Multi-Forum Litigation in Personal Injury Practice
by Brian Shepard
What I mean is this. Representing injured plaintiffs in claims against physicians often requires extensive work in addition to just seeking recovery in a substantive tort action. This has transformed a seemingly focused or niche personal injury practice into something more akin to a general practice. Representing injured claimants routinely requires what I will call “multi-forum advocacy,” and it arises in several ways. 1
Routinely, it is common for our clients to be seriously injured and have recently lost jobs or otherwise undergone dramatic changes in their lives. It is common for them to need an advocate to help them navigate the various public assistance programs that are available. Many will need direction to representatives from Medicaid or someone to help with a disability claim. Even after an injury case concludes, many of these clients may still rely on public assistance, and you have to ensure that any recovery is arranged in a fashion that will minimize any disruption in these benefits.
Also, wrongful death claims or other claims involving catastrophically injured people regularly require probate work. Sometimes it is a personal representative for a survival action, and sometimes a client will need the appointment of a guardian or conservator. Depending on the situation, this can be required before you are even legally able to proceed on the substantive liability claim for which you were hired to pursue.
Another burgeoning area that affects lawyers on both sides of PI litigation is the issue of lien or reimbursement resolution. Many insurance plans contain reimbursement provisions that have to be reviewed, so their enforceability can be assessed. Additionally, many clients may be on governmental medical assistance, either Medicaid due to financial need or Medicare due to age or disability. Each of these has corresponding reimbursement rights relating to expenses that may not have been incurred absent the actions of a third party.
Each side in a personal injury case has varying obligations imposed upon them to ensure that these reimbursement obligations are complied with. The penalty for non-compliance or not adequately anticipating the scope of these rights can expose plaintiffs, and their lawyers, as well as defendants and their insurers, to significant penalties. These unclear and often-changing regulations require diligence on all parties to ensure that all parties’ rights are protected and, that once a settlement is completed, no one comes knocking in the future complaining that their rights were not adequately protected. These issues, too, can require extensive work often very early on in the case.
Most of us in personal injury practice are inclined to want to do work within the niche we have created for ourselves, be it medical malpractice, products liability, workers' compensation, or some combination of these and more. Moreover, all of us prefer to do work for which we ultimately get paid. In the world of plaintiffs’ personal injury litigation, this means working under a contingency fee.
With all these tangential issues, laying out the scope of the representation you intend to perform in anticipation of a fee is important. While I’m sure this occurs to some extent or another in many fields of practice, it uniquely affects lawyers representing injured plaintiffs. In some hourly-fee contexts, it may be simpler. If more work is needed, it will be billed for accordingly. In the contingency-fee context, you are agreeing to represent a client in an injury action arising out of a specific incident, the scope of which could be interpreted narrowly or broadly.
At first glance, it may be easy to want to take a narrow view of your representation and only represent your client in the substantive tort action. It may be easy to want to say to your potential client “sure we’ll handle your car wreck on a contingency basis, but only your tort case and anything else you need done is on your dime.” “Need help with public assistance? Talk to legal aid.” “Need a probate attorney to get a guardianship to allow you to make decisions for and take care of your disabled loved-one? Go out and hire one.” “Can’t afford it? Can’t help you.”
The problem with this attitude is apparent. Many clients come from limited social, economic, or educational backgrounds or knowledge of the legal system. It is not practical to expect the partner of a catastrophically injured family breadwinner to be able to have the resources or know-how to be able to seek out, hire, and pay a separate attorney, for example, to get a conservator appointed so that you actually have a proper plaintiff to bring the action. Not being prepared to take on these tangential, yet important and sometimes legally necessary issues, would essentially mean not being able to prosecute the case for them.
These cases routinely require attorneys to take a very liberal view as to what the representation is actually going to encompass and to be willing to represent clients in many forums for many things. It is not very good advocacy, let alone very practical, to view the scope of your representation so narrowly that it either makes your case impossible or fails to adequately protect the interests of your client.
1 Joel Ferber, Director of Advocacy at Legal Services of Eastern Missouri, has articulated this concept in the past.