Rich Spalding, Business Leader Spotlight Show
Lenore Shefman, Shefman Law
RICH: I want to welcome everyone to the Business Leader Spotlight Show. This is Rich Spalding, your host for the day. Hey! Today, we have with us Lenore Shefman, a leading personal injury attorney in Austin, Texas. She’s here today to talk about some of the legal issues you can encounter in a personal injury case. Lenore, welcome to the show.
LENORE: Well good morning, thank you.
RICH: Lenore, can you tell us a little about yourself and your law firm?
LENORE: We are trial lawyers; we focus on personal injury in the Central Texas area. We focus on serious injury and catastrophic personal injuries; often times resulting from motorcycle, bicycle, and pedestrian crashes. We also focus on a general personal injury practice, but only in the arena of serious and catastrophic injury.
RICH: Ok, very good. Now, can you tell us—tell our listeners, why should they hire a personal injury attorney?
LENORE: You should only hire a personal injury attorney if you have been the victim of bodily injury that’s been caused by another’s negligent acts. In other words, if you’ve only suffered property damage, that is a claim that you can probably handle on your own. However, a personal injury attorney comes in where you or a loved one has suffered a harm and that harm has resulted in financial damages. And that’s when you need the assistance of a personal injury attorney.
RICH: Now, what if you experience bodily injury in a work place? How would that be different?
LENORE: There are two aspects to being injured in a work place. There is the straight worker’s comp case where you hire a worker’s compensation attorney. However, if your employer has also been negligent, or one of the employees of the employer was negligent, and that caused your harm, then you should hire a personal injury attorney that is able to handle both the worker’s compensation claim and the personal injury/bodily injury claim, or you can hire two separate attorneys to manage both. So that becomes a personal preference of who it is you want to work with, and whether or not you want one attorney working on your case, or two.
RICH: Ok, very good. That really makes sense. Lenore, can you explain the adversarial position the injured party has with the opposing insurance company?
LENORE: Sure. Basically, as most everyone understands, an insurance company is a business and they are protecting their bottom line. Though they have employees who will call you on the phone and sound like your friend who is there to help you and walk with you through your claim, in fact, these folks are agents of the insurance company and their job is also subject to oversight and supervision, and though they are being extraordinarily nice to you, they are not your friend. They are trying to help the insurance company maintain that bottom line. And in no matter what negative position we find ourselves in the United States on a national scale, one thing you can always assure yourself of if you look at the stock and the bottom line of any insurance company, they are not in the red. They will be in the black no matter what. And a large part of that will be making sure that they pay you the least amount on any claim that is brought to them and that is their business, that is their job, and that is how they maintain that bottom line. And that puts them in an adversarial position to any injured party because they’re not necessarily there to make you whole. They are trying to maintain their own position of being whole.
RICH: Ok, good. Has the complexity of navigating an injury claim become harder for injured parties over the years?
LENORE: It has, and it greatly depends on what state you’re in. We practice in California and in Texas, and each of these states has been—I want to say, under attack, but that might sound a little extreme—but it has had a dramatic effect on the outcome of personal injury cases to the injured party. There are seminal cases that have come out recently that effect the value of a personal injury case, and by value, I mean we can’t give the injured party back the broken leg, or their ability to walk, or the ability to think after a serious personal injury. What we can do is provide payment where we can’t compensate someone for a physical loss.
From two very important cases in these states there is now law that creates a paid versus incurred standard for a person’s medical damages. And what that means is if you have health insurance, which everybody has, perhaps, some sort of insurance or they are working with the state on assistance, whatever is paid by the provider—the insurance provider—to the health care provider will now be limited to what is actually paid. And in many cases, let’s say a surgery costs $100,000.00. The negotiated rate between the insurance company and the health care provider may only be $3,000.00 on the $30,000.00 charge, or $5,000.00 on the $100,000.00 charge. When that information is brought to a jury and the jury looks at the cost of the medical care of the injured party, they think, Ohh, $3,000.00, that’s not much. That person must not have been injured. This doesn’t make sense. This attorney or this injured person is trying to get one over on us. And it has a great effect in the mind of the juror trying to reconcile the extraordinary cost of health care which we all know exists and the actual cost for their treatment. As attorneys we are not allowed to mention insurance or discuss insurance in the courtroom, so there becomes a very difficult problem in getting the messages across to the jury what exactly the nature of the injury is and what should they be anchoring the total amount of damages to the injured party without the full amount of costs. That’s one issue.
