand.

When the defendants serve objectionable demands for bills of particulars, we need to identify those objectionable demands and send a letter of objection immediately. In the case of a bill of particulars, the objection letter must be served within 30 days of the date of the demand and reiterated when we serve our answers to the demand.

As soon as we receive a demand for expert disclosure and/or a demand for a bill of particulars (particularly in a medical malpractice case), please take a quick look at the demands and IMMEDIATELY send a letter of objection, if one is needed.

Object to Demands Seeking Social Media

New York courts have uniformly held that a defendant is not entitled to the blocked content of a plaintiff’s Facebook site by the mere existence of the site itself.

The defendants may not obtain discovery of blocked social media postings absent the existence of some articulable basis for believing that the private content is material and relevant to the plaintiff’s litigation claims, such as information giving rise to the belief that the blocked content “contradicts or conflicts with the plaintiff’s alleged restrictions, disabilities, losses or other claims.” Tapp v. NYS Urban Development, 102 A.D.3d 620 (1st Dep’t 2013). In the absence of such a factual predicate, the courts will deny the Facebook-related discovery.

Even when a factual predicate exists for the discovery of blocked social media, a defendant will still not be permitted access to a plaintiff’s private postings unless the discovery demand is limited to information that is truly material and relevant to the contested claims of the action. Kregg v. Maldonado, 98 A.D.3d 1289 (4th Dep’t 2012). For defendants, there will often be no basis for seeking the disclosure or private social media postings during the early phase of a lawsuit.

John’s Practice Point: Object in writing immediately when served with the pro forma discovery demand seeking disclosure from the plaintiff’s private social media sites. If you do not object within twenty days, you may waive the objection.

Discovery of Electronically Stored Records

In more than 50% of hospitals, medical records are maintained in an electronic format, a/k/a “electronic medical records”. In those cases, you should request disclosure of the “audit trail” of the electronic records.

The audit trail will show the history of all changes to the medical records. The audit trail will show all of the additions, changes and deletions to the patient’s electronic medical records and the date and time that the medical record was changed. For example, the audit trail will show that Dr. Jones added notations to the patient’s medical record on December 3rd (five weeks after the patient was discharged from the hospital).

If emails are part of the computer system (as opposed to an external system for emails like gmail), there will be an audit trail for emails. Just like the electronic medical records, there will be an audit trail for the emails. Within the metadata, there will be information showing the date the email was created, the history of changes to the email and when those changes were made.

Do you need a computer forensic examination to get the audit trail? Not always. You can get a paper copy of the audit trail that will display the date of the additions, changes and deletions to the patient’s electronic medical records and emails. If, on the other hand, you want to get the metadata, you will need a forensic computer examination.

How do you make sense of the audit trail? You should serve a notice for the deposition of the “IT guy”, or the go-to guy who knows everything about the defendant’s computer systems. You should ask the IT expert whether emails are external to the electronic medical record system and explain him to describe the audit trail.

Don’t forget to serve a preservation letter for the electronically stored information as soon as you accept the case. The preservation letter that I serve begins:

As critical evidence in this case exists in the form of Electronically Stored Information (“ESI”) contained in the computer systems of Albany Medical Center Hospital, this is a notice and demand that such evidence must be immediately preserved and retained by Albany Medical Center Hospital until further written notice from the undersigned. This request is essential, as a paper printout of text contained in a computer file does not completely reflect all information contained within the electronic file.

Additionally, the continued operation of the computer systems identified herein will likely result in the destruction of relevant ESI due to the fact that electronic evidence can be easily altered, deleted or otherwise modified. The failure to preserve and retain the ESI outlined in this notice constitutes spoliation of evidence and will subject Albany Medical Center Hospital to legal claims for damages and /or evidentiary and monetary sanctions.

Unless and until all potentially relevant ESI has been preserved, Albany Medical Center Hospital must refrain from operating (or removing or altering fixed or external drives and media attached thereto) standalone personal computers, network stations, notebook and/or laptop computers relating to our client, Mrs. Jones.

Statute of Limitations

You should keep track of the date that the statute of limitations will expire in all of our cases. Once we are within two months of the date that the statute of limitations will expire, you should send me weekly e-mail reminders with the subject line, “TOP PRIORITY—SOL”.

In the appendix to Our Team’s Playbook, we list the statutes of limitation for just about every kind of medical malpractice and personal injury case in New York. If you have a question about the applicable statute of limitations, you should refer to the appendix.

Defense Medical Examinations

Our clients should NEVER attend a defense medical examination alone. You should make sure that someone from our office, i.e., a secretary, paralegal or errand boy, attends the defense medical examination with our client. A.W. v. County of Oneida, 34 A.D.3d 1236, 827 N.Y.S.2d 790 (4th Dep’t 2006); Jessica H. ex rel v. Spagnolo, 41 A.D.3d 1261, 839 N.Y.S.2d 638 (4th Dep’t 2007); Parsons v. Hytech Tool & Die, 241 A.D.2d 936, 661 N.Y.S.2d 362 (4th Dep’t 1997).

Why it’s done this way: If our client attends a defense medical examination alone, the defense doctor will ask inappropriate questions about the accident, i.e., “Describe the accident” or “Tell me about your bipolar disorder”. Such questions are highly improper for a defense exam. However, with no one present to protect our client from such improper questions, the defense doctor will take advantage. You can bet that the defense doctor is taking audio and video of the defense examination from the moment our client parks his car and everything that our client does and says will be recorded by surveillance video.

Filing of the Note of Issue

You must make sure the note of issue is filed before the deadline specified in the Scheduling Order. If discovery has not been completed by the deadline in the Scheduling Order, you should prepare a letter for my signature asking the Court for an extension of the deadline for the filing of the note of issue and specifying why more time is needed for discovery.

With very few exceptions, I always file a demand for a non-jury trial in the note of issue. Unless I specifically ask for a jury demand, you should always assume that the note of issue should request a non-jury trial.

However, we must always get our client’s consent to file a non-jury note of issue. You should have our clients sign a letter acknowledging that they agree to waive their right to a jury trial.

Why it’s done this way: Our clients have a constitutional right to a jury trial and we cannot neglect this important right. Hence, you should get our client’s consent to file a non-jury trial with a letter signed by the client.

Defense Demands for Authorizations AFTER the Note of Issue

Defense lawyers often request authorizations for medical records and non-medical records after the filing of the note of issue. When this happens, you must object in writing within 20 days.

The filing of the note of issue cuts off any further discovery. While you must serve any updated medical records on defense counsel after the filing of the note issue, defense lawyers have no right to authorizations for updated medical records once the note of issue has been filed.

There is one exception: defense lawyers are entitled to authorizations that are needed for trial subpoenas. If a defense lawyer requests an authorization for a trial subpoena, it is okay to provide it to them.

MOTIONS

If we receive a motion from the defense counsel, it is your job to diary the deadline for me to serve our opposition papers. You should give me e-mail reminders of the deadline twice a week as the deadline approaches with the subject line, “TOP PRIORITY—MOTION DEADLINE”.

When you receive the Decision and Order, it is your job to file the Decision and Order with the County Clerk’s Office. Once you get a date-stamped copy of the Decision and Order from the County Clerk, you must serve a copy of the date-stamped Decision and Order upon defense counsel by mail.

How to Send the Motion Papers to the Court

If I prepare the original Notice of Motion and Affirmation, you must send those documents to the County Clerk’s Office because we have to pay a $45 filing fee on the motion. Remember, you do not pay fees to the Supreme Court Clerk.

The cover letter to the County Clerk in this situation should state: “Enclosed is a Notice of Motion and Affirmation that are returnable before Judge (whoever) on (whatever date). Also enclosed is our check in the amount of $45.00 in payment of the required filing fee. Please transfer the motion papers to the Supreme Court Clerk’s Office so that they may be forwarded on to the Judge.”

You must also pay filing fees to the County Clerk for cross-motions because another filing fee is required and you pay filing fees to the County Clerk. Filing fees are never paid to the Supreme Court clerk.

Motion Practice in Motor Vehicle Cases

In motor vehicle cases, it is often the case that we will need to make a motion for partial summary judgment on the issue of liability. It is your job to keep track of our deadline for making the motion for summary judgment.

Under the CPLR, we have 120 days to serve the summary judgment motion from the date the note of issue is filed. However, the Court often imposes a shorter deadline, i.e., 30 or 60 days after the filing of the note of issue. You should diary the deadline in our calendar and within 30 days of the deadline, you should send e-mails to me on a weekly basis reminding me of the deadline.

What to do after the motion is decided

After the judge has ruled on the motion, she normally returns all of the original motion papers to the prevailing party. Now it is time to send all of the original papers to the County Clerk to be filed.

The Supreme Court Clerk never “files” a document. The County Clerk is the department that files all documents ALWAYS. We do not want motion papers filed until they have been ruled upon.

LIENS

Medicare Liens

AS SOON AS THE LAWSUIT IS FILED, you must request a lien amount from Medicare and/or Medicaid. There are three steps to getting a final lien amount from Medicare.

Step #1: To start, you should call the Medicare Coordination of Benefits Contractor (1-800-999-1118) and provide the requested information about our client, i.e., name, address, date of birth, social security number, Medicare number and the nature of the injury. This will result in the claim being added to the Medicare recovery system and will result in the claim being referred to the Medicare Secondary Payer Recovery Contractor (“MSPRC”) from whom the final lien reimbursement will be obtained.

You should then fax or mail a letter to the MSPRC at P.O. Box 138832, Oklahoma City, Oklahoma 73113 (fax #: 405-869-3309) requesting a conditional payment letter showing the Medicare payments made related to the claim. Along with this letter, you must send a form called “Proof of Representation” and an authorization signed by the client allowing the disclosure of his Medicare information to us. The “Proof of Representation” form will generate a response from Medicare within 65 days known as a “conditional payment” letter. The conditional payment letter will have an itemized list of each expense made by Medicare relating to our client’s injuries.

If you do not receive the conditional payment letter from the MSPRC within 65 days, you should call the MSPRC to check on the status (1-800-677-7220). The MSPRC will answer phone calls between 8:00 a.m. and 8:00 p.m., but the best time to call (with the shortest wait time) is 8:00 a.m. or 7:00 p.m. You may be on hold for 90 minutes if you call the MSPRC in the middle of the day.

Step #2: When you receive the conditional payment letter from Medicare, you should try to determine what medical expenses were incurred for the injuries alleged in our client’s lawsuit. For example, if our client suffered a heart attack, medical expenses relating to a knee replacement would not be related to our client’s injuries in the lawsuit and therefore, they are not subject to Medicare’s lien.

After you determine what medical expenses are unrelated to the injuries alleged in our client’s lawsuit, you should send a letter to Medicare objecting to the unrelated medical expenses. Unless you send this letter, Medicare will assume that you agree with the amount of the Medicare lien set forth in the conditional payment letter.

This procedure will help us determine the lien amount at an early stage of the lawsuit.

Step #3: When the case settles, you should send a Final Demand letter to the Medicare Secondary Payor Recovery Contractor (MSPRC). You should attach a copy of the Settlement Statement showing the disbursements. Only after it receives a Final Demand Letter will the MSPRC provide you with a final lien amount.

If you do not receive a response from the MSPRC to your request for a final demand letter within 30 days, you should call the MSPRC at 1-866-677-7220 to check on the status. Upon receipt of the final demand letter from the MSPRC, you should check the Medicare payment detail to make sure that the Medicare payments were not made for unrelated medical conditions/diagnoses that were not at issue in the lawsuit.

You must make payment to Medicare as instructed in the final demand letter within 60 days to avoid interest payments at 11.25%.

Medicaid Liens

When you request a lien amount from Medicaid, you send a letter to the Department of Social Services in the county where the Medicaid benefits have been issued. Otherwise, the procedure for getting the amount of the Medicaid lien is similar to a Medicare lien.

