Washington Legal News
As the devastation of the Oso landslide becomes more apparent with each passing day and the disaster appears to clearly involve dangerous logging practices, attorney Dean Brett recalls similar landslides in the past where he handled the legal claims for the families of the victims. Similar to the Oso mudslide, the horrific landslides from which Dean handled five lawsuits were the result of unsafe logging practices and governmental negligence.
Landslides don’t just happen. They are caused by a combination of steep slopes, recurrent heavy rainfall, unstable soils, and defective logging practices. In five cases similar to the Oso slide, Dean successfully recovered significant damages for downhill owners inundated by landslides. Four of the five lawsuits settled out of court, and the fifth resulted in the largest verdict ever rendered by a Skagit County jury at the time – a record which stood for 22 years until Brett surpassed his own record in a later Skagit County case.
The effectiveness of these landslide cases is often hinged on building a team of expert witnesses who could explain how each landslide was caused. In the trial of Wilson, Smith and Bower v DNR and Georgia Pacific, Skagit County Cause # 86-2-00164-9, Dean built exactly that, and the resulting verdict enabled surviving family members to recover financially, even though they would never fully recover emotionally from the loss of their loved ones.
Early one November morning following heavy rains, a massive mudslide roared down Lookout Mountain into Cascade River Park, a recreational development in eastern Skagit County. Bill Bower, 74, Alice Bower, 73, and Betsy Jean Wilson, 63, were killed instantly. Claire Wilson, 64, was buried alive for 13 hours before he was pulled from the debris; he died 13 days later.
Their attorney Dean Brett faced a significant challenge: since the mudslide originated from an old logging road that had been abandoned for 23 years, would a jury hold the state liable for a defect in a road built in the 40's and not used since 1962?
Brett focused on the Department of Natural Resources' practice of not inspecting or maintaining old logging roads that had been abandoned before the 1974 Forest Practices Act. The central liability theme was presented in the question: is the Department of Natural Resources' practice of refusing to inspect or maintain pre-1974 logging roads, even above established residential communities, negligent?
The DNR admitted to the lack of inspections but argued that since there are thousands of miles of old logging roads, it would be impractical or impossible to inspect or maintain all of them. The claimants countered with a team of four experts who documented the danger associated with this practice.
First, a geomorphologist testified that landslides such as this occur when four interrelated conditions are present: steep slopes, recurrent heavy rainfall, unstable fill at switchbacks on logging roads, and defective drainage. The fourth critical factor, defective drainage, is particularly within human control; thus, DNR's failure to inspect and correct the defective drainage was found to be a direct cause of the landslide.
In the Darrington Oso landslide, the DNR approved clear cutting on the hillside above Steelhead Drive even though they knew the steep slopes were composed of unconsolidated sediment, mostly sand and silt.
Second, a climatologist analyzed the weather data to demonstrate that the mudslide was not caused simply by an unusually massive rainstorm. By analyzing all of the rainfall data ever obtained in the surrounding area, he estimated that the four inches of rain that fell in the 24 hours preceding the mudslide would have a probability of recurring once every 13 years and consequently could not alone be blamed for the mudslide. A similar statistical analysis of the rainfall preceding the Darrington Oso landslide could be generated from publically available data.
Third, in the earlier case of Wilson, Smith and Bower v DNR and Georgia Pacific, a noted forest hydrologist demonstrated that the blocked drainage had effectively rechanneled a natural stream onto the logging road at an area of instability. There the water saturated the unstable soil, increased its pore pressure, increased its mass and decreased the forces resisting a landslide to a point of disequilibrium.
Fourth, a consulting forester pointed out that simple drainage control devices, well known in the logging industry at the time the road was abandoned in 1962, could have been installed so as to prevent the diversion of water that ultimately caused the mudslide.
There has been significant work done on the soil condition of the Darrington Oso hillside – work that was completed before the tragic slide but not taken into consideration by the DNR in granting forest land clearing permits.
The DNR blamed the Cascade River Park mudslide on channel changes so recent that reasonable inspection could not have been expected to find them. But Brett’s team had created videotapes of the site, aerial photography, and professional photography which demonstrated that the drainage diversion had existed for more than 10 years.
