Behind the Bar: From Intake to Trial

Acknowledgements

To Dean, my precious son and my biggest dream come true

To my parents, Nick and Cathy Abernathy, who gave me everything

Contents

ACKNOWLEDGEMENTS

SECTION I

CHAPTER ONE —

GETTING STARTED

CHAPTER TWO —

INITIAL INFORMATION AND INVESTIGATION

CHAPTER THREE —

DEMAND AND NEGOTIATION

SECTION II

CHAPTER FOUR —

THE LITIGATION PROCESS

CHAPTER FIVE —

TO TRIAL

CHAPTER SIX —

CONCLUSION

Section I

From Intake…

CHAPTER ONE —

GETTING STARTED

INTRODUCTION

Behind the Bar is a truly unique vantage point. It is a mountaintop view of the valley of triumph, grudges, roadblocks, and wonderments of our justice system and the human emotions that encase it. Legal Assistants are to attorneys as operating room nurses are to surgeons; the backing, skill, organization, and safety net behind the scenes of the legal profession, ensuring that Lady Justice still breathes.

As a legal assistant, assisting and supporting members of the Bar-attorneys-as well as others within the legal field, you have the occasion to be part of a special team where one member cannot function fully, if at all, without the other. Together, a professional and oftentimes, personal, bond forms between legal assistant and attorney to deal with societal problems, dilemmas, issues and disputes.

Some of you may recall a few pages in my first book of the Behind the Bar series, Behind the Bar - Inside the Paralegal Profession, delving into personal injury law and the real work of a personal injury paralegal. In contrast, this book is an all-out assault on the subject, diving deep into the abyss of insurance and personal injury law, to give readers a realistic, profound idea of what personal injury law is and the role of the paralegal in the field. This book will be helpful if you are just beginning your foray as a paralegal, or even just pondering the idea of becoming a paralegal in this vast area of the law. It is also intended to be a solid reference tool if you are already working as a legal assistant in this discipline. Even members of the general public who have a desire for an insider’s view of this area of law may find this book insightful.

For use in this book, I interchange the two terms legal assistant and paralegal but they mean the same thing. Just as a lawyer and an attorney, or a doctor and a physician; two different terms, their modern meanings the same.

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In certain places in this book, I will use legal terminology to help illustrate a point. Some of you may already be familiar with these terms, but sometimes the words and phrases will get relatively in-depth, so I have created a tool to assist you. When you see this sign that reads:

you will see an explanation of a blatantly legalese word coming up.

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The area of law that we refer to as civil litigation, which includes personal injury as a component, is astoundingly vast. When someone is injured in an accident, and that accident is someone else’s fault, the injured person is allowed to seek compensation for their injuries to make them whole again. In other words, to bring them back to the position they enjoyed prior to the accident. Likewise, when someone breaches a contract-a promise-there is recourse one can take such as getting a deposit back, being allowed to back out of a deal, or stopping someone from doing a deed.

These scenarios, and countless others, are examples of what encompass Civil Litigation. Essentially, every dispute that does not involve a criminal matter is a civil matter. Civil matters mostly involve money, but could also be a request for specific performance, civil injunctions stopping a certain action, etc. Other civil matters include divorce, adoptions, child custody, guardianships, probate and estate cases, and real estate disputes.

Civil Litigation matters span small claims cases all the way up to multi-million dollar personal injury, product liability, and class-action lawsuits. To reiterate, the idea and purpose of the civil court is to make someone whole again, as they were prior to the injury, deed, or action that is the basis for the lawsuit.

In reality though, making someone whole again is really only a legal euphemism for monetary compensation, because we are not yet able to grow a new limb, resurrect the dead, revert back in time, or make a grandmother’s rare pearl earrings and matching brooch duplicate themselves.

The philosophy of personal injury civil litigation is that monetary compensation should be given to the injured person or his or her family to ease the financial burden of doctors appointments, hospital stays, home health care, and of course, the intangibles: mental anguish and the pain and suffering from seeing a loved one fade away or become a remnant of his or her former self. At times, sadly, monetary compensation is payment to compensate for a wrongful death and the aftermath upon a family and heirs of the deceased. Such is the premise of personal injury law.

