Monthly Archives: June 2012

New Case – Plaintiff Can Testify that She Did Not Seek Medical Care Because She Did Not Have Health Insurance

This is big. 

We’ve all had cases where either gaps in medical treatment or the type of medical treatment sought wasn’t quite what it could have been because the plaintiff didn’t have health insurance. 

Of course, the general rule is that either party’s financial status – and whether or not they have insurance – are inadmissible.

There is some potential unfairness whichever way this goes. If the plaintiff can’t testify that she hasn’t returned to the doctor because she can’t afford it, it might sway a jury to find in her favor. If she can’t explain why she didn’t go back to the doctor, it raises an inference that she was no longer in much pain.

A Fifth District case, Vanoosting v. Sellars, addresses these concerns, holding that the trial court erred in excluding testimony about Plaintiff’s health insurance. I think this is the right decision.

(Howard Zimmerle is a personal injury and medical malpractice attorney in Rock Island, Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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How 1950s Housewives can Make You a Better Lawyer

ImageWe all want our clients to be happy and satisfied with our work and the process of their case, right? Obviously. 

The problem is that much of what we do goes on behind closed doors, in the comfy confines of our office, in depositions, and in minor court hearings that the client would be bored with (ie Motions to Compel, status calls, etc). 

So how do you keep your client happy with the process? Especially in the personal injury area where cases can easily take 2-3 years or more to resolve…

The answer may come from what is known as the Betty Crocker Egg theory. Legend has it that sales of instant cake mixes were slow when they were first developed. After studies and analysis, a guy named Ernest Dichter suggested that the mixes (put it in a bowl, add water, throw it in the oven) were too simple for the 1950s housewives that were baking them. The housewives felt guilty and not involved. The recipes were changed to require the addition of a fresh egg – and boom, sales grew like crazy. 

Why? Because that was just enough to make the housewives (or whoever was doing the baking) feel like they participated and were a real part of the process. 

(Snopes tries to debunk the theory, but their explanation – that new marketing sold the cake decorating process as creative and participatory – still supports the basic premise here.)

So the key to a happy client is to make your client an active participant in the process. But an egg/decoration participant, not a whole cake from scratch participant. If they have to do too much, they will wonder why they pay you so much and wonder if they needed you at all. If they do too little, they won’t feel invested.

Some suggestions:

1. Send clients a copy of correspondence and/or motions filed in their case, along with an explanation of them. 

2. Invite clients to court hearings – even minor ones. Explain beforehand what they are and that the client’s presence is not mandatory (ie no need to take time off of work for a routine motion, but you’re welcome to be there). 

3. Invite clients to sit in on other depositions. This sometimes helps beyond your own client’s feeling of participation. For example, treating doctors are often more charitable with their opinions if the client is present. Defendant drivers are often more honest about what happened when the other driver is present, and plaintiff drivers soften their settlement stances after seeing a Defendant who admits responsibility and is truly sorry for what happened. 

4. Make clients an active part of settlement/trial discussions. It is the client’s choice when/if to settle and for how much. They need to understand that, and you need to help them understand the pros/cons, etc.

5. Have clients help with some of the basics. For example, the client might be better off asking their boss to write them a letter confirming lost wages. One caution – don’t ask a client to get their own medical records. I’ve never seen a medical provider – especially a hospital or nursing home – provide the entire record that way. 

The moral, I guess, is that you have to break a few eggs to have a happy client. 

(Howard Zimmerle is a trial lawyer from Rock Island, Illinois. He practices personal injury, medical malpractice and workers compensation across Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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RIP Philip Corboy, one of the Best Lawyers of All Time

Phil Corboy of Corboy and Demetrio died yesterday.

I never knew him.

I’ve known some lawyers at his firm, and others by reputation, and have been impressed with all of them.

But Phil was the key. I don’t know if I would be in this line of work if not for Mr. Corboy. He was a pioneer. He fought the courts and fought the system to remove caps on damages and to make courts more fair. He tried cases in ways that hadn’t been done before, and won amazing verdicts that hadn’t been won before. He paved the way for every personal injury lawyer who came after him. (Here’s a fascinating article about how he did it).

He was an easy guy to look up to – not just for his results, or the street named after him in Chicago or for any of that – but for how far he came from with his background. In a profession where it feels like most lawyers came from upper middle class backgrounds and higher, Corboy was a scrapper who worked his way up from a lower middle class environment. I always admired other lawyers who grew up that way – and I believe it’s a common theme in the plaintiff’s bar.

I never knew him, so I’m not even close to the best person to eulogize him. I’m sure there will be great articles in many blogs and publications in the next few weeks, and I look forward to reading them. He was truly a pioneer and very well-respected. I just wanted to say thanks.

(Howard Zimmerle is a trial lawyer in the Quad Cities in Iowa and Illinois. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com). 

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Deposition Preparation Tip # 7F02

“Let it all hang out. You – conceal it!”

I’m reminded of this every time I prepare my client for a deposition, or help them with interrogatories, or whatever. Of course, I grew up on the Simpsons and am constantly reminded of them to the point where the show is just part of my subconscious. Anyway, this comes from a second season episode where Homer’s new assistant, Karl takes Homer to the tailor for some new suits. Homer does what guys do and sucks in his gut. Karl yells at him to let it all hang out, and then points at the tailor and says “you – conceal it!”

That’s what we want our clients to do. We need to know the warts in the case – the 30 pounds of excess flab hanging over the belt, so we can dress it up nice and make it look presentable. If a client is complaining of low back pain, we need to know if he had low back pain ever – or had been to a chiro – or whatever. If the client was a convicted felon, we want to know. None of this stuff is the end of the world if we know about it in time and can handle it.

The worst thing a client can do is hide stuff from us out of fear that it will hurt their case. We’re pros. We can dress up Homer Simpson in nice clothes and pass him off as an executive – but only if he doesn’t suck it in.

*hat tip to Dead Homer Society for the yoinked image above*

(Howard Zimmerle is a personal injury and car accident attorney in Rock Island Illinois, practicing in the entire Quad Cities and surrounding area. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

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