In the Darrington Oso landslide, the best forest practices were not used, helping to accumulate the water that super saturated the area of the landslide.
A landslide is usually not just a natural disaster that is unavoidable, but often involves an aspect of negligence. These are tragic cases, with devastated families and communities, and well-funded at-fault parties who will vigorously defend all claims. Only by putting together a team of experienced lawyers and experts can the survivors hope to recover appropriate compensation for their massive losses.
- Dean Brett
To donate to the victims of the Oso landslide, please go to the American Red Cross site at this link. There is also a great resource page to learn the many ways to help the Oso mudslide victims at this Northwest Justice project page.
We are all shocked at the story this morning of the helicopter crash in Seattle that has taken two lives and has left one person in critical condition. While folks are accustomed to hearing about car accidents and the toll they take on victims, we never expect to hear about helicopter and airplane accidents, much rarer events.
This tragic accident really hits home for the Brett Murphy legal team, which has handled other helicopter and aircraft accidents over the years. One in particular was an intensely challenging and difficult case, with multiple victims, dozens of family members looking for answers and for justice, and a years-long, complicated legal process that we fought across multiple courts and jurisdictions.
The news this morning is extraordinary, and at this writing is still unfolding. A helicopter, being used by the local Seattle television station KOMO, crashed immediately after take-off from the station’s helipad on the building roof, right next to the world-famous Seattle Center and Space Needle. The two occupants of the helicopter have died but have not yet been identified to the public. One man who was in a car that was hit by the crashing helicopter was critically injured with extensive burns and is being treated at a local hospital. There may be other victims who have yet to be found.
This crash today has some similarity to a case that the Brett Murphy team tackled recently. In that case, a group of nine young skydivers were returning from a weekend trip in a small rented aircraft flown by a hired pilot. As the plane climbed in altitude over a mountain range, the craft developed ice on the wings and instruments, and was unable to function properly. It plunged to the ground, instantly killing all 10 people aboard.
Based on our experience, Brett Murphy was chosen to represent all of the nine passengers’ families, and we began to carefully uncover the facts of the case.
Because there were substantial issues of pilot error, we chose not to represent the pilot. Weather data had predicted icing conditions in the plane’s flight path. The pilot of the plane was at primary fault for failure to maintain an adequate airspeed to avoid an aerodynamic stall while maneuvering. There were also substantial issues regarding de-icing systems and a stall warning device.
In combination, these errors resulted in the deaths of nine people, all in the prime of their lives. This tragic accident is the largest plane crash in the U.S. since 2007. The resulting confidential settlement of the wrongful death claims could not in any way reduce the loss felt by the surviving family members, but it helped the families move forward in their lives and believe that justice had been served.
Learn more about airplane and helicopter accidents at our Aircraft Accidents page.
The case also illustrates how difficult these claims are, both emotionally for the victims and their families, and legally for attorneys who need to use all available resources and invest vast amounts of time to finding out the facts of what led to the accident. Brett Murphy Law Firm had an advantage because its attorneys had managed aviation claims several times in the past, and understood the processes and legal issues they would face as they worked to recover what they could for the victims’ families. The case took several years to conclude, and required vast resources to efficiently handle its size and complexity.
The crash in Seattle today could have also been caused by a number of factors, which will take considerable time and effort to identify. Sometimes crashes like these are caused by unforeseeable forces like weather; but through our years of handling aviation accidents, we have found that there is usually a factor that could and should have been avoided. As the investigation continues, these factors will begin to emerge.
Airplane and helicopter crashes are almost always devastating, and the victims and their families have a long, painful road ahead as they struggle to deal with the unexpected and tragic loss of their loved ones, as well as injuries, medical treatment, and recovery. Our hearts go out to everyone involved, as we have seen first-hand the challenges and heartaches that they face.
UPDATE: The two deceased men have been identified as KOMO News photographer Bill Strothman and pilot Gary Pfitzner. The person injured on the ground is Richard Newman of Seattle. For more details on the crash, please go to the KOMO News website.
