Saturday, April 23, 2011

What questions should you ask these Litigators before you Retain one?

As I mentioned yesterday in my post, I will begin thinking about this question. There is no magic list of questions. Given the research that I have done on this subject, it is likely that new patients in the process may have different basic questions than I may have.

The attorneys all have web sites and I have been through all of the 14 web sites of the attorneys on the MDL list which I published yesterday. 

Each site contains:
·        a bio on the lead attorney, as well as all of the attorney’s in that firm

·        A list of the monetary awards  they have been successful in procuring for their clients-not sure why that matters given most patients are first interested in having their medical issues covered for any eventuality that may occur for the rest of their lives right! Further, it’s kinda hard to judge those awards out of context.  Not sure what they all mean.

·        A list of rankings by something called “super lawyers” and I haven’t a clue as to what that indicates (maybe I should look at that definition)…I wonder if it’s like that “whos who in American women” a list I seem to be on each year but have no clue as to why I am on it?

·        The firm’s philosophy…all pretty predictable….client comes first stuff…

·        What about size of the legal staff (attorneys and support staff)?  I’m not sure how much this matters but what I can tell you is that this case is very complicated. I think it is more important that your team have experience dealing with complex, mass tort cases with medical devices or related issues in the medical field with companies like J and J and that the head litigator has  served in a leadership role in these cases before.

I’ve got to say, I didn’t get any real sense of compelling differentiators (why your firm vs another) on the sites other than one thing:  I did find it impressive if I could see the number of times the attorney who spearheads the case has been selected by a judge to serve on a steering committee for a complex litigation case.  That is the only thing that I found worth considering on those sites.  That selection to me implies:
·        Leadership
·        Good judgment
-         Can be a decsion influencer on the case
·        Convincing with a track record likely understood better by a judge in some context.

The most important thing to me is to understand how that litigator thinks about issues which they have to deal with on that case.  That means you have to ask questions. Here are some of things that interest me:
·        How are they thinking of identifying expert witnesses in dealing with the systemic issues?
·        How familiar are they with the key published influencers in this case
·        Are they disparaging of their colleagues…if they have to make their case by making another attorney look bad, I would pass on them.
·        What do they think about the consults you have used?
·        Listen to the questions they ask you.

·        How difficult it is to access the key lawyer?  I found that many of these firms seem to want to send you out a packet to “sign up” without ever speaking to an attorney…pass on those firms….You must talk to someone on the legal team who is not simply the administrative para legal. They are not lawyers. You generally have to be assertive to get past the para legal.

·        Ask them how they are paid. You should never have any out of pocket costs.  These lawyers work on contingency…that means, they fund the case and if they win, they take some percentage off the top for expenses and split the rest with you.  It appears that states differ in the rules set for remuneration in  contingency cases. If this monetary award matters, ask them to explain it to you.  This does not happen to be my primary concern.  My primary reason for considering a lawyer is to ensure that any damage done as a result of this hip will result in the ability to have those injuries covered by Depuy for the rest of my life.  This requires filing before the statue of limitations runs out.

What questions do you guys have?  Perhaps I can find some kind of criteria to help hone in on the legal selection in some reasonable way. One of the attorneys said something interesting:  at the end of the day, you simply have to feel comfortable with working with that attorney. That’s good advice.

I do have one question in retrospect:  If the Depuy case is likely to settle in the MDL process (pre trial), does the selection of a lawyer really matter? That is, given the MDL process, isn't the only role of the lawyer to file the complaint  with the court?  I think there are levels of settlement in this case according to the “damage” or “injury”. If it settles pre trail and you are on the list with a certain type of categorized injury, you’re done!  I suppose you can’t assume that it will settle so you have to retain a lawyer based on the fact that your case may end up in a trial which has to be litigated by someone however unlikely that may be.

I will offer more feedback on this as I complete the process of speaking with these lawyers.

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