On more than one occasion over the course of the last year, a potential client has scheduled a consultation with me because she is unhappy with the work her current attorney has been doing or not doing on her case. (I say "she" because for some odd reason, the majority of these instances have been women dissatisfied with their current attorney. Not all women, but mostly.) Sometimes, folks just want a second opinion- "is my lawyer handling this right?" Because I truly do not want to take money away from my brothers and sisters of the bar, and I also do not like to take on cases that are already in or through the Discovery phase, I'm happy to offer my two-cents and confirm that, "yes, this is typical of how this goes," "or yes, from the information you are giving me, that sounds like a fair offer and your attorney is right to recommend it."
However, too often, a "second-opinion" is not why the potential clients are seeking out my services. They feel something is not right with the way they are being treated by their lawyer and their case being handled, and unfortunately, they tend to be correct.
"I don't get it. He did such a great job on my closing/divorce/will..." And there lies the issue: not all lawyers are created equally. I'm not comparing people, mind you, although of course, skill levels among attorneys as in any profession, varies. But I am saying that personal injury cases require attorneys that have obtained a certain skill set and knowledge base that differs from the skill set and knowledge base they would need to handle a residential real estate closing, for example. The idea that lawyers can be "general practitioners" in this day and age of tort reform and complicated statutes and legislation is really a falsehood.
In my dad's day as a lawyer, he could handle different practice areas - everyone did back in those days. The stakes weren't as high even when you took a case to jury verdict. My dad handled personal injury because back then the laws weren't so favorable toward insurance companies. You got injured, you got a settlement. It was all pretty easy.
But today, in order to properly handle a personal injury (PI) case, especially a case resulting from an auto crash, you need experts to prove the injury is causally related to the crash and typically that it is a permanent injury. That costs money - a lot of money, and that money usually comes from the pocket of the lawyer until the case is resolved. If you are a solo practitioner with a small practice, paying out thousands of dollars in expert fees on one case is a scary proposition when you may or may not succeed in recouping that expense at the end of the case.
An attorney handling PI should also be a trial lawyer and not all lawyers ever try cases in front of juries. In fact, most don't. Trial lawyers are unafraid to roll the dice and take that chance that they will succeed at trial on a case and therefore tend to have a clear path to resolving a case and maximizing the recovery. Whereas, an attorney unfamiliar with trial work and litigation may not have a clear idea of the value of a claim or injury, how to prepare the case if it does not settle before the 2-year Statute of Limitations runs out, and in many cases, will attempt to convince the injured client to accept less money than her case is worth simply to avoid the time and expense of litigation and trial. An attorney undervaluing a case is the most typical reason an injured person may come to me for a "second-opinion."
"It just doesn't seem like enough. I have to live with this for the rest of my life and he told me to take the $20,000.00 offer." An attorney accepting significantly less than the true value of a claim to avoid a trial simply because he is afraid to go forward is an incredible disservice to the client and other attorneys who handle these cases.
A scary problem for lawyers who take on PI cases thinking they can handle it is when they do mishandle it resulting in a legal malpractice claim. Potentially, this is what has happened in a case that came to me for a "second opinion" and "I want to fire my lawyer, can you take my case" situation. Unbeknownst to the client, her case was already dismissed. From what little I could tell, it was dismissed because the lawyer didn't work hard enough or perhaps know what needed to be done to avoid dismissal. And this woman has a permanent injury through no fault of her own!
My advice to injured people is do a little research. Go beyond just a Google search for "injury lawyer in my area" and dig a little deeper. Review their website- do they have a professional website? Are they included on the Super Lawyer list for their state in Personal Injury Law? Do they lecture or teach other lawyers about handling cases and trials? Do they personally handle cases in 6 other practice areas in addition to PI? That can be a tell-tale sign of a "dabbler" and you want an expert, not a dabbler. Ask your friends, family, neighbors for recommendations. And when you meet the lawyer, ask a lot of questions and if it doesn't seem like the right fit, you need not sign anything. Keep looking.
For attorneys who are handling PI cases, please go seek out all of the resources you can to learn how to properly handle an injured person's case. Maybe ask to co-counsel with a well known, successful trial attorney. Sign up for the seminars and workshops on handling injury claims. Call a colleague who more regularly does this work and ask questions. Or refer the case out to give your client the best chance at success.
An attorney who may have done a great job resolving your divorce ten years ago may not be equipped to successfully handle your injury claim. It's so important to know the difference.
We all have done it at one time or another; our phones buzz or ding indicating a text message has been received and for some reason we have to read it and respond at that moment despite driving 55 miles per hour on the highway in fairly steady traffic. We see other drivers with their eyes on their iPhones instead of the road ahead and we all think “what a jerk,” and then two minutes later Jimmy is texting that he needs to be picked up from soccer practice NOW and “where are you mom?” And we feel compelled to respond so Jimmy knows we are not neglecting him (the line at Starbucks was just longer than usual for this time of day.)
And while perhaps this scenario seems a little humorous and close to home, the fact remains that it can also be devastating. According to the National Safety Council, cell phone use while driving leads to 1.6 million car crashes a year and 330,000 injuries. Further, texting while driving is six times more likely to cause a crash than drunk driving.
We all agree that texting and driving is a dangerous and reckless activity and most people tend to agree that as responsible drivers, we should never do it, and certainly when we see someone else on the road texting or talking on a cell phone, we often become angry and outraged. How dare that woman put us all at risk?! And then we are asked “where are you? When will you be home?” from the wife/husband/kids who we know are freaking out because dinner is getting cold so we feel compelled to respond.
With staggering statistics and an obvious danger to ourselves and others on the road, it’s time to put our phones away when we’re driving. Many drivers are distracted by just knowing that a text message has come across their phone. There are several ways to prevent this distraction including switching the phone to “Airplane” mode, turning it off completely, or downloading apps that send messages to would be texters and callers that you are driving. iPhone recently added this capability in the last IOS update and Samsung users have already had this option. It’s time we use them.
When a distracted driver causes a crash and injures someone that we love, we are understandably angry because they “should know better” and should have followed the rules. In order to keep our communities and our roadways safe for everyone, it is important for all of us to commit to follow the same rules. Let’s put our phones away – that text can wait.
For more information on safe driving laws in your state, visit: http://www.ghsa.org/state-laws/issues/Distracted-Driving
Lauren D. Fraser, Esq
Lauren is a nationally recognized trial attorney in New Jersey, having been recognized by the National Trial Lawyers organization as one of the Top 100 Trial Attorneys in NJ. Lauren specializes in personal injury law representing people in the community who have been injured through no fault of their own.
Please note: The opinions expressed here are the personal opinions of Lauren Fraser (and sometimes other super smart people, especially when she provides appropriate citations.) Lauren's opinions do not necessarily reflect those of all members of The Fraser Firm or any other organization to which she belongs. However, Lauren is also the first to admit she is generally right about stuff.