Organizing A Plaintiff's Personal Injury and Wrongful Death Law Office

This article has been written with the hope that it will assist those members of our profession who have voluntarily limited their practices to the handling of plaintiff's personal injury and wrongful death cases and those who are called upon to evaluate tort cases as an adjunct to an otherwise nonpersonal injury and wrongful death practice. I believe that it may be of some interest to both groups because gone is the day, if indeed it ever existed, when the organization of an office handling tort cases was an uncomplicated and unsophisticated matter. The substantive law controlling the rights and duties of parties to tort litigation has been extremely volatile in the last decade, and the responsibilities of attorneys handling the cases have been increasingly scrutinized and clearly defined. Without doubt, a well-organized law office is a key to the proper handling of personal injury and wrongful death cases. This is true both for maximizing the monetary results obtained and for ensuring that the attorney fulfills, in a competent manner, the professional responsibilities to the client.

It is not mere coincidence that law firms restricting their practice to personal injury and wrongful death cases are invariably smaller than ten attorneys and perhaps twelve to fifteen support personnel. Limited size can be traced to a number of factors. The word, personal, as a prefix to injury exemplifies the nature of handling injury and death cases. The practice has been and always will be the vehicle by which individuals obtain redress from individuals or entities causing bodily harm or death. Everything about this area of practice is as personalized as the one-on-one byplay between the trial lawyer and injured party. The law firms necessarily stay small because one person acts as another's voice in the courthouse. The administrative responsibilities of large law firm practice depersonalize that agency relationship: the practice becomes "big business"; each case becomes a "claim"; and the client loses individual identity in the process.

New clients come to the office because of the individual accomplishment and reputation of trial lawyers in the firm-not because of the firm. In this regard, a great deal of the business of a plaintiff's office is acquired from referrals by other attorneys who are aware of the abilities and expertise of individual trial lawyers in the office. Oftentimes, the referring attorney receives a percentage of the fee generated from a case. The final division of the fee, of course, is commensurate with the services performed and the professional responsibility assumed by each attorney. (See DR2-108, CODE OF PROFESSIONAL RESPONSIBILITY.) It is neither necessary nor advisable that a referring attorney actively participate at every stage of the proceeding to be entitled to a percentage of the fee. However, there must be some measure of services performed and responsibility assumed, which frequently takes the form of keeping the client fully advised about the status of the case and assisting the client in the decision-making process. Maintain Goodwill

To maintain the goodwill of referring sources it is inadvisable to practice in the area of their respective practices. For example, a personal injury firm that derives much of its business from other attorneys should not undertake a real estate transaction or probate problem if to do so would involve the handling of a matter in any referring source's area of specialty. It is far better to reciprocate the courtesy by sending the client to a referring attorney. Parenthetically, the quid pro quo of exchanging referrals is consistent with an attorney's duty not to handle a legal matter "[w]hich he knows or should know that he is not competent to handleÉ." DR6-101 (A)(1), CODE OF PROFESSIONAL RESPONSIBILITY.)

Another reason for the limited size of personal injury and wrongful death firms seems to be an all-out effort to avoid Parkinson's laws-that work expands to meet the amount of time available for its completion and that subordinates multiply at a fixed rate regardless of the work produced. If allowed to prevail, Parkinson's laws require that expenditures rise to meet income. The growth of the law firm must be controlled by an objective review of needs. In the tort litigation system it is very easy to misjudge the amount of work necessary to prepare a file because of the deluge of discovery provoked by the filing of every new case. Cases were once tried with little or no discovery before trial. Now, even the simplest automobile accident case can generate the scheduling of a deposition for every person having knowledge of facts about the occurrence or injury. To combat this apparent need for hours of work, the law firm can either hire more attorneys or, in the alternative, have an annual review of each case where serious decisions can be made about what must be done to insure that the case is ready when it comes up for trial. A pragmatic and objective evaluation of each case can eliminate useless discovery and ineffective attorney time. It will also prevent the unnecessary hiring of professional personnel, each of whom would have an assistant in a short period of time. The mechanics of this annual review will be discussed in detail below.

Two sources for new attorneys consistently produce trial lawyers skilled at handling personal injury and wrongful death cases. That is, new members of the bar who have worked in a tort litigation law firm as law clerks during school and former prosecutors from the state and federal district attorneys' offices. In part, the two groups do well in this area of practice because of the exposure to trial work as a law clerk or prosecutor. That exposure prepares them to accept the personal and professional rigors of being a trial lawyers, instead of being thrust into a new environment without knowing the time or energy necessary to work successfully in this area of practice.