In 2011, I changed my practice dramatically. I became a partner in a personal injury law firm. My prior legal experience consisted primarily of family law cases with some criminal law cases sprinkled in here and there. I knew that many of the skills I had developed as a family law practitioner would translate well into personal injury work. However, I was pleasantly surprised by one skill in particular that helped a great deal: tracking income and looking at tax records. Specifically, tax records of defense experts.
A successful cross-examination is about telling a true story about your case. In a personal injury case, when defense experts testify, they usually pretend to be medical treatment provider, but the truth is, they are hired guns. The goal of the cross is to show how a defense expert earns his or her living. The tax records expose the truth and the truth is that their opinions are bought.
Here is a step-by-step description of what to look for on a defense expert’s 1099s, what questions to ask, and my recent trial experience.
Step 1: I obtained a copy of the defense expert’s 1099s, going back four years. This can be done with either a subpoena duces tecum or a stipulated discovery order. In my case, I used both to obtain the documents.
A 1099 is an IRS form that is used to disclose income, interest, rents, royalties, sales, dividends, etc. There are many types of 1099s but a defense expert will most likely be disclosing 1099-misc. A 1099-misc is for rents, royalties, and non-employee compensation. Go to this link to see an example of what a generic 1099-misc looks like.
Step 2: When you take the defense expert’s deposition, make sure you ask them how much time they spend working as a medical treatment provider and how much time they spend as a paid witness. Ask the defense expert what percent of their practice is spent providing medical treatment to actual patients. Find out who pays them to treat medical patients. Ask the same questions for independent contractor work. Make sure you know all names and businesses they may be working under, and who else they might be working with. In my case, the defense expert had three business entities that he received payments through, but in each he worked alone.
Step 3: After you have deposed the expert and collected his income information, take the time to look at what you have. In my case, the income information came on a zip-drive, so I didn’t know what I had until after the deposition ended and I went back to my office to print-out the produced material. After printing out 364 pages of 1099s, I knew I had a goldmine.
Not all 1099s look alike and often two to four will fit on a page. The key characteristic is to look for the date, the name of the payer, the recipient, the box number with correlating income information. Cross-out duplicates on a page. Make sure that you only have one 1099 per page so make additional copies if multiple payers are on a page and cross-out the extras. You want to work with just one payer per page.
Step 4: Organize the 1099s by Box numbers. Take a look at the IRS definitions for each Box number. Here is a site that explains them: http://www.irs.gov/pub/irs-pdf/i1099msc.pdf. For my purposes, I looked for money listed in Boxes 6 and 7. Put all the Box 6’s together and all of the Box 7’s together. Some payers will pay a defense expert for both medical treatment (Box 6) and as an expert witness (record reviewer, IME exams, or as a hired gun (Box 7). Those with more than one Box are kept together. If you have time, make sure that the highest dollar amount is on the top of the pile and the lowest dollar amount is on the bottom.
Step 5: Add the money up. ALL OF IT! Get a total for each year. Then add each Box up separately. Have someone competent check your math. Make sure you both come up with the same numbers. When you have those numbers you can figure out the percentages.
Here is an example of what I found for my expert for 2012.
|BOX #||TOTAL AMOUNT||PERCENTAGE OF TOTAL INCOME|
|1 - Rents||$2,110.00||.15%|
|3 - Other Income||$162,064.72||11.19%|
|5 - Fishing Boat Proceeds||$2,445.00||.17%|
|6 - Medical & Health Care Payments||$425,919.00||29.4%|
|7 - Nonemployee Compensation||$855,623.54||59.06%|
|14 - Gross Proceeds Paid to an Attorney||$700.00||.05%|
Step 6: Pull out specific 1099s you will most likely use at trial. For instance, in my case the expert was hired by a company called MES Solutions to perform a CR35 exam. I looked for the MES Solutions 1099. I found it and indeed, MES paid $431,373.32 in Box 7. This amount is 30% of his total and practically half of his Box 7 income. I pulled the 1099s for the insurance companies who were defending the case (Allstate and State Farm). I also pulled the 1099s for the hospital and surgery center the doctor had bragged about working for.