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Civil matters can be filed and heard in both state and federal courts, including, if on appeal, our own Supreme Court of the United States of America. We are all familiar with some famous civil trials: the civil case against O.J. Simpson, Brown vs. Board of Education ending school segregation, even Donald Trump’s company bankruptcies are all civil matters, albeit very different ones from personal injury!

Personal injury litigation is one of the most lucrative, fast-growing areas of the law today. The concept of law and order, of course, was born at the dawn of civilization and has been used throughout ancient and modern human history to govern most societies. Even the great ancient Egyptian and Mayan civilizations had kings, chiefs, and the elite in their respective societies to levy taxes, supervise public monuments and buildings, and to regulate trade. All of these tasks were early forms of civil law being carried out.

In the United States of America’s rich history, civil and tort law, which integrate personal injury cases, began in England as common law, and was brought over and modified as early as our pioneering forefathers’ first steps upon a craggy New England shore. The explosion in the American public seeking compensation from torts and injuries happened when professionalization, and specialization, blossomed in the late 19th to 20th centuries. Later, when a surging America, churning with commerce and industry, hit its stride, personal injury became a very specialized, focused, widespread area of law. The public progressively used this avenue of justice, and personal injury lawyers responded. Bar associations created rules of advertising stating how lawyers were permitted to reach the public and people reacted showing great desire to pursue a variety of claims. Of course, our population has also grown so large that a larger population invariably leads to an increase in disputes.

Prior to this modern surge in legal claims, people used to try to settle their disputes within the community—mainly through the church—a focal point in pioneering communities. Survival and the necessities of life in colonial societies was the highest priority; seeking compensation for injuries and the time involved pursuing it was considered low on the relevancy list. Usually, the neighborly people would resolve the dispute amongst themselves and moved on, both for their own sakes and the sake of the community as a whole.

Essentially though, when personal injury law came into its own, and the public was educated about being allowed to shift the costs that befell them due to a wrongdoing, to a wrongdoer, and/or others, the public was enticed and they flocked to the courthouses in droves.

Since then, in today’s world we may sometimes feel inundated with billboards, television commercials, newspaper, magazine and flyer advertisements for personal injury law services. And many, many people have taken, and are still taking, full advantage of our rights to claim damages and sue another person or entity for wrongdoing.

Personal injury, during its ascent in popularity, is an area of law where legal assistants began to be greatly utilized; that is, lawyers and law firms realized and valued legal assistant services and hired ever-growing numbers of paralegals to work their cases.

Today, personal injury law is where a good number of paralegals find their employment. Although top jobs are competitive, most jobs in this arena are plentiful.

I have had the pleasure, honor, frustration, and fortitude to work as a paralegal in the civil litigation domain, specifically, the personal injury arena, for almost 18 years now. Mostly, I have dealt with car accidents, slip and falls, nursing home injuries, general injuries, dog bites, nursing home negligence, and medical malpractice matters.

I have worked in small firms, medium firms, and large firms, and have also had my hand in criminal law, family law, bankruptcy law, and music and entertainment law. Additionally, I have had some exposure to worker’s compensation, probate law and construction law. Each area of law has its own advantages and disadvantages, but I have gained the most experience in personal injury law and I feel a lot of passion for the subject. Mostly, I have worked on the plaintiff’s side, but I did have my stint on the defense side. Both sides of a case–plaintiff and defense—have pros and cons, which we will discuss in some depth this book.

For most of my career, until I moved up to working for a very large firm, I handled every aspect of a case, including intakes. Intakes are where a case starts in a plaintiff’s firm. For a defense firm, a case typically starts when their client, a defendant, who may be an individual, insurance company or another entity, is sued and served with a Summons, or, if the client is served with an official document or letter, such as a demand letter, or Notice of Intent to Initiate Litigation Letter–all of which we will discover further in this book.

For plaintiff’s firms, intakes are the lifeblood of the business. Indeed, a law firm is a business, with typically large overhead, and thus, must make money to keep afloat. The firm must pay for desks, phones, electricity, rent, salaries, legal malpractice insurance and office supplies, among other expenses. As a paralegal in a plaintiff’s personal injury law firm, intakes mean your future and job security. For that matter, they also mean a future for defense firms, because if there were no lawsuits, defense firms would severely suffer as there would be little to defend. Pre-suit work, which constitutes all cases not officially in litigation, cannot pay all of a defense firm’s bills. It is the litigation process that makes money for law firms practicing on both sides of personal injury law.

