| Maximizing Damages
in Small Personal Injury Cases |
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Table of Contents 1. The Small Personal Injury Practice 2. Initial Client Contact 3. Investigation and Preparation of the Case 4. Settlement Negotiations 5. When Settlement Fails—Commencing the Lawsuit 6. The Trial 7. After the Verdict 8. Public Relations in Small Personal Injury Cases
Chapter 1 §100 Introduction §110 Four Guiding Principles for Personal Injury Cases §111 Communication §112 Credibility §112.1 Establishing Credibility §113 Commitment §114 Common Sense §114.1 Using Common Sense §120 Necessary Qualities of the Personal Injury Trial Attorney §121 Ready §122 Willing §123 Able Checklist: Learning Trial Practice §130 Factors to Consider in Accepting Small Personal Injury Cases §131 Liability §131.1 Automobile Cases Liability Checklist for Rear-End Collision Cases Checklist: Analyzing an Automobile/Pedestrian Case §131.2 Trucking Cases §131.2.1 Checklist for Trucking Incidents §131.2.2 Resources for Trucking Cases §131.3 Premises Liability Cases §131.3.1 Examples of Typical Premises Liability Cases §131.3.2 Fall Cases §131.3.3 Liability Checklist for Fall Cases §131.3.4 Falling Objects §131.3.5 Liability Checklist for Falling Object Cases §131.3.6 Falls From Stairways and Steps §131.3.7 Liability Checklist for Stairway or Step Cases §131.3.8 Animal Cases §131.3.9 Nine Tips on How to Handle Animal Cases §131.3.10 Sample Complaint in a Dog Bite Case §131.3.11 Liability Checklist for Dram Shop Cases §131.3.12 Inadequate Security Cases §131.3.13 Checklist for Inadequate Security Cases §131.3.14 Dealing With Wal-Mart and Other Hardball Mega-Stores §131.3.15 Twenty-Three Tips On How to Deal With Large Chain Store Cases §131.4 Product Liability Cases §131.5 Medical Malpractice and Hospital Negligence §131.5.1 Red Flags in Potential Medical Negligence Cases §131.5.2 Patent Responses to Refuse a Medical Negligence Client During the First Telephone Conference §131.5.3 Investigation and Preparation of a Medical Negligence Case §131.5.4 Investigation Checklist for Small to Medium Medical Negligence Cases §131.5.5 Reference Aids §131.6 Intentional Tort Cases §131.6.1 Checklist: Intentional Tort Cases §131.7 Pharmacy Negligence Cases §131.7.1 Checklist for Pharmacy/Drug Store Negligence Case §131.8 Claims Against Municipalities, School Districts, and Other Public Entities §131.8.1 Checklist for First Interview Involving Claim Against a Public Entity §131.8.2 Specific Types of Claims Against Municipalities and Other Public Entities §131.9 Litigating Nursing Home and Long Term Care Facility Cases §131.9.1 Investigating and Preparing Your Nursing Home Case for Mediation or Trial §131.9.2 Assessing Specific Types of Nursing Home Cases §131.9.3 Twenty-Eight Tips to Enhance the Value of Nursing Home Cases §131.10 Sexual Harassment Cases §131.10.1 Checklist for Considering Sexual Harassment Cases §131.10.2 Maximizing Damages in Sexual Harassment Cases §131.11 Negligence Cases Involving Children and Minors §131.11.1 Checklist for Handling Cases Involving Children §131.12 Toxic Mold Cases §131.12.1 Liability Summary §131.13 Food Poisioning Cases §131.13.1 Sample Complaint in a Food Poisioning Case §131.14 Food and Beverage Burn Cases §131.14.1 Sample Complaint in a Hot Beverage Burn Case §131.15 Longshore and Harbor Workers’ Compensation Act Cases §131.15.1 Injury and Causation §131.15.2 Jurisdiction §131.15.3 Disability §131.15.4 Proof/Burdens §131.15.5 Affirmative Defenses §131.15.6 Nuts and Bolts (Procedure) §131.15.7 Fees §131.15.8 Settlements §131.15.9 Longshore and Harbor Workers’ Compensation Forms §131.16 Unfair Trade Practices §131.16.1 Evaluating Unfair Trade Practice Cases §131.16.2 Unfair Trade Practices—Sample Complaint §132 Damages §132.1 2006 Caveat: Reasons to Avoid Very Small Cases With a Value of Just a Few Thousand Dollars §133 Defendant With Assets or Ability to Pay §133.1 Checklist: Evaluating Defendant’s Ability