FIRM NEWS & PRESS

by Todd R. Henningsen
and Hunt H. Whitehead

Every trial lawyer knows the importance of case evaluation. This lesson is normally learned when the jury returns a defense verdict or less than specials verdict in a trial on which you have spent a great deal of time and anxiety at the expense of your family, your other clients and your health. This type of lesson stays with you and makes you cringe at the thought of ever becoming a lawyer. While disappointment may be unavoidable as trial lawyers stretch to find new and creative ways to expand the law for the rights of the injured, nevertheless, it can be minimized through sound case evaluation and assessment.

Case selection and evaluation involves a multitude of legal, ethical, and practical considerations that must be thoroughly examined in order fully appreciate what you are undertaking. It is an iterative process involving constant evaluation and re-evaluation as the case matures. Initially, case assessment begins with answering baseline questions to determine whether you would be excluded (legally, practically, ethically) from accepting representation. These “exclusionary” questions are necessary to determine if there is some reason you simply cannot take the case. Is there minimal legal sufficiency in that there is a legally recognizable cause of action that led to an injury for which compensation is available? Am I ethically precluded from taking on this client? Has a statutory time limitation period already been missed? Do I have the resources to take on a case of this magnitude or complexity? These and other preliminary questions must be answered in order to make sure that there are no roadblocks to your representation.

Once the exclusive variables are weighed, you must take “inclusive” factors into account. These are numerous and involve subtle questions that must be answered to assess the case’s attractiveness to you, and ultimately a jury. What is the strength of the liability? Are there aggravating factors such as drinking and driving? What is the extent of the injuries? Does the client have pre-existing injuries? Will I get along with the client? What is the venue? These types of questions will help you to begin determining the potential value of the case and whether you are willing to actually accept the case. Throughout this process it is important to harness the advice of others. Ask your assistants, your spouse, your colleagues, or any other person what they think about the case. Research verdicts and settlements with similar facts and injuries to get a better understanding of what the case is worth. Once you have fully developed an understanding of the underlying facts and law, you will be armed to begin assessing the case.

Statutes of Limitation and Notice provisions

Prior to accepting any case, make sure that a time limitation has not yet expired. As most every practicing attorney knows, an injured person normally has two years from the date of the injury, or accrual of the cause of action, to file suit against any person, or entity, that may be responsible.1 The statute of limitations may be tolled due to the injured party being incapacitated or under a legal disability.2 As a result, a minor has until his 20th birthday to file suit in a personal injury case. The minor’s parents, or guardian, have five years in which to file suit for medical expenses or loss of services of a minor.3

Watch out for medical malpractice cases and the statute of limitations. The amount of time to bring an action may vary based upon when the injury was, or should have been discovered if there was fraud or concealment.4 Also, minors do not benefit from having the statute of limitations tolled until their 20th birthday. The same two-year statute of limitation that applies to adults also applies to minors, unless they are under the age of eight, and then it is only tolled until their 10th birthday.5 Make sure you read the applicable statutes or talk to an attorney who is familiar with the various time limitations on filing medical malpractice cases prior to deciding to handle one.

Beware of having a government entity as potential defendant. Not only do you have to look into the possibility of sovereign immunity, but you will also likely have different time constraints. Under the Federal Tort Claims Act, there is a twoyear statute of limitation for injury cases which cannot be tolled for a legal disability.6 You have to file the claim administratively before filing suit. Once you file the administrative claim it tolls the statute of limitations. You have six months after the date of the notice of the denial, or final offer, to file suit.7

Under the Virginia Tort Claims Act, you must file a Notice of Claim within one year after the date of the injury. After filing the Notice of Claim, you have a one year window in which to file suit. You must wait six months from the date of the notice before filing suit, unless the claim is denied earlier. The claim is barred if you do not file it within 18 months from the date of the notice.8 As a result, the time in which you have to file an action against the Commonwealth can be less than or exceed two years, depending on when you, or your client, file the Notice of Claim. Make sure your client, or the client’s former attorney, did not file the Notice prior to hiring you.

Assuming you have a case against a town or city where the municipality is not immune, the Virginia Tort Claims Act is not applicable. The action is barred if you do not provide a written statement of the nature of the claim as well as the place and time of the injury to city or town attorney within six months of the accrual of the cause of action.9

Prior to deciding to take on a case, especially one where the injury was not recent, make sure that you have time to comply with any notice requirements or applicable statute of limitations. Be careful of taking a case and immediately filing suit in order to preserve the claim before you fully investigate it. It is much more difficult to terminate representation once suit has been filed.