The Department of Social Services will serve a Notice of Lien, pursuant to section 104-b of the Social Services Law. When you receive the Notice of Lien, you should mail a letter to DSS requesting a Claim Detail Report. The Claim Detail Report provides the services rendered, the dates of service, the diagnosis, the location where the services were rendered, and the cost of the services.

Why it’s done this way: The Medicaid lien applies only to those medical expenses relating to the injuries alleged in our client’s lawsuit. In a case involving blindness in one eye, the Department of Social Services is not entitled to a Medicaid lien for the expenses of a hip replacement operation. The Claim Detail Report will allow me to determine what medical expenses are related to the injuries claimed in the lawsuit and thus, reduce the amount of the Medicaid lien.

Subrogation Claims

If a subrogation claim is asserted by a health insurance carrier, you should send a letter demanding certain documents and proof that I will need to determine if the claim has merit.

Your letter to the health insurer should state:

Our firm represents Ms. Jones in an action which is pending in the Supreme Court of the State of New York in Albany County.

You have asserted a right to recover for medical expenses paid on behalf of the health plan referred to above.

If you are asserting a claim for reimbursement on behalf of an ERISA-governed health plan against our client’s recovery, as a preliminary matter in order to determine the validity of any asserted claim, and pursuant to 29 U.S.C. section 1024(b)(4), kind provide us with copies of the following documentation within thirty (30) days:

  1. A certified copy of the complete Plan Document for the Health Plan;
  2. Any document amending, supplementing, or otherwise modifying the Plan Document;
  3. Certified copies of any Summary Plan Description and employee benefits booklet in effect at the time of injury, and all such documents issued subsequently during any year in which benefits were paid to or on behalf of the claimant;
  4. Any SPD Wrap Document in effect at the time of injury, and all such documents issued subsequently during any year in which benefits were paid to or on behalf of claimant;
  5. Complete Bargaining Agreement, Trust Agreement, Contract or other instrument under which the Health Plan is established, together with any documents amending, supplementing, or otherwise modifying same;
  6. Any Trust Agreement or other document establishing the funding for the Plan;
  7. Certified copies of the Plan’s Annual Return/Report (IRS/DOL Form 5500), including all attached Financial Schedules, for the year including the date of injury and all subsequent years in which benefits were paid to or on behalf of claimant;
  8. The complete Administrative Services Only (ASO) Agreement with any Third-Party Administrator (TPA) for the Plan, including claims processing, funding and reimbursement procedures;
  9. An affidavit from the Plan Administrator attesting to self-funded status of the Plan;
  10. A complete detailed statement of the benefits paid to or on behalf of claimant; and
  11. Names and addresses of all payees of medical bills.

You are reminded that, pursuant to 29 U.S.C. section 1132, failure to supply the above requested documents and information within thirty (30) days form the date of this letter may subject you to a penalty of $100 per day and other costs, including attorney’s fees.

If you do not receive the materials listed above within forty-five (45) days of the date of this letter, we will presume that the Plan is not a self-funded employee welfare plan and withdraws its ERISA-governed health plan reimbursement claim.

As you are aware, our firm does not represent your interests in any manner, nor do we have the authority to act on your behalf.

Why it’s done this way: The goal is to get the lien amount as early as possible in the lawsuit. You do not want to wait until a month before trial to scramble to get the lien amount from Medicare or Medicaid. I will need the lien information before I can determine the value of the case, i.e., if there is a $312k Medicare lien, our client’s recovery will be significantly reduced by the lien.

One of the biggest impediments to a settlement at the time of trial is the lack of confirmation of the lien amount. To avoid this problem, you should request the lien amount as soon as we accept the case and file the lawsuit.

Updating Lien Amounts

If our client is receiving continuing medical treatment (i.e., this does not apply to wrongful death cases), you should send a request to Medicare or Medicaid for updated lien amounts at least once every six months. The lien amount will increase over the course of the lawsuit and you should have a current lien amount once every six months.

The Best Way to Defeat Liens

In your bill of particulars, you should specifically state that you are not seeking recovery of past medical expenses. When asked for the amount of the medical expenses in a bill of particulars, you should state that, “Plaintiff does not seek to recover medical expenses, past or future, in the present lawsuit.”

In Bradley, the survivors did not seek recovery of the decedent’s medical expenses in their wrongful death action. Bradley v. Sebelius, 621 F.3d 1330, 1337 (6th Cir. 2010)(see also, Benson v. Sebelius, 771 F.Supp.2d 68 (District of Columbia 2011). Because no medical costs were sought in the wrongful death action, the court in reasoned that Centers for Medicare and Medicaid Services (“CMS”) was not entitled to recover Medicare payments from the plaintiffs’ wrongful death settlement. Denekas v. Shalala, 943 F.Supp. 1073 (S.D. Iowa 1996). In Denekas, the court underscored that the plaintiffs had not claimed any medical costs in pursuing their wrongful death action and noted that Iowa’s wrongful death statute precluded the plaintiffs from claiming any such costs.

The Centers for Medicare and Medicaid Services cannot seek to recover their Medicare lien if you did not seek medical expenses as an element of damages in the lawsuit. When you receive the letter from the Centers for Medicare and Medicaid Services notifying you of the government’s Medicare lien, you should respond with a letter stating that your client did not seek to recover medical expenses as part of the lawsuit and provide the bill of particulars (or in federal court, your response to interrogatories).

The government cannot seek to recover its Medicare lien if you did not make a claim for medical expenses in the lawsuit. You might want to amend your bill of particulars TODAY.

CHAPTER 10

MEDICAL RECORDS

The First Step in Getting Medical Records:

There are two Power of Attorney forms in Trialworks: there is a General Power of Attorney and a HIPAA Power of Attorney.

By initialing the area adjacent to the letter (“Q”) on the General Power of Attorney and signing it before a notary public, the client authorizes us to act on his or her behalf with regard to “insurance transactions”, “claims and litigation”, “records, reports and statements” and “retirement benefit transactions” and further authorizes the attorney to delegate any or all of those powers to someone else, i.e., a paralegal or secretary.

This allows us to have the attorney sign nearly all authorizations for non-medical records and reports. Some situations, such as tax records, will still require a client signature.

The goal is to have all new clients sign (1) a retainer agreement; (2) a General Power of Attorney; and (3) HIPAA Power of Attorney.

The notary public before whom the General Power of Attorney and/or HIPAA Power of Attorney is signed should never be the attorney named in the document.

Why it’s done this way: This should allow us to obtain any and all records that we need (and to sign any and all defense authorizations) without having to waste time getting the client to sign them.

Notarizing the Client’s Signature

Whenever possible, you should avoid having a client or potential client have to go and find a notary public. Most people don’t know what a notary public is and don’t know where to find one. Having a potential client go to another lawyer’s office is somewhat counterproductive.

In those cases in which we have a referring attorney whose office is near the client’s home or business, you can make arrangements for the person to go to that office or have the attorney send a notary to the person. In cases where there is no referring attorney, you should try to get the client to come to the office to meet us and sign the relevant documents or make arrangements to have someone from our office who lives closest to the client’s work or home stop by to meet the client and get the necessary documents signed.

In situations where none of the above situations are practical, you should locate the notary for the client, set up the appointment and pay the notary for his or her services. The notary can be at the offices of an attorney with whom we regularly do business or a court reporter.

During your initial communication with the client or potential client, you should find out if they know a notary public who could conveniently notarize documents for them.

Why it’s done this way: When sending a client or potential client off to find a notary public is one of the first acts of our relationship with our client, you are sending a message that we are not here to help but are here to make their life more complicated.

Limiting Photocopy Costs

You should never get the complete medical records until you determine that the case has merit and that you will file a lawsuit. It is a complete waste of money to get the complete medical records until you decide whether the case has merit.

Your initial letter to the hospital or doctor’s office request should be limited to the medical records that are relevant to your potential case. This is known as a “limited set” of medical records. If you have a new case involving a botched operation, your request to the hospital should be limited to a specific date of treatment and a limited set of the medical records.

Your letter to the hospital should read, “I only want the operative report, discharge summary and progress notes for the hospital admission on July 1st.” You should highlight the requested medical records using bullet points to emphasize the records you want.

A limited set of medical records are all you need to evaluate the new case and will cost you about $10. If you ask for a complete set of medical records, the invoice from the hospital can range from $400 to $800. Why waste your money for medical records that you probably don’t even need?

In your letter to the hospital or doctor’s office, you should always include a statement in bold print that the hospital should call you to authorize the expense if the photocopying of the medical records exceeds $50. If you don’t include this statement in your letter, you may get stuck with a big invoice that you didn’t expect.

Remember, if you need to review the entire medical records, you can always request an “original chart review” with the medical records department of the hospital or doctor’s office. There is no fee for an original chart review. And if you want to avoid a huge photocopy fee, you can scan the original records with a portable scanner and email the digital records to your experts. Hey, you just saved yourself and your client a bunch of money.

Why it’s done this way: By limiting our request for medical records, the photocopy costs will be reduced significantly, i.e., in some cases by hundreds of dollars. This makes sense for those cases where I am undecided whether I will accept the new case.

Mailing Requests for Medical Records

When I ask you to request certain medical records, your written request should be mailed within 24 hours of my request. It is not acceptable to takes days or even weeks to mail a simple request for medical records.

Why it’s done this way: Our cases will not progress if it takes days or weeks to mail requests for medical records. Our clients will be calling us for answers and we will lose their case if there is nothing to report. Even if we don’t have their medical records, you can at least tell our client that their medical records were requested and the steps that we have taken to get the records.

Mailing Release Authorizations to Defense Counsel

As soon as you receive the initial set of discovery demands from the defense counsel, you must serve a complete set of release authorizations and medical records upon defense counsel. Do not wait to serve the release authorizations and medical records with the plaintiff’s discovery responses. I want you to get the case moving with medical records and release authorizations to defense counsel as soon as we get the initial answer and discovery demands from the defense attorneys.

Why it’s done this way: The service of medical records and release authorizations upon defense counsel gets the case moving while you prepare the discovery responses and demands. By serving the records and authorizations ASAP, you remove a common excuse used by defense counsel for adjourning depositions, i.e., “we haven’t had enough time to get the medical records.”

Responding to Requests for New Authorizations from Defense

When you receive a request for release authorizations from defense counsel during discovery, you should provide the release authorization without asking for my permission within five (5) business days of the request.

It is okay to provide release authorizations for injuries or medical conditions that are unrelated to the injuries that are the subject of the lawsuit. For example, if the client sustained a brain injury and the defense lawyer requests authorizations to get our client’s medical records relating to a fractured leg. I have no problem giving a release authorization to the defense lawyer for medical records relating injuries or medical conditions that are unrelated to the injuries claimed in the lawsuit.

However, there are two very important exceptions:

  • Never provide release authorizations for psychological or psychiatric records (unless a brain injury is the injury in the lawsuit);
  • Never provide an authorization for substance abuse records, i.e., treatment at a drug or alcohol rehabilitation facility; and

Why it’s done this way: Our client’s psychological and drug/alcohol records are exempt from discovery. You must object to a discovery demand that requests our client’s psychological and/or drug and alcohol treatment records.

Requests for Additional Medical Records by Defense Counsel

Whenever defendants’ counsel requests release authorizations for medical records for treatment that occurred before the defendants’ negligence, you should make sure that we request the same medical records.

Why it’s done this way: We do not want the defendants’ attorneys to have medical records that we don’t have.

Subpoenaing Medical Records During Discovery to Limit Expenses

If the cost of getting medical records from a doctor or hospital exceeds $50, you should always serve a subpoena duces tecum for the medical records upon the provider.   The subpoena duces tecum will direct the production of a certified copy of the medical records to our law office. (Note: You should always make sure you send a copy of the subpoena duces tecum upon defense counsel, as required by Article 23 of the CPLR).