to Pay §134 The Good Plaintiff §135 The Bad Defendant §136 Referrals From Past Clients §137 Referrals From Other Attorneys and Referral Fees §138 Experience §140 Factors to Consider in Rejecting Cases §141 Referrals From Out-of-State Attorneys §141.1 Checklist: Evaluating an Out-of-State Referral §142 Clients Who Are Lawyer Shopping §143 Questionable Liability Cases §144 Questionable Damages §145 Medical Malpractice §146 Products Liability Cases §147 Cases in Other States: Statutes Of Limitations, No Fault, and Comparative Negligence Problems §147.1 Interview Checklist for Considering Out-Of-State Cases §147.2 Form for Accepting Out-Of-State Claims §147.3 Form Letter to Client Declining Representation in an Out-Of-State Case §150 Conclusion
Chapter 2 §200 First Telephone Conference §201 Checklist: Questions to Ask the Potential Client §201.1 Checklist: Case Evaluation §202 Checklist: Things to Tell the Client §203 Checklist: Things Not to Do in the First Telephone Conference §210 First Client Interview §220 Interview Checklists for Selected Small Personal Injury Cases §221 General Information Client Intake Form §222 Automobile Accident Form—Driver §223 Automobile Accident Form—Passenger §224 Premises Liability Form §225 Products Liability Form §226 Liquor Liability Form—Dram Shop §227 Uninsured and Underinsured Motorist Form §228 Intentional Tort Form §229 Client Medical History §229.1 Small Personal Injury Medical Form §229.2 Special Inquiry Regarding Bankruptcy §229.2.1 Forms for Appointment of Counsel and Approval of Settlement §230 Insurance Coverage §231 Collision Coverage for Property Damage §232 Health Insurance §232.1 Potential Problems with Health Insurance Carriers and HMO’s §232.1.1 Dealing With HMO’s and Health Insurance Carriers When a Third-Party Liability Carrier May Be Responsible §232.1.2 Sample Letters to HMO’s and Health Insurance Carriers §232.2 Dealing With Medical Providers Who Decline Health Insurance in Favor of Full Payment From Settlement Proceeds §232.2.1 Eight Tips to Deal With Medical Providers Who Decline Health Insurance in Favor of Receiving Full Payment from Settlement Proceeds §232.2.2 Sample Letter to Medical Provider Who Refuses Health Insurance or Government Assisted Insurance §232.3 Negotiating Medical Bills When the Medical Provider Refuses to Use Health Insurance §233 Medical Payments Coverage §234 Workers’ Compensation §235 Uninsured and Underinsured Motorist Coverage §235.1 Sources of Coverage §235.2 Basic Elements to Determine Uninsured/Underinsured Coverage §235.3 Analysis and Application of Coverage §235.3.1 Issue: Value of Injuries and Limits of Coverage §235.3.2 Issue: Workers’ Compensation and Uninsured Motorist Coverage §235.3.3 Issue: Multiple Policies and Stacking §235.3.4 Issue: Stacking in Underinsured Motorist Cases §235.3.5 Issue: Underinsured Coverage With Multiple Tortfeasors §235.4 Dealing With Difficult and Conservative Carriers on Uninsured or Underinsured Motorist Coverage §235.4.1 Twenty Tips to Deal With Uninsured or Underinsured Motorist Insurance Cases §235.4.2 Sample Uninsured Motorist Complaint §235.5 Reference Aids §236 Disability Insurance §237 Defendant’s Liability Insurance §238 Financial Responsibility Laws §238.1 Reference Aids §239 No-Fault Insurance §239.1 Reference Aid §240 Contingent Fee Agreement §241 When to Request Client’s Execution of Agreement §242 Sample: Contingent Fee Agreement in Small Personal Injury Case §243 What to Do if Your Client Requests a Loan or Advance §250 Instruction List to Client §251 Information Booklet for Clients §252 Acknowledgment Form Promising Cooperation by the Client §252.1 Client’s Acknowledgment and Acceptance of Responsibility Form §260 Checklist Contents of Client Diary §261 Reasons Not to Use Diary §262 How to Prepare a Diary in the Small Personal Injury Case §270 Authorization Forms for Use in Small Personal Injury Cases §270.1 Medical Authorization Form—Compliance With HIPAA §270.1.1 Two Example Authorization