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The Effective Lawyer teaches ambitious trial lawyers how to grow their skills and create a prosperous law firm. Using lessons learned by accomplished attorneys from around the country, we discuss lessons learned through their trials and tribulations. Our discussions cover a vast range of topics sought out by attorneys looking for advice, from depositions to how to market your law firm.
The show is hosted by Jack Zinda, Founder and Senior Trial Lawyer at Zinda Law Group. In less than 15 years, Jack and his team have grown Zinda Law Group from 3 attorneys to over 30, spanning several states and handling a variety of personal injury cases from gas explosions to truck accidents.
Jack and his guests share their knowledge and skills that they’ve acquired through the process of building one of the most successful plaintiff’s law firms in the country.
In each show we cover a new topic that an ambitious attorney would want to better understand, while providing practical skills to improve their legal practice.
For more information, visit https://www.zdfirm.com/the-effective-lawyer
00:00
Jack Zinda
Foreign. Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zenda and I'll be your host. Hey, everyone, Jack Zenda here. Today I'm going to talk about seven critical things you must do in every wrongful death case. You know, about 50% of the attorneys that contact me for help on a case they've already settled or signed up have made a critical error that is almost impossible to fix. This not only costs our clients sometimes millions of dollars, but it puts themselves and the law firm at risk. Let me tell you the story of Paul. Paul was an attorney that came to me one time. And Paul, of course, is a pseudonym. This isn't really their name. And Paul had just settled their first trucking case.
00:54
Jack Zinda
It was a wrongful death case and they were really excited. They'd settled for a million dollars the first time they'd ever had a seven figure result. And he needed some advice on what to do with the funds. Now that was settled. He represented the adult child, the widow, and the estate of the person that was killed. And he brought the file over to my office and said, hey, no problem, let's get some coffee, we can talk about it. And he showed me the release, what he'd settled for. And I started reviewing the file with him. And I realized pretty quickly that we had a problem.
01:26
Jack Zinda
The first thing I noticed is he had thought he'd settled for the full policy limits, but in fact, they looked like there was probably an umbrella or excess policy that he had missed, which means there was more money available. And this was a case that was definitely worth more than just a million dollars. The next thing I noticed was he had not talked to his clients about what was happening with the money once it was settled. And unfortunately, the adult son and the wife were at each other's throats. She was the stepmom and could not agree on what the time of day was. The third thing I saw was there was a massive hospital bill that was going to have to be paid out of the estate, that the attorney had not resolved the case correctly to help avoid that large bill.
02:10
Jack Zinda
So unfortunately, what went from a really fun, exciting day for Paul went to a day where he probably needed to call his malpractice carrier. Now, I helped him work through a lot of those issues, but it was very difficult. And unfortunately, I don't think his clients got nearly the outcome they could have if they had followed the right approach. So let's Talk about today 7 things you need to do in every wrongful Death case to avoid being a similar situation as Paul. Okay, number one, when a wrongful death case comes in, you need to make sure you identify who's an eligible client. Okay. That is going to vary state to state. If you have a case with an interstate defendant or multiple plaintiffs, you may have multiple options of which state to file in. Is it going to be federal court or state court?
02:53
Jack Zinda
In most situations, you're going to have some main parties. You're looking at. Number one is the children of the person that was killed, the spouse of the person that was killed, their estate, usually not their kid, not their siblings and their parents. Now, each state is going to have a specific wrongful death statute. There's a few states that have both a wrongful death and a survival action statute, and there's a few states that use common law. So you want to make sure you identify all the proper plaintiffs. That is key. Not only if you don't represent them. All that's what the defendant is going to want, is a release of those or indemnification for those claims if they come forward.
03:31
Jack Zinda
And if you fail to identify them and then you indemnify against someone else's claim and they bring it, your client's going to be on the hook for that. So make sure you identify all the right parties. Number two, conflict of interest. Ethics 101. Remember law school, You've got to make sure you have proper conflict of interest between everyone you're representing. It doesn't matter if you know they're best friends, they love each other. You've got to do your conflict of interest first. It's typically going to be on. Is there any source of recovery issues? How are we going to divide the funds? If the case resolves, especially if there's not money, enough money to go around, the next could be there could be a conflict on liability if one party is involved in the case. Practice pointer.