You should never send a release authorization with a written request for medical records when the records exceed 100 pages. Subpoenaing the medical records saves our client a lot of money with large medical records.

Why it’s done this way: When you subpoena medical records (see CPLR section 3122-a for legal authority), the medical provider is entitled to a subpoena fee ($15) and a small mileage fee. The most the medical provider can charge rarely exceeds $50. Although they will try, the medical recorder cannot charge a photocopy fee (75 cents per page), when we subpoena the medical records. If the medical records consist of more than 100 pages, it always makes sense to subpoena the records instead of sending a release authorization. This will save our firm and our client a lot of money.

The medical provider will often try to charge the photocopy fee when you subpoena the medical records, but this is not permissible under the law. When you get an invoice for a photocopy fee after you subpoena medical records, you should mail a letter to the medical provider, or photocopy service, stating that the photocopy fees are impermissible and you assume this was an oversight on their part. Whatever you do, make sure you do not pay the photocopy fee when you subpoena medical records.

When you receive the certified medical records from the medical provider, you should send a letter to the defense counsel informing them that you received the medical records and they are available for copying and inspection by defense counsel . If you do not notify defense counsel of your receipt of the medical records, I will not be able to enter the records into evidence at the trial (see CPLR section 3122-a).

Inspecting and Scanning the Original Medical Records

We must always require the production of the original medical records and scan the records in color.

In addition, our discovery demand for photocopies of medical records should demand “color” copies of records. Without color copies of medical records, we may be surprised at depositions (or sometimes even at trials) when the color of the ink in a record tells an entirely different story than what we had been thinking to be the case up to that point.

Why it’s done this way: The worst thing in the world is to be confronted with medical records that I have never seen before at the deposition of the defendant. This really drives me batty (and it’s really bad for our client’s case). The only way to make sure this does not happen is to insist that the defense lawyer gives us an opportunity to inspect the original medical records and scan the original records in color with a laser color scanner.

After the original medical records have been scanned in color, the complete medical records should be sent to our medical experts, as they request, either on a compact disc, hard copy or a file sharing website (i.e., www.dropbox.com).

The website, www.DropBox.com is a free service that lets you share all of our photographs, documents and video with experts anywhere. If you want our experts to have access to a file, you can upload the file documents and send an e-mail to the expert granting access to the records from any web browser. It’s as though you saved the file to the expert’s computer. Dropbox is a great way to quickly and cheaply share file materials with our experts.

Follow Up with Requests for Medical Records

After you send a request for medical records, it is your job to make sure we have the medical records within twenty one days. 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. The doctors and hospitals will ignore the statutory ten day deadline set forth in section 18 of the Public Health Law.

You should 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

Your “Second Request” follow up letter should state:

On [Date of first request], we requested that you send us copies of the medical records of our client, [name of client]. To date, we have not received those records.

PLEASE BE AWARE that the Administrative Review Board for Professional Medical Conduct has imposed a penalty of 30 days actual suspension of license, five years’ probation and a $8,000 civil penalty on a physician who violated the provisions of section 18 of the Public Health Law by failing to provide specifically requested medical records in a reasonable time and who demanded unreasonable charges for copies of such records. The Supreme Court, Appellate Division, Third Department, unanimously confirmed the Board’s determination. Weg v. De Buono, 269 A.D.2d 683 (3rd Dep’t 2000).

We will appreciate your prompt attention to our previous request for medical records.

Remember, if you mail requests for medical records, your job is not done. If you do not possess the medical records within ten business days of your request, you should call the medical provider to ask why you don’t have the medical records and follow up with a fax to confirm your telephone conversation.

If you have not received the medical records within thirty-one days of our initial request, you should send an email to me stating, “It has been more than 31 days since our request for client’s medical records from Dr. Smith and he has not responded.”

Why it’s done this way: If you don’t keep on top of the medical providers, it may take as long as two or three months (or longer) to get the medical records.

After You Receive the Power of Attorney from our Client

When you receive the power of attorney signed and notarized from our client, DO NOT file the power of attorney and wait for instructions from me.

On the same day that you receive the fully signed and notarized power of attorney from the client, you should:

  • Check the Memorandum tab in Trialworks to determine if I specified the medical records that I need in order to evaluate the case. If there is a memo in the Memorandum tab of Trialworks, then mail a letter for the medical records that are specified in the memo.
  • If there is no memorandum specifying the medical records that I need, then you should send an e-mail to me that reads, “Today, we received the power of attorney from our client. What medical records do you want to request?” I will respond with an e-mail that specifies the medical records that I want.

Once you know which medical records that I need for the case, your request for the medical records should be mailed within 24 hours, and preferably on the same day that you receive instructions as to which records to request.

Why it’s done this way: The last thing we want is a power of attorney just sitting in Trialworks without requesting medical records. The medical records should be requested on the same day that we receive the power of attorney from our client. If you do not request the medical records as soon as we receive the power of attorney, this will just prolong the time that it takes for us to get the medical records. Our client deserves better.

What you should do AFTER you receive the Medical Records

After you scan the medical records and send them to the appropriate case file in Trialworks, you should review the records to make sure the medical provider gave you all of the medical records that were requested. Even when you request the complete medical records for all dates of treatment, it is common for medical providers to give you an incomplete set of the medical records. You should NEVER assume that the medical provider will send a complete set of the medical records. They usually don’t.

If you determine that we have an incomplete set of medical records, you should call the medical provider to request ALL of the medical records and confirm the phone conversation with a letter.

Medical Records Provided by Our Clients

In many cases, clients with potential cases provide us with their medical records. When we get the medical records from our client, you should scan the medical records into the medical records tab of Trialworks and then, call the client to ask if he wants the medical records back.

If our client wants the medical records back, you should mail the records to our client. If our client does not want their medical records, you should shred the medical records in order to protect our clients’ privacy rights.

Why it’s done this way: If I reject a potential case, our client will almost always want their medical records returned to them and there’s a good reason: he wants to shop for a new lawyer. That’s his right and it’s your job to make sure he gets his medical records back from us.

Authenticating Medical Records for Trial

You should ensure that the compact disc of medical records is authenticated before trial by serving a copy of it with our Notice to Admit on defense counsel. You must serve the Notice to Admit with the compact disc of medical records at least 30 days before the first day of the trial.

You should prepare a letter to defense counsel that lists every medical records and non-medical record that we intend to admit into evidence at the trial, together with a compact disc of the records, and request a response from defense counsel as whether he will stipulate into evidence the records. You should place a deadline for a response from defense counsel.

If the defense lawyer will not agree to stipulate the medical records into evidence, you should call the Supreme Court Clerk’s office to schedule a time to review the subpoenaed records at the clerk’s office. You should review the subpoenaed records during the week before the first day of the trial. When you review the subpoenaed records at the Supreme Court Clerk’s office, you should prepare a checklist of the records that have been produced to the Clerk and whether they are properly certified and what records have not been produced pursuant to your subpoena duces tecum.

You should e-mail a memo to me that list every record that has been produced, whether it is certified and what records have not been produced.   You should place phone calls to the medical providers who did not provide records pursuant to our subpoena or whose records were not properly certified. You should inform the medical providers that the medical records must be produced with a certification at 9:00 a.m. at the Supreme Court Clerk’s office on the first day of the trial. If you encounter any problems with the medical providers, you should send an e-mail to me.

The goal is to have all medical records and business records stipulated into evidence by defense counsel before the first day of the trial. This relieves one more thing that I have to think about at the trial.

Why it’s done this way: If there will be a problem getting medical records admitted into evidence at the trial, you should find out before the first day of the trial. The last thing I need is to show up on the first day of the trial to discover that the defense attorney has objections to the medical records due to the absence of a certification from the medical records custodian.

Authenticating Imaging Films for Trial

In the pleadings tab in Trialworks, there are forms for a “Notice to Introduce Evidence & Affirmation” and the “Physician’s Affirmation regarding films & tests”. This is designed to take full advantage of our ability to offer x-rays and the results of other diagnostic tests, i.e., MRI, CT scans and fetal heart tracings, at trial without producing a live witness.

The procedure is set forth in CPLR section 4532-a and requires that the x-ray or test is inscribed with the required information and that it is attested by a physician. The Notice and Affirmation must be served at least 10 days before trial (add five extra days if serving by mail) and the x-ray or test must be available for inspection, but need not accompany the notice.

This process is only going to be useful if you get the affirmation signed by the physician well in advance of the time to serve the Notice.

Why it’s done this way: This saves the time of getting a radiologist to testify at the trial about an imaging study in order to get the test in evidence at the trial.

Release Authorizations for Defendants’ Attorneys

You should never use a release authorization issued by the NYS Department of Health (as defense counsel will often insist that you do). You should only use the release authorizations, and Aron’s authorizations used by me.

Defendants’ lawyers will send you release authorizations on standard preprinted forms issued by the New York State Depart of Health (Office of Court Administration form 960). The preprinted forms “approved” by the Department of Health for the release of medical records and ex parte interviews between defense counsel and the plaintiff’s treating physicians SHOULD NEVER BE USED.

The Department of Health release authorizations provide none of the safeguards against the accidental (or intentional) disclosure of privileged medical information and treating physicians may mistakenly think that a private, ex parte meeting with defendants’ counsel is mandatory.

The Department of Health release authorizations do not contain any of the WARNINGS that are permitted for release authorizations issued to defendants’ attorneys. Pursuant to Porcelli v. Northern Westchester Hospital Center, 65 A.D.3d 176 (2nd Dep’t 2009), the release authorizations are permitted to provide the following warnings:

“The purpose of the requested interview with the physician is solely to assist defense counsel at trial.”

“The physician is not obligated to speak with defense counsel prior to trial. The interview is mandatory.”

In addition to the warnings on the release authorizations, plaintiff’s counsel is permitted to put the warning in boldface type and emphasize the warning in red with yellow highlighting. Consistent with the holding in Porcelli, we place yellow highlighting over the warnings and add a third warning to the release authorizations provided to defendants’ attorneys:

“Any discussion with defense counsel is entirely voluntary and MUST BE LIMITED IN SCOPE to the particular medical condition at issue in the litigation.”

In order to make sure that the defendants’ attorneys use the color version of our Aron’s release authorization, our authorization includes a statement that:

“This authorization is VOID if the above NOTICE is not highlighted in YELLOW.”

You should object IMMEDIATELY as soon as you receive the release authorizations provided by the defendants’ attorneys on the preprinted forms issued by the New York State Department of Health.

Why it’s done this way: The Department of Health release authorizations contain no warnings or information regarding the voluntary nature of the interview between defendants’ attorneys and the treating physicians or the purpose of the interview. With the DOH release authorizations in hand, the defendants’ attorneys can meet with the plaintiffs’ treating physicians under the guise that such a meeting is mandatory and there is no topic that is off limits.

In order to prevent the accidental disclosure of privileged medical information, you must ONLY provide defendants’ attorneys with release authorizations that we prepare—NEVER provide the DOH release authorizations to the defendants’ lawyers.

Letters to Treating Physicians re: Meeting with Defense

In addition to the warnings on the Aron’s authorizations, you should send a letter to the plaintiffs’ treating physicians to alert them that our client prefers that they do not meet with defendants’ attorneys and if they decide to meet with them, that I would like to attend the meeting.

The letter states:

We represent Ms. Jones in a legal action which is currently pending. With respect to that case, you may have recently received, or you will receive shortly, requests from the law firms of Smith & Wollensky, along with authorizations that we have signed on behalf of your patient.

Those attorneys wish to privately interview you, either in person or by telephone, concerning the medical condition, treatment and prognosis if Ms. Jones. Please be advised that, although we are required to sign the above-mentioned authorization, Ms. Jones prefers that you do not engage in such private discussions with anyone except us concerning any aspect of her 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. Liab. 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 03-4227 (LDW), 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. 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 made by the defendants’ attorneys.