But many ask, how does one assess a case properly, ethically and thoroughly? As a paralegal in a firm practicing personal injury law, how do you know what is a case and what is not? And, what do you do with a case once you are assigned to work on it?

I realize that many of my readers have taken, or will take, classes dealing with civil litigation and personal injury law, and I also know that you will have fantastic teachers in those classes and wonderful mentors out in the workplace. I know that you have read or will read traditional textbooks that will give similar information as in this book.

However, as I write this, I have entered my 18th year of working as a legal assistant, my 17th year being a Certified Legal Assistant or Certified Paralegal (CLA/CP), and have been an office manager of a bustling personal injury law engine for over a decade. I have also been a de facto office manager for many more of my working years. In training new staff, some completely new to the field, or students themselves, I noticed something that stoked my fire to write this particular book and that is, despite all of the education, reading of traditional textbooks, internships, and even starting to work in a law firm or agency, there seemed to be very little to read about how to work a case in the real world—you know, the true real-life stuff of your everyday life as a paralegal. The questions I consistently received from new staff were weighty:

•   What do I do first?

•   What do I do next?

•   What do you mean by ‘file a lawsuit?’

•   Do you physically file it somewhere, and if so, where?

•   What does all this mean translated into real life?

•   I need a big-picture lesson on a case from beginning to end! How can I be an outstanding paralegal in this area of law that is so competitive?

I will strive to answer these inquiries and much more in this book. I also realize that you can get this information by putting in a few years of actual work at a law firm or agency, and be supremely excellent at it. However, I wanted to write a book specifically for when one first starts out in this career or during training as a paralegal student. It was also my desire to write a book for experienced legal assistants who wish to gain the whole picture to augment their knowledge and to enhance their skills. So many times when training new paralegals, I have heard the lament, I know how to read a medical record, but what does that mean in the litigation process? Or, I know that I have to get insurance information, but how is that information used in a case? Sometimes, paralegals have only worked on one aspect of a case such as discovery (more on that later), and do not know the other procedures of the complex litigation process. Still others have mastered the pre-suit phase, but have not touched upon the litigation stage, or vice versa, and they wish to learn the entire process.

I really yearned to write a book that gives the reader a real idea of what a paralegal will be doing every day—to give readers a head start, if you will, and to add to the world knowledge bank about the wonderful people who make up the paralegal profession.

I believe this information and how it is presented will be immensely useful and give readers a great leap ahead of the rest of the pack. I am also committed to keeping the non-traditional textbook, conversational, easy-to-read style, so not revered by academia, but for which I have been praised up and down my intended audience—paralegals themselves! As feedback from paralegals and students regarding my first book, I heard mostly, thank you for finally giving us something readable! Something we can relate to! I wish I read this in school, instead of another legalese-filled textbook! I have also kept my style chock full of real life experiences for you to learn from. As the poet Theodore Roethke stated, That’s one of the reasons we have art, isn’t it? That man can experience other men’s experiences?

For this book, I decided to take a somewhat different approach to the subject because I know there are already lots of books out there on the market with basic forms contained within them and some great commentary about the procedures of a civil lawsuit. However, I did not find much with actual fact scenarios, like the fictional cases in this book will provide, or much information about how to apply the facts to the forms and what actions to take in a step-by-step, logical way.

One more caveat: of course, I could not go through every single scintilla of work that one could ever encounter in working in personal injury law. It would be impossible as there are an infinite number of fact scenarios, legal strategies, and outcomes that could happen. Some things may happen in your career that never happened to me. However, I definitely do cover all of the major, basic events in a personal injury case, woven with some real-life, useful experiences and have tried to logically create a step-by-step approach to the work. It is not a completely exhaustive opus, but rest assured, what I talk about in this book, I actually have mastered after working on thousands of cases over 18 years. It is my own anthology of knowledge and experience on the subject.