The training and development of a new attorney's skills begin with reviewing pending cases in preparation for settlement, pretrial conferences, and in interviewing new clients with a senior member of the firm. Comparisons of old and new cases are valuable aids in teaching the new attorney properly to organize and handle a personal injury or wrongful death case. The advocacy skills are developed both in the courtroom and by attendance at any number of seminars held around the country. Fees for attendance at trial technique seminars are well-spent in relation to the benefits derived. Not only do new attorneys gain exposure to able trial lawyers who conduct the seminars, but they also have the opportunity to practice techniques learned at some time in the future while assisting a senior member of the law firm in the trial of an actual case. The difficulty of obtaining actual trial experience makes it imperative that a law firm's newest members attend good trial technique seminars. I recommend attendance at any or all of the following seminars: the National Institute of Trial Advocacy (NITA) held annually in Boulder, Colorado; the University of Michigan Law School Annual Advocacy Institute, Ann Arbor, Michigan; Practicing Law Institute Programs, New York, New York; American Bar Association, Section of Litigation National Institutes, held throughout the country; the Court Practice Institute, Chicago, Illinois; and The Lawyer's Post-Graduate Clinics, Chicago, Illinois. Of course, no listing of continuing legal education programs would be complete without including those sponsored by the Association of Trial Lawyers of American, also held throughout the country.

As indicated, actual trial experience is derived from assisting a senior member of the law firm in the preparation and trial of actual cases. Commensurate with this is the individual handling of contested motions, depositions, and the actual trial of small damage cases. During all phases of this training, the new attorney begins preparing a trial notebook from continuous advance sheet readings, research on designated cases and the exchange of trial notebooks among each member of the firm.

Behind every good plaintiff's attorney is a group of well-trained personnel, including secretary, law clerk and investigator. Proper training of each person in this group will increase the quality of effort applied to a file. Under the direction and control of the attorney handling the personal injury or wrongful death case, this staff should be able to generate all of the raw data necessary to evaluate and begin the litigation. This includes the initial gathering of facts from an investigation of the occurrence, the research into the pertinent legal issues and the assembly of material on damages.

Integral Part

The secretarial staff is an integral part of any successful plaintiff attorney's office. A secretary is far more than a typist and should be able to perform all of the services of a paralegal. While I believe that a secretary is, so to speak, a paralegal who types, it is not and should not be the job of a secretary to research the law or draft pleadings. However, it is the attorney's job to educate the secretary about every phase of the tort litigation process. A secretary should then be trained to complete the steps fundamental to his or her role in that process. For example, the evaluation of damages in every wrongful death case requires a thorough review of the decedent's earnings. Additionally, it is imperative to acquire details about loss of future earnings from data provided by decedent's former employer. A secretary should be trained to acquire the earnings information as a routine matter. This involves, in part, utilizing a number of standard forms that will be discussed in detail below. Properly trained, a secretary will initiate the assembly of this and other relevant data as a matter of course while opening a new file.

Similar training must be given to the investigator. All too often, an attorney will be approached by investigators who do not understand their roles in the tort litigation process. Given the opportunity, some would spend countless hours acquiring information that could have been earmarked as unnecessary by the experienced trial lawyer. It is imperative, therefore, to control the work of the investigator to avoid delay and expense. The investigator should not be permitted to structure the acquisition of proof in a case. The trial lawyer simply cannot defer his professional responsibility in that regard. On the other side of the scale, a skilled investigator trained to work up a file as the trial lawyer has taught him can increase the likelihood of success in every case. By devoting many hours of review to the previous work of the investigator, the trial lawyer and investigator can pinpoint techniques that will be effective in every personal injury and wrongful death case. This serves as a foundation and outline for investigating new cases. After a time the trial lawyer and investigator work as one, and that increases a plaintiff's chances of success.

Preserve Independence

One last point about investigators; I think that the investigator should be an independent contractor instead of a regular employee of the law firm with all of the indicia of respondeat superior. Because an investigator's veracity, integrity and independence are frequently at issue in the trial of a personal injury or wrongful death case, we suggest that the plaintiff remain one step removed from the investigator. While it will be inescapable that the investigator has been retained by the plaintiff's law firm, the legitimate appearance of independence is a worthwhile goal. There should never be the slightest impression that the investigator is interested, by reason of his employee status, in the outcome of the litigation.