Should you decide to discuss your treatment of Ms. Jones with the defendants’ lawyers, please notify us immediately, as my firm would like the opportunity to be present for any discussion.

Updating Medical Records

Updated medical records should be requested every time our client sees a medical provider.

If our client is ACTIVELY TREATING for his injuries, it is especially important to speak with our clients to get an update about medical treatment when we expect to file a Note of Issue within the next 30 or 60 days or in any case in which we have filed a Note of Issue and have an imminent trial date.

All that is necessary is to ask our client:

The latest medical records that we have received indicate that you were last seen by a medical provider on June 1st. Have you been seen by any medical provider since then? Do you expect to be seen by a medical provider within the next two months?

If our client is NOT ACTIVELY TREATING for his injuries, you should still call him once every three months to make certain that we have up-to-date medical records.

As you receive updated medical records, you should mail the new records to defense counsel in a digital format, i.e., a compact disc or pdf, as opposed to a paper format. Your cover letter to defense counsel should specify the name of the provider and the dates of treatment for the new medical records.

Why it’s done this way: If you do not send the updated medical records to defense counsel, the court will not permit me to use the new medical records at the trial. Please send the updated medical records to defense counsel without asking for my permission.

Mailing Medical Records to Expert Witnesses

You should send medical records to experts on a compact disc unless the expert insists on paper records. Your initial letter to the expert should state that we are asking for his “professional, objective and independent opinion” and identify the list of medical records by the names of the medical providers. The letter to our expert should state:

Thank you for agreeing to conduct an independent professional review of the enclosed medical records and to discuss your findings with us. We have enclosed the following medical records for your review:

.

Once you have completed your review, please call me to discuss your findings. I look forward to speaking with you.

Why it’s done this way: In the letter, the records enclosed should be described with great specificity so we know exactly what records an expert received, i.e., Dr. Smith records from 11/24/14 to 12/27/14—rather than just “Dr. Smith’s records”. This will enable us to know exactly what supplemental records need to be supplied later.

The health care providers should not be identified in any way as to indicate that they are potential defendants or that their responsibility has been predetermined in any way. No reference should be made to any reviews made by, or opinions expressed by, any other experts.

Some of our computer savvy experts will agree to review medical records through a file sharing website, like www.DropBox.com. File sharing websites are a quick and easy way to share voluminous medical records with medical experts. You should ask the expert if he prefers to get the medical records on a compact disc, a hard copy or review the records on a file sharing website. Whatever the medical expert prefers is fine with me.

After you send the medical records to the expert, you should e-mail or call the expert to schedule a date for me to speak with the expert by phone. I will usually only need 15-20 minutes to speak with the expert by phone. You should enter the phone conference in Microsoft Outlook and notify me with an e-mail about the appointment.

Records to Send to Expert Witnesses

While it makes sense to orally tell an expert what documents she might want to focus on, it is never appropriate to send her anything short of ALL the available documents that are relevant to her testimony.

The expert should receive: the complete underlying file; all pleadings and discovery in the case; expert responses, DME reports, bills of particulars, all depositions of all persons in the case; any other materials which might be relevant. You should keep an itemized list of what was sent to the expert, so we can make certain that any expert who may be asked to testify on any of the same or related issues will receive identical materials.

What it’s done this way: If you do not send all of the documents relevant to the expert’s testimony, the expert will be subject to a devastating cross-examination in which defense counsel makes it appear that the plaintiff’s attorney is using the expert as a puppet to espouse the theories developed by the plaintiff’s attorney and then sent the material to support that theory.

Do NOT request Medical Bills until We Accept the Case

Unless I have accepted the case, i.e., we will file the lawsuit and have the client sign a retainer agreement, you should NEVER request medical bills. In order to evaluate a new case, I do not need any of the medical bills/invoices, so you should not request them.

When I tell you that we will accept a new case and file the lawsuit, only then should you request the medical billing records.

Why it’s done this way: It is a complete waste of our money to request medical bills on potential cases. I reject 98% of new cases and it makes no sense to request medical bills that I don’t need to determine whether the new case has merit.

Our “Records Retention Policy”

There is no need to keep paper records, with the exception court orders, affidavits and witness statements. As long as all documents are scanned and stored in a digital format, there is no need to keep a hard file.

Why it’s done this way: You should treat our clients’ medical records with respect. Medical records which are to be disposed of should be shredded to protect “private” material that is contained therein. If you have any doubt, shred it. (see, Department of Defense, Top Secret Document Shredding, Level 6).

Storage of Imaging Films (MRIs, CT scans & X-rays)

You should request that medical providers give us a copy of imaging studies (MRIs, CT scans and X-rays) on a compact disc. When you receive the compact disc of the imaging films, you should upload the images into the client’s case file in the Miscellaneous tab of Trialworks.

If the medical provider cannot provide the imaging films on a compact disc and can only provide a hard copy of the imaging films, then you must keep a separate manila file of the imaging films with the name of the client identified in big, bold letters on the file. The manila file should be stored in a filing cabinet in the office that is used only for the storage of imaging films.

You should always keep in mind that medical providers often send us the originals of the imaging films, even though we only request a copy of the films. If the medical provider sends the originals of the imaging films to us and the films are misplaced or lost within our office, you may not be able to get another copy from the medical provider.

Clients’ Right to their File

The file belongs to the client. You should make certain that you have a complete scanned copy of the file. Nothing should be given to the client that you don’t have a copy of.

After you burn the client’s file to a compact disc, you can mail the compact disc to the client as long as he/she signs a receipt acknowledging that a copy of the file was sent to them. The client’s receipt for the file should be placed in the “miscellaneous” tab of Trialworks and a notation should be made in the “notes” tab of Trialworks stating the date that the file was given to the client.

Why it’s done this way: The New York Court of Appeals has determined that materials in client files properly belong to the client, rather than the attorney. Sage Realty Corp. v. Proskauer Rose Goetz, 91 N.Y.2d 30, 689 N.E.2d 879, 666 N.Y.S.2d 985 (1997).

CHAPTER 11

DEPOSITIONS

In every lawsuit, there are typically a minimum of four (4) to five (5) depositions and usually a maximum of ten (10) to twelve (12) depositions. The persons to be deposed in every case consist of three parties: (1) plaintiffs; (2) defendants; and (3) non-party witnesses.

In personal injury and medical malpractice lawsuits in New York, there are deadlines imposed by the court for the scheduling of depositions in a court order known as a “Preliminary Conference Stipulation and Order”. Typically, the Preliminary Conference Stipulation and Order will contain an “outside deadline” for the completion of all depositions. It is very important to schedule the depositions before the deadline set forth in the Preliminary Conference Stipulation and Order.

In most cases, the deadline for the completion of all depositions is six months from the date of the first preliminary court conference, where the attorneys meet to discuss deadlines for the completion of all aspects of discovery, i.e., discovery demands and responses and depositions. Thus, in most cases, you will have six months to schedule the depositions of all parties and non-party witnesses after you have been given the assignment to schedule depositions.

There are three basic steps to scheduling a deposition:

Scheduling the Deposition

After you serve the plaintiff’s discovery responses, you should contact defense counsel by phone to schedule deposition dates of all parties. If the defense counsel does not call you back within 48 hours, you must call them. You should never assume that defense counsel will cooperate in scheduling depositions—they almost never do.

You are solely responsible for scheduling depositions. I do not schedule depositions.

You should make phone calls to the attorneys representing the defendants in order to schedule dates for the depositions. In almost all cases, you will ask to speak with the “deposition clerk” or the secretary to the defendants’ attorney.

You will inform the defendants’ deposition clerk that she is calling to schedule dates for the depositions of the plaintiff, defendant and in some cases, non-party witnesses and she will ask for alternative dates that the defendants’ attorneys are available for the depositions.

You must coordinate a date for the depositions of the plaintiffs, defendants and non-party witnesses that are acceptable to the defendants’ attorneys. Typically, you will ask the defendants’ deposition clerk for multiple dates that the defendants’ attorney is available for the depositions.

It is common and should be expected that the defendants’ deposition clerks will not cooperate with the deposition scheduler. It often takes multiple phone calls to confirm a date for a single deposition. It does not suffice to make a single phone call, leave a voice message and expect that the defendants’ deposition clerk will respond—they rarely cooperate. Persistence is crucial when it comes to scheduling depositions with defendants’ deposition clerk.

Confirming the Deposition

Once you have multiple dates that all of the attorneys are available for the depositions, she will confirm the dates for the depositions with a letter to defendants’ attorneys.

The letter to defendants’ attorneys will state the time, date and location of the deposition and who will be paying for the stenographer’s fee for the deposition:

This confirms that we have confirmed Monday, December 3, 2012 as the date for the plaintiffs’ depositions at Valley Reporting Service at 115 Green Street in Kingston, New York at 10:00 a.m. The defendants’ counsel will provide the stenographer for the plaintiffs’ depositions.

Once a date for the deposition has been confirmed with a letter to defendants’ counsel, you should enter the date in the Master Calendar in Microsoft Outlook and inform me by email of the date for the depositions.

Re-Confirming the Deposition

One day before the deposition, you should call the defendants’ attorneys to confirm the deposition, i.e., “I am calling to confirm the deposition of the plaintiff, Mr. Jones, tomorrow at 10:00 a.m. at Valley Reporting in Kingston”. Once the deposition has been re-confirmed on the day before the deposition, the deposition scheduler should send an email to the assigned attorney (me) stating, “Tomorrow’s deposition of Mr. Jones has been confirmed with defendants’ counsel.”

Why it’s done this way: I just hate showing up at depositions to discover that the videographer or stenographer are not there and you did not confirm the deposition with them.

Make sure we have a complete set of discovery responses from the defense before scheduling depositions: You should never schedule the depositions of the defendants UNTIL you confirm that we received a complete set of discovery responses from the defense attorneys.

Before you schedule the defendants’ depositions, please check the discovery tab in Trialworks to determine whether we received the defendants’ discovery responses and if so, make sure the defense lawyer provided us with actual documents in response to the plaintiffs’ discovery demand.

WARNING!!! Defense counsel will often serve a discovery response that reads, “Defendants will provide the requested documents at a future date.” This is not a discovery response. My translation of such a response: “We are too busy to respond to the plaintiffs’ combined discovery demands and we’ll get the requested documents to you when we feel like it.” If the defense attorneys serve a nonsense discovery response like this, it is your job to remind them BEFORE THE DEPOSITIONS ARE SCHEDULED that we are entitled to a real response that provides the documents that we requested, such as the hospital’s policies and procedures.

If we do not possess a complete set of medical records from the defense attorneys before the defendants’ depositions, I will adjourn the depositions until we have the defendants’ discovery responses. It is your job to make sure that doesn’t happen.

Why it’s done this way: I cannot prepare for a deposition of a key physician or nurse without a complete set of discovery responses from the defendants’ counsel. It is your job to make sure that the defense attorneys have provided us with a complete set of meaningful discovery responses before you schedule the defendants’ depositions.

The #1 Stalling Tactic by Defendants’ Lawyers

It is a very common stall tactic of defendants’ lawyers to refuse to schedule the defendants’ depositions until the completion of the plaintiff’s deposition. THERE IS NO BASIS IN LAW FOR THIS RIDICULOUS POSITION.

When the defendants’ lawyers tell you that they will not schedule the defendants’ depositions until after the completion of the plaintiffs’ depositions, you should send a letter via fax to the defense lawyers that seeks to confirm their position and asks them to respond to your letter if your claim is incorrect. Then, you should send an email to me immediately. We will need to notify the Court that the defense lawyers not cooperating with us in scheduling depositions.

The #2 Stalling Tactic by Defendants’ Lawyers

When scheduling depositions, defendants’ lawyers will almost always want to schedule the depositions just days or one week before the deadline for the completion of depositions in the Court’s Preliminary Scheduling Order. When you encounter this stalling tactic, notify me immediately—it’s time to get the Judge on the phone!