Ethical considerations

Prior to accepting representation make sure that the person who wants to hire you is competent to do so. If the potential client is a minor, the minor cannot legally contract to hire you. The minor’s parent or guardian must retain you on behalf of the minor. The minor, however, is your client and it is your duty to what is best for the minor, not the parent.

A wrongful death case is controlled by the attorney who represents the administrator of the decedent’s estate, or the executor in the unlikely event that the decedent has a will. In most cases, there will not be an administrator or an executor at the time you are retained by a family member of the decedent. You should immediately have a relative or someone you know appointed as administrator of the estate.

Conflicts of interest

Perform a conflict check and make sure you do not currently represent any potential defendants in any unrelated matters. It is improper to represent the plaintiff in a personal injury action against a defendant, who you represented in another unrelated matter.10 If you previously represented the defendant in an unrelated matter, you should get the defendant’s informed consent as to your representation of the potential plaintiff. It is permissible to defend the husband on a traffic charge and then subsequently represent the plaintiff/wife in the personal injury action against the husband, as long as full disclosure is made to both parties and they each give their informed consent.11

Most conflicts arise from attempting to represent multiple clients in the same matter, usually when an attorney attempts to represent both the driver and a passenger in the same automobile collision. Even if you are only representing multiple passengers, you can still have conflicts, especially when the potential value of each case exceeds the total amount of insurance coverage. It is probably unethical to try to represent the best interests of two people who are potentially entitled to recover from the same “pot” of insurance proceeds unless you obtain each persons informed consent, preferably in writing. Any time there are three or more injured parties with claims, there is a good chance that a conflict could arise due to limited amounts of insurance coverage. It is also possible to have the same situation arise when there are only two injured parties if the insurance policy is written so that it provides the same amount of coverage per person as it does per accident, (i.e. 300/300 as opposed 100/300).

There are at least two legal ethics opinions that say it is ethically permissible to represent a driver and a passenger, even where the client/driver may have been at fault, if each client consents after full disclosure of the potential problems and the attorney is convinced he can adequately represent the interest of each person.12 However, this is a risky undertaking. If someone changes their mind or there is a change in the situation, then you are most likely conflicted out of both cases. You clearly cannot represent both the driver and the passenger and have the passenger assert a claim against the driver.

Be careful even at the initial consultation. You should meet with each potential client one at a time. If you meet with everyone and there is a chance the driver may be negligent in some way, then at most you should keep the driver’s case. In order to do that, you should get informed consent from the passengers. As a practical matter, you should meet with passengers first. If you learn that the driver may be partially at fault, then you should not meet with the driver at all, if you want to be certain that you are not conflicted out of representing the passenger.

The main consideration in examining potential conflicts is that you do not want to be forced to refer multiple cases away when you could have kept at least one had you been careful when you initially consulted with the potential clients.

Fact gathering

Initial Client Contact: Once you have determined that the time limitations have not expired and you are not ethically precluded from representing the individual, the next step is to ascertain whether there is minimal legal sufficiency, i.e., a legally recognized, compensable claim. Normally, the first contact with the client will be over the telephone. This is your first level of screening the case. During the first contact, basic facts should be obtained: (1) name (2) phone number (3) address (4) date, time, and location of injury (5) type and severity of injury (6) medical treatment (7) basic events giving rise to the incident (8) if a traffic wreck, any traffic violations that were issued (9) basic insurance coverage information and (10) names of responsible parties. These basic facts are necessary to answer one single, threshold question:

Is there a cause of action for which the potential client is entitled to recover some amount of compensation? If the answer to this question is no, then the case should be turned down immediately. Graciously tell the person that in your opinion it is not the type of case that you would want to handle and be sure to follow up the conversation with a letter. The letter should not only thank the person for calling, but also inform him or her that there are strict time limitations associated with filing a lawsuit and to seek other counsel immediately.

Should the conversation lead you to believe that this is something that you may pursue, immediately tell the client to preserve any evidence that is available. If there are visible injuries, tell the client to take photographs of them. It is essential in auto cases to get pictures of the damage to the car, sooner rather than later. Many times if the damage is significant, the car will be a total loss and towed to a salvage yard before you have had an opportunity to take photographs. If the client cannot take pictures, find out where the car is located and get yourself or someone else to that location immediately. Do not rely on the insurance company to take pictures for you to later obtain in discovery. This is a bad practice for two reasons. First, you need to see the pictures to better evaluate the case. Second, it seems that insurance companies conveniently only take pictures of the cars with minimal damage and rarely admit to taking pictures of the cars with more severe damage.