04:12
Jack Zinda
You want to make sure you always get an agreement on how the funds are going to be divided before you get anywhere near settlement. That's key. Once there's actual real money on the table, people typically won't be as agreeable if you don't think you can ethically represent the person because of your local ethics rules or you think it's just not a good idea. And remember, the ethics rules are the floor, not the ceiling. I typically have a common sense, you know, test. If one person is the stepmom of someone and there's an adult child and they hate each other, common sense says it's probably Going to be tough to represent both of them. Don't get greedy. You're going to regret it later.
04:52
Jack Zinda
If you'd like a copy of any of the things you heard about here today, or to set up a time to talk one of our team members about a case, please go to Zendalaw IO and we have amazing resources, downloads, guides, and you can set up a time to talk to us if you want to talk about how we handle things or any case in particular. Number three, make sure you discuss settlement amount way before you get close to settling the case. That is going to include things like subrogation, how the funds are going to be divided, where they're going to go, what the timeline on those are. Are you going to have a structured settlement?
05:32
Jack Zinda
Get away ahead of those discussions, because once there's real money on the table, it's much more difficult to pull people back and talk about it once it's concrete and actually see it in front of them. Number four, you've got to identify all sources of recovery. Do not trust the insurance company. Do not trust the trucking company. Do not trust the corporation that you're dealing with. They will lie to you. I've had so many cases where they hide insurance. They say it doesn't exist. I had a case recently where a month before discovery ends, they said, oh my gosh, we found an excess policy. We didn't know it existed and it was because we did our due diligence and we're about to have a motion to compel hearing heard. You've got to identify all sources.
06:15
Jack Zinda
Typically you need to take a corporate rep depot to identify those. Even if you're getting all the policy limits to make sure you're asking all the right questions about other insurance excess policies, other vehicles under the policy. If it's a trucking case, is the trailer involved? Are there any other defendants you can potentially look at? So source recoveries are key. You want affidavits of another insurance affidavits of their assets, and to take depositions. Number five, look at subrogation. That's who's going to get the money when the case is resolved. In Paul's situation, he probably didn't need to represent the estate if There was only $1 million and the estate is the one that owed that medical bill. So if he had left out the estate, out of his claim and not represent them, he probably wouldn't have had to pay it.
06:59
Jack Zinda
And there's some other tactics you can look at to try to minimize subrogation issues in that situation. But once he represented the estate, he had an ethical obligation to protect the estate's interest, which was clearly in conflict with the moms and the adult sons. Big, big problem. You know, Medicaid, Medicare, health insurance, all of those different things that can pop up. How do things relate to estate? Make sure you dive into those. And sometimes you may have to hire a probate lawyer. Sometimes you may need someone that specializes in subrogation issues. Number six, release language. When you're dealing with a wrongful death case, you want to make sure you don't tie your client up and have them indemnify against parties that come out of the woodwork later. Maybe there's a child no one knew about.
07:39
Jack Zinda
Maybe no one knows what happened to, you know, their wife that never got formally divorced. Maybe there's a parent you can't identify. Maybe, maybe someone doesn't want to cooperate. The release language is key to making sure you protect your client interests. And number seven, plan ahead. Think about all of these at the outset. Outset. In Paul's situation, he could have identified all of these from the very beginning of the case. They were right there in front of his. In front of his face. If it's the first time you've handled a wrongful death case, ask someone to help. I'm happy to provide any documents, templates. We don't have to, you know, have a referral fee. In that situation, we're happy to just send you stuff to help you so you don't make these same errors.
08:20
Jack Zinda
I truly believe if we help each other out, a rising tide raises all ships. But don't be foolish, don't be greedy. Don't not do your due diligence. Make sure you dot your I's and cross your T's. The first rumble death case I took, I must have read, you know, seven or eight CLEA articles. I bought three or four books. I probably spent a week straight just making sure I identified everything. Then I called some good friends in TTLA and AHA and asked for their advice. And they were awesome. That helped me avoid making some of the mistakes Paul did. So with that, I hope you found these tips helpful. As always. Reach out email, call, text. Happy to help anytime. Until next time. Thanks.
09:01
Speaker 2
Thanks for listening today's episode of the Effective Lawyer. You can learn more about our team and find other episodes of our podcast at zindalaw.com as always, we'd appreciate that you subscribe, rate and review the pod. Thanks.