Depositions of Non-Party Witnesses

When I ask you to subpoena a non-party witness for a deposition, you should always have the witness personally served with a subpoena. Do not serve the subpoena by mail. You should hire a process server to serve the subpoena upon the non-party witness.

          Why it’s done this way: If you attempt to serve the subpoena upon the non-party witness by mail, he will ignore the subpoena 90% of the time. If the witness ignores the subpoena, I will not be able to make a motion to hold the witness in contempt since he/she never accepted service of the subpoena. Let’s make things simple by personally serving the subpoena upon the non-party witness.

Getting Alternative Deposition Dates before the Preliminary Conference

You should send a letter to defense counsel stating:

Counselors:

In an effort to establish a mutually-agreeable timetable for the completion of all disclosure proceedings in this case, please provide the undersigned, within 20 days of the date of this letter, with five (5) or more specific dates between now and (enter a date approximately 3 months from the date of the defendants’ answer) when your clients will be available to give their depositions upon oral examination in this action.

In addition to your clients, please provide the same information regarding the following individuals, who I believe are current employees of your clients: (insert name of witness).

Upon receipt of your response to this request, we will proceed to schedule the depositions of such individuals.

If we do not receive a response to this request, we will proceed to schedule the depositions of such individuals.

If we do not receive a response to our request within 20 days, we will select deposition dates that are convenient for the plaintiffs and will request that the Court enter an Order directing that the depositions be conducted on those dates.

We look forward to your anticipated cooperation in setting mutually-agreeable deposition dates that are convenient for all parties and their counsel.

Dealing with Difficult Defense Counsel

Follow up with defense counsel in scheduling depositions is a crucial part of your job. When you call defense counsel to schedule a deposition, your job is not done. The scheduling of a deposition is complete only after you confirm a date for the deposition with defense counsel and confirm the deposition in writing with the details about the date, time, location and the names of the stenographer and the videographer.

If the defense counsel is not cooperating with you, you must call the defense counsel as many times as necessary to confirm a date for the depositions. Until you have a date confirmed for all depositions with defense counsel, you must keep calling the defense counsel.

If you do not have dates for the depositions of all parties within ten business days of the dates you served the plaintiffs’ discovery responses, you should prepare a letter to the court informing the Judge about the lack of cooperation from defense counsel and asking the Judge to impose “so-ordered” specific dates for all of the depositions.

Scheduling Conferences with Experts BEFORE the Deposition

When you schedule a date for the deposition of the “target” defendant in a medical malpractice case (the “target defendant” is typically a named defendant in the caption of the lawsuit), you should contact our medical expert/physician to schedule a date for a phone conference with him at least three days before the deposition.

You should explain to our medical expert that I will want to discuss with him the questions that should be asked at the deposition and the answers that he expects from the defendant. You should tell our medical expert that I will need about one hour for this phone conference.

Why it’s done this way: A big part of my preparation for the deposition of a “target” defendant is a phone conference with my medical expert. I need to make sure I leave no rock unturned at the deposition and the only way to make sure that happens is a phone conference with the medical expert.

When I was less experienced, I didn’t meet or have phone conferences with medical experts before depositions. Then, inevitably, the medical expert would review the deposition transcript and call me asking why I didn’t ask the most important questions. The phone conference with the medical expert is my way of making sure that doesn’t happen.

“Original Chart Review” BEFORE the Defendants’ Deposition

It is your job to make sure that a date is scheduled with the defense lawyers for an “original chart review” at least one week before the defendants’ depositions. An “original chart review” is an appointment that you schedule with the defense lawyer where I will inspect the original medical records at the defense lawyer’s office or the defendant’s medical office.

In our cover letter that accompanies the plaintifffs’ Combined Discovery Demands, you should state:

In connection with the plaintiffs’ combined discovery demands, please be advised that plaintiffs would like the opportunity to review the original records and documentation of the defendants prior to their respective depositions.

Plaintiffs also request that the original records and documentation be brought to the respective depositions.

The location of the original chart review is unimportant, i.e., defense lawyer’s office or the defendant’s medical office–I will agree to review the original medical records anywhere. What is important is that I review the original medical records, compare the original medical records to the medical records that we possess, and make sure that we are not missing any records.

It is absolutely essential that I conduct an original chart review at least one week before the defendants’ depositions. If the defense lawyers say “no” to an original chart review, you should remind them that section 18 of the Public Health Law gives our client the right to inspect the original medical records. You might also ask the defense lawyer who he feels that he is exempt from Public Health Law section 18 giving us the right to an original chart review.

If the defense lawyer still says “no”, you should contact the assigned Judge’s clerk or secretary to ask for a telephone conference to address this discovery dispute. Trust me, the defense lawyer doesn’t have a leg to stand on. Once you request a telephone conference with the Judge, the defense lawyer will back off and grudgingly allow the original chart review.

Why it’s done this way: I do not want to arrive at the defendants’ deposition and find new medical records (that I have never seen before). If that happens, I will not be able to conduct an effective deposition for two reasons: (a) I will not have time to evaluate the new records and questions that might flow from them (I don’t like “winging it” when a severely disabled client’s rights are at stake); and (b) my medical experts will not have reviewed the new medical records and hence, I will not have the benefit of their analysis of the records.

Disclosure of Electronic Medical Records at the Original Chart Review

Once you confirm a date with defense counsel for an original chart review, you should send a letter confirming the date and time of the original chart review. In your letter, you should specify that, in addition to the paper copy of the medical records, hard copies of all electronic records will be produced.

If you don’t specifically demand the production of paper copies of all electronic records, the electronic records will not be produced at the original chart review.

At least two days before the original chart review, you should call defense counsel to confirm that paper copies of all electronic records will be available for inspection at the original chart review. If you do not get confirmation from defense counsel, you should tell them that you will reschedule the original chart review once they can confirm that paper copies of all electronic records will also be available for inspection.

Why it’s done this way: Most medical practices use electronically stored information, including e-mails, billing and calendar appointments. E-mails, in particular, may be crucial to evaluating the case and without the electronic records, a complete understanding of the medical records is impossible.

When the Defense Lawyer Postpones Depositions

Defense lawyers will not schedule the depositions of the parties until after they get all of the medical records, even if that means violating a court Order for the completion of depositions.

So, what do you do when the defense lawyers claim they do not have all of our client’s medical records? First, you make sure the defense lawyer is correct (they usually have no idea what medical records they possess). You should check the correspondence to determine what medical records and release authorizations that you have already mailed to the defense lawyer. There’s a good chance the defense lawyer already has a complete set of medical records.

If you have already mailed a complete set of medical records and release authorizations to the defense lawyer, you should call the defense lawyer and state, “Our records indicate that you received a complete set of medical records and release authorizations on March 1st. Are there any other records you do not have?” After fumbling for a response, the defense lawyer’s secretary will usually agree to schedule dates for the depositions.

Video Depositions

You must videotape every deposition, unless there is a specific instruction not to do so. All depositions (with the exception of the plaintiffs/our clients) in all cases should be noticed or cross-noticed to be done on videotape, unless there is a specific written instruction from the attorney who will be doing the deposition stating that a specific deposition is not to be done on videotape.

The depositions of our clients (the plaintiffs) are never videotaped.

Such written instruction shall be given before the notice is signed and the attorney’s specific reason for not wanting to videotape the deposition is stated in the memo. Thus, the “default mode” for all depositions noticed or cross-noticed is that they are to be done on videotape.

You must make sure that you have scheduled a videographer and stenographer for the depositions.

Why it’s done this way: Videotape depositions are ten times more powerful than non-videotape depositions. The facial expressions, verbal pauses and mannerisms of answering questions are not picked up by the stenographer, but on video, they are pure gold. Cases can be won or lost depending on whether a deposition is videotaped. So, I videotape all depositions, with the exception of our clients’ depositions.

Original Medical Records at the Deposition

For all depositions of defendants in medical malpractice cases, I always want the original records (i.e., hospital chart or office chart) present at the deposition. If you don’t ask the defense counsel to bring the original chart to the depositions, I will have not the original chart at the deposition.

At least two days before the defendant’s deposition, you should confirm with defendant’s counsel that he will bring the original medical records to the deposition. When you have confirmation from defense counsel, you should send me an email stating, “Mr. Jones, counsel for the defendant, will have the original hospital chart at tomorrow’s deposition.”

Why it’s done this way: A copy of the medical records is not the same as the original chart. The original medical records will usually be more complete than our copy of the medical records and they often contain billing records, scripts and documentation of phone calls that were not disclosed by the defendants in their discovery responses. The only way of guaranteeing that I have a complete set of the medical records is to insist that defendant’s counsel produce the original medical records at the defendants’ depositions.

EBT Transcript to Request from Stenographer

You must make sure that you request in writing that the videotaped portion is provided to me on a DVD. In addition, please make certain that there is a written request to the stenographer that we receive the transcript in an ASC-II format, either on disc or by e-mail. This will allow me to “synch” the video testimony with the transcript, allowing all or portions of the video of the deposition to be played while the transcript of the testimony being seen appears on the screen simultaneously.

EBT Transcripts to Expert Witnesses

When all of the deposition transcripts have been received, you should put them on a compact disc and mail the CD to our expert witnesses. In the cover letter that accompanies the CD, you should list each EBT transcript by the name of the witness. This will ensure that our experts have all of the deposition transcripts.

Why it’s done this way: It always happens. As I am one week away from trial, I meet with my crucial expert witness and we review the file records that I mailed to him. To my horror, I discover that the expert does not possess critical deposition transcripts that might have a big impact on his trial testimony. To avoid this horror story, you should make sure we send all of the deposition transcripts to our experts.

After all of the depositions have been completed, you should send a letter or e-mail to the expert that lists every deposition transcript in the case and ask him to confirm that he possesses all of the transcripts.

Documents to Send Client before their Deposition

You should mail the plaintiff’s bill of particulars to our client one week before their deposition and ask them to review their bill of particulars in preparation for their deposition. The plaintiff’s bill of particulars is the only document you should ask our clients to review before their deposition.

Why it’s done this way: I want our clients to be familiar with their bill of particulars. Oftentimes, our client will spot information that is either incorrect or incomplete in their bill of particulars and that helps us make corrections and improvements to their bill of particulars.

Schedule Meeting with Client to Prepare for Deposition

Once you confirm a date with defense counsel for our client’s deposition, you should call the client to schedule an appointment for me to meet with them one week before their deposition. I do not want to meet with clients on the morning of their deposition or the night before the deposition. You can schedule this meeting at our client’s home or my office, whichever the client prefers.

You should inform our client that I will need two hours to meet with them for the initial meeting to prepare for their deposition, and that I will also need to meet with them 45 minutes before their deposition for a final meeting. If the client does not want to spend the time preparing for their deposition, you should let me know—it may be time to fire the client.

Why it’s done this way: I need to find out if there is a major problem, i.e., client spent time in a Mexican jail for armed robbery and murder, at least one week before the deposition. I do not want to find out about a major problem the day of the deposition or the night before. This is why I need to meet with the clients one week before their deposition.

Location of the Defendants’ Deposition

Unless I agree otherwise, the deposition of the defendants should always be held at our law office. We have the right to decide the location of the defendants’ deposition and it is almost always my preference to conduct the defendants’ deposition at our law office. CPLR section 3110.

The defense lawyer will almost always try to convince you to hold the defendants’ deposition at his law office, the doctor’s office or the hospital. That is not acceptable to me. Since I get to decide where the deposition of the defendant will be held, you should schedule the defendants’ deposition at our law office.

Location of Depositions of Non-Party Witnesses

Non-party witnesses can only be deposed in the county where they reside or have their primary place of business (see CPLR section 3110(2)). Hence, the depositions of non-party witnesses can only be held at our law office if the non-party witness resides or works in Ulster County.