Another great issue on the injured party is the recent case of ERISA claims—and this is a legal term that relates to employer-provided insurance that has been negotiated in advance by an employer to a health care insurance provider—where in the past, injured people have always been able to negotiate medical care costs at the end of their case following the recovery. In many of these cases there is a zero chance to negotiate those payments anymore, which means an injured party could end up owing even after they’ve received a settlement or even after what they think is being made whole. It is very important to get an attorney involved in these cases to help negotiate these pitfalls that will most certainly present themselves.
RICH: That’s very interesting. A couple things you mentioned—one was a negotiated rate between the hospital and health insurance providers and the insurance company. You can’t talk about that in court?
LENORE: Well, to mention insurance and health insurance in court is a big taboo and that is something that actually trial attorneys have been dealing with for years in a courtroom setting. Again, you are dealing with extraordinarily strong lobbies that create legislation and polices such as this. So, as a plaintiff’s attorney you are walking into the courtroom with one arm tied behind your back, and we have gotten very good at finding ways to talk around this subject as time goes on and as the lobbies get stronger. They are more and more etching away at the rights of the injured person, and all under the rubric that the insurance company is good and they are here to help you and they are helping you save money on your premiums and really, it’s the injured party’s fault for bringing the claim, when in fact, it is the insurance company that is making this process extraordinarily expensive and onerous on a person to improve how harmed that they were in order to get just compensation. It’s a system that’s kind of turned on its head, and that is a difficulty we’re dealing with.
RICH: Wow, these negotiated rates between the health providers and the insurance companies, they definitely could give a false sense of, like you said, the value of the case isn’t clear sometimes, to a jury, if, like you said, they’re hearing a lot smaller numbers for the medical treatment versus if there wasn’t insurance negotiation involved.
LENORE: That’s right, and it creates confusion for the jurors and it also creates a sense of mistrust where there really already is a sense of mistrust for people that bring claims. And that is part of tort reform—the idea that insurance companies want you to feel guilty for bringing a claim, that your insurance rates may go up if you do, and that the person making the insurance claim is making rates go up for everybody else. So the injured party walks in with an already laborious uphill climb, like Sisyphus going up a large mountain.
The big thing is being able to explain to a jury in terms that we are allowed to explain that they are becoming sketchier, that explaining what treatment that the client was provided and showing what was paid versus incurred can be extraordinarily complicated and it will confuse the jury. The idea is to, if the numbers are low, to take all of the numbers out of the case and present the case without any damages and only talk about the injuries, and that can be difficult too, and it’s a new area. In California, there have been a lot more cases tried that way than in Texas, but we are starting to see a trend of people considering just not putting up any damages and asking for compensation without dollar signs on the wall, because those dollar signs can hurt you because they will confuse the jury.
RICH: That is very interesting. Well, let me ask you this question—In managing a client’s expectations, what is the most frequent problem you encounter in personal injury cases?
LENORE: We don’t really experience a lot of client expectation or client management problems. We see that as our job when our client walks through the door, the potential client, it is the attorney’s job to help a client understand from the first moment what their case is about and what to expect. If a full evaluation cannot be done on the case because of the client’s continued treatment or the client’s needs for whatever reason, it’s very important that the attorney help the client understand all of the different prospects for that case from the get-go, and to continue communicating with the client so that the client has an understanding of their own case.
