Unlike other more sophisticated clients, representing injured workers can be uniquely challenging. Every worker who comes into your office is hurt, scared, broke and doesn’t do paperwork well. Every worker who comes into your office has differing expectations and perceptions. In representing these injured workers, you inherit all their fears, perceptions, frailties and stress. Your job is to channel these expectations towards a successful case. This article seeks to address suggestions for making the injured worker’s representation process a lot less daunting.
At the start, during the intake process, try to identify in the initial telephone call or meeting the injured worker who is histrionic, anxious and perhaps unrealistic. Perhaps this person will never be a good fit for your practice. Find that out early! Next, when the caller comes in for an initial client review, both the attorney and the prospective client should keep that conference simple. Repeat information in written form and verbal form and direct the client to your website directories that will give some information about the process; the mission of the law firm; depositions; independent exams; and realistic timeframes.
During that initial interview, both sides have the opportunity to size each other up. You want to find out if the claimant can be focused. Will he follow information and be compliant with your request for information? Can he articulate a coherent story? Like a first date, one colleague says, “It never gets any better than the first interview.” Assuming the both of you decide to marry-up, both the lawyer and the client need to establish firm objectives early on in the case. The claimant needs to know what the case is about and how you intend to strategize and proceed to prove the case. At that point, advise the client that you will thoroughly and adequately represent him, and mutual respect will be required.
Establish a simple game plan, advise the client of a realistic time table and mutual responsibility (for example, perhaps the worker will go the hospital and get records. Those are easier to get and cheaper if he goes to the hospital and returns them back to you within a specific timeframe). This will also tell you whether or not he’s compliant. Go over the mission of your law firm and how you will represent him and what you expect from the claimant in terms of respect to all staff members. For example, if something is not going to happen for 30 days, advise the client, so that they are invested in the timetable process. This will eliminate the incessant and unnecessary phone calls to your staff that the week after, despite the fact you’ve told them nothing is going to happen. Tell them essentially, what is the objective or the theme of the case and explain what your staff has to do so they understand that you’re working, and your staff is working, and they need not be called daily for a “status telephone call”.
Remember to keep the explanation simple, short and repetitive. It may not eliminate telephone calls, but it certainly lessens the number of calls. Set defined specific appointment times for a telephone call for a specific status follow-up. Periodic contact with the client forestalls complaints. It might be wise to simply set status conferences every month, even simply by telephone or email so that the client is reminded of the progress. They need to know that there is a certain time period for you to secure medical records, the insurance company file and the file from the Workers’ Compensation department.
After you receive all that, set a specific meeting with the client to go over the evidence, and what information/data is lacking and who’s going to secure it and the timeframe for securing it so the client is invested in the process. Provide the client with a video opportunity to view the video that describes the mission of the law firm, the objectives of litigation and the deposition prior to the actual deposition testimony. They will have a conference with the lawyer who reminds them to sit, think, listen and be brief when they answer their questions for a deposition. Go over what is the objective of the case and the objective of the deposition and remind them of what you’re trying to prove so that they don’t take the bait from the defense lawyer and go off on tangents or exaggerate.
Remind them in the deposition and at all times with the adverse counsel and the court not to be hostile, but polite. Remind them that the defense lawyer is not their friend and fewer words in a deposition is better than jabbering incessantly. Too many words can be used against them at a later date. Make sure that you and your client are on the same page regarding objectives; otherwise, the deponent will run amok in the deposition. Also, remind them that the deposition is not the time to convince the other lawyer of the validity of their case.
When you proceed to the evidentiary trial or hearing, review the objective with your client in preparation. Remind them to be on time so that you can prepare them and remind them you, as their lawyer, will ask most of the questions. The client needs to dress appropriately. Repeat all of the deposition advice. Remind them again not to interrupt you when you’re questioning – describe the parts of their body and not just simply point, as an adequate record must be made. Remind the client if they’re not English speaking, to use a translator at all times, or they’ll be suspect that they speak and understand more than they’re telling the court. Don’t nod when an answer is required; go slowly; look at the judge; make eye contact because the judge is assessing credibility.
The client should once again be reminded not to be hostile, but polite. The judge has to like you to believe you. Remind them that each side more than likely will have equally balanced medical evidence and the judge can choose between one medical doctor and the other medical doctor, and the key component is whether the judge believes you, as the claimant, to be credible and likes you. If the judge does not like you, you will not be believed. Remind the client to stay on task; don’t ramble; listen to every question and sit; think and be brief in the answer; don’t exaggerate; and remain calm. Remind the client it’s their lawyer’s job to clean the record up, not their job.
When they go to the independent examining doctor (who is really the defense-examining doctor), remind the client: This doctor is not their friend; he will rarely affirm their case; the client should avoid global complaints; be specific; don’t exaggerate; use an interpreter; and make sure the interpreter is interpreting accurately, and if not, complain about it at that time. Don’t do anything hurtful to your case – perhaps make an audio recording; listen to the question the doctor’s asking you; note down the time that the actual exam starts; and note the time the actual exam ends; record the time the doctor is in the room and leaves the room; be punctual; be early.
The “panel” of doctors, if they have more than one examining defense doctor, is not there to help you despite the fact that you may think that you’re going to get an unbiased opinion. You’re not going to be able to convince these folks of the validity of your claim and they’ll just chalk you up to being hostile with global complaints or histrionic. Remember that the more words that are used, there are more chances to find inconsistencies. Don’t banter and fight with the other lawyer or doctor, you’ll always lose.
None of this information will let you have a perfect case, but it will help you sleep better at night, have a better relationship with your clients and allow your staff a more congenial working environment. Robert E. Wisniewski