Forms §270.2 Authorization Form Closing Case and Revoking Former Authorization §270.3 Police Report §270.4 Tax Returns §270.5 Employment Records §270.6 Client’s Driving Record §270.7 Authorization for Release of School Records §270.8 Authorization to Pay Medical Bills From Settlement Proceeds—General Form §270.8.1 Authorization to Pay Medical Bills from Settlement Proceeds—Specific Form §270.9 Authorization to Pay Liens From Settlement Proceeds §280 Recognizing Difficult Clients, Avoiding Client Grievances, and Responding to Bar Complaints and Fee Arbitration Grievances §280.1 A Typical Bar Complaint §280.2 Five Steps to Recognizing Difficult Clients §280.3 How to Avoid Client Fee Grievances and Bar Complaints §281 Dealing with Uncooperative and Unresponsive Clients §281.1 Sample Letter Requesting Cooperation From a Client §281.2 Sample Letter Withdrawing as Counsel for Lack of Cooperation §282 Personal Injury Vultures §282.1 Seven Tips on How to Protect Yourself From Personal Injury Vultures §282.2 What to Do if a Case Leaves Your Office
Chapter 3 §300 In General §310 Investigating the Claim §310.1 Visiting the Scene §310.2 Police Report §310.2.1 Sample: Letter to Police Department Requesting Report and Notes §310.3 Photographs §310.4 Copies of News Reports §310.5 Map of the Accident Scene §310.6 Weather Reports §310.7 Copies of Repair Bills or Property Damage Estimates §310.8 Copies of the Reports Filed With the Secretary of State or Motor Vehicle Division and Parties’ Driving Records §310.8.1 Sample: Letter to Secretary of State Requesting Report and Driving Records §310.9 Credit Report of Potential Defendant §311 Whether to Obtain an Investigator §311.1 Factors to Consider in Retaining an Investigator §312 Importance of Lay Witnesses §312.1 Interviewing Lay Witnesses Checklist: Information to Obtain From Lay Witnesses §312.2 Preserving Statements of Witnesses §312.3 Statements Taken by the Attorney §313 Interviewing Official Witnesses §320 Initial Contact With Defendant §321 Initial Letters to Potential Defendants §321.1 Sample: Initial Letter to Auto Accident Defendant §321.2 Sample: Initial Letter to Uninsured Motorist §321.3 Sample: Initial Letter to Defendant in Premises Liability Case §321.4 Sample: Initial Letter to Defendant in Product Liability Case §330 Initial Contact With Insurance Company §331 Items to Discuss With the Adjuster in the First Telephone Conference §332 Representation Letters in Various Types of Cases §332.1 Sample: Representation Letter for Automobile Accident—Some Liability Question §332.2 Automobile Accident—Clear Liability §332.3 Premises Liability Sample: Initial Letter to Insurance Company in Premises Liability Case §332.4 Products Liability Sample: Initial Insurance Letter in Products Liability Case §332.5 Sample: Initial Insurance Letter for Uninsured Motorist Case §340 Obtaining Medical Information §341 Checklist: Obtaining Medical Information, With Sample Letters Sample: Letter Requesting Hospital Record Sample: Letter Requesting Doctor’s Office Notes Sample: Letter to Doctor Requesting Narrative Report §341.1 Considerations When Writing to Doctors §341.2 How to Deal With Improper Comments From a Doctor §341.3 How to Deal With Doctors Who Charge Excessive Fees for Information §341.3.1 Reasons Why Doctors Charge Excessive Fees §341.3.2 Remedies for Excessive Medical Information Charges §342 Medical Bills §342.1 Reasons Why Medical Bill Documentation Is Difficult §342.2 The Importance of Medical Expense Documentation §342.3 How to Obtain Proper Medical Expense Documentation §342.4 Client’s Form for Medical Expense Records §343 Sample: Instruction Letter to Client §344 Using and Understanding Medical Records in Small Cases §344.1 Common Abbreviations and Symbols in Medical Records §345 Letters of Protection to Doctors and Medical Facilities for Payment of Client’s Medical Bills §345.1 Checklist for Letters of Protection to Doctors and Other Medical Facilities §346 Soft Tissue Injuries §346.1 