From my experience, client communications become unmanageable or unreasonable where the attorney has failed to communicate with the client. That that is the attorney’s job, and if the attorney has done the job properly, the client will fully understand and have an idea of this is the value of your case at settlement, this is the value of your case at trial, these are the costs that you will have to incur presenting your case at the trial, and understanding each step of the way exactly the value of their case.
And if you are doing your job right, you shouldn’t have difficulty with client expectations. If in the initial meeting with the client, the client still is with an unreasonable expectation—in other words, they’re coming to you not necessarily to be made whole but to, for lack of a better term, win the lottery, that’s a case you don’t take. That’s a red flag that you’re never going to make this client happy. So that is a decision that a firm needs to make together to decide whether or not this client can be made happy, and in our practice we want happy clients, we want to work with people who we can get on communicating terms with. And we have a very strong practice of staying in close contact with our clients and we think that makes a difference.
RICH: Ok, very good. Let’s say that I’m injured in an auto accident or involved in an auto accident through the negligence of others and I sustain some injuries and now I come to you for an initial consultation, what is the process I can expect to go through?
LENORE: Initially you come in and meet with myself, or another attorney, and we walk through all of your medical damages up to that point. We start out with the liability—typically in a phone interview—we discuss the crash, what happened. The client will be asked to bring in all the documentation, photographs, et cetera. We will go through all the receipts for the medical care and talk to the client about what medical care they anticipate continuing with, go through the entire anatomy of a lawsuit to let the client know exactly what it is that they can expect from this part of the interview through the initial settlement stages. If it doesn’t settle, the initial stages of a lawsuit, starting with discovery and going all the way through trial. When a client leaves our intake process, they completely understand every which way their case could go, and what the likely outcome is. We can’t make any guarantees, obviously, but our consultation process will ideally be a telescope for the client and a roadmap for exactly what to expect.
RICH: Ok, and also, usually when people are talking about hiring an attorney, also it comes to mind, what should they expect to pay and who is expected to pay for the costs?
LENORE: I think that’s a really good question and one of the things I’d like to highlight here is as a personal injury attorney, the idea is to pay all costs upfront for a client and a percentage be taken at the end of the case. The standard throughout the industry has been 33 1/3 % from the overall gross recovery of a client’s settlement or judgment. That number typically goes up if the case is set or goes to trial, and that number would go to 40%. In more difficult cases where experts are heavy on the front end, that case may actually have a 40% contingency with a 45% contingency if it goes to trial. So the costs may affect the contingency rate and those costs may be exponential, depending on what kind of case you’re bringing in.
The other thing, though, that I think every potential client should be made aware of are the hidden costs of some law practices, and making sure that they’re fully aware of what the costs will be. Some attorneys will send out statements of the amounts that they have paid on a case and attach interest to it on a weekly or monthly basis. Those are hidden costs that most clients would never expect to have but they’ll stick with the attorney with the case just because they’ve told their story and the case has gotten underway. But in the meantime they’re accruing great losses because of the interest associated with the costs from the attorney. We find that practice to be unethical, but many attorneys out there make a living off of a lot of costs. So look out for hidden costs.
RICH: Very good. So the hidden costs, are they paid throughout the case or still at the end of the case when it settles out?
LENORE: The client never should pay for anything until the case is closed out and the settlement or judgment has come in, and that should be very clearly spelled out in the attorney-client agreement. A vague attorney-client agreement that does not spell these things out is not a good attorney-client agreement. The client should be very aware of exactly what costs the attorney will be paying and when is the client’s obligation to pay those. There are late night commercials for the 24-hour attorney you see that say, “If we don’t get paid, you don’t get paid,” and then there is the spotlighted lettering on the bottom of the image that says, “We don’t get attorney’s fees.” Well, it doesn’t say anything about attorney’s costs and a lot of those attorneys will go after clients for costs if the case isn’t successful. So that’s the difference between fees and costs, and know exactly what costs you’ll be paying and if there is interest attached.