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Throughout this book, I have created two fictional law firms–one plaintiff and one defense, along with two fictional cases, which we will follow through the entire civil process from pre-suit and including litigation. Whether on the defense or plaintiff side, you, as a paralegal, should know how to evaluate a case and I feel that this interesting approach we will take through this book’s journey will facilitate learning and just plain make it colorful reading! I feel that taking these two fictional fact scenarios and actually seeing how they may be used and viewed during different stages of a case will be very informative to the reader. At each juncture, I explain the role of the paralegal on each side of a case as well as give examples using one or both of our fact scenarios, while showing how some of the more common documents and forms may be used.

The first portion of this book deals with what plaintiff’s paralegals will do since they are the ones who work for the firms that initiate claims and file lawsuits. The litigation stage—when a lawsuit is actually filed in a court—is where most defense paralegals become involved for the first time. I feel it will benefit both sides to know what each has to do and how each prepares. At the very least, it should give one a fuller understanding of the entire process, which is one of my foremost purposes of this book.

First, so you may become familiar with all the work and the immense scope of pursuing a personal injury case, below is a very comprehensive checklist for a case that you may be able to utilize for the entire case, or any section thereof:

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First, let’s talk a bit about ethics; about what paralegals can and cannot do. Paralegals cannot give legal advice, and cannot tell someone that they do or do not have a case, or place a value to a case in any respect. Only licensed lawyers can do so. In most states, practicing law without a license is a criminal offense, not to mention, always highly unethical. In addition, a paralegal cannot set fees for legal services, and must always work under the supervision of an attorney. Paralegals are supposed to work with the utmost integrity, morals and uphold the confidentiality of clients.

Additionally, this book is for the paralegal audience and any procedures or questions should always be directed to and confirmed by an attorney. Many paralegals do have excellent legal minds–matching and even surpassing those of some attorneys. You may find yourself thinking that there are some holes or unfinished commentary in this book that you may be expecting, especially regarding witnesses, investigation, or legal research and legal strategy…and you would be correct. This book is intended to be solely for the paralegal audience, not for someone training to be a lawyer. As my readers know, my husband went to law school while I worked as a paralegal and believe me, law school is an entirely different animal—much more in-depth, comparative, methodical and intensified.

That said however, you as a paralegal, may likely have your hand in most every aspect of a case from its inception, including handling the phones and talking with a potential new client. The questions you ask and the way you take notes and listen can greatly affect how your attorney will or won’t view a case. Remember, first impressions are vital!

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INTAKE/ASSESSING AND EVALUATING A CASE

(ISSUES, LIABILITY AND DAMAGES)

When a potential client calls a law firm for the first time, they are usually upset about a certain situation and have a great sense of urgency for answers to their predicament.

The philosopher/poet Horace said, he has the deed half done who has made a beginning. Make sure you capture the facts and the story—the beginnings of a potential case–for your attorney and you will surely get things started on the right road.

First and foremost to think about when you encounter a potential case is the cause of action. A cause of action—that is, the cause that leads to the action of a claim or lawsuit—arises when a person acts contrary to the law and that wrongful act or omission causes injury or harm to another person. The person injured has a right to claim a cause of action and prosecute that cause of action in a court of law. Another way of questioning this is, why is someone at fault? What is the act that caused someone to be blamed?

The work of a paralegal begins way before they ever pick up the phone to answer an intake or to talk to a potential new client. Before you place the receiver to your ear for that first intake call, know what type of law the firm you work for handles, and know generally the procedures for handling intakes, such as any particular forms your firm might use, and to whom in the firm you should give the intake to for review once you have gathered the information from the caller.

You should also have a solid intake form you can use to write down or type information as you speak to the potential client. If you work on exclusively personal injury matters, perhaps it would be useful to have an intake form that includes information for each specific type of case such as slip and falls, car accidents, dog bites, and medical malpractice and nursing home cases. Some firms do have and require separate intake forms for each type of case. While this may seem exhausting, each type of case requires different information. For example, dog bite cases need homeowner insurance information, and car accident victims need auto insurance information. Slip and fall matters need the exact location of the incident and, if known, who owned the property or premises, in addition to the entity or name of whom the potential client feels was responsible for their slipping and falling.

Below is an intake form you could use for each of the above cases and you may simply fill in the information needed, and skip over the non-essential parts. As you can see, the main parts of an intake are: general information about the potential client, facts, insurance information, and accident or incident information, such as reports, photographs and witnesses. This intake form can also be your cue