Another component of a successful personal injury and wrongful death practice is the effective use of law clerks. These are supplied by a continuous flow of part-time law clerks obtained from the local law schools. In reality, a law clerk is a highly skilled paralegal who can research the law. The law clerk should be taught to review pending files periodically to determine deficien ies in raw data needed for the final evaluation of a case. This presupposes that the law clerk has been provided a checklist of information that should be contained in each file. The law clerk should also be well versed on the legal and technical memoranda stored in the firm's brief bank. The litigation of personal injury and wrongful death cases generates a never-ending stream of motions for change of venue based on forum non conveniens, summary judgment on issues of insurance coverage, and motions to strike and dismiss pleadings because of the alleged failure to state a cause of action, to name but a few. The basic research on each of these issues of law should be stored in an organized brief bank. The development of a retention and recall system will insure that hours of research in earlier cases are not repeated during the preparation of new files. An index of this bank should be given to each attorney in the office and become an adjunct to the individual's trial notebook. In this same regard, a law clerk should be encouraged to make suggestions about points of law to be researched in a pending case or for the brief bank. This not only stimulates the analytical development of a prospective attorney, but it also becomes immensely valuable when used in the final evaluation of the liability and damages aspects of a file.

The file in a personal injury or wrongful death case should not be the resting place for loose papers placed willy-nilly in a folder. Without exception, tort litigation generates documents about investigation, case expense, liens, pleadings, discovery, law, correspondence, damages, medical costs, docket control, statute of limitations control and settlement. Upon request, any stationery supplier will make cardboard sheets in different colors. Each color will correspond to one of the above categories. For instance, blue for discovery, green for pleadings, yellow for damages, and so on. By incorporating the use of any one of a multitude of fasteners, the documents in a file can be affixed to the appropriate backer and you will have a well-organized, clean and neat file. More importantly, however, is the time saved on every occasion that a file is reviewed; instead of searching through all of the documents, the attorney can go directly to the topic of interest.

A corollary to the acceptance of any new client and opening of a file is a conflict of interest cross-check. While this is a more probable concern to law firms handling corporate clients, potential conflicts of interest arise in at least two areas of plaintiff's personal injury and wrongful death practice. Specifically, some law firms do not limit their practice to the representation of plaintiffs; instead, they also represent some insurance companies in the defense of tort cases. The law firm is flirting with trouble if it represents a plaintiff in a claim against a party insured by the company that is a client of the law firm. On review, I think that the practice of working "both sides of the street" should be avoided in the handling of personal injury and wrongful death cases. The risk of an appearance of impropriety is simply too great.

The second area of potential conflict is in the handling of personal injury and wrongful death cases arising out of professional medical negligence. I think it is a conflict of interest to accept a new client in a negligence case against a treating medical practitioner of clients already represented by the law firm. For instance, if Dr. John Jones is the primary treating physician in ten pending cases, the law firm should not accept a medical negligence case against him. To avoid these problems, the structure of the law firm must provide an easily accessible source to determine the potential existence of a conflict. For example, a list of medical practitioners can be developed in a centrally filed index card system that discloses the identity of medical practitioners involved in each pending case in the office.

No single concern of the well-organized plaintiff's personal injury and wrongful death case law firm takes precedence over the need for a fail-safe statute of limitations and docket control system. Consistent with the variances of each jurisdiction, on the day a case is accepted the appropriate statute of limitations must be diaried to ensure that each case is either put in suit or rejected a reasonable length of time before the expiration of a statutory filing period.

The highest incident of attorney negligence arises from permitting a statute of limitations to expire without filing a lawsuit. The exposure to that risk increases in product liability and medical negligence cases. Unlike a cause of action arising out of an automobile collision, the injuries in a product liability or medical negligence case can be caused by breaches of duty owed plaintiff by any number of persons or entities. Many of these potential defendants will be unidentified during the early stages of litigation. Accordingly, the office diary must include constant reminders or a "tickler system" that forces a review of each file to insure that all defendants are named. The frequency of reminder is a matter of individual practice, but at the very least the inquiry should come up every six months. It is important that the statute of limitations review not be something delegated to a secretary or law clerk. The ultimate responsibility and accountability is the attorney's-not someone from the lay staff of the office.

Important to the effective handling of personal injury and wrongful death cases is the docket control system. Every injury or wrongful death lawsuit generates due dates for defendant's appearances, motions, compliance with interrogatory and production requests, deposition schedules and trial settings. It is impossible to keep track of the progress of a large case load without a well- organized docket control. A skilled docket clerk can provide the attorney with a list of events taking place on the following day. If the individual practice warrants, the docket clerk can also provide a calendar of events for each coming month. Under any system, at the end of each day the scheduled events must be accounted for in the docket by way of entering the disposition. Thus, if a motion has been continued, that disposition should be entered in the docket, and the new date and time of hearing should be diaried. This procedure should be followed down the line on all daily events. Every deposition, motion, appointment, pretrial conference, compliance due and statute of limitations reminder must be accounted for at the end of each day. Failure to do this will inevitably result in a missed motion, deposition or, more importantly, a statute of limitations.

