Resist making promises you can't keep

The plaintiff personal injury business is more competitive than ever. Thus, when meeting with a potential personal injury client for the first time, you may well be tempted to make representations as to what you think the case is worth or how quickly you can settle it. I can only assume from the number of times I hear potential clients telling me about their consultations with other firms that this desire to make promises to the clients is rampant.

I am urging you to resist the temptation to make such comments, as your clients will surely be disappointed at the end of the day, which will lead to other headaches (fee disputes, Law Society complaints, negative social media reviews, etc.)

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

  1. How much money is my case worth? (I don’t know).
  2. How long will it take until we settle? (I don’t know).

You may be tempted, knowing the client is shopping around, to land the client then and there by telling them what they want to hear, or what you may actually believe to be the case. I will tell you, however, that you would be wrong to do so. This is simply because at the initial client interview it is impossible to know.

At the outset of the case, you will only have the client’s perspective. You will not have yet heard the position of the adjuster for the target insurer. You will not have reviewed the medical records of your client’s pre- or post-accident treatment. You will not have yet had the benefit of their income tax returns or other supporting documentation.

Oftentimes, at the time the client signs your retainer, you may not even have the police report of the accident available. And as in all litigation, what your client tells you is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Quantifying damages in a personal injury case is more art than science; oftentimes abstract art at that.

Here are just some of the factors at play in determining the value of your client’s lawsuit:

  • The nature and extent of the injuries. Under the Insurance Act in Ontario, not all injuries are compensable. Recent case law from the Superior Court of Justice indicates that the bar to meet the statutory threshold is on an upward trend. This is good news for insurers, but bad news for you. If your potential client shows up at your office and thinks his sore neck and back pain is worth six figures, and you either by representation or omission, allow him to leave thinking he might get something near what he has in mind (remember that what is in his mind is not grounded in the realities of the law but rather his emotion and sense of moral certainty), you are setting the stage for a disgruntled client before the case is even underway.
  • What your client’s own medical practitioners write in their notes about her injuries. For example, your client may tell you that she is in constant pain, but her family doctor may use words such as “minor” in her clinical notes or, worse, treat the client’s injuries dismissively. This will definitely hurt your case.
  • How often your client attends for treatment. Many clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time; or (iii) they can no longer afford to cover the out-of-pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Their failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding. Yet, whether or not they continue to attend and at what frequency are factors out of your control.
  • If your client has a potential claim for lost income, the amounts on which they filed and paid tax in previous years or can actually prove through source documents. This is especially acute if they are in the service industry, as a large portion of their real income is derived from tips, yet their income tax returns rarely reflect this; similarly with self-employed small business owners (or those who work in “cash” businesses”) where true income loss is significantly more than would appear from the pre-accident income tax returns.
  • The statutory deductible. The Insurance Act mandates a $30,000 deductible on general damages on motor-vehicle-accident-related personal injury cases. This amount is actually increased north of $36,000 as of Aug. 1, 2015). Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount. Moreover, clients generally do not understand this.
  • The client’s own evidence at examination for discovery or trial or in statements given to doctors or insurers, which experienced (jaded) personal injury lawyers know is often very different than what the client has told us at the time we are retained.

Also keep in mind that what you think of as the value of the case is usually the amount of the cheque the insurer will write, while the client is really only concerned with the net in their pocket. From whatever amount you obtain, you will deduct legal fees of about 30-35 per cent (plus HST). In addition, disbursements incurred by you are over and above the fees. It is not unusual for me to incur $5,000 for a case worth only $20,000. Thus there is often a significant gap between the amount of the settlement and the actual dollars going into the client’s jeans.

Then there is what I call the wild cards. These have nothing to do with your client’s injuries, the state of the law, or for that matter your legal acumen.

  1. The target insurance company. Some insurance companies have taken a very hard line on all soft tissue injury cases that do not have significant provable lost income attributable to the injuries. I have been told more than once in mediations with a certain insurer that they “would rather spend $100,000 on legal fees before paying a plaintiff $10,000.” They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
  2. The particular adjuster who is responsible for deciding how to handle the file. Even “good” insurance companies, who settle early and often, employ certain adjusters who take a more aggressive approach.

As for the length of time, no matter how fast your office works to move a case forward, you will inevitably be stymied by the bureaucracy of a large insurance company, lawyer’s schedules, your own schedule if you are running a high-volume practice, not to mention the inherent systemic delays of our court system. Accordingly, you should not suggest a time frame in which a case may settle.

For all those reasons, it is almost impossible to give a client an accurate picture of how their case will shake out when you first meet. As such, resist the urge to lure clients with promises of golden tickets and the chocolate factory tours. Instead, focus on empathizing with your client’s situation while leaving them with the indelible impression that you have the knowledge, skills, and experience to give them the right advice at the right time.

