You might be curious as to how I know what bad advice is being disseminated by my colleagues. The answer is simple. When injury clients fire those people and come hire us, I get to hear from these clients the advice their last attorney gave them. After years of hearing the same bad advice, I started to maintain a list of the most terrible pieces of advice I have heard.
Some lawyers give advice that they developed and refined over the years. Others give advice to personal injury clients simply because some other lawyer sometime in the past told them to give such advice. This sort of baseless, and often damaging, advice passed on by some lawyers as "legal advice" will be the focus of this article.
In all honesty, few attorneys have been as fortunate as me to have worked in one and only one area of practice for nearly 20 years. Many lawyers are "jacks of all trades and masters of none." Admittedly, lawyers can feel a burden to give clients advice. Unfortunately, when faced with the option of giving either NO advice or BAD advice, my colleagues often feel that bad advice is superior to simply keeping their mouths shut.
In this blog, I have compiled the 10 worst pieces of advice that I've
heard over the years. Sadly, this article could be called "The Top 50
Worst Pieces of Legal Advice..." However, I already get accused by my
staff of making my blogs way too long. So here goes:
1) "START AN INJURY DIARY" - WRONG!
Seems innocent enough, but in practice it is a terrible idea. No one, and I mean no one, who gives this advice has either a clue on human nature nor personal injury trial practice.
The lawyer will tell you to write down your pains and injuries in a diary that you can keep with you from the time of the injury to the time of your testimony, either in deposition or court. It is designed to allow you to reflect back on your pains when they were the most acute and be able to recall and testify thoroughly about the ordeal.
The three most obvious problems with this advice is:
1) The average person will not keep writing a diary of any sort more than a couple of weeks. Think about any diary you ever started. It is likely a beautifully bound book with six to eight pages of writing, thereafter not touched in a decade, right? So, on average, if you start one, you won't get very far before you stop.
2) The diary about your injuries is discoverable. That means that if you start one, by law, if the insurance company asks if you have one, you will be compelled to produce it to the other side.
3) Generally, the insurance company's favorite winning argument is that people who get injured suffer only with some acute symptoms for a couple of weeks, and then the pain goes away. No harm, no foul.
Well, through the advice of your "banana republic-trained" lawyer,
you have now handed over to the insurance attorneys a book called "Pain
Diary" that has at most 20 entries documenting days of pain, followed by
a bunch of blank sheets of paper. Ask yourself: have you just helped
prove the insurance company's case of just how minimal your injury and
Basically, why kick your own ass? So I say "no pain diary."
2) "INSIST THAT A WITNESS BE PRESENT FOR THE INSURANCE COMPANY DOCTOR'S EXAMINATION" - WRONG!
This is just silly. The idea of having a witness present to open the door to testimony from the witness documenting the malfeasance of the insurance company doctor is simply a pipe dream. It doesn't work. Likely, the doctor will refuse to allow the witness to go back to the exam room and a loud verbal exchange will ensue. Eventually, the examination will proceed. But at this point, any chance you had of pulling the doctor onto your side, thus having him write a favorable report, is shot. He's angry, you're angry, and not surprisingly, the doctor will write a lethal report.
Alternatively, if the doctor permits the witness, the doctor will know to act appropriately, but only on the surface. He will still harbor resentment that you brought a witness. So, while he will be pleasant to your face, he's still going to write the same lethal report. And because the doctor knew he was being watched, your witness will have nothing meaningful about which he can testify.
I can assure you that since this silly advice came into vogue, it hasn't ever achieved its goal. If anything, it takes away even the slightest possibility that the insurance doctor might side with you. This is terrible advice.
3) "SECRETLY TAPE RECORD THE INSURANCE DOCTOR EXAMINATION" - WRONG ... WRONG!
This is even worse than the witness advice. Secretly mic'ing yourself in the hopes that the insurance company doctor says something overtly quotable and perhaps obnoxious is a far stretch.
The first problem is that doctor exams, whether they are for you or for the insurance company, largely sound the same on recording. They are not quotable. But more basic, if during trial, your bone-headed lawyer pulls out the tape in an effort to show that you "caught the doctor saying something biased", the entire jury panel will immediately focus on one incontestable fact--for the sake of winning you will do anything conceivable, even sneaky, to get it done.
Bad, bad ... bad advice. Fire the idiot attorney who sends you to the exam with a recording device. He simply doesn't have a clue.
4) "ONLY START SETTLEMENT NEGOTIATIONS ONCE EVERY SINGLE DOCTOR FINISHES WITH YOUR CARE AND DISCHARGES YOU" - WRONG!