RICH: Very, very interesting. So this really levels the playing field for most people. You know, a traditional hiring of an attorney, let’s say for a divorce, is out of pocket, but it seems to me that the contingency basis is excellent because it allows people to actually retain an advocate for them and counsel and not have to pay hundreds of thousands of dollars upfront. They can actually—sort of a David and Goliath situation, where you have an advocate that’s working for you as a personal injury attorney.
LENORE: That’s right. I’m sorry I didn’t explain that better, but you actually did just sum that up quite well. This is a setting where attorneys aren’t paid upfront and the cost would be too onerous on most injured parties. They’re paying for medical costs; they’re paying for the things they need to get well and to get better, and attorneys in our situation are noting that and saying, well okay, we’re going to gamble on the value of your case and hopefully get paid at the end. Some would argue there might be a conflict of interest that exists because the attorney wants to get paid; however, the argument also exists that the attorney that does the best job will make the most money, not only for their client but for themselves. So there is a bit of a carrot and stick on that philosophy. But it can be, in a mill situation, where attorneys are running high volume practices bringing in loads of cases on whatever value that the case may be, a situation where a conflict could arise and where the attorneys are the only people making money. That is another red flag that people looking to hire a personal injury attorney should be able to evaluate. How much personal attention will my case get? Will I be kept up to date on the case happenings? What will my costs ultimately be? And, what sort of outcome is this firm getting on other cases similar to mine?
RICH: Very good, thank you for clarifying that. Let’s go back to that scenario where I was injured in an auto accident. A couple of questions regarding that: if the insurance company asks you to sign a release or a medical authorization form—the opposing insurance company, I should clear that up—is that anything that you should be signing? Should we be giving statements to anybody other than our own attorney or our own insurance company?
LENORE: Absolutely not. Your insurance company shouldn’t be asking you for a release. Your own insurance company may have some clarifying questions about the liability—questions about who is at fault. In a situation where there is clear liability, the insurance company for the party that hit you or harmed you—the negligent party—will try to contact you immediately. They will try to get you to give a recorded statement, and in that recorded statement they may ask you for information that you are not obligated in any way to provide. In the recorded statement, that often times our clients give, which we loathe, they will also ask for things like your Social Security Number. That should never be given out, especially over the phone, to anybody, but you should never give out your Social Security Number to an insurance company.
You should never sign a medical release. The releases are often not limited and they are often in violation of HIPAA laws, and you are under no obligation to provide them. If you do provide them, you have to understand that this information can be used and entered into a large database that can be used against you in any future claims, and is an amassing of information that the insurance company will ultimately use to etch away at the value of your case. Again, they are not there to help you. This information that they are culminating in order to start looking at ways in which they can deny your claim.
RICH: So, do not give a statement?
LENORE: Do not give a statement, do not sign a release, and do not sign any medical authorization forms, and do not provide your Social Security Number.
RICH: Ok, very good. One other thing—if this accident that I was involved in occurred out of state, how would that affect my case?
LENORE: Wherever your incident occurred, you should hire an attorney in that locality. Each jurisdiction has its own set of rules. Each state has its own Bar. If you are in California and you are in Los Angeles, you will need an attorney in Los Angeles, California. If your crash happens in Austin, Texas, you will need an attorney in Austin, Texas, and that’s the rule.
If your treatment is out of state and it is not a serious injury case, it is more difficult to prosecute that case even for the local attorney, because it will be very expensive to bring in experts from out of state in order to present your case to a jury, if the case suddenly had to go to a jury. So you want to get somebody in that situation that is very adept at settlement and obviously not going to jury trial unless there is an extraordinary amount of damages that will support the cost of going to trial.
RICH: Ok, excellent. Well, Lenore, we are reaching the end of the interview here, but I did have one more question I’d like to ask you. If someone were looking for a personal injury attorney, what should they look for, and how should they go about selecting the right attorney for their case?