If personal injury law is not within your areas of expertise and experience, you are best to refer the file to a lawyer who does have that experience. If you do not regularly practise in personal injury law, you likely lack the requisite knowledge to properly advise the client, understand the process (which has its own conventions and rules of thumb amongst the bar), or properly assess the case.

Further, a personal injury lawyer’s ability to get small- to mid-size cases settled is predicated as much on his or her relationships with the adjusters and defence lawyers as with that lawyer’s skills. At the end of the day, this is a people-driven industry and reputation counts. Being an unknown entity is a further disservice to your clients. You also may not understand the lay of the land at various insurers and how they operate, knowledge integral to a lawyer’s ability to take on the right files and obtain a decent result for the client.

Fortunately, in personal injury cases, there is incentive for non-injury lawyers to refer to experienced injury lawyers. Referral fees are the norm. So save yourself and do the right thing for your client by referring the file on. You will be rewarded at the end of the day without having done the hard work or laying out the disbursements.

And for those of you who are like me and handle large volumes of personal injury files, there really is enough business to go around. There is no need to try and get business in the door by making promises you cannot live up to, and potentially open the door for negligence claims and Law Society investigations.

When I teach practice management courses to lawyers and law students, I always say that the law part of being a lawyer is easy. If you can get clients in the door, and manage their expectations, you’re 80 per cent of the way home. The initial client interview is when you set the tone for your client’s expectations. I would rather have a new intake walk out the door than get their signature on the retainer only by promising them what they want to hear.

Choosing a personal injury lawyer

When choosing a personal injury lawyer, you may well be tempted to select the lawyer who promises to get you the most amount of money in the least amount of time. Resist your temptation to make your choice in that manner, as you will surely be disappointed at the end of the day.

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

  1. How much money is my case worth? (I don’t know).
  2. How long will it take until we settle? (I don’t know).

You may advise me that another lawyer (or worse, your friend who had his own personal injury case) told you your case was worth a particular amount, and want to know if I will get you that or more. I will tell you, without knowing any of the facts, that the other lawyer (or your friend) is wrong. This is simply because at the initial client interview it is impossible to know. And you should be wary of any lawyer prepared to answer those questions with any certainty.

I will only know at the beginning of your case what you tell me. I will not have heard the position of the other party you wish to sue. I will not have reviewed your medical history. I will not have had the benefit of reviewing your income tax returns or other supporting basis. What you tell me is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Assessing damages in a personal injury case is more art than science; oftentimes it appears to be abstract art at that.

Here are just some of the factors at play in determining the value of your lawsuit:

(a) The nature and extent of your injuries. Under the Insurance Act in Ontario, not all injuries are compensable. The law expects that some injuries, or some level of pain, is something you will simply have to live with and for which nobody has to compensate you. Recent case law from the Superior Court of Justice indicates that the extent your injuries must rise to in order for you to be compensated is on an upward trend. This is good news for insurers, but bad news for you when you show up at my office and think your sore neck and back pain is worth six figures.

(b) What your own medical practitioners write in their notes about your injuries. For example, you may feel constant pain, but your family doctor may use words such as “minor” in her clinical notes. This will definitely hurt your case. Sadly, soft tissue injuries that cause real pain do not show up on diagnostic imaging or other objective tests.

(c)  How often you attend for treatment. Many of my clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time: or (iii) they can no longer afford to cover the out of pocket cost of non-OHIP covered treatments, such as physio and massage therapy. Your failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding.

(d) If you are claiming lost income, the amounts on which you filed and paid tax in previous years. This is especially acute if you are in the service industry, as a large portion of your real income is derived from tips, yet your income tax returns rarely reflect this; similarly with self-employed small business owners whose true income loss is significantly more than would appear from the pre-accident income tax returns.

(e) The statutory deductible. The Insurance Act mandates that if your personal injury case arises from a car accident (as opposed to a slip and fall), the first $30,000 in damages for pain and suffering is deductible. This deductible is actually increased for accidents after August 1, 2015 to approximately $36,500. This means simply that the insurance company does not have to pay any amounts up to the deductible. Since the majority of soft tissue injury cases are worth less than $75,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount.

(f)  Your own evidence at examination for discovery or trial or in statements given to doctors or insurers.  What you tell me is less important that you eventually state “on the record”.

Also keep in mind that what you think of as the value of the case is your net in pocket, versus the actual value. Lawyers who will try to tell you what your case is worth often neglect to advise that this is a top line amount, without mentioning the deductible.  Most importantly, from whatever amount the insurer pays, legal fees of about 30-35% (plus HST) will be deducted by your lawyer. In addition, disbursements incurred by your lawyer are over and above the fees. Disbursements are those amounts I pay out of pocket to third parties in order to advance your lawsuit (court filing fees, medical records/reports, transcripts, mediation fees, to note just some examples). It is not unusual for me to incur several thousand dollars for a case worth only $20,000.