Client Meeting: If the case has not been initially declined, arrange a meeting with the potential client and obtain all the information necessary to investigate in more detail and get a better understanding of what happened. Be sure to tell the potential client to bring any documentation that he or she may have regarding the incident, including: medical bills, health insurance information, prescription receipts, photographs, property damage estimates, correspondence from insurance companies, etc. The more information you have, the easier it will be to investigate and evaluate the claim. The initial interview should, at a minimum, cover the following items contained in the sample intake interview questionnaire at the end of this article. In addition to the information garnered in the interview, be sure to have the client sign a medical release that complies with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).13 This will allow you to obtain all past and future medical records, which is an obvious necessity in any injury case.

Of particular importance during the interview is to make sure that you get as much information as possible about the incident. In auto cases, it is imperative from the outset that you discern automobile insurance coverage. It is extremely rare to make any recovery when there is no insurance for either party. Also be sure to ascertain the availability of collateral sources, such as medical expense coverage and health insurance. The availability of medical expense coverage and health insurance means that you have more leeway in negotiating a settlement or trying the case (especially on more modest cases), since ultimately more money will be going directly to the client.

It is also important during the course of your interview to ascertain whether this is a client that you will be able to get along with during the course of representation. Ascertain the potential client’s expectations to make sure they do not exceed what you are able to offer. If hopes for the case are too high, it is time to take a hard look at whether you can achieve what he or she expects. Most times if you simply explain the process and what you can and cannot do, the expectations will fall in line with what you can accomplish. As others have said before, “Ten percent of your clients take up eighty percent of your time.” Try to spot the ten percent early on and minimize their impact on the rest of your case load.

Investigation: A decision regarding representation is usually made during the initial interview. In some instances you may still want to do further investigation to better understand the nature of the case. Regardless of whether you have decided to accept the case or simply want gather more information, the factual investigation is essential to understanding the circumstances of the injury, and the potential value of the case.

Much of what you have learned in your initial meeting will be used as the starting point for your investigation. In your typical auto case you want to make sure that you obtain pictures of the vehicle. If you are not quite sure how the wreck occurred, obtain pictures of the scene or go out and examine it for yourself. If a police report has been prepared, obtain a copy and have an investigator interview the police officer to see what the officer knows that is not included in the accident report. You will learn very quickly whether the officer is supportive of your client’s injury claim. If there is an upcoming traffic hearing, attend it yourself, or send a court reporter to transcribe the testimony. If insurance coverage is an issue, there are many companies who will seek out coverage and only charge a fee if coverage is found. Interview all the people who witnessed the incident; regardless of what you believe they saw, you will be surprised at the information you develop. On premises liability cases, obtain a copy of the incident report; it can provide a wealth of information about potential witnesses and give you a glimpse of how the defense will play out. In general, thorough investigations are the key to effectively preparing and ultimately winning your personal injury case.

Practical considerations

Do a cost/benefit analysis. Is the amount of time you are going to spend on the case worth the possible outcome? How likely are you to be successful and what is the probable value? Make sure you are willing to put in the time that is required to handle the case. Do not just factor in how much money you are likely to earn on the case. Clients are the best source of referrals. If a client feels you did a great job for them, they are likely to return to you again and also refer others to you.

The Client: The most important part of any case is your client. In personal injury cases, your representation of that person usually lasts a number of months and often years. Remember you will be involved with this person for a long time. If you dislike the person you are representing it will seem like a lot longer. If you ultimately end up in front of a jury, and they do not like your client, you will end up regretting your decision to accept the case.

The first time you meet the client in person is the best opportunity to do an overall evaluation of the case and the client. Trust your intuition. Your impression of your client from this first meeting is likely to be very similar to the reaction a jury would have to that person if the case should go to trial. After you represent someone for a long period of time, your initial impression may change. You have very little chance of changing a juror’s first impression at trial. Make sure you strongly consider your initial reaction when you meet with the potential client.

Watch out for clients who have made a number of prior claims. No matter how legitimate each one was, it is a factor that the insurance adjuster is going to consider. You need to also consider whether the person has prior injuries to same area that he or she claims to have injured in the accident. Prior injuries may well explain why your client was hurt in a minor collision when other people may not have been injured, but it can also create doubt as to whether the injuries really came from this accident. Make sure you ask your client about the prior problems or treatment on more than one occasion. It is amazing how often the client will not tell you about something, or does not remember the treatment, until after the defense attorney pulls out a prior medical record in depositions. Ideally, you want to obtain all of your client’s prior medical records, and actually read them, prior to filing suit.