Step 7: Get your cross-examination ready. When the defense expert brags that “70% of his practice is for treating patients,” or that “he works as a surgeon for a local hospital,” be prepared to show the truth. Pull out the huge pile of 1099s. Most people, and by this I mean jurors, only get one or two 1099s at the most. Many people just get one W-2. Let the expert know that you did the math. Ask the defense expert how much he earned last year gross. Most people know how much they earned the previous year. If the defense expert hedges, then ask if he can guess within $100,000.00. If he still can’t say, then ask, “when I add up your income from these 1099s my total is $1,448,862.26, do you disagree with that figure?” Write in big print on a board for all to see the totals. “Doctor, you would agree that in 2012, you were paid $855,623.54 for consulting work?” The defense expert may say, “I am often paid, for instance by Allstate, for both consulting work and treatment.” At this point, pull out the Allstate 1099. Mark it into evidence. Have the defense expert identify the category of that Box 6. Have the expert look at Box 6. “Doctor, you would agree with me that Box 6 is for Medical and Health Payments?” If the defense expert balks that he doesn’t know anything about 1099s, make sure they read the title on the box as it says, “Medical and Health Care Payments.” If the defense expert plays dumb then go over the IRS definition of Box 6.
Here is the applicable portion of the definition from the IRS instructions for 1099 misc.:
Box 6. Medical and Health Care Payments
Enter payments of $600 or more made in the course of your trade or business to each physician or other supplier or provider of medical or health care services. Include payments made by medical and health care insurers under health, accident, and sickness insurance programs.
Again, make sure the defense expert agrees with you. In my case, Allstate listed $10,400.00 for Box 6. Have the defense expert identity Box 7. Box 7 is for non-employee compensation. Ask, “Doctor you would agree with me that Box 7 represents money you were paid for consulting work?”
In my case, Allstate listed $52,175.00 in Box 7. So when the defense expert states that some of the 1099s combine income for both treatment and consulting work the truth is that they don’t. Tell the defense expert you added up all of his Box 6 income and then ask the defense expert if they know what that amount is. Write that figure on the board and then ask the defense expert to agree that this amount represents an actual percentage of his income. In my case, the truth is that the defense expert earned 29.4% of his income from treating patients. Now let the defense expert know you added up all of the income in Box 7. In my case the defense expert agreed that 59% of his income comes from consulting work. If the defense expert mentions any employer be ready to find that 1099. In my case, I pulled out the 1099s from the two hospitals the defense expert stated he performed surgery services for and the amounts were very small compared to the true income earned as a defense expert.
Step 8: Have fun. I’m looking forward to crossing paths again with the expert. I am eager to see how he did for income in 2013.
When the truth is shown to the jury, that a defense expert’s opinion has been bought and paid for, the jury will clearly understand the value and reliability of the opinion is questionable.
- Paula L. McCandlis
To learn more about Paula and her practice, please go to her biography page.
Brett Murphy attorney Paula McCandlis was recently interviewed on South Fork Law. The interview was fun and fascinating!
Paula was interviewed by former Bellingham attorney Jill Berstein, and was joined by Bellingham attorneys Doug Hyldahl and David Nelson. Paula talked about her unique legal background, and about her transition from solo family law practice to personal injury and wrongful death law practice with Brett Murphy. Paula recalls some major life experiences and lessons that brought her to her current place with a succesful law practice.
Hear the full interview at the South Fork Law site.
Paula's background in the Pacific Northwest, her years putting herself through college and law school, and her early days as a new family law attorney trying to learn her true role as she tried to help her struggling divorce clients, make for a fascinating interview. Her insights into the most effective methods to truly help her clients will be valuable to any attorney in any practice area.
Learn more about Paula and her experience at her biography page. Paula also maintains a blog, called Paula's Page, where she keeps us all up to date on her travels, social functions, and work as the Whatcom County Bar Association President 2014.
If you have questions about a personal injury claim or have been injured and need information, contact Brett Murphy today by calling 1-800-925-1875 or by completing our easy contact form.
