Saturday, May 14, 2011

“AS A TRIAL JUDGE THE GREATEST PREVENTABLE INJUSTICE I SAW WAS INJURY AND WRONGFUL DEATH LITIGANTS DAMAGING THE VALUE OF THEIR CASES BY HIRING INEXPERIENCED TRIAL COUNSEL”

Hon. Peter J. Polos, Ret.

This information is to help those potential personal injury and wrongful death litigants to choose the proper counsel for their case. I spent a significant portion of my judging career presiding over these types of cases and far too often I witnessed a litigants case settled for cents on the dollar or lost at trial due to the inexperience of their lawyer. Choosing the proper counsel for your injury or wrongful death case can prevent that injustice. The single most important thing you can do in your case is choose the right lawyer. When armed with the information provided here you will be in a position to make the right choice.

One of my primary duties as a trial judge was to preside over settlement conferences and then the trials if the cases did not settle. I presided over hundreds of settlement conferences and trials. These experiences gave me the insight that a great number of litigants with righteous cases had counsel that were not always acting in their best interest. To me, a client suffers no greater injustice than to have a righteous case − a case with merit− either be destroyed because of a lawyer’s lack of ability in trial or unwillingness to take case to trial.

One might think that all lawyers are equipped to represent people in trial. However, in the eight years that I spent as a trial judge nothing surprised me more than the wide disparity in the trial skill levels of the lawyers who appeared before me. As a lawyer, I was used to dealing with competent trial counsel on pharmaceutical cases, medical malpractice cases and various product liability cases. As I presided over increasing numbers of trials as a judge, I became aware that there often is a “mismatch” in the relative skill levels among lawyers in cases. In many cases the outcome of a trial was affected by this lack of experience, ineffective counsel or simply by the difference in skill level between counsel. My observations are not just anecdotal; I canvassed many of my civil panel trial judge colleagues across the state and they consistently relayed the same story − viable cases were lost or their values were greatly diminished due to poor trial skills or the unwillingness to try a case.

Whether a case is large or small makes no difference in this analysis. One need only handle a small claims calendar for a day to realize how important each case is to every client, no matter the size. In every case where one is represented by counsel, the client is entitled to have trial counsel that is competent and can effectively present the client’s case to the jury. It is the lawyer’s duty to make sure they comply with this obligation. Here is what you need to know in order to pick the right counsel for your case.

A LONG TRACK RECORD OF TRIAL SUCCESS

Look for lawyers who have a long track record of trial verdicts. Ask your prospective lawyer how many cases they have tried to verdict in the last 3 years. Never pick the first lawyer you interview although you will be greatly compelled to do so. Remember, a lawyer’s profession is persuasion and they will use that persuasion on you to sign a retainer at that first meeting. You need to interview several lawyers and then determine who is trying cases and getting great results.

The reason the number of cases and the results is critical is that insurance companies and their lawyers know which injury lawyers will try a case and which would rather not. They also know who is good at it and who is not. The insurance companies have little incentive to pay that lawyer top dollar for their cases if they have no fear of being beaten at trial. Taking the last best offer is many times easier for the lawyer and saves that lawyer plenty of time. Mind you, most cases settle but if you want top dollar for your case you need a lawyer who regularly gets great trial results.

BEWARE OF WEBSITES TOUTING “SETTLEMENTS” VERSUS “VERDICTS”

There are literally thousands of websites that tout the great settlement results of a law firm. Of course settlement is important but if there are few or no verdict results reported then that lawyer likely does not try many cases. Further, how are you to know the real value of any case that is settled. For example, how good is an inexperienced lawyer who settles a case for $1,500,000 that in the hands of an experienced lawyer would settle for $3,000,000 or more? The only thing you will then see on a lawyers website might be that he or she settled a case for $1,500,000. It sounds good but the truth of the matter is that every day cases are being settled for significantly less than their full value.

ASK THOSE THAT MIGHT KNOW THE BEST LAWYERS

Not surprisingly, trying to discern which attorney is best for your particular case is nearly impossible to figure out from websites and yellow page advertisements. Even your friends who know a “good lawyer” and recommend them may not know who the best lawyer is in your area. It is imperative that you do your research to determine who is getting the trial and thus settlement results. Fortunately there are several relatively easy ways to determine who is best for your case. You can 1) ask a civil trial judge; 2) ask a defense lawyer who regularly represents insurance companies; 3) check verdict (not settlement) results from various reporting services for injury and wrongful death cases. Doing any one of the above will get you the names you need to then go on their websites and check further into the trial results.

BEING A TRIAL LAWYER REALLY IS A SPECIALTY PRACTICE

Few would dispute that being trial lawyer, someone who routinely tries cases and can effectively communicate their case to a judge or jury, is a special skill. There are many groups that pay tribute to the best of this law specialty. For example there is the American Board of Trial Advocates, the American College of Trial Advocates, and the Inner Circle of Trial Advocates to name of few.

Justice Miriam Vogel of the Second District Court of Appeal acknowledged how the legal profession has become one of many specialties and that not all lawyers are qualified to do all things. In Jane DOE v. The Superior Court of Los Angeles County, 39 Cal.App. 4th 538 (1995), she stated in pertinent part:

“… In our own profession, we would not appoint a tax lawyer to represent an indigent defendant in a rape case. (See, e.g. Rules of Prof. Conduct, rule 3-110©;Brewer, Expert Witness Testimony in Legal Malpractice Cases (194) 45 S.C.L.Rev. 727, 54 [“the practice of law has become highly specialized [and although only a few legal areas are recognized as specialties, many lawyers limit their practices to one or two selected areas”].)”

Just as you would not call on your family doctor to do heart surgery, a litigant should not call on just any lawyer to handle their case. The legal profession is as highly specialized as the medical profession. Much of the world’s legal community also recognizes that being a trial lawyer is a specialty area of the law. Barristers are found in many common law jurisdictions that employ a“split profession” in relation to legal representation. Solicitors generally deal with the clients whereas barristers deal with advocacy in court. Further, a substantial amount of specialty education is required to become a barrister in addition to a one-year apprenticeship.

However, although every lawyer is allowed to try a case not all are qualified.

TOO MANY LAWYERS JUST COLLECT CASES AND DON’T TRY THEM

One of the best kept secrets of the plaintiff’s bar is that there is a significant number of well financed lawyers who just advertise for cases and who don’t really handle them. Those lawyers are experts in advertising (not practicing law) and getting potential clients to sign their retainer. Many times these lawyers will keep the cases with the mindset of settling them cheaply or quickly so they can maximize their fee with very little work. If those lawyers cannot settle their cases they will then seek out a lawyer who will handle the case and send them a large referral fee. The lawyers they have referral relationships are not always the best trial lawyers (sometimes they may be but not always). If you are with a lawyer currently and they want to associate in another firm, you still have time to do your homework and make sure you have the best lawyer for your case.

SUMMARY

Selecting the proper trial lawyer is the single most important part of your injury or wrongful death case. Only lawyers who regularly try cases and regularly provide their clients with excellent trial results can get you maximum compensation by settlement (or trial if necessary). By selecting a lawyer that civil trial judges or insurance companies and their lawyers respect you can assure the best possible outcome for your case. Armed with the information in this paper you will be able to make the best selection of a lawyer for your case.


Hon. Peter J. Polos (Ret.)
Of Counsel
Director of Litigation
Panish Shea & Boyle LLP
11111 Santa Monica Boulevard, Suite 700
Los Angeles, CA 90025
Tel: (310) 477-1700
Fax: (310) 477-1699
Email: polos@psblaw.com
Web: www.psblaw.com

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