Then there is what I call the wildcards. These have nothing to do with your injuries or the law.

  1. The insurance company we are suing. Some insurance companies have taken a very hard line on all cases where the injuries are only soft tissue and/or which do not have significant provable lost income attributable to the injuries. One such insurer regularly states to plaintiff counsel that they will pay their defence lawyers $100,000 before they will pay the injured plaintiff $10,000. They have been successfully following through with this threat for several years now. The days of insurers paying a little to save a lot are gone.
  2. The particular adjuster who is responsible for deciding how to handle the file. Even those insurance companies which are settlement minded employ certain adjusters who have a mindset that they would rather force us to the door of the courthouse.

As for the length of time, no matter how fast my office works to move your case forward, I may be stymied by the bureaucracy of a large insurance company, their lawyer’s schedule, and the inherent systemic delays of our court system. Thus, while cases can settle in as little as 6-12 months, or drag on for 8-10 years, most fall anywhere in between. The reality is that there are many factors at play, including those noted above.

For all those reasons, you can understand why it is almost impossible to give you an accurate picture of how your case will shake out when we first meet.  As such, resist the urge to hire the lawyer who promises the largest payout. Instead, make sure your lawyer seems like he or she will empathize with your situation while also having the experience to give you the right advice at the right time.

Another factor to consider in hiring a personal injury lawyer is to make sure the lawyer is actually experienced in the area. I know of numerous family and real estate lawyers who will dabble by taking the occasional personal injury case. These individuals lack the requisite knowledge to properly assess your case, the experience to manage your case in an appropriate matter, and most importantly, the business relationships with insurance adjusters and lawyers to get cases settled.

One final piece of advice if you are planning on hiring me or another personal injury lawyer: be prepared to listen to our advice. It may not accord with what you want to hear or think is fair and just. But by making the wise choice in the lawyer you hire, the advice you will receive will be the best your money can buy.

Stay Off Social Media to Keep Credibility Intact

Despite how common it now is to see orders for the production of material from social media sites — with the content to be used as evidence — plaintiffs continue to let their guards down online, putting their credibility in danger, says Toronto personal injury lawyer Darryl Singer.

One recent case, Tambosso v. Holmes, 2015 BCSC 359 (CanLII), saw a woman’s claim for hundreds of thousands of dollars in damages largely rejected by a judge who found the contents of the woman’s Facebook page to be “completely inconsistent” with her testimony.

The woman was suing for damages as a result of two car accidents — one in 2008, the other in 2010. The case details claims of several injuries allegedly suffered by the woman, including psychological ailments such as “post-traumatic stress disorder, depression and mild traumatic brain injury,” reads the decision.

Evidence put forward by the defence included more than 100 pages from the woman’s Facebook account, showing her in numerous social settings with friends.

“I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a ‘homebody’ whose ‘life sucked’ and ‘only had friends on the internet,’” Justice Robert W. Jenkins writes inTambosso.

Singer, who was not involved in the case but commented on the topic generally, says there was a time when an individual’s online persona didn’t play a role in the courtroom — but that time is over.

“It’s standard practice now when clients go to discovery for them to be asked whether they have a Facebook account, a LinkedIn account, an Instagram account, a Twitter account. It’s standard for them to be asked not to delete anything from that day forward, and they may or may not be asked to produce copies of certain photos,” says Singer.

That said, blanket access to a Facebook page is not the norm, as discovery is not meant to be a “fishing expedition,” adds Singer.

“What I tell my clients from the day they come into the office and retain me is you need to be very, very careful about what you post on social media if it’s inconsistent with what you’re going to say under oath,” he says. “If a client says they used to go out dancing every week but can’t do so since their accident, but Facebook photos show they’ve been out every second weekend at clubs with friends, that’s going to harm their credibility and destroy the case.”

In fact, Singer says it’s best if plaintiffs refrain from posting altogether.

“It used to be that insurance companies would hire private investigators to determine that things you say you can’t do you’re actually doing — and they still do that — but now sometimes all they have to do is look at social media accounts,” he says.

Privacy settings do not always mean a post will remain private, adds Singer, who says there is “always a way” the page can be accessed.

The digital age has not necessarily changed Singer’s tactics in handling such cases, but social media “adds an extra layer” of information to warn clients about.

“We tell them they may be followed by a private investigator, and now we tell them about the risks of social media. I don’t think it’s any different — it’s just a digitized version of the analogue form, which was a private investigator following you in a car,” he says. “People can be incredibly careless. They think they’re only posting it for friends. I’m constantly amazed at how many people let their guards down.”