LENORE: There are a few distinctions between personal injury attorneys that I think really set us all apart. You want an attorney who goes to trial. And the reason you want an attorney who goes to trial is the insurance company knows whether or not your attorney is willing to take your case all the way to a courtroom. If your attorney has never seen a courtroom and has never tried a case, they know that they can get away with offering less money than the actual value of your case because the attorney will cave for a lesser settlement in order to make a living for themselves and to avoid a courtroom. You always want to hire a personal injury trial attorney. You do not want to go with somebody who just takes in cases and settles them. You will not get the full value of your case, number one.
Number two, you want somebody who is experienced, and by experienced I mean who has been practicing in the area of personal injury for five years or more. And that means not a cross—many attorneys make their living off of being both criminal attorneys and personal injury attorneys or family law attorneys and personal injury attorneys. Personal injury in and of itself is its own specialty, and you really want to focus on somebody who specializes in the area for which you are seeking an attorney. There are so many laws out there and so many attorneys supporting one area of their practice off another or they think personal injury claims are just easy money and they’re chalk full of pitfalls. If you don’t know what you’re doing then the insurance companies will know whether or not your attorney knows what they’re doing.
Third, the type of injury you receive and the way in which you are harmed may have a great effect on which attorney you should hire. For instance, our practice focuses on specialty cases such as bicycle and motorcycle cases. A lot of attorneys are terrified of these cases because they are very difficult to litigate. By litigate, I mean file a lawsuit and head towards trial. Jurors tend to not like the population of cyclists or motorcyclists. You need an attorney who knows exactly how to deal with the public opinion on those two populations. You need an attorney who understands the anatomy of a bicycle or a motorcycle and understands the complexity of the ways in which that person is harmed versus a rear-end car crash, for instance. So understanding what your skill set is in the attorney you’re hiring is extraordinarily important so that you are getting the best representation.
RICH: And what’s the best way to find an attorney? Just go through referrals from friends, or online?
LENORE: Yes and no. If you have a friend who has had a positive experience with an injury attorney and they also were harmed in a similar way as you and they are in the same locality and it’s recent in time. You should always meet with several attorneys before hiring one. If you hear my interview and you think, wow, I want to go to that attorney, my advice to you is meet with some others first and then come to us and see because it’s an important decision. You are hiring somebody that you are going to put your trust in and you’re going to rely on the outcome to be the best outcome you can get, and you will never be able to go back and re-try it or get another settlement. So be sure who you’re hiring and interview many.
Referrals are great. Evaluating web pages and going through the State Bar are great options; you can always call the State Bar and they will give you several referrals and they will at least be in good standing with the Bar Association, among that much we won’t know anything else. But you can always then go to the website and look and see what area of practice, have they tried any cases, what are the settlements and verdicts they’ve received. And if an attorney has a website where they’re not publishing the types of outcomes that they are likely to receive or have received in the past, that might be a red flag that they maybe are not experienced or may not be getting the best results. So, it really just depends on what type of injury you have, the reputation of the attorney, and if you can find others out there that can vouch for them. That’s always fantastic. Yelp. Avvo. There are other websites that rank attorneys and base it on either customer service and client expectations or reputation in the community. Those are good websites to evaluate attorneys.
RICH: Very good, thank you for those resources. And you mentioned Yelp.com and Avvo—is that A-V-V-O?
LENORE: That’s correct. And there’s Martindate-Hubbell. You can always find out if an attorney’s in good standing through the State Bar web pages. And if you look on the attorney’s website they should be listing all of the resources that they’d like you to look at to say, hey look, our clients love us and they said so; that can be self-serving, but at the same time it’s a world of social media where what happens in your practice tends to get displayed out there on the internet.
RICH: Very good. Thank you so much for that information. Lenore, I’m going to go ahead and give out your website here so that our listeners can check you out and some of the resources. I took a peek a minute ago and I see where you said the State Bar is listed here and a couple other rating associations. So if our listeners want to learn more about Lenore Shefman, you can go to www.shefmanlawgroup.com or you can call her office at (512) 386-8117. Lenore, I want to thank you again so much for sharing your insights with us today.
LENORE: Well thank you; thanks for your time.