If the non-party witness resides or works outside of Ulster County, then you should call a stenographer service for the location of a deposition suite where the deposition can be held in that county. Most stenographer services provide a deposition suite as part of their service. If the stenographer cannot provide a deposition suite at their office, you should ask me for the name of a law firm in the town where the deposition will be held and you can call the lawyer to ask to borrow the use of his conference room for the deposition.

CHAPTER 12

PAPERLESS OFFICE & SCANNING

Scanning

The following are rules (not things you should do only if you have time):

The responsibility to scan in documents falls upon the secretaries. Your computer system may need to be modified to handle the huge amount of new data that will be inputted. You will also need machines to copy files and materials onto compact discs. You must purchase all software necessary to maximize the use and efficiency of the scanning process, the search process and the printing process.

Scan all documents and e-mail them to the assigned attorney on the day when they first arrive in the office. No letter, pleading, bill, report, medical record or any other material that belongs in a file in this office is ever to be delivered to a lawyer or put in a file until it has first been scanned into the correct file and e-mailed to the lawyer who should receive it. The goal is to scan everything and photocopy as little as possible.

Scanning of incoming mail takes priority over everything else. The mail must be scanned, transferred to Trialworks, and e-mailed to the attorney before anything else is done.

If the attorney has something he needs completed, and the secretary is busy scanning, transferring and e-mailing the days mail, the attorney must do for themselves and not interrupt the secretary.

Under no circumstances should anyone leave the office for the day without having fulfilled these obligations.

All documents (medical records, pleadings, correspondence, bills, etc.) must be scanned into Trialworks. Every letter, pleading, bill, report, medical record or any other material that is received in this office that relates to a current or potential file shall be immediately scanned into the correct file and delivered by e-mail to the lawyer who is responsible for it on the same day that is arrives in the office. The responsibility for scanning medical records will fall upon the secretaries.

Every incoming fax should go to the secretary who will scan and e-mail it to the assigned attorney.

If a letter or document is received by fax and scanned into Trialworks, the next day when a hard copy of the letter comes in the mail, it does not get re-scanned.

If a fax arrives in the evening after the staff has left for the day, the attorney to whom the fax is addressed may make a copy of the fax and leave the original fax for the secretary to scan into Trialworks the next day.

With the use of appropriate software (Adobe Acrobat), medical records and other documents can be instantaneously searched for specific words or phrases and can be automatically numbered and indexed.

You must make certain that your back-up system is absolutely infallible.

You should plan on bringing in some competent temporary help to scan all existing documents in files.

Why it’s done this way: The goal is to eliminate the time spent trying to find materials in files and the hours of copying that occurs when materials need to be sent to experts. It will also be much easier for lawyers who want to access the complete contents of a file from home or a remote location. It will also allow us to send documents and records to experts as e-mail attachments or on recordable compact discs.

This will eliminate the need to carry bulky files to court, conferences or depositions. This will also facilitate the storage of closed files and the retrieval of information from those files in the future.

How to Scan Documents

File-It is the heart of scanning.

  1. Scan the document to a network location, i.e., the “S” drive;
  2. Each user should have their own directory;
  3. The person who is doing the scanning scans the documents into his or her own directory;
  4. Once all documents are scanned in, click on File-It and fill in the information concerning which file, which tab in the file, the file name and what description each document is to be given;
  5. Once File-It is complete, hit “transfer files” and all of the files are transferred to Trialworks. This is a “cut and paste” so nothing is left in the user’s directory. This prevents having duplication documents in the system and lets the user know whether they have transferred everything that they have scanned in.

Where to scan documents

  • Correspondence Tab should contain the following:

All incoming and outgoing correspondence;

Scanning of incoming mail takes priority over everything else. The mail must be scanned, transferred into Trialworks and e-mailed to the attorneys/paralegals before anything else is done. If the attorney has something he or she needs completed and the secretary is busy scanning, transferring and e-mailing the days mail, the attorney must do for themselves and not interrupt the secretary.

  • Pleading tab should contain the following:

Summons and Complaint;

Amended Complaint;

Answer;

Amended Answer;

Third Party Summons and Complaint;

Demands for Verified Bills of Particulars;

Verified Bills of Particulars;

Stipulation Discontinuing Action;

Judgments;

Notice of Claim;

Notice of Intention to File Claim;

Supplemental Demand for Damages;

Cross Claims;

Notice of Commencement of Medical Malpractice Action;

Demand for Damages;

Response to Demand for Damages;

Consent to Change Attorneys;

Bill of Costs;

Preliminary Conference Stipulation and Order;

So-Ordered letters; and

Request for Judicial Intervention.

         The Summons and Complaint are sent to the County Clerk’s office for filing. When the time stamped copy is returned, that copy is scanned in as “pleading additional” alongside the original created Summons and Complaint.

  • Appeals should be placed in the Appeals tab;
  • The Discovery tab should contain the following:

Notice rescinding service by fax—if done in the form of a pleading. If done by letter, place in the Correspondence tab;

         Demands for Discovery;

         Responses to Discovery Demands;

         Notice to Admit;

         Response to Notice to Admit;

         Subpoenas served on us by other parties;

         Policies and procedures produced by defense;

         Rule 26 Disclosure (in federal court cases)

(in Federal Court cases when you get an electronic notification of the filing of a document, the electronic notification gets scanned into the tab where the document it relates to is scanned. For example, if you get an electronic notification of the defense filing the Answer, then the electronic notification and the Answer would both be scanned into the Pleadings tab)

  • The Deposition tab should contain the following:

Deposition notices;

Deposition transcripts;

Deposition exhibits.

  • All subpoenas should be created in the Subpoena tab.
  • Medical Records tab:

All medical records should be created in this tab.

Except copies of medical records received in our office from the defense that defense has obtained with an authorization that we provided get scanned into the Discovery Tab and are to be reviewed by either the attorney or paralegal, who will compare it to the record we received with our request and authorization and a determination will be made by the attorney or paralegal as to whether any, all or a portion of the record will be entered into the Production Tracker tab.

  • Research tab:

All research must be put under this tab. Either save from Westlaw to Word or Adobe file and put it under this tab.

  • The Ancillary tab should contain the following:

Accident reports; expert reports; tax returns; photos; invoices; insurance policies; signed releases; deposit tickets; expert notes; probate documents; settlement checks; DME reports.

  • Production Tracker tab:

This tab should contain trial exhibits only.

What to do with the Paper Copies after scanning into Trialworks

You should simply scan the originals of all documents and keep them in a digital format instead of keeping paper copies. The fact that the letter or discovery demand was signed will serve as an indication to me that it was sent to the client or defense counsel.

The basic concept is to scan everything that we can and to photocopy as little as possible. The scanner has plenty of scanning capacity.

It is important to treat patient’s and client’s medical records with respect. Medical records which are to be disposed of should be shredded to protect the “private” material that is contained therein. We use the word “private” rather than “confidential” because the “confidentiality” of the records has almost certainly been waived.

With regard to deposition transcripts, there was never any confidentiality in the first instance because the deposition was not taken under any circumstances that would give rise to an expectation of confidentiality. If a deposition transcript is going to be discarded, it should be shredded to protect the “privacy” issues of the patient. By shredding all documents and records that are being discarded, you save the time and effort involved in sorting the private from the non-private materials.

Why it’s done this way: Rather than HIPAA, the real concern in handling medical records relates to identity theft and potential liability for negligently disposing of records in such a manner that facilitates the theft of the client’s/patient’s identity. Our policy regarding the shredding of “sensitive material” is that any material that contains confidential or medical information or any information which could be used to facilitate identity theft of anyone is to be shredded. If you have any doubt, shred it!

Shredding

The shredder is to be used for shredding all confidential documents and medical records. The shredder should be used on a daily basis whenever medical records, pleadings or information that identifies any person is being thrown out. This should include any material that has anyone’s social security number, employer identification number, date of birth or other identifying information on it that could be used for identity theft.

You should segregate paper that needs to be shredded and will dispose of it at the end of the day.

Why it’s done this way: Our clients and other individuals with whom we do business are entitled to expect that the personal information that they provide to us will be safeguarded. You can figure out what needs to be shredded and what doesn’t. If you have any doubt, shred it!

Federal Court Electronic Notification

When we receive the electronic notification of the filing of any document in Federal Court, the following procedure should be followed:

  • Print a copy of the notification and attached document;
  • Save the notification and attached document in the “S” drive so the documents can be transferred via File It to the appropriate tab in Trialworks;
  • E-mail the document to the attorney and paralegal.

If an attorney or paralegal receiving notification of an electronic filing find it necessary that they have to open the attached document, then it is that attorney’s or paralegal’s responsibility to either save the document in the appropriate drive so it can be moved to Trialworks or make a copy of the document so it can be scanned into Trialworks by the secretary.

We are allowed to open an electronically filed document only once without incurring a charge. After that we must pay a fee.

During the course of a normal business day, there should be no need for the attorney or paralegal to open the electronically filed document as it only takes the secretary a few minutes to open the electronically filed document, copy it and save it to the “S” drive and move it via File It to the correct tab inTrialworks.

CHAPTER 13

TRIAL PREPARATION

Scheduling Trial Testimony of Witnesses

As soon as we get a trial date from the court, you should notify our expert witnesses, client and lay witnesses about the trial date. Our clients should be notified by you with a phone call and a letter. If the client has a conflict with the trial date, that’s just too bad.

In addition to notifying our client about the trial date, you should mail a copy of his deposition transcript with a request that he review the transcript as the trial date approaches. The best thing our client can do to prepare for their trial testimony and cross-examination is to become intimately familiar with their deposition transcript.

You should tell our clients to dress for the trial as if they were going to a funeral, i.e. conservative clothing and no jeans, t-shirts or nose-rings. Conservative clothing shows respect and that the trial is very important to our clients.

Scheduling Trial Testimony of Experts

You should call our expert witnesses to get a firm commitment about a date and time for their trial testimony (as soon as we have a trial date from the court). Once you have a date from our expert witnesses, you should confirm the date and time of the expert’s trial testimony with a letter.

When you schedule a date for the expert witness’s trial testimony, you must remind the expert with a letter to bring his entire file to court when he testifies. If the expert witness does not bring his entire file to court, he will be precluded from giving testimony.

Why it’s done this way: If you do not confirm the date of the expert’s trial testimony, the expert will try to back out of his trial testimony by claiming that you never confirmed a date with him. A letter to the expert is the best way to confirm that a firm date was selected and approved by the expert.

If the expert requires a retainer check before he/she will confirm a date for their trial testimony, you should send me an e-mail and I will respond to the request with an e-mail to you. You should ask the expert to specify whether the retainer check is non-refundable, i.e., if the case settles, the expert still keeps the entire retainer funds.

Our liability experts should be scheduled to testify on the third or fourth day of the first week of the trial. Jury selection usually takes the entire first day of the trial and opening statements consume the morning of the second day of the trial. The safest bet is to schedule the liability experts beginning with the third day of the trial.

You should not schedule more than one expert witness per day. If you schedule more than one expert to testify at the trial on a single day, I may not have enough time to get both experts’ testimony.

You should schedule the trial testimony of damages experts, i.e., treating physicians, economist, life care planner, immediately following the testimony of the liability experts.

When you schedule a date for our expert’s trial testimony, you must make sure our experts have a complete set of the deposition transcripts and medical records. You should send an e-mail or fax to the expert listing every deposition transcript and medical record in our client’s case and ask the expert to confirm that he has all of the records listed in your letter.

Why it’s done this way: There is nothing worse than meeting with an expert the evening before his trial testimony and learning that he never received four crucial deposition transcripts from me, or he was never sent parts of our client’s medical records. I don’t need those headaches. It is your job to make sure our experts have all of the records, i.e., deposition transcripts and medical records.

