Monthly Archives: April 2008

Stupid Things Lawyers Worry About

Every lawyer has a fear that some little thing he/she did or didn’t do will eventually ruin someone’s case. Sometimes the fear is justified – missing a deadline or failing to disclose an expert can have serious consequences.

Some fears aren’t as justified. For example, I’m often so careful in my language in my complaints/petitions that they are often nearly unreadable. Here’s an example, highlighted to show my thought process:

1. Defendant did then and there operate a motor vehicle in such a manner as to cause it to collide with the rear end of the vehicle plaintiff was operating.

What I’m really thinking:

1. Defendant crashed her car into plaintiff’s car.

Why I don’t say it (with my own thoughts in italics)

1. Defendant did then and there (because if I don’t say that, it won’t establish that the accident happened at the same time I mentioned in the other paragraph, and suddenly the whole complaint is legally inadeaquate) operate a motor vehicle (because what if it’s not a “car,” what if it’s an SUV, etc) in such a manner as to cause it to collide with the rear end of the vehicle plaintiff was operating (not “plaintiff’s vehicle” because what if plaintiff doesn’t own it, what if she owns more than one vehicle – we need to show that she was in the vehicle (not “car”) at the time, and that the vehicle defendant(‘s car, not defendant herself) struck wasn’t say, a vehicle in a garage somewhere) .

You get the idea. A non-lawyer will read that and think I’m joking. A lawyer will read that and know I’m not. It’s neurotic to a certain extent, but I think there’s a legal basis for it, especially in Illinois where “fact pleading” is the rule.

Another such neurosis is found in the insistence in making sure doctors phrase their opinions with the words “to a reasonable degree of medical certainty.” It’s archaic, cumbersome, and I don’t think juries know what the heck it means. But the fear is that, without proper foundation, the opinion can’t get into evidence.

Never mind the fact that the phrase itself isn’t necessary… see an old post on the Illinois Trial Practice blog for the Illinois rule, or for the Iowa rule, see Hansen v. Central Iowa Hosp. Corp., 686 N.W.2d 476, 485 (Iowa 2004).

But still… this is the kind of stuff I think about.

(Howard Zimmerle is a lawyer in the Quad Cities)

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How people value their own cases

Anyone who has been in an accident or has been hurt by someone else’s negligence tends to put a high value on their own case. Why wouldn’t they? They had to take time out of their regular schedule to see doctors, had to feel pain, maybe had to miss work, etc.

But do jurors feel the same way? And why does it matter?

My favorite psychology blog, PsyBlog, has a post discussing studies of how a person’s ownership of something affects their perception of its value. The bottom line: if we own something, we think it’s worth more than other people do. Here’s the money quote:

We assume others share our perspective: Surely potential buyers understand how strongly we feel about our dusty old vinyl records? No, they don’t care – in fact they’re far more likely to notice how badly we’ve stored them or what poor taste in music we have.

This is important for injured people to understand. A jury isn’t always going to value your case the same way you do. Just because you feel your case is worth 12 million dollars doesn’t mean a jury will agree. It’s important for attorneys to have a realistic talk with their clients early and often regarding the potential value of a case.

(Howard Zimmerle is a personal injury and workers compensation lawyer in Rock Island, Moline, Davenport and Bettendorf).

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Ever wonder why there’s no “Wal-Mart Law Firm”?

For you non-lawyers out there, you’ve probably wondered why all law firms seem to be named something like “Smith & Jones, P.C.” or “Peterson Law Firm.” What’s with all these last names? Are lawyers that vain? That uncreative?

Yes and yes. But that’s not the end of the story.

Lawyers are held back to an extent by the rules of professional conduct. Iowa Rule 32.7.5(e), for example, does not allow an attorney to practice under a trade name. Hence, no “Wal-Mart Law,” no “Quality Divorce Law” or “The Injury Specialists.” This has always seemed a little wierd, as doctors and other professionals can name their practice “Neurology Associates” or “Orthopedic Specialists.”