I have been practicing law and handling personal injury claims in Seattle for 26 years. Recently, I have seen a huge upswing in advertising by predatory pre-litigation loan companies offering high-interest rate loans to injured people who are desperate for immediate funds to pay mounting medical bills, to replace damaged vehicles, or to live off of while they are unable to work due to their injuries.
I have also seen the financial disaster that can result when a client signs up for one of these loans. Let me describe a recent experience that illustrates what can happen when a client takes a pre-litigation loan.
I had a client who borrowed $6,000 in a pre-litigation loan, prior to my becoming his attorney. By the time I got his case, he owed that predatory lender $54,000. The result to my client was that, even though I was able to get that loan balance reduced, most of his net settlement went to the predatory lender to pay off the balance of that loan, instead of to my client. He had signed a written contract which was legally enforceable.”
I was left with an unhappy client in considerable financial difficulty. This is never the desired outcome for any case.
Since a $10,000 pre-litigation loan can grow to a $30,000, $40,000 or even higher debt, the loan can create a huge financial burden that eats up any settlement money his clients obtain, money that should go towards long-term healing and financial recovery.
A little research into the advertising messages of these loan companies offers insight into why these loans sound so attractive to someone in the middle of a legal claim. One company describes its services as “the safe, easy alternative to the lawsuit loan: cash advances for injured people!” Another company says that “you can get the cash you need today and the breathing room you need to wait for a fair, and often higher settlement.” They suggest that the loan will allow the borrower to feel less pressure to settle a case for less than its full value.
Another claim from these companies is that the loan will not have to be repaid if the client does not get a settlement or verdict on his claim, a client who “loses” his or her case.
But this part of the offer is misleading. Since these loan companies investigate the potential value of each case prior to offering a loan on it, they only give loans to clients with cases that have a high chance of settling, although the amount of the settlement or verdict cannot always be accurately predicted in advance. This is one of the major dangers of the pre-litigation loan, since the client is forced to guess what the eventual settlement or verdict amount might be and gamble a high-interest loan against it.
These loans are extremely expensive, and the loan companies prey on the desperation of injured clients who feel they have no other options left. The interest rates of the loans are not clearly defined on the company websites, and potential borrowers are urged to call immediately, to be hit with a high-pressure sales pitch that offers an immediate solution to the borrower’s financial worries. It turns out that the interest rates are exorbitant, and they can create huge problems down the road.
But there are other options available, and EVERY option should be considered prior to taking a pre-litigation loan. For example, many doctors will accept a “Letter of Protection” from an attorney, which essentially states that the attorney will guarantee to pay the doctor out of the proceeds of the client’s net settlement, in exchange for the doctor providing treatment and waiting to be paid until the case has been concluded. Some doctors will treat “on a lien” which means they file a lien to protect their fees, and once it is filed they will agree to treat and then be paid at the conclusion of the case.
Other options include borrowing money from a bank or credit union, or even taking a line of credit on your home to pay medical treatment bills. These loans do charge interest of course, but at reasonable rates. Some people are able to borrow money from family or friends, too, and pay them interest for that privilege.
In addition, sometimes an attorney can help find insurance coverage to pay for some or all of treatment costs. In some cases, more than one insurance policy is in effect and provides coverage. If all else fails, there may be temporary public assistance available to pay for needed treatment. It is true that clients have to re-pay public assistance when they settle their claims. But again, that is reasonable and much cheaper than paying the outrageous interest of a pre-litigation loan.
- Steve Knapp
If you have been injured, are dealing with insurance adjusters and growing medical bills and you need information about your rights and options, contact Brett Murphy today by calling 1-800-925-1875 or by completing our easy contact form.
Our own Brett Murphy attorney Rand Jack recently wrote an article for a wonderful Pacific Northwest magazine called Adventures NW. This publication is one of the region’s leading source of outdoors information for a number of years. With a focus on hiking, climbing, running, cycling, paddling, sailing, surfing, skiing, boarding, and snowshoeing, the magazine offers valuable information for enthusiasts of these sports and hobbies. Go to this link to view the Winter 2013 edition, which includes Rand's article on page 10.
