2 Keys for Personal Injury Lawyers: Restraint and Patience

Michael GrossmanSeptember 14, 2016 9 minutes

There are two general schools of thought for personal injury attorneys when they're hired on in a case. The first school immediately files suit, regardless of the evidence they have at the time. These attorneys figure that they'll find something along the way that they can work with. Armed with subpoena power, they try to depose everyone under the sun, looking for a smoking gun.

The second type of attorney waits to file suit. Rather than alerting a potential wrong-doer that someone is on to them, they quietly conduct their own investigation, arming their clients and their case with as much information as possible before filing suit. This type of attorney tends to let the facts do the talking, which in some cases means not filing suit, due to a lack of evidence.

When choosing a personal injury attorney, it is crucial for the injured to understand these different approaches. While some people may prefer a more reckless scorched-earth policy, we at Grossman Law Offices have found in our 27-plus years of experience that while our clients want results now, restraint and patience are two of the most important qualities in successful litigation.

The Guns-Blazing Attorney and Media Stereotypes

Unfortunately, one of the first few things people think about when they hear the word "lawyer" is frivolous, ambulance-chasing litigation. While a fair bit of this mindset is due to smear campaigns by the Chamber of Commerce and the American Tort Reform Association, their campaigns wouldn't be nearly as effective if some lawyers didn't practice in a way that plays into this perception.

The attorneys who file suit right off the bat do just this. While in some instances this method will yield the same results as if an attorney had waited and investigated first, it can also potentially destroy a case. Furthermore, by filing suit without any preliminary work, these attorneys potentially file suits that have absolutely no legal merit.

One of the biggest problems with this strategy is that while companies or insurers may be on guard after an accident, they don't tend to really "circle the wagons" until after a lawsuit is filed. It may be counter-intuitive, since filing a lawsuit starts the discovery process which, by design, uncovers evidence, but filing suit prematurely can actually inhibit evidence gathering.

We're not suggesting that folks will lie in depositions (testimony under oath), but it's fair to say they will try to answer in a light that is most favorable to them. The key to holding them accountable is to have independent evidence which contradicts their version of events. The attorney who immediately files suit greatly reduces her ability to gather this information. Without it, it is quite likely that she will snatch defeat from the jaws of victory.

Another problem with this strategy is that instead of offering a chance at answers and closure for the victims, it actually gives them a sense of false hope. An attorney's first duty is to a client. Obviously, it means vigorously advocating on their behalf, but many times it also means sharing unpleasant news. Perhaps the toughest news to give a client is that the law is not on their side and they don't have a case. This is far easier to do after an independent investigation than after suit has been filed. What the "gung-ho" style of attorney fails to realize is that most clients view the act of filing a lawsuit as validation of their feelings that they or their loved one were wronged. While having the rug pulled out from under them when their case falls apart is not technically malpractice, it can't help but strike most as unnecessarily cruel.

Practicing Personal Injury Law with Restraint and Patience

There is a better way to practice law--a way employed by thousands of responsible personal injury law firms across the country, like Grossman Law Offices. While it is certainly tempting to charge into a fight when you're advocating on behalf of an injured party, cooler heads should and must prevail. In such instances, a methodical and responsible attorney will conduct an independent investigation.

The purpose of this approach is to gather as much evidence as possible. The attorneys who immediately file suit are forced to rely on data gathered by police, insurance, or workplace investigations. While many times these police investigations get things right, there is a small, but not insignificant portion of cases where the initial investigators are flat-out wrong. As far as insurance company or workplace investigations go, the less said the better. I'll just point out that they certainly aren't unbiased and their investigations tend to be directed towards avoiding liability, not uncovering the truth.

Over the years, Grossman Law Offices has come across dozens of cases where the initial police investigation of an accident is completely wrong and erroneously assigns blame to the victim. This can be due to many things, such as a lack of resources or inexperienced personnel. If we were the guns-blazing kind of firm, this deficient information could lose the case and our clients would never know the truth about how the accident occurred. This is particularly true in wrongful death cases. The victim is no longer around to tell their tale and the wrong-doer is incentivized to spin the story in the best possible light, or in extreme cases, lie. It never ceases to amaze us the lengths people will go to in order to avoid admitting their mistakes.

The benefits of our strategy were driven home in a case that we worked a couple of years ago. Our client's family called us after he had suffered a fatal work accident. Their loved one was working on a platform 60 feet in the air and suffered a mysterious fall. OSHA looked into the case and saw that the worker was wearing a safety harness at the time of the fall and determined that the safety device must have failed.

This didn't sit right with us. During the course of the investigation we discovered that the owner of the construction firm got into a literal fist-fight with the operator of the lift. During the fight, they struck a lever that dumped our client's loved one from his platform 60 feet up and he crashed to the ground. As he lay dying, it occurred to them that he wasn't wearing a safety harness and that they would be fined by OSHA. Rather than help the badly injured, but still breathing worker, they decided to drive into the nearest town, a half hour away to purchase a safety harness at a pawn shop. They came back and put the harness on the now deceased worker.

Our investigation uncovered a worker who was at the site when the incident took place. Unable to cope with the terrible incident, he walked off the site and never went back to the company. He was able to tell us about the fight and pointed us in the direction of the pawn shop that sold the equipment. When the investigation took us there, we uncovered a receipt for the purchase of the safety harness. The receipt clearly showed that the purchase took place after the time they told investigators that the accident took place.

If Grossman Law Offices would have hastily filed suit, the likelihood is that everyone involved in the accident would have lied in their depositions. We would have never found out what actually happened, the case would have been dismissed due to lack of evidence, and the family would have never received the compensation they deserved.