Organization of Records for Trial

At least one week before trial, you should put all of the medical records in a large binder with the medical providers (doctors and hospitals) separately tabbed and indexed for identification.

At least one week before trial, you should put all deposition transcripts in a large binder with each deposition transcript separately tabbed and indexed for identification.

At least one week before trial, you should put all pleadings (i.e., summons and complaint, answers and bills of particulars), discovery responses and expert responses for all parties in a large binder with each document separately tabbed and indexed for identification.

Why it’s done this way: While we are a paperless office, I like having three binders with hard copies of the most important records handy at all times. What can I say, some habits die hard.

Supplemental Bill of Particulars

You should prepare a supplemental bill of particulars at least 45 days before the first day of the trial. The supplemental bill of particulars will list all of the new medical providers and dates of treatment since our client’s last bill of particulars. You should identify the new medical providers and dates of treatment by bolding them in the supplemental bill of particulars, which will make it easy for me to identify the new information that has been added.

My deadline to serve the supplemental bill of particulars is 30 days before the first day of the trial. If we miss this deadline, I will not be permitted to introduce any evidence or testimony concerning our client’s new medical treatment. This is legal malpractice!

I will not review the supplemental bill of particulars. I expect you will have all of the new medical providers and dates of treatment in the supplemental bill of particulars and the only thing I need to do is sign it.

Marked Pleadings

You should prepare a set of marked pleadings, as required by the Uniform Rules of Trial Courts, so I can hand-deliver the marked pleadings to the Judge on the first day of the trial. Preferably, you will mail the marked pleadings to the Judge during the week before the trial date.

Why it’s done this way: We want to show the Judge and opposing counsel that we are prepared and we know what we are doing. Getting the marked pleadings to the Judge during the week before the trial is a good sign that we are ready and prepared for trial.

Jury Verdict Sheet, Proposed Jury Charge & Statement of Contentions

You should prepare a draft of the jury verdict sheet and the proposed jury charge for my review at least 5 days before the first day of the trial. We have forms for the verdict sheet and proposed jury charge for every kind of case. I will prepare the plaintiff’s Statement of Contentions, since it varies greatly from case to case.

I want to provide the verdict sheet, jury charge and the plaintiff’s statement of contentions no later than the Friday before the first day of the trial.

Records Subpoenaed for Trial

When you subpoena records for a trial, the subpoena should be returnable at least one week before the trial date. This will give you time to review the subpoenaed records and their certifications before the trial.

You should prepare a list of all records that you have subpoenaed for the trial, and you should attach the affidavits of service to the list of subpoenaed records. I will need the list of subpoenaed records and the affidavits of service when I view the subpoenaed records at the Supreme Court Clerk’s office before the trial.

Scheduling Lay Witnesses for Trial Testimony

Three weeks before the trial date, you should prepare a list of witnesses with the date that each witness will testify.

You should not schedule any witnesses to testify on the first day of the trial. The first day of the trial is reserved for jury selection.

The first witness should be scheduled for the second day of the trial at 1:00 p.m. Opening statements are usually given during the morning of the second day of the trial.

You should send directions to the courthouse to the witnesses and ask them to dress conservatively (as if attending a funeral). You should tell the witnesses to ask the security personnel at the entrance of the courthouse where the courtroom is located and I will meet them in the courtroom.

Travel for Expert Witnesses

You should always call the expert witnesses to ask if they want you to schedule their travel for the trial. Many experts prefer to make their own travel arrangements, but just as often, they will ask you to do this.

If the expert witness wants you to make the travel arrangements, you should purchase and confirm all of the travel of the expert, including a car service to the airport, a plane ticket, hotel reservation and car service to and from the courthouse.

You should always have the expert witness arrive at the airport closest to the courthouse and arrange to have the expert meet with me the night before his trial testimony. I never want the expert to arrive for his trial testimony on the morning of the testimony—that does not give me enough time to meet with the expert.

Why it’s done this way: You always want to stay on the good side of our experts. Enough said.

Scheduling Focus Groups

When I ask you to schedule a focus group for an upcoming trial, I will give you the name of a contact person at a local community organization, i.e., a high school or fire department.

I will need at least 15-20 people to attend a focus group. Ideally, the focus group participants are unrelated (i.e., no spouses) and represent a broad cross-section of the community ranging in age from early twenties to seventies with a roughly equal mix of males and females (just like a real jury).

You should always assume that at least twenty persons who have made a commitment to attend the focus group will be no-shows. If you have commitments from 15 persons to attend a focus group, it’s a safe bet that only 10-11 will show up.

You should order four pizzas with one plain, one vegetarian and two meat pizzas, and four two-liter bottles of soda (diet and regular), and plastic plates, cups and utensils.

CHAPTER 14

SETTLEMENTS

Requesting Final Bills from Experts

When a case settles, you must fax a letter to all of our expert witnesses with a request that they stop working on the case and fax their final invoice to us within two business days. You should explain in your letter that the expert witness should call us if they are not able to send their final invoice via fax within two business days.

The letter to our expert witnesses and vendors should read:

URGENT MESSAGE—PLEASE DELIVERY IMMEDIATELY!

Our firm retained you to provide services in the above-referenced action. The case has now been fully resolved. Please provide us with your final invoice within two business days from today. If you can’t provide a final invoice within two business days, please notify us immediately. If you have outstanding charges and will be submitting a bill to us, please include the notation “final invoice” on your statement. Again, we request that you provide us with your final invoice within two business days. Please contact us immediately if you have any questions or comments.

It is your job to get the final invoices from all of our experts and vendors in order to ensure we get reimbursed for those expenses at the end of the case.

Confirming the Settlement

It has always been our policy to settle cases either on the record or with a written agreement signed on behalf of the plaintiffs and defendants which expressly states that the written agreement contains all of the terms and conditions of the settlement. Any other “settlement” is not binding on anyone. Trapani v. Trapani, 147 Misc.2d 447, 556 N.Y.S.2d 210 (Sup. Ct., Kings County 1990). Also a stenographic recording of a settlement in front of a judge’s law clerk in chambers is not sufficient. Conlon v. Concord Pools Ltd., 170 A.D.2d 754, 565 N.Y.S.2d 860 (3rd Dep’t 1991).

CPLR section 2104 states that: “An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in writing subscribed by him or his attorney or reduced to the form of an order and entered.”

You should always make sure that you possess a letter signed by defense counsel confirming the settlement. If the settlement was placed on the record in open court, you should request a copy of the transcript by calling the court reporter and having the transcript e-mailed to us.

Why it’s done this way: If I do not have a letter signed by defense counsel confirming the settlement or the settlement is not placed on the record in open court, there is no settlement. Verbal settlements with an insurance adjuster or defense counsel are unenforceable. There is no enforceable settlement until all of the terms of the settlement are confirmed in writing.

We have a Stipulation of Settlement that is acceptable to the major insurance companies that we use in every medical malpractice settlement. If the defense counsel has not signed a letter confirming the settlement, you should e-mail or fax the Stipulation of Settlement to defense counsel and ask that it be signed and returned by fax to you.

What to Do When a Case Settles

As soon as the case settles, you should prepare a general release and a stipulation of discontinuance. You should have our client sign the general release on the same day that the case settles (unless the case involves an infant settlement or wrongful death where court approval of the settlement is required).

You should never mail the release agreement to our client. Ideally, you should ask our client to come to our office to sign the release agreement. But if our client has no transportation or resides more than one hour away, you should make arrangements to have the release agreement hand-delivered to our client for signing before a notary public (this might be you).

Once the release agreement is signed by our client before a notary public and I sign the stipulation of discontinuance, you should send the originals of the release agreement and stipulation of discontinuance to defense counsel by certified mail, return receipt requested. In cases involving an infant settlement or wrongful death, you must also mail the Court order approving the settlement with the general release and stipulation of discontinuance.

Tracking the Defendants’ Deadline to Pay

When you receive the green receipt card from the U.S. Postal Office, you should diary twenty-one days from the date that defense counsel received the general release and stipulation of discontinuance for the mailing of the settlement check. (in wrongful death and infant settlement cases, you must enclose the Court Order approving the settlement with the general release and stipulation of discontinuance). Defense counsel has twenty-one days from their receipt of the general release and stipulation of discontinuance to mail the settlement check to me.

As the defendants’ deadline to mail the settlement check approaches within 2-3 days, you should send a letter via facsimile reminding the defense counsel that their deadline to mail the settlement check is about to expire and that our client reserves the right to enter Judgment against the settling defendant if they do not meet their deadline.

Settlement Checklist

Before the client’s settlement check is given to them, you must complete a settlement checklist. The settlement check list is checked to ensure that there are no outstanding disbursements.

After you review the settlement checklist, you should sign the checklist at the bottom and give the checklist to the assigned lawyer. The settlement checklist will be reviewed and signed by the lawyer and given to our payroll clerk, before the settlement check can be issued to the client.

Why it’s done this way: If you do not make sure all disbursements have been paid before the settlement checks are issued to our client, we will not be reimbursed for disbursements. That’s never a good thing, since we are not a charity.

Settlement Statement

You should also prepare a Settlement Statement that itemizes the gross settlement, disbursements, legal fee, lien amount (i.e., money to be held in our escrow account for the lien) and our client’s net recovery. You should annex an itemized list of the disbursements to the Settlement Statement; you can print the itemization of disbursements from the “costs” tab in Trialworks. You should e-mail the Settlement Statement to me for my review and approval before it is signed by our client.

The Settlement Statement Checklist lists the potential expenses on a case, including:

  • Medical records/x-rays;
  • Federal Express;
  • Petty Cash;
  • Charge Cards for travel, meals, trial exhibits, gas, lodging, etc.;
  • Investigations;
  • Transcripts;
  • Process Servers;
  • Expense Reports for Travel charges;
  • Copying Charges;
  • Liens, i.e., workers’ compensation, Medicare, Medicaid, etc.

The Settlement Statement must be signed by the client and I before the settlement check can be hand-delivered to our client. You should give a copy of the Settlement Statement to our client.

Clients Must Sign a “Grillo” Waiver

Before the settlement check is given to our client, you must prepare a “Grillo” waiver. A “Grillo” waiver is a document that should be signed by the client wherein he acknowledges he has been informed about the benefits of a structured settlement annuity and he has opted against the annuity.

The “Grillo” waiver states:

  1. I acknowledge that I have been given an opportunity to meet with a financial consultant of my choice.
  2. I am aware that the law enables all principal and interest earned in a structured settlement annuity to be excluded from my gross income and that this opportunity is only available to persons like me who are recovering tort damages on account of a physical injury or physical sickness that I or an immediate family member have suffered.
  3. I understand that, if I do not participate in a structured settlement, all earnings on any investment that I may choose could be fully taxed at my highest income tax bracket.
  4. My attorney has warned me of the pitfalls of not selecting a portion of my recovery to be included in a structured settlement annuity and has informed me that due to unexpected events or circumstances, many plaintiffs who do not participate in a structured settlement annuity either lose their money award due to investment risks and/or deplete their funds and lose financial security.
  5. I understand that this is my only opportunity to take advantage of a structured settlement annuity and that my settlement decision cannot be changed or reversed on a future date in that it is irrevocable. I have been given every opportunity to ask questions and all my questions have been answered.
  6. I acknowledge and understand that after being fully informed of my options that by signing my name, I agree to either [ ] reject the structured settlement annuity option and accept a one-time lump sum payment option; or [ ] wish to evaluate structure settlement annuity option/evaluate quotes.

Why it’s done this way: If we fail to inform our clients about the option of investing some or all of their settlement money in a structured settlement annuity, we will be sued for legal malpractice. 98% of our clients will lose all of their settlement money within two years and when that happens, they will be looking for someone to blame (that’s us!). In order to avoid a legal malpractice claim, you must make sure the client signs the “Grillo” waiver before he gets his settlement check.