Client Expectations and Prior History §346.2 Checklist for Client’s History in a Soft Tissue Case §346.3 Small to Medium Closed Head Injury Cases §346.4 Checklist for Small to Medium Head Injury Cases §346.5 Injuries to the Temporomandibular Joint (TMJ) §346.6 Checklist for Temporomandibular Joint Injuries §346.7 Dealing With Insurance Carrier and Juror Bias Against Soft Tissue Injuries §346.8 Successful Techniques to Document, Prove, and Maximize Damages in Soft Tissue Cases §350 Obtaining Employment Information §351 Checklist: Lost Wage Information §352 Sample: Letter to Employer Requesting Lost Wage Information §353 Client’s Employment Records §354 Loss of Income From Self-Employment §354.1 How to Document Loss of Income for Self-Employed Persons §360 File Organization §360.1 File Organization Example: The Telephone Negotiation Conference §361 Checklist of File Headings §361.1 Outside Cover §361.2 Inside Cover Information §361.3 Correspondence §361.4 Medical Bills §361.5 Medical Reports §361.6 Authorization Forms §361.7 Contingent Fee Agreement §361.8 Police Reports, Incident Reports and Secretary of State Reports §361.9 Other Witness Statements §361.10 Photographs §361.11 Disbursements §361.12 Liens and Subrogations §361.13 Wage Information and Tax Returns §361.14 Property Damage §361.15 Notes and Client Intake Forms §370 Processing Small Personal Injury Claims §371 Timetable §372 Timetable Checklist §373 The Seven Most Common Ethical Problems in Small to Medium Personal Injury Cases §374 The Role of Computers in the Small to Medium Personal Injury Practice §374.1 Case Management §374.2 Tracking Medical Bills §374.3 Tracking Medical Records and Other Information Requests §374.3.1 A Word About Viruses §374.4 Using Graphic Images §374.5 The Internet §374.6 Client Communications §374.6 Valuing Structured Settlements §374.7 Summary §380 Enhancing Your Practice With Paralegals §380.1 The Paralegal’s Duties at the Initial Stages of a Case §380.2 Paralegal Duties During Processing of the Case §380.3 Paralegal Assistance During Settlement Negotiations §380.4 Paralegal Assistance in Litigation §380.5 Online Sources for Paralegal Investigation and Discovery Work §380.6 Ethical Problems With Paralegals and Secretaries §380.6.1 Ethical Guidelines for Non-Lawyer Staff, Paralegals and Secretaries §390 Conclusion
Chapter 4 §400 In General §410 Fifteen Key Points to Remember Before Negotiating a Small Personal Injury Claim §420 The Demand Letter: Checklist of Damages §421 Medical Bills §421.1 Past Medical Bills §421.2 Future Medical Bills §421.3 Sample Paragraph for Demand Letter Regarding Future Bills §422 Loss of Income or Wage Loss §422.1 Past Income §422.2 Future Loss of Income §423 Pain §423.1 Future Pain §424 Suffering §424.1 Proving Damages in Elderly Plaintiff Cases §424.1.1 Checklist: Responses to Insurance Carrier Reasons for Low Offers in Elderly Plaintiff Cases §424.2 Preparing an Elderly Plaintiff Case for Trial §424.2.1 Checklist: Expediting Resolution of Elderly Cases §425 Loss of Consortium §425.1 Documenting Loss of Consortium §425.2 Loss of Consortium Problems and Opportunities §425.3 Reference Aids for Loss of Consortium Cases §426 Permanent Impairment §427 Permanency §428 Evaluating, Proving, and Settling Cases Involving Scarring and Permanent Disfigurement §429 Property Damage and Miscellaneous Expenses §430 Evaluating and Establishing a Demand Figure in Small Personal Injury Cases §431 Special Method for Establishing a Demand in Small Cases §432 Establishing an Authority Figure With Your Client §432.1 How to Deal With a Client Who Will Not Accept a Reasonable Offer §432.2 Responses to Client Questions About Settlement §433 Sample: Demand Letter in a Small Personal Injury Case §434 Checklist for Settlement Brochures §435 Settlement Brochures—When to Use/When Not to Use §436 Informing Clients About Potential Bad Verdict Results §436.1 Sixteen Cases That Could Have Settled Which Resulted in Low or Defense Verdicts |
