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How to Lose Your Case in 12 Easy Steps
By R. Steven Shisler, Esq.
Frequently, I receive telephone calls from potential clients
who have, frankly, severely damaged their ongoing claims or
lawsuits. When you pursue legal claims, whether they involve
social security, workers’ compensation, medical malpractice,
or other types of personal injury claims, remember that these
common mistakes could lose your case.
1. Do it Yourself
Representing yourself is definitely not advisable because
you don’t have the knowledge, skills or the experience of
a practicing attorney who specializes in medical claims.
This is especially true for social security and workers’
compensation matters. Many claimants think they will receive
benefits by simply completing application forms. To be successful,
retain counsel before you begin the application process.
2. Delay or Fail to Take Action
I had a client who sought representation for a workers’
compensation claim. Although he had been receiving workers’
compensation for a job- related injury that had occurred
11 years earlier, His employer’s insurance carrier wanted
to revoke the client’s benefits. Unfortunately, when the
accident happened, the client was afraid he would lose his
job if he sued his employer. Unfortunately, he discovered,
too late, that his best opportunity for compensation would
have been a products liability claim against the manufacturer
of the defective machine that had caused his injury.
The products liability claim would have been worth hundreds
of thousands of dollars. His workers’ compensation claim
amounted to a relatively small sum.
3. Retain the Wrong Attorney
The best way to find an attorney is to ask people you know.
Good attorneys get most of their clients by word of mouth,
as opposed to those who advertise on television or in the
Yellow Pages. A general practioner probably lacks the knowledge
to handle cases involving RSD that involve highly specialized
areas of the law.
Hire an attorney who comes highly recommended from a source
you trust, and then research his (or her) background. Do
not be afraid to ask the attorney about his level of experience
with your type of case. Ask for names and telephone numbers
of references. Find out his success rate. Look him up in
the Martindale Hubbel law directory or other directories
of attorneys.
Trust your instincts; first impressions are critical. If
the attorney does not impress you at the first meeting,
what kind of impression do you think he is going to make
on a judge or jury? Additionally, never be reluctant to
fire your attorney if you lose confidence in him, but find
new counsel first so there is no gap in representation.
4. Hire and Fire Multiple Counsel
Most attorneys will not be concerned if you want to fire
your current counsel and hire a new one, unless you have
gone through three or four attorneys. This shows the attorney
that you are most likely the problem.
5. Be Cheap
You get what you pay for. If the case needs specialized
knowledge, the fee will be higher. For an attorney to handle
an RSD case, he must have knowledge of the particular area
of the law involved, knowledge of medicine generally, and
knowledge of RSD in particular. Medical malpractice cases
and product liability cases are particularly complex and
involve a great deal of work as well as specialized knowledge.
Ask what the customary fee is for your type of case. In
Philadelphia, the standard fee for a medical malpractice,
products liability, or personal injury case is a 40% contingent
fee. If you win, the attorney gets 40% of the gross recovery.
If you lose, you pay nothing. In Pennsylvania, the maximum
fee for a workers’ compensation case is 20% and or a social
security disability case, 25% of any past due benefits with
a maximum fee of $4,000.
6. Treat with Multiple Medical Providers
One of the biggest problems with RSD cases is the damage
that is done when the client jumps from doctor to doctor
in that pain driven, panic-stricken search for the miraculous
cure. If you have RSD, you have a horrible condition that
is likely to be permanent. Your goal should be to reduce
your pain and improve the quality of your life .Going from
doctor to doctor creates a number of problems. The defense
can argue that you really do not have a case, but simply
changed doctors until you found one who would report what
you wanted. You might be portrayed, for example, as being
emotionally unbalanced. To insurance claims representatives
companies, voluminous records from many medical providers
raises a flag. Multiple medical providers may result in
duplications of treatment that negatively influence juries
and judges, and increase your costs.
Medical experts charge substantial sums to testify and reimbursement
of these expenses is deducted from your recovery.
If your insurance coverage has been exhausted or if there
is an insurance subrogation lien, you may have to pay the
doctors.
7. Fail to Communicate with Your Doctor
Tell the doctor when you have new symptoms and about your
limitations. If you testify regarding certain complaints
or limitations and these are not addressed in the medical
records, your testimony lacks support. Do not be macho and
omit complaints or symptoms in your discussions with your
doctor
8. Be a Motor Mouth
One of the most damaging things that clients do is talking
too much to the wrong people. While it is important to communicate
clearly to your doctors, other medical providers, and lawyers,
talking too much to others is dangerous. Be alert all the
time, and remember that all those “nice” people you talk
to might be recording everything for their records
9. Thinking About Your Actions on a "Good" Day
RSD pain waxes and wanes. There are bad days, and then there
are good days when the pain, although severe, is more bearable.
The private investigator who may have you under surveillance
will not document anything that supports your claim. Be
especially careful on the good days, enjoy yourself, but
be aware that if you are outside, you may be under surveillance.
That videotape will be shown to a jury after you testify
about your difficulty walking, reaching, using your injured
hand, and so on.
10. Disregard Your Attorney’s Instructions
If you have chosen the right attorney, he has a great deal
of knowledge and experience. If you do not trust his opinions
and his instructions, then hire someone else.
If you really want to lose your case, disregard your attorney’s
instructions and speak with insurance company representatives
when they telephone you. Later you can tell your attorney
that you only answered a few questions, and they were not
damaging, in your opinion. That way, your attorney will
be surprised when he receives a copy of your damaging statement..
Better yet, communicate with the representative of the insurance
company but never tell your lawyer about it.
11. Lie
A great way to lose your case is to lie. Lie or exaggerate
to your doctor about your symptoms and complaints and your
responses during his examination. That way the medical records
will be contradictory and easy for the defense to challenge.
Lying during the “independent” or defense medical examination
is also a great way to lose your case. Then the defense
doctor can testify that none of your symptoms made sense,
that they did not follow neurological patterns, that you
are exaggerating, or can otherwise damage your credibility.
You can destroy your case by lying to your attorney. A lie
is especially effective if you completely change your story
at trial from what you have previously represented in your
pleadings, deposition, and medical records. There is never
a reason to lie.
12. Don’t Do Your Homework
You win a case because you have the best lawyer, you are
well prepared, you testify appropriately, and you have the
best evidence. The case is always won in preparation, long
before trial. Keep appointments with your doctors to provide
evidence of consistent medical treatment without unusual
gaps in treatment. Listen to your attorney’s instructions
during preparation for defense medical examinations, depositions
and hearings or trials. Do your “homework,” such as reviewing
your medical treatment and other subjects.
Conclusion
Hopefully, by showing you how to lose your case, you will
think about how you can win because the weakest part of the
case is often the client. Be aware of your role and the impact
of your choices and actions on the outcome of your case. Think,
be selective, communicate about your injuries and your case
with only the appropriate people (your lawyer and your doctor).
Be aware of the things you say and do in public. Take an active
role in your case, follow instructions, and work closely with
your attorney for that successful outcome.
R. Steven Shisler, Esquire is an attorney whose practice
concentrates in plaintiffs’ medical malpractice, products
liability and other personal injury matters involving nerve
injuries and reflex sympathetic dystrophy. He is an RSD survivor.
His office is located at 1515 Market Street, Suite 810, Philadelphia, PA 19102, (215) 564-4080. |