Injuries can take years to heal. Doctors can follow a patient for years. Waiting for all doctors to take their hands off you is likely to result in a large overrun of bills that you will have to pay from a limited fund of insurance settlement money.
Instead, keep treating and request that your doctor provide you a
prognosis as to your future medical needs and the duration for full
recovery. A prognosis like this can usually be accomplished within just a
few months, not years, of care. Settlement should be achieved based on
what doctors' opinions are anyway, so why not get this information from
your doctor and move toward resolution much more quickly.
5) "WRITE PERSONAL LETTERS OF OUTRAGE TO THE INSURANCE COMPANY" - WRONG!
The very reason you hired an attorney is to fight your battle with his eloquent words. Having you do the deed usually makes you look out of control, and worse, whiny. The whole shooting match is about you looking likable and like the kind of person that a jury of your peers would love. A couple of your letters complaining to the insurance company can turn a jury against you permanently.
6) "TREAT WITH SPECIAL DOCTORS THAT ARE EXTRA FRIENDLY WITH YOUR LAWYER" - WRONG!
Wow ... worst advice of all. These type of doctors (friends of plaintiff attorneys and their clients) are exactly the type of doctors you need to avoid in order to prove and maintain the legitimacy of your injury claim. I f you start seeing the usual suspect doctor, immediately the insurance company will know that your lawyer sent you to a "doc in the box" and the value of your case will plummet. This is insanely bad advice.
7) "STAY OFF OF WORK AS LONG AS POSSIBLE" - WRONG!
Insurance attorneys love nothing more than to argue that an injury victim is a faker, and even worse, a malingerer. Parking it on your couch and waiting for that big settlement check to roll in when you could work, even on restricted duty or part-time, might assure that no check ever comes. It is truly horrible advice.
8) "BE OPEN TO SEEING A PSYCHOLOGIST TO DOCUMENT POST -TRAUMATIC STRESS DISORDER" -WRONG!
Juries don't believe in post-traumatic stress disorder arising from a car crash. Witnessing 9/11 from Ground Zero - yes. Your rear-end crash on Sheridan - no. And they certainly don't believe it anymore just because you bring Dr. Bob Ph.D., from the strip mall, to testify to it.
It generally cheapens a case. Remember, if you look like you are overreaching in your demand of compensation, it could be the jury who decides to pull the rug out. Pigs get fat, but hogs get slaughtered. Be reasonable and avoid going to gratuitous doctors simply designed to angle for more money. Generally, it will come off looking exactly like what it is.
9) "ENCOURAGE YOUR SPOUSE TO BRING THEIR OWN CLAIM FOR LOSS OF SPOUSAL SUPPORT" - WRONG!
Outrageously bad advice. If the insurance adjuster is "iffy" on your case before, add a claim of "Wilma wants to be compensated because Fred has no stamina in the sack anymore due to his back sprain from his rear end collision."
These claims are called "loss of consortium claims." They are brought way too frequently by lawyers who were taught by other lawyers who didn't have a clue. In reality, these sorts of ancillary claims should be brought only in the most extreme of circumstances, and even then need to be carefully weighed against how terrible these issues sound in front of a jury.
10) "BE CAREFUL NEVER TO TELL THE DOCTOR THAT ANY OF YOUR INJURIES ARE GETTING BETTER ... UNTIL AFTER WE SETTLE YOUR CASE" - VERY WRONG!
No, no, no, no!!! The nature of injuries is that, over time, they heal. For you to stay static and unaffected by months or years of therapy is going to look like your doctors are buffoons.
Why should the jury listen to Dr. Dunce-Cap, who managed not to get a
single improved symptom out of his patient? In truth, the best cases
are when the neck injury resolves, the elbow injury is almost resolved
and the knee has improved slightly. That is probably the truth anyway,
right? No attorney should be encouraging you to avoid the truth when
talking to your doctors. And the attorney ethical rules don't allow
lawyers to tell their clients to lie (as if a lawyer should need to be
told that anyway).
There is a type of lawyer that takes action, and if he is ever questioned as to why he did something in a certain way, he will simply shrug his shoulders and say "it's the way I've always done it." However, I have found that the practice of representing individuals in injury claims against insurance companies is a very fact specific and focused reactionary endeavor. There really is no place for rote regeneration of something because "that is what we have always done." The above examples of advice are wrong and completely destructive to their primary objective.
At Anderson, Hemmat & McQuinn L.L.C., we know that a personal injury claim is difficult enough without our clients receiving bad advice. If you question the advice that you've received from your current attorney, please feel free to pick up the phone and run it by one of our attorneys today.