NEVER Agree to Confidentiality

We NEVER agree to confidentiality in any settlement. In 21 years of practice, I have never agreed to confidentiality in a single case nor will this ever happen. This is non-negotiable in every case.

There are TWO BIG REASONS we never agree to confidentiality:

  • Secret settlements allow bad doctors to hide their malpractice from the public;
  • Secret settlements expose injury victims to income tax liability on their settlements.

The fundamental purpose of injury litigation is thwarted by secret and confidential settlements. A bad doctor can hide one malpractice settlement after the next with confidential settlements and the public will have no information about the doctor’s malpractice history. A bad doctor can have a string of malpractice settlements but if the settlements are confidential, the public has no way of knowing.

It is not enough to get a good result for our client—the goal of malpractice litigation is to improve the quality of medical care for all patients. Confidential settlements do nothing to establish a standard of care for future cases or help improve medical care for others. For this reason alone, I will never agree to confidentiality.

As if that’s not enough: all consideration for confidentiality is taxable income to our client. Amos v. Commissioner, Tax Court Memo. LEXIS 330 (2003). Although payment to settle a personal injury case is not taxable under the Internal Revenue Code, compensation paid for confidentiality is taxable income to our clients. Even if you agree to partial confidentiality (limited to the amount of the settlement), the injury victim is still subject to some income tax liability for such a clause.

26 U.S.C.A. section 104(a)(2) provides that gross income does not include “the amount of any damages (other than punitive damages)…on account of personal physical injuries or physical sickness.” Pursuant to 26 U.S.C.A. section 104(a)(2), our clients have the right to expect that their personal injury settlements will not be subject to income taxes. But if a portion of a settlement is allocated to confidentiality, our clients will have to pay income taxes on at least a part of their settlement…and we will be faced with a legal malpractice lawsuit.

The simple way to avoid these headaches? Never agree to confidentiality at any costs.

However, when a case settles, we will agree to the following conditions provided our clients give their consent:

It is stipulated and agreed that none of the parties have requested, nor have they agreed to, confidentiality as part of the consideration for the settlement of this matter.

The parties and their attorneys do voluntarily represent to each other and to the court that:

  • They will not affirmatively seek to disseminate information regarding this settlement or its terms to the news media;
  • For purposes of this representation, the term “news media” is used to describe print media (newspapers, magazines), broadcast media (radio station, television stations, television networks), but shall not refer to any news media whose primary attention is the members of the legal profession or the insurance industry, or the website, www.protectingpatientrights, and print newsletter, Lawyer Alert, of the law firm of John H. Fisher, P.C.;
  • It is expressly understood and agreed that this voluntary representation is not a condition of, and does not form any part of the consideration for, the settlement of this matter;
  • It is also expressly and understood that this voluntary representation shall not be enforceable by action or proceeding, whether in law or equity, in any state or federal court;
  • This voluntary representation constitutes the complete agreement and understanding between the parties regarding the settlement and the parties have not entered into any other agreements, understandings or representations.

NEVER use Defense Brokers in Structured Settlements

We recommend against settling any case that involves the purchase of an annuity through the use of a broker who does not represent the interests of the plaintiff. The reason for this policy is that the broker “owes no duty” to the plaintiff. The broker’s only duty is to the defendant, or more precisely, to the defendants’ insurance company.

There are occasions when it makes sense to use an annuity as part of a settlement. However, such an annuity should not be recommended unless the plaintiff is free to select the broker, is free to negotiate the fee with the broker (the customary fee on an annuity is 4%–however, when the broker does not have to split the fee with a defense broker there is usually room to negotiate a better fee on behalf of the plaintiff); and usually, when the plaintiff’s broker is able to get the plaintiff “rated” at a much higher age.

If the plaintiff can be “rated” for a structured settlement annuity, it must be by a plaintiff’s only broker. The reason is that the defense broker has no obligation to disclose what the “real” rating is. This is another way that the defense brokers are able to save money for their clients.

Conclusion

MAKE EVERY DAY YOUR MASTERPIECE

Strive to improve the policies and systems in our office just a little every day. Take action, make mistakes and have fun. With commitment and dedication, you will be hugely successful and we are here to help you become the best version of yourself.

Appendix

STATUTES OF LIMITATION IN NEW YORK

QUESTION: DOES A NOTICE OF CLAIM NEED TO BE FILED?

GENERAL NEGLIGENCE—PRODUCT LIABILITY

  1. PERSONAL INJURY—ADULT—3 YEARS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—INFANT AGE 21
  • DEATH—2 YEARS FROM THE DATE OF DEATH
  1. INTENTIONAL ACT—1 YEAR FROM ACT COMPLAINED OF

NOTE: If action is by a victim of a criminal offense—7 years from termination of criminal action against the same defendant with respect to the same occurrence.

MALPRACTICE OTHER THAN MEDICAL, DENTAL OR PODIATRIC

  1. PERSONAL INJURY—ADULT—3 YEARS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—INFANT AGE 21
  • DEATH—2 YEARS FROM DATE OF DEATH

NOTE: If against an architect, engineer, surveyor or landscape architect for acts or omissions occurring more than 10 years before the event complained of, notice must be given at least 90 days before the action is commenced.

MEDICAL, DENTAL OR PODIATRIC MALPRACTICE

  1. PERSONAL INJURY—ADULT—2.5 YEARS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—INFANT—10 YEARS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

CITIES, COUNTIES, TOWNS, VILLAGES, SCHOOL DISTRICTS

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

OMISSION AGAINST SHERIFF, CORONER OR CONSTABLE FOR OFFICIAL ACT OR OMISSION

  1. 1 YEAR FROM EVENT COMPLAINED OF

EXPOSURE TO LATENT TOXIC SUBSTANCES

  1. NOTICE OF CLAIM—90 DAYS FROM DATE OF DISCOVERY OF INJURY OR DATE DISCOVERY OF INJURY SHOULD HAVE OCCURRED, WITH REASONABLE DILIGENCE, WHICHEVER IS EARLIER
  2. 3 YEARS FROM DATE OF DISCOVERY OF INJURY OR DATE DISCOVERY OF INJURY SHOULD HAVE OCCURRED, WITH REASONABLE DILIGENCE, WHICHEVER IS EARLIER OR
  • 1 YEAR AFTER DISCOVERY OF THE CAUSE OF THE INJURY, WHERE DISCOVERY OF THE CAUSE OF THE INJURY OCCURRED LESS THAN 5 YEASR AFTER THE DISCOVERY OF THE INJURY AND TECHNICAL, SCIENTIFIC OR MEDICAL KNOWLEDGE AND INFORMATION SUFFICIENT TO ASCERTAIN THE CAUSE OF THE INJURY HAD NOT BEEN DISCOVERED, IDENTIFIED OR DETERMINED PRIOR TO 3 YEARS FROM THE DATE OF DISCOVERY OF THE INJURY

NEW YORK CITY HEALTH AND HOSPITAL CORPORATION

  1. NOTICE OF CLAIM—90 DAYS FRM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

NEW YORK CITY HOUSING AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

METROPOLITAN TRANSIT AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

TRANSIT AUTHORITY (NEW YORK CITY)

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

PORT AUTHORITY OF NEW YORK

  1. NOTICE OF CLAIM—60 DAYS BEFORE ACTION COMMENCED
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

THE BRONX TRANSIT AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

TRANSIT CONTRUCTION FUND

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

THOUSAND ISLAND BRIDGE AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

GENESSEE VALLEY REGION MARKET AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. DEATH—2 YEARS FROM DATE OF DEATH

ERIE COUNTY WATER AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

SUFFOLK COUNTY WATER AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

CENTRAL NEW YORK REGIONAL TRANSPORTATION AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

CAPITAL DISTRICT TRANSIT AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

NIAGARA FRONTIER TRANSPORTATION AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

LONG ISLAND RAILROAD

  1. NOTICE OF CLAIM—NONE BUT DEMAND REQUIRED WITHIN 1 YEAR FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 30 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

ROCHESTER-GENESSEE REGIONAL TRANSPORTATION AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

WATER AUTHORITY OF GREAT NECK NORTH

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

OGDENSBURG PORT AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

MONROE COUNTY WATER AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

ONONDAGA COUNTY WATER AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

BUFFALO SEWER AUTHORITY

  1. NOTICE OF CLAIM—90 DAYS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—1 YEAR AND 90 DAYS FROM EVENT COMPLAINED OF
  • DEATH—2 YEARS FROM DATE OF DEATH

STATE OF NEW YORK

  1. NOTICE OF CLAIM—PERSONAL INJURY—90 DAYS FROM EVENT COMPLAINED OF
  2. NOTICE OF CLAIM—DEATH—90 DAYS FROM APPOINTMENT
  • PERSONAL INJURY—2 YEARS FROM EVENT COMPLAINED OF
  1. DEATH—2 YEARS FROM DATE OF DEATH

NOTE: In an action for conscious pain and suffering on behalf of the decedent’s estate, the 90-day period is measured from, at the latest, the date of death, and probably from the event complained of, but never from the date of appointment of the representative of the decedent’s estate. Similarly, a conscious pain and suffering claim on behalf of the decedent does not benefit from the 2-year period.

Practice Tip: Claimant has the option of either serving a “Notice of Intention to File a Claim” (a/k/a “Notice of Intention”) or filing and serving the “Claim” itself with the time period. A Notice of Intention to sue is essentially the same as a Notice of Claim, pursuant to section 10 of the Court of Claims Act. If the “Claim” is filed and served within 90 days, then the claimant never serves a “Notice of Intention”.

JONES BEACH STATE PARKWAY AUTHORITY (STATE)

BETHPAGE PARK AUTHORITY (STATE)

NEW YORK STATE THRUWAY AUTHORITY (STATE)

FEDERAL TORT CLAIMS

  1. NOTICE OF CLAIM—2 YEARS FROM EVENT COMPLAINED OF
  2. PERSONAL INJURY—GENERALLY—6 YEARS FROM EVENT COMPLAINED OF OR 6 MONTHS AFTER CLAIM FILED
  • PERSONAL INJURY—MARITIME—3 YEARS FROM EVENT COMPLAINED OF & 6 MONTHS AFATER CLAIM FILED
  1. DEATH—GENERALLY—6 YEARS & 6 MONTHS AFTER CLAIM FILED
  2. DEATH—MARITIME—3 YEARS FROM EVENT COMPLAINED OF & 6 MONTHS AFTER CLAIM FILED

Suing a Public Entity

Most New York public entities are either:

  • Public corporations,
  • Public authorities, or
  • Agencies or departments of the state.

If the public entity is a “public corporation” (e.g., towns, cities, industrial development agencies, fire districts), you must sue in Supreme Court. Public corporations include all municipal corporations (town, city, county), district corporations (fire districts, water districts) and public benefit corporations (industrial development agencies). General Municipal Law section 50-e governs tort claims against public corporations. Likewise, actions against “public authorities” must be brought in Supreme Court.

Practice Tip: Read case law regarding lawsuits against the potential defendant and the public entity’s enabling statute to discern how, where and when you must sue.

Suing the State

If the public entity does not have “public corporation” or “public authority” status, it is generally deemed an agency or department of the State of New York, in which case you must sue the State in the Court of Claims.

In lawsuits against the State, you do not name any state employees whom you are suing individually. When the state employee or official is sued individually, such claims must be brought in the Supreme Court, because the Court of Claims has no ancillary jurisdiction over such defendants. The Court of Claims has exclusive jurisdiction over claims for personal injury and wrongful death against some public entities. Three of these are the Thruway Authority, the City University of New York, and the New York State Power Authority.

 

 

 

photo credit: cucchiaio Playbook Page via photopin (license)

Leave a comment below telling me what surprised, inspired or taught you the most (I personally respond to every comment). And if you disagree with my take on running a personal injury law firm, or have a specific, actionable tip, I’d love to hear from you.
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