Rand's article is about Bud Anderson, founder of the nonprofit organization called Falcon Research Group, dedicated to the support of field research, public education, and the conservation of raptors. Learn more about the Falcon Research Group by going to their website.
Bud Anderson teaches raptor classes to educate the public about these wonderful creatures. To see the upcoming class schedule and to register, please go to http://www.frg.org/classes.htm.
While Rand Jack has spent his professional life as an attorney and a Professor at Western Washington University in Bellingham, he has spent his private life engaging in his hobbies that include birding. To that end, he has traveled the world observing birds of all species, and has gained extraordinarily deep knowledge of all types of birds. Rand has turned his passion into a unique art form. In his home studio, he creates custom life-sized bird carvings, available of any bird species, carved from a variety of natural woods. Go to http://www.birdsbyrandjack.com/ to see Rand's work and learn more about his art.
We are very pleased to announce that Brett Murphy attorney Paula McCandlis elected as Whatcom County Bar Association President for 2014!
On December 4, 2013, the Whatcom County Bar Association unanimously voted Paula as the incoming 2014 President.
The Whatcom County Bar Association promotes the needs of the legal community and the community at large, to cultivate goodwill among its members and local citizens, to participate in charity events, to offer no-cost legal services, and to support the continuing education goals of its members.
Paula McCandlis intends to run efficient monthly meetings to coordinate the bar association activities, orchestrate the twice yearly swearing-in events for new attorneys, organize the Whatcom Skagit Island County Golf Tournament, and to create opportunities for attorneys to meet, to make contacts, and to access continuing education. She plans on being a point of contact for attorneys new to Whatcom County, and is looking forward to re-introducing herself to local attorneys.
As President of the Whatcom County Bar Association, Paula becomes a Board Member of Legal Assistance of Whatcom (LAW) Advocates. LAW Advocates provides free legal help – including advice, representation, and other assistance – for low-income individuals and families facing urgent non-criminal legal problems. This vital work is accomplished through the generosity of 230 local volunteer attorneys, paralegals, students, and community members. Paula is very pleased for the chance to work closely with this dedicated group. To learn more about their mission and programs, call (360) 671-6079 or go to www.lawadvocates.org.
In her professional life, Paula McCandlis is a partner at Brett Murphy Coats Knapp McCandlis & Brown, a personal injury law firm with offices in Bellingham, Seattle, and across Washington State. She dedicates her work to helping seriously injured people get their lives back on track. Her goal is to secure her clients' financial futures so they can recover.
If you have been injured in an accident and need information on your rights and options, contact Brett Murphy today. You can call us at 1-800-925-1875 or complete our contact form. We will get right back to you.
Another One Bites the Dust – U.S. Supreme Court Rules that ERISA Plans May Chase Funds Outside the Control of a Beneficiary - by David Brown
On November 12, the United States State Supreme Court denied cert in ACS Recovery Services, Inc., v. Griffin 723 F.3d 518 (5th Cir. 2013), preserving a 5th Circuit Court ruling which closed the door on another means of avoiding reimbursement of ERISA plans when a catastrophically injured beneficiary is not made whole.
To gain more background information on ACS Recovery Services v Griffin, go to this U.S. 5th Circuit Court page.
Prior to the Griffin decision, some attorneys were attempting to shield their personal injury clients’ recoveries from ERISA plans by transferring these funds to a special needs or other type of trust outside the “possession and control” of the plaintiff. The position of these plaintiffs’ attorneys was that an ERISA plan could not seek “appropriate equitable relief” if the plaintiff and beneficiary of the ERISA plan did not have possession and control over the settlements funds. This view was based primarily on a 5th Circuit case Bombardier Aerospace Emp. Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough, 354 F.3d 348 (5th Cir. 2003).
Unfortunately, Griffin partially overruled Bombardier, holding that because the ERISA plan held a pre-existing lien by agreement, the subsequent transfer of funds to the special needs trust was essentially tainted and did not destroy the ability of the ERISA plan to assert an equitable lien.