In conjunction with the docket control is the daily meeting euphemistically referred to as the "call." This is a daily office meeting held to guarantee that the disposition of each event is under control. This avoids, for example, an opposing attorney showing up with his client or a witness for a deposition only to find that no attorney is available to conduct or attend the examination. The "call" also supplies a daily opportunity for a gabfest about various cases, statutes, activities of the legislature and so on. Parenthetically, this may also be another reason for the restriction of professional personnel in a tort-oriented office. It is one type of daily meeting that can accommodate ten attorneys; it is quite another that would be needed for 20 or 30.

Annual Review

An annual review of each case, while not as important as the statute of limitations and docket control system, is a necessity for any plaintiff's personal injury and wrongful death law firm. The review amounts to creating a one-page summary about the status and pertinent details of each case. The benefits derived from this review are many. Cases that have inadvertently received little attention are identified and an outline of steps to bring them up to date is created, particularly with regard to completion of discovery. Identical research issues in similar cases can be isolated to avoid duplicate effort. Finally, cases that should be disposed of by way of settlement, trial or rejection, can be selected so that the work of the law firm is organized around goals instead of proceeding aimlessly by the uncontrolled momentum of tort litigation.

The preparation of personal injury and wrongful death cases involves the acquisition of information from a number of easily identified areas. In a personal injury case, for example, the file must contain copies of plaintiff's medical records, employment file, income tax returns and receipts for expenses incurred in connection with the event. The initial requests for these items should be made a part of the file opening procedure. This is usually accomplished by sending a letter of request to the hospitals, doctors, and employers. Because the nature of the request is identical in every case, it is far better to develop standard forms of request instead of wasting the secretarial time that would be involved in typing multiple original letters.

The correspondence generated during the initial phase of opening a new personal injury or wrongful death case file includes letters to: the referring source acknowledging the referral; the client recapping highlights and instructions from the first interview; the police department requesting a copy of any accident reports and photographs; the hospital x-ray department requesting the preservation of x-rays; the hospital medical records department requesting a copy of the entire patient chart; the treating physician requesting a medical report and copy of the patient file; and the employer requesting a wage loss statement and copy of the entire employee file. The letters must be accompanied by a signed authorization from the client. Each authorization becomes a separate form signed during the first interview.

Damage Preparation

The damage preparation of every wrongful death case requires the compilation of certain documents. These documents are ultimately used in a damages brochure prepared for settlement purposes and to advise the trial court about the nature of the case. Thus, a checklist should be developed that will ensure receipt of the following documents: birth and death certificates for the decedent; birth certificate for each person alleging pecuinary loss; photographs of the decedent from birth to death, including family portraits; employment records; military and discharge records; income tax returns with past W-2 forms; documents about pension, profit-sharing and medical benefits available before death; and information evidencing decedent's personal consumption habits. As to each of the foregoing items, a form request letter can be developed that will be sent to the appropriate party by decedent's personal representative.

The first interview should also include an instruction to the client to assemble, as much as possible, the materials and information outlined above to avoid the expenses attending requests to third parties. Further, the interview should include having the client complete a questionnaire that can be developed for use in every personal injury or wrongful death case. The consistent use of a standard questionnaire will produce effective information gathering. It will also highlight areas requiring attention during the preliminary stages of the file work-up. Thus, by the time the case comes up for settlement or trial, the attorney will be able to evaluate the case objectively after a review of all pertinent details.

The need for adequate office space and quality secretarial equipment is not unique to the handling of personal injury and wrongful death cases. Generally speaking, every well-organized litigation firm needs a reception room, waiting area, library, conference-deposition room, central filing area, attorneys' offices, secretarial space, clerks' area, and bookkeeping office. However, a few additions exist to this generality in a personal injury and wrongful death firm. One is the need for an exhibit storage room.

A number of years ago, a lawyer in our town was in trial on a slip, trip and fall case. A central issue in that case was the location of the occurrence, since the defendant denied that it took place on its premises, a restaurant. Plaintiff, a deliveryman, said he fell in the kitchen and the defendant produced an employee witness who said he saw the fall occur outside the restaurant in the alley near the delivery door. Part of the plaintiff's proof was to be the shoes worn on the day of the occurrence. A chemist was to testify that the dried-up, mudlike material on each shoe was actually dried gravy. The evening before his client was to testify, the attorney left the building, and the shoes were resting on the floor in his office. That night, the good-natured cleaning lady cleaned her friend the attorney's dirty shoes! He now has an exhibit storage room, too!