Another thing that strikes people when reading the yellow pages is that nearly all law firm ads look alike – and in a very boring way. How many ads just say “Workers Compensation” in bold letters or something like that? Well, one reason for this, again, is the professional conduct rules. I can advertise the “Best Carpet Cleaners in Town!” or “Quality Muffler & Brake” but under Iowa law, an attorney can’t even call herself “Experienced.”

I wonder if its time for some of these old rules to go.

(Howard Zimmerle is an attorney with Michael J. Warner & Associates in Rock Island, Illinois)

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“Why do I need a lawyer?” – Here’s your answer

I’ve had auto accident clients ask me during an initial consultation, or perhaps once a few weeks have passed without me settling their claim – “Why do we need a lawyer for this? Can you guarantee me that you’ll get me more on this case than I would if I handled it on my own?”

It’s a good question – why would someone give me 25% to 33% of their recovery? What value do I bring to the table? It puts me in a tough spot though. Ethically, I can’t make any promises or guarantees that I’ll get more money for them – or that I’ll get money at all. Even if I made such a guarantee, it could really come back to haunt me if, down the line, we discover some facts that make the case much weaker than it was before?

 So there are many good answers for the “why do I need a lawyer” question… but the best answer just came out recently. Here are some internal documents from Allstate insurance company about how they handle their claims. Look at page 11298: it says that “Represented claims settle for 2-3 times more than unrepresented claims.” This is straight from the horse’s mouth.

Still wonder why you need a lawyer?

(Howard Zimmerle is a personal injury attorney in Rock Island, Illinois)

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A reason for your clients to reconsider chiropractic treatment

Most car accident cases involve some level of injury to the neck and/or back. Sometimes it’s just a strain that lasts a couple of days – sometimes it’s more severe.

Many victims of car accidents go to a chiropractor for treatment. Sounds reasonable, right? Not always.

I’m not a doctor. I don’t pretend to give medical advice to my clients, and their choices for treatment are entirely theirs to make. However, I have to tell my clients about how their medical treatment can affect their case (for instance, missing physical therapy appointments will hurt your recovery). One reality in personal injury practice today is that juries often do not like to pay for chiropractic treatment. My clients are always free to go, but they have to understand that they may not recover for this cost.

Here’s a great example why – a blog post by an actual juror – from the Jury Experiences blog (tip of the hat to Deliberations):

Before I go on, let me say that I figured out early that the plaintiff had seen a chiropractor. I figured it out due to questions the plaintiff’s attorney was asking. Let me also say that I 100% do not believe in Chiropractic Medicine. It’s a bunch of malarkey. So, when they called my name to sit on the jury, I kept thinking to myself “That stupid freakin’ attorney! Why didn’t he ask us what we thought of chiropractors?!?”

And I was right. The plaintiff had spent over $7000 on a chiropractor. And in my opinion, that was $7000 that he chose to spend, not that his injuries had forced him to spend, so no way in hell he was getting that money back. The prosecutor called their witnesses: the plaintiff’s wife, the officer on the scene, some guy that gave the plaintiff work to do, and a few others. Of course, he also called the Chiropractor herself, and he asked her questions for an entire HOUR AND A HALF! It was so horrible. First thing she said was that she attended Life University, and it was hard for me not to scoff. Then she went on to describe what chiropractors do and what magical nerve pathways exist that allow their voodoo to fix any ailment. She, of course, described the plaintiff’s injuries and why she was needed, etc… I really wanted to go up and choke the life from her, she was so stupid.

The part that really made me want to bash my head into the wall was when they said that the plaintiff had tried “regular” medicine and it didn’t work. He had tried pain killers and muscle relaxers for 1 week before he went to the chiropractor. Then, he said, and I quote, “the regular medicine just wasn’t working… the chiropractor did though. Not at first, but 3 months later I was really started to improve.” 3 months?!??! You stupid retard! Your body was naturally healing. You had back trauma, that’s fine, but realize that your body was healing itself in those 3 months, not the chiropractor.

Wow. Pretty strong statement, there. Obviously not all jurors are like that, but clients need to know that those jurors are out there, and attorneys need to be on the lookout for these jurors in voir dire.

See also – my post on Getting the Chiropractic Bills Paid.

(Howard Zimmerle is a personal injury lawyer in Rock Island, Illinois)

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