The take away is this - there was a thought that one way to defeat ERISA reimbursement is to simply disburse the money to the client, a trust, or a structure, and this would prevent the ERISA plan from asserting its lien because the money was no longer identifiable. Unfortunately, this won’t work and risks a judgment against your firm or the client for the lien asserted by the plan.
There is one glimmer of hope contained in the 5th Circuit opinion. The court held that under section 502(a)(3)(B) of ERISA, the ERISA plan could not chase settlement monies paid to another party for their personal claims arising out of an incident resulting in payments to a beneficiary. That is, if a spouse, dependant, or other individual has a derivative claim for loss of consortium or some other basis, this money cannot be reached by the plan.
Therefore, if you are structuring a recovery, it may benefit your client’s family to earmark as much of the recovery as possible as going towards loss of consortium claims and the like, as opposed to compensating the injured party, and thus put the money out of reach of an ERISA plan seeking reimbursement.
If you have questions regarding reimbursement and subrogation, I have a collection of other articles regarding these topics on my website at http://www.washingtoninjury.com/legal_news.
- David Brown
If you have been injured and need information about your rights and options, you can contact me by calling 1-800-925-1875 or by completing our contact form.
It used to be that Black Friday was the height of American consumerism - rabid shoppers rising at the break of day to engage in bargain hunting on a grand and aggressive scale, bent on scoring huge savings on Christmas gifts, and the retailers equally bent on providing ample opportunity for shoppers to spend themselves silly. The perfect storm of capitalism, wrapped in a shiny non-recyclable holiday bow and blessed by the Almighty Dollar. But now, even that bastion of the season’s tradition has been overturned by a new, equally heart-warming tradition, lovingly called Grey Thursday.
For the past few years, a large number of national retailers including Macy’s, Walmart, Sears, and K-Mart, will open their doors on Thanksgiving Day so that America’s shoppers can abandon the turkey, stuffing, and gravy to frantically spend their holiday dollars one day sooner. Forget about the national Thanksgiving holiday proclaimed by President Abraham Lincoln in 1863, in the midst of the Civil War. Forget about taking that day to spend with family and friends, to acknowledge and be thankful for the people and things in our lives. The Thanksgiving holiday seems destined for extinction, bowing to the evolutionary pressure of American consumerism.
Well, perhaps personal injury law firms should follow suit. Perhaps we should all bow to the public’s desire for constant access to goods and services, and for businesses’ desire to bring in constant income and outshine all competitors. Hmmm, I wonder what that would look like…
I know, how about this. We could keep our office open on Thanksgiving Day, so that anyone who just HAS to sue someone wouldn’t have to wait even a minute, much less a whole 24 hours. That way, we can crush our competitors who have been misguided enough to take a day off to express thankfulness for all that they have, and all that this fine system has provided them.
And to meet the needs of the public to take advantage of discounted services, we can offer a 25% discount to prospective clients who have been injured by the sale-priced, foreign-made defective products that they buy on Thanksgiving from the cheapest source possible. That way the consumer wins twice - once by getting the cheapest deal on the cheapest products from the soul-less mega retailers who will sit down to Thanksgiving dinner as usual while their poorly paid employees are forced to miss out on theirs, and once by reaping a financial settlement when the shoddy products blow up in their faces. Double bonus… a consumer’s dream.
While my tone is obviously meant to be snarky and sarcastic, I truly find this new trend disturbing. For many years I worked in the retail and restaurant industries, where I knew that I would often have to work on weekends and evenings. But at least I had my major holidays to look forward to, when even the retail industry allowed their workers a paid vacation. You know, the Big 3 – Thanksgiving, Christmas, and Easter. Now, I am forced to wonder if the other two holidays are nearing extinction as well.
My hope is that all shoppers just stay home on Thanksgiving Day, cook some poultry, invite the whole family over, and celebrate our time together. I can’t think of a better way to give the big retailers a bigger message – our families and our traditions are more important than your bottom line.
Disclaimer – I was kidding about the 25% discount. That’s just crazy talk!
- Ingrid Taylor, Brett Murphy paralegal and resident snark
P.S. if you are injured in an accident with an at-fault party who should have stayed home rather than driving, contact us by calling 1-800-925-1875, or by completing our contact form. You won't find a better law firm to help you - and that's no talking turkey!