An office handling a large number of tort cases must have a central filing area. All trial lawyers prefer to have case files near them; sometimes on the floor or credenza-the personal injury trial laywers are no different. This is detrimental to a good working environment, and it prevents necessary access to the file by the support personnel in the office. A case file must be kept in a permanent place and only removed temporarily as needed. This way, if an attorney is away from the office for any reason, the file can be immediately located if an unanticipated development arises. Thus, in a tort-oriented office, central filing is necessary.

Special resource needs arise in a law firm handling personal injury and wrongful death cases. The firm should develop an expert witness section that includes a compilation of sources for experts and investigators, as well as a retention file of former deposition and trial testimony of expert witnesses.

The expert and investigator source file should be divided alphabetically and by area of expertise. Thus, looking for an investigator or expert in the Federal Employers Liability Act area, either can be found under the "FELA" portion of the expert and investigator file. As an added source, this category will include a reference to a railroad union official who can provide potential witness names.

Airplane Cases

Another example is airplane crash cases where the file will contain references to special investigators, experts, and Airline Pilots Association officials or former federal government employees who investigated crashes for the National Transportation Safety Board. Similar expert and investigation references exist in the construction area; product liability; slip, trip and fall; electrical burns; maritime; safety; motor vehicle design; boating; economics; and biomechanics. One portion of the experts' and investigators' file includes the former testimony of plaintiff and defendant experts. Storing defense expert witness testimony is very worthwhile, especially for impeachment purposes.

It is essential to this area of practice that the office be equipped with the ability to determine the expenses incurred to date on any case file. This information is needed to assist the attorney and client in making decisions about how to proceed with the litigation. One available tool to satisfy this need is an IBM 5110 computing system, which can be programmed to log expenses as incurred-thus making a complete printout summary immediately available. The system is ideally suited for a personal injury and wrongful death practice because it can be readily adapted to any computerized need of this practice.

The one fiat that must prevail in a plaintiff's personal injury and wrongful death office is that the attorney must maintain client contact throughout the period between acceptance of the case and final disposition. This is so whether the case is terminated by settlement in a relatively short period of time, or by satisfaction of judgment after the opposition's appeals have been exhausted in the last available appellate tribunal.

Admittedly, the statute of limitations is the bane of every litigation office, but that can be alleviated in the plaintiff's office by an effective docket control system. Also, of course, failure to communicate with clients can rise to the status of a professional character defect when any type of litigation is involved. Corporate and business litigation, whether patent, antitrust, contract or other, causes close attorney-client interaction. In personal injury and wrongful death litigation, weeks, months and sometimes years may go between meetings of plaintiff and his attorney. These absences obviously promote feelings on the part of the client that he has been abandoned or neglgected. This lack of attorney-client communication is the most frequent complaint received by bar associations and disciplinary commissions about plaintiff personal injury and wrongful death attorneys.

In large part, if the plaintiff tort litigation law firm is properly organized, these complaints can be minimized. At the inception of the professional relationship you can give your client a "kit" or list of instructions that will educate him in the intricacies of this type of litigation and that will tell the client that it is a long and involved process. The bulk of the work on a file is performed without the client knowing of the attorney's activity on his behalf unless, of course, you inform the client of what is going on at regular intervals.

It is axiomatic that no final disposition can ever be made without the client's express permission. Orally explain, and include in the written retainer agreement, the necessity of client permission to dispose of the case. That will assure the client that he is always in control of the final outcome of the case in spite of lapses and will serve as a safety valve between direction communications with the attorney. An occasional short letter, the message of which is developed into a form, can be further assurance that the plaintiff's case is moving along and has not been forgotten. These letters can accompany copies of relevant documents that are filed periodically in all cases of this type.

All attorneys should strive for close client contact, for it increases rapport with and control over the client, and it has for its ultimate accomplishment the acquisition of confidence and trust in the attorney. This is particularly important when the attorney's clients are victims of injuries or death. This type of client is emotionally upset, often irrational and frequently unhearing or unlistening. This is to be expected. In order to avoid friction and to prevent confusion on the part of this type of client, the well-organized personal injury and wrongful death law firm will set up these systems so that the litigation is pursued with the client's understanding about what takes place at each important juncture of the case.