Be wary of taking a case that other attorneys have turned down. Often, there is a good reason. Be very wary of taking a case where the person has fired a prior attorney, unless you are willing to spend an extraordinary amount of time dealing with that client. You are much better turning down a case initially than ending up with an unhappy exclient who tells everyone they know or meet that he or she was displeased with your representation.

If you do not believe what your client is telling you and feel the person is exaggerating or being untruthful, it is difficult to be an advocate for that person in court. Remember that the credibility of your client is virtually everything at trial. If either you or your client lose credibility in the eyes of the jury, the rest of your evidence will not matter. As a result, you have to look out for anything that may be used to attack credibility, including prior claims, criminal convictions, greed and untruthfulness.

If you decide to take a case when your instincts are telling you not to do so, you will almost always regret it. Do not take a case based only on the hope of settling it. From the outset, you should be willing to take the client and the case to a jury. If you are not willing to ultimately try a case, then you should not agree to represent the person. The more you hope a case settles, the more likely you will be sitting in a courtroom asking yourself why you are there.

Expenses: As a general rule, the more severe the injuries and potential value of the case, the more money you will have to advance in pursuit of the claim. In pursuing a case, especially one that is potentially worth a significant amount of money, the attorney has to be willing and able to advance the necessary costs to bring the case to verdict. The insurance company is very unlikely to offer what the case is worth if you do not convince them that you will spend what it takes to try the case effectively.

On medical malpractice, product liability or large automobile accident cases, the costs advanced will often exceed $50,000, or even $100,000 by the time the case goes to trial. That can be a scary proposition, especially on cases of less than clear liability. The attorney needs to make sure that he is not put in a position where he is urging a client to accept an offer that is not in the client’s best interest because of the fear of not getting the expenses reimbursed.

If you are not willing to advance a significant amount of money on a case, you should consider referring the case to someone who is willing to do so, especially now that it is permissible in Virginia to be paid a referral fee. Consider referring out cases that you feel are beyond your expertise, especially medical malpractice or product liability cases.

You also have the option to associate another attorney, or law firm, and work together on the case. Make whatever agreement you want as far as advancing costs and splitting the fee. It is almost always better to have another person help evaluate the case and determine strategy. After representing someone for a long period of time, it is difficult to be objective in assessing the case and nearly impossible to look at the case in a new light without someone else’s input. There is no better way to learn how to handle a certain type of case than to work with someone else who has done so numerous times before. Having another person to share the responsibility will relieve a great deal of stress and apprehension.

Conclusion
Case evaluation and selection is probably the single most important element in the representation of the injured. Effective personal injury attorneys have developed the foresight not only to accept those cases that will be successful, but to promptly decline those cases that hold little promise. If you are not legally or ethically precluded from representation, then the ultimate decision boils down to your subjective decision-making. If you trust your instincts, you will usually avoid those cases and clients that make lawyers wish they had chosen another profession.

Endnotes
1. Va. Code §8.01-243(A)
2. See Va. Code §8.01-229.
Va. Code §8.01-243(B).
See Va. Code §243 (C).
See Va. Code §243.1.
28 U.S.C. 2401(b)
Id.
Va. Code §8.01-195-7.
See Va. Code §8.01-195.2 & 195.3.
LEO 975
LEO 566
See LEO 218 and 620
45 C.F.R. 160-164. Public Law No. 104-191. To obtain a copy of a sample HIPAA compliant medical authorization and to get a quick overview of the new HIPAA requirements go to www.chartone.com and click on the “Download new Requestor form” link at the top right of the webpage. [Editor’s Note: be sure to also review the Practice Pointer in this issue of The Journal.]

Todd R. Henningsen is an attorney with Marks & Harrison, P.C., in Richmond. A graduate of Wake Forest University, he went on to attend the dual degree program at the University of Richmond where he received both his Juris Doctor and Masters of Business Administration degrees. Mr. Henningsen is a member of VTLA’s Young Trial Lawyers section and limits his practice to personal injury matters.

Hunt H. Whitehead is an attorney with the law firm of Marks & Harrison where his practice focuses on plaintiff’s personal injury litigation. He received his B.S. in finance from the University of Virginia in 1992 and graduated cum laude from the University of Richmond School of Law in 1996. He has served on several VTLA committees the past few years.