I recently read plaintiff personal injury lawyer Stephan Futeral’s review of Stanford Law School Professor Nora Freeman Engstrom’s recent study of what she calls “settlement mills.”
This much-needed analysis of the current state of personal injury law brings up these questions:
- How can a potential client identify what a settlement mill firm looks like?
- How can someone avoid having their personal injury claim settled for less than its full value by an unethical attorney?
In her in-depth analysis, Professor Engstrom defines a settlement mill as “high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial.” She defines the characteristics of a settlement mill, completes analysis of several sample firms that meet those criteria, assesses the relationship between settlement mills and insurance companies, and concludes that the new settlement mill system can be advantageous for personal injury clients with relatively small cases but can be disadvantageous for clients with more serious injuries and larger claims.
Personal injury attorney Stephan Futeral looked closely at the Engstrom study and described his personal experience with a settlement mill, when he interviewed for a position with a large personal injury firm in Georgia. He was told that he would be expected to handle an extraordinarily high number of cases, but that he would rarely meet with clients and wouldn’t personally manage claims. He chose not to take the position because he knew he could never effectively manage such a high volume of cases, and he wasn’t willing to give his clients substandard legal services merely to increase company profits. In short, he was an ethical lawyer.
As personal injury attorneys, we all know these mills exist, places where clients are shuttled to inadequate settlements of serious injury claims, where “lawyers” maximize the fees they earn rather than maximizing the client’s recovery. Settlement mill lawyers maximize their per hour fees by settling valid claims for cents on the dollar without investing any legal effort. Ethical lawyers invest the legal time and resources it takes to maximize the injured party’s claim value.
The question then is: How do we warn injured potential clients about these “settlement mills” and give them a way to avoid such mills?
In her article, Professor Engstrom lists 10 characteristics of settlement mills, four of which are key to identifying this type of firm:
- The firm takes on a high volume of personal injury cases;
- They acquire the vast majority of their clients via aggressive advertising;
- They engage in “entrepreneurial legal practices,”, here defined as handling claims using standardized processes delegated to less-expensive non-lawyers who do no fact checking and handle important aspects of the cases including settlement negotiations.
- They rarely take cases to trial and rarely refer cases to other firms for litigation.
I suggest that lawyers who take their ethical duties seriously resolve to advise potential clients to do a thorough investigation of any plaintiff personal injury lawyer before making a hiring decision. Since potential clients have no way of knowing whether a law firm handles a high volume of cases, how much they spend on advertising, what their practices for case management are, and what their track record of settlements vs. litigation is, potential clients should:
- Look at the lawyer’s track record at trial. Lawyers who do not disclose that information on their websites probably don’t have much to brag about. Website descriptions of trial results should be complete, not just a list without sufficient detail to allow the reader to understand the case result.
- Examine well known attorney ranking sites. There are several ranking sites that provide free information to the public, to help potential clients make informed choices. Settlement mill firms and attorneys will likely not have the top rankings and reputations on these sites. These ranking sites include: AVVO.com, where the best attorneys are given a rating of 10/10; Martindale-Hubbell AV ratings, “Super Lawyer” status from Super Lawyers Magazine, and admission into selective professional organizations such as the American College of Trial Lawyers.
- Actually interview several lawyers. Whether a client can develop trust and confidence in an attorney can best be determined by face to face contact. “Settlement mill” lawyers rarely take the time to participate in such an initial interview.
- Get a referral from someone. One of the most reliable ways to find an ethical personal injury attorney is to get a referral from someone who has had a good experience with their own injury claim.
Ethical lawyers can take a stand against “settlement mills” only by helping potential clients understand that such mills exist, and by showing them how to avoid these legal scam artists. In return, the legal profession can improve its reputation while significantly strengthening the quality of service offered to clients.
- Dean Brett
If you have been seriously injured in an accident and need information about your rights and options, contact the Brett Murphy personal injury attorneys today by calling 1-800-925-1875 or by completing our confidential contact form.