There are a number of visible, impactful and success-oriented ways to achieve possible results out of impossible fact patterns. Over the years, my team and I have improved or totally altered the results of high-value cases by taking a unique counterintuitive approach toward case evaluation and preparation. We have embedded this process in our firm’s culture, and, happily share both our methods and results in this article.
I. THE MINDSET OF THE “POSSIBLE”
Please remember that cases declined by other law firms, especially in this age of high-volume marketing and intakes, presents excellent openings for the more astute, proactive and personalized case intake and evaluation. In the past two years, our firm has turned at least 10 cases declined by other law firms into 7- figure results and another case into an 8-figure verdict.
Recently, we resolved a road construction litigation matter for more than $30 million which had been turned down by an “intake specialist” at one of Florida’s biggest billboard advertising firms. The client told the advertiser that her brain injured husband had run a red light, and collided with another vehicle at 60 MPH. That generated the turndown. We looked more carefully and found that the traffic signal was totally obscured and that it was never “run” because it was “invisible.” The plaintiff suffered massive neurological injuries. Ingenuity allowed us to bring financial security and a new life to this family.
Our drive to turn around difficult and challenging cases and make them “winners” is the “lane” our law firm has traveled in for 40 years.
II. THE INCONSPICUOUS DEFENDANT(S)
This category represents the highest number of case evaluation mistakes committed by “lazy lawyers.” You have to get out from behind your desk, go to a scene of any incident, talk to witnesses, innovate and create a three-dimensional approach toward evaluating your case. Here is one of hundreds of examples:
A Fourteen-year-old was riding her bicycle in Key West when she was hit by a motorcycle operator with no insurance coverage “when he ran a stop sign.” Our client, a left hemiplegic, was devastated. I met the motorcyclist at the scene, noticing fresh road construction and newly laid asphalt. My curiosity, common sense and creativity took me to the next step. The motorcycle driver told me about the dust, smoke and noise that distracted him at the scene. I sued the private asphalt paving company that created the obstruction which caused the motorcyclist to strike our young client. The case was settled for several million dollars, a life-changing amount for this fine family.
We could reference so many other cases over the years with similar outcomes and even mention a few opportunities we missed by not going to the scene or digging deeper into the facts of the case.
Not every potential defendant is obvious! Not every theory of liability or damages is conspicuous. You can turn the impossible into the possible with industry, creativity, imagination, guts, hard work and consulting with other lawyers who may see things differently than what is apparent.
III. CREATING EXTRA CONTRACTUAL OR ADDITIONAL COVERAGE FROM DIFFICULT TO RECOGNIZE DEFENDANTS
This case analysis applies across the board to every personal injury practice area. A physician’s practice with $250,000 in coverage may be owned by a large private equity group or other entities that are not revealed to you in response to your insurance coverage inquiry or discovery. We have pursued the owners of medical practices and businesses that were nowhere revealed in the early course of discovery. Many of these cases come from the “course and scope of employment” that is not found in medical records. It is a must to discover all the contractual relationships between healthcare providers and practice owners.
We are now in the process of obtaining a $25 million recovery in a massive OB-GYN wrongful death case where the primary care physician revealed only a $250,000 policy.
In a high damage-low coverage scenario, take the time to file suit and depose the “non-obvious defendant.” For example, our clients, sitting at a bus bench, were tragically injured when an out-of-control vehicle struck this innocent family. Again, the defendant old dilapidated vehicle, with no insurance coverage, had a driver who was running an errand for her employer even though it was 8:00 p.m. at night. The employer had more than ample insurance and this family was made whole by scrutiny into the circumstances surrounding this incident.
Be curious! Be bold!
IV. CRUISES AND EXCURSIONS
Cruise lines deny responsibility for shore excursion operators claiming they are independent contractors. The passengers book exotic tourist attractions with unsafe vehicle operators, hand-gliding, mountain climbing, parasailing, jet skiing, and a whole host of ultra hazardous activities. We have overcome the cruise line independent contractor defense where they claim that “Pepe, the Jeep driver,” is not an employee and they are not responsible.” Now, we prove that the shore excursion operator is an apparent agent of the cruise line, selected, monitored and controlled by the cruise industry who is now requiring every excursion operator to provide $2,000,000 of insurance coverage in order to do business with them. There are numerous valuable and undisclosed ways to establish agency on behalf of a very solvent defendant, and we did so three times in the past two years for cruise clients who were killed or injured by a crime, and other reckless behavior of tour operators.