How Gung-ho Personal Injury Attorneys Harm Their Clients and the Profession

We can only speculate, but there are three major reasons that a lawyer would charge in before conducting an investigation. In the first instance, it shows action on the attorney's part. Clients can't see that investigations are ongoing; a small minority of them expect immediate and obvious action to be taken. The attorneys at Grossman Law Offices feel that it is an attorney's duty to advise a client properly. If this means advising patience and restraint, so be it. We understand that communicating legal strategy is not a strong suit for many attorneys, so it can be easier to just file paperwork in a show of decisiveness rather than guide a client through legal strategy.

A second reason to file suit is that investigations sometimes show that there is not a viable case. This is a classic example of passing the buck. Sometimes our investigations show that their is simply no evidence to file a lawsuit, or the evidence shows that our client or their loved one is to blame. While it is truly heart-wrenching to tell someone that there isn't a case, we find that 90% of our clients are quite understanding, appreciate the time we put in, and gain closure from knowing the truth about their accident. For most people after an accident, closure is just as important as justice.

Of course, if we had gone ahead and quickly filed suit like some firms do, then it would be the court delivering the bad news to clients. After all, the attorney tried their best to get justice; it just wasn't meant to be. In our opinion, this gives false hope to injury victims and it drags out the process longer than it needs to. Additionally, it ends the case without any possibility of it being re-opened.

One of the risks when a law firm investigates before filing a claim is that they can sometimes miss something in the evidence and turn away what would potentially have been a viable injury claim. In such cases, the victim may take the information gathered during the investigation, find another attorney, and they can make the case work. This may offend an attorney's vanity. Of course, we're not in business to massage our egos, but to get justice for our clients. While we are very thorough in trying to make every case we can, if suit hasn't been filed, a client still retains their right to sue and is free to shop the case to other firms. Given that investigations usually take about 30 days, there is still plenty of time to left before the statute of limitations expires, which is in the client's best interest.

The third reason an attorney would file suit without investigating is because "Hey, you never know." The burden for surviving a motion for summary judgment is that there must be some trace of evidence to suggest that the defendant may be liable. This is the lowest threshold in the law. Once that barrier is cleared, there isn't a serious obstacle to a the case proceeding until after the trial, when the defense may make another motion to dismiss the case on the grounds that the plaintiff didn't prove the elements of the charge.

So other than nominal court costs, an attorney engaged in this strategy is essentially pushing a dubious case, hoping that a jury buys into it. Regardless of how small the chances of a success are, it is possible that they get the right judge who lets it go through to a jury and a jury who finds for the plaintiff.

While cases pursued in this manner are a small fraction of all personal injury cases, they don't serve the interests of injured victims and provide ammunition for tort reformers and other critics of personal injury law. Over time, this allows such organizations to paint a distorted picture of personal injury law, damaging the profession and ultimately harming victims.

Public outrage over these tactics leads to restrictions and damage caps that prevent future victims from recovering the full value of their injuries. While certain attorneys will justify these consequences by pointing out that they have a duty to represent every client to the best of their abilities, they neglect to mention their other duty as an officer of the court. This duty means that attorneys have a duty not to trouble courts with dubious claims, on the infinitesimally small hope that it may result in compensation for their clients.

An Attorney Who Sues Immediately Is Like a Doctor Who Goes Right for the Scalpel

Doctor Performing a Back Operation for an Ankle Sprain

To borrow from the medical field, no one in their right mind is going to sign up for surgery just because a doctor looks them over for 10 minutes and says, "I have to operate." Most people will immediately seek a second opinion, due to the risks inherent in surgery. Lawsuits are the legal equivalent of surgery: Time-consuming, potentially painful procedures, only used when other remedies have failed.

Before undertaking a surgery, every doctor will conduct a battery of tests, similar to an attorney's pre-suit investigation. The purpose is to diagnose the issue as clearly as possible, so that when the time comes for the surgery, they know exactly what they need to do. Operating without this information would be considered reckless. Similarly, filing suit without an investigation is starting the operation without tests.

If there were a doctor out there whose first response to every malady was surgery, hopefully questions would be raised by his peers, patients would object, and the cut-happy quack would ultimately be driven from the profession. We certainly would not commend them for their aggression. This same logic should apply to the legal realm. A lawyer whose first impulse is to file suit, regardless of the facts, is no different than a doctor operating without all of the facts.

Just as patients should feel free to ask their doctors whatever questions they need to in order to understand the type of professional they're working with, injury victims should be just a diligent when dealing with their attorneys.

An attorney who practices restraint and patience does not lack aggression. The difference between the patient attorney and those who immediately file suit is the difference between a trained marksmen who measures each shot for maximum effect and the "spray and pray" weekend warrior who fires a lot of bullets and hope that one of them hits its target.

For injury victims, the skilled marksman is certainly preferable. While most cases don't go to trial, it is important to proceed as if every single case will be heard by a jury. Juries aren't stupid; they respond to well-crafted arguments bolstered by professional investigations. At the same time, they can tell when attorneys are just throwing arguments against the wall to see which one sticks. In these situations it actually hurts a client to put forward too many unsubstantiated arguments (assuming a judge allows these arguments in the first place), because juries may disqualify a legitimate argument because it happens to be advanced with a bunch of terrible arguments.

While most people assume that all lawyers are pretty much the same, the truth is quite different. Every client should know that their injury case belongs to them. They're the one who ultimately has to live with the consequences of whether or not the case is successful. As such, they have every right to make sure that an attorney plans to pursue the case in a manner, which makes the client comfortable.