V. BREAKING DEFENSES
We spent hundreds of hours and significant resources circumventing waivers, releases and immunities raised by defendants aimed at limiting recovery for our clients. In the workers’ compensation setting, we always investigate the possibility of a products liability case. In resort activities, boating and other ultra hazardous activities requiring the participant to sign waivers and releases, we are to set aside as documents that conflict with statutory case law or public policy. A parasailing couple who fell to their death was initially denied coverage by the insurance company because they had signed releases and waivers. These provisions were stricken by the courts for various technical defects and illegal application. These technical defenses are always strictly construed against the maker. A thorough, analytical, suspicious and creative approach can succeed in making your impossible case possible.
VI. PRODUCTS LIABILITY AND PROFESSIONAL NEGLIGENCE
A frequently overlooked opportunity to convert the impossible to the possible lies in the tenacity and ingenuity of the trial lawyer thinking outside the box. Do not do what everyone else routinely does during the discovery phase. For instance, I insist on taking the deposition of the defendant manufacturer in the place where the product was made. You can request an order from the court explaining that all of the records, files, computer records, plans, blueprints, photos and all of the documentary evidence needed to prove a negligent design/manufacturing case needs to be at hand when you are deposing the engineers, designers and corporate representatives with the most knowledge under Federal Rules of Civil Procedure 30 (b)(6). On more than one occasion, witnesses falter and stall on examination, claiming they do not have the documents which are the subject of questioning. Then, if you are there, take a break and ask for a search in the business office, computers and engineering storage to get those documents. You may turn up some valuable gems.
Having spent three weeks examining Japanese defendants through an interpreter with multiple video cameras, I can assure you this arduous work will pay off. Do not allow evasive, non-responsive or double talk responses to stand. NEVER, NEVER begin the deposition of the products liability defendant witnesses without obtaining all your documents and discovery before you begin. These are expensive and time-consuming depositions requiring travel, lodging and support staff. I begin all depositions on Tuesdays, traveling to the venue on a Sunday and preparing all day Monday for a concise and hard-hitting start. Remember to bring the telephone number and contact information of your presiding judge in case you encounter obstruction, coaching and inappropriate objections. Be prepared to play the tapes back to the court and be sure you have a first class technician and a superb videographer working for you. Bring help! Don’t try it alone. The impossible becomes possible when you make strong in roads during depositions. It is even possible to settle your case for full value during deposition when you strike gold. Push hard. Do not get discouraged or sidetracked. Be in control with facts and preparation.
VII. ARE MEDICAL NEGLIGENCE CASES REALLY IMPOSSIBLE?
A significant portion of the plaintiffs’ personal injury lawyers avoid medical negligence-based cases based on cost and complexity. This is a mistake! To do them right and turn around the evidence, at least the following is necessary. First, be sure to retain high-end, well-qualified, objective experts to assist in your case evaluation and analysis. Be sure you know the medicine related to your particular incident better than the defendant doctor.
I have requested and been granted permission to take the defendant doctor’s deposition in his office, surrounded by his library and medical literature with an order from the court to photograph those treatises. When you know what the doctor has studied, what he deems to be authoritative, you can photograph or videotape the book titles and do your own research after the deposition. Impossible cases have been turned around when you find one of the defendant’s authorities agreeing with your position on liability.
In hospital-based cases, be sure to get legible originals of the complete chart and, not just a report or copies of the actual radiological studies and other tests to be analyzed by your experts. Records get altered and, that is death to defendants when caught. Dig deep in the operating room and depose all nurses, medical technicians or any other personnel who were circulating during the surgery. Mostly, do not be intimidated by the medical universe and its double talk. The deposition and cross-examination of the defendant medical provider must be sharp, crisp and knowledgeable with the jury understanding you are in complete control. Use your expert to educate you on the medicine. Do not be so harsh on cross-examination that the jury begins to feel sorry for the defendant doctor on the witness stand.
Your reputation and the standard of your firm should be “making the impossible possible.” We have been doing so for the past 47 years with thousands of results on cases that other firms turned down, underestimated or misevaluated. There is no substitute for digging, hard work and doing things in an unexpected way, certainly be ethical and creative. Be prepared. Think “outside the box.”
If you follow these guidelines, your reputation for unexpected and highly successful results will bring about security and comfort for your clients.
