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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
00:00:00:00 - 00:00:17:09
Speaker 1
Welcome to The Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zander, and I'll be your host.
00:00:17:11 - 00:00:23:06
Speaker 1
Welcome to another episode of The Effective Lawyer. I'm Jack and I'm here with our superstar Allie. Hey. How are you doing today?
00:00:23:06 - 00:00:24:23
Speaker 2
Hi. Good. Thanks for having me.
00:00:24:23 - 00:00:36:22
Speaker 1
Of course. Allie is captain of everything here at our firm. She has a role that is called integrator. And basically, she's in charge of making sure the whole law firm runs correctly. She's also super busy, with the newborn, right?
00:00:37:01 - 00:00:39:02
Speaker 2
Yes. Nine months. Crazy.
00:00:39:04 - 00:00:40:20
Speaker 1
How's the. How's the sleeping going?
00:00:40:22 - 00:00:47:01
Speaker 2
Good. Right now. Yeah, but I know that that can change at the drop of a hat. So just writing that way while I can.
00:00:47:03 - 00:01:02:18
Speaker 1
You know, I've got, as you know, I've got teenagers. Well, one teenager, 14 and 12, and it's a totally different ballgame. It got easy for like 3 or 4 years, like 8 to 10, like 6 to 10. Yeah. And then in the teenagers it gets scary again because you can't really trust them. At age 12 I feel pretty confident now.
00:01:02:18 - 00:01:03:18
Speaker 1
14 I'm not too sure.
00:01:03:18 - 00:01:13:01
Speaker 2
Yeah, yeah. Oh on the adventure somebody told me once. Small people, small problems, big people, big problem. That was all. That didn't make me feel good. But yeah, new challenges, I'm sure.
00:01:13:03 - 00:01:17:08
Speaker 1
Exactly, exactly. And I got the kids to school on time every day this week.
00:01:17:09 - 00:01:18:14
Speaker 2
Okay. And that's a win.
00:01:18:20 - 00:01:35:14
Speaker 1
That is a huge win. Nothing is more embarrassing than getting that email saying that they were late. Yeah. It's like so shameful. You guys. It's on you. It's on me. Exactly. Well, today we're going to take some, listener questions and also some questions we get from other lawyers in the firm. And al is going to help us out and ask him those.
00:01:35:14 - 00:01:40:11
Speaker 1
So I have not read these at a time. Ali, why don't you ask away?
00:01:40:14 - 00:01:53:12
Speaker 2
Okay, let's jump into it. Let's start with this one. I think that this is probably something a lot of people are thinking about. With I, if I plug client information into an AI tool, am I risking confidentiality?
00:01:53:13 - 00:02:15:10
Speaker 1
The short answer is maybe. And you have to be really careful about that. OpenAI has a special platform that if you pay extra, it is protected and then guaranteed when I use it to train their models. But if you just use off the shelf, they might. And if you also use someone else's product, you need to make sure that they're HIPAA compliant or Soc2 compliant, and they have the safeguards to make sure that's not happening.
00:02:15:15 - 00:02:36:07
Speaker 1
It also could be a violation of attorney client privilege and waive privilege in certain instances if you're not careful. So usually it should not in a reputable company won't let it. But you have to be very careful that and buyer beware. There's a lot of people selling, snake oil out there that it's just not good stuff. And they haven't done the proper protocol, so I'm very careful about that.
00:02:36:12 - 00:02:46:07
Speaker 2
Yeah, yeah. All right, let's keep going on the AI, topic. How about do I really need to be using AI right now, or is it just hype?
00:02:46:09 - 00:03:02:08
Speaker 1
I would say that's a really good question. And I hear something along those lines a lot. I think it's important to be testing it, but I don't think it's important that you have to use it in your practice at this stage. I would be experiment with it, playing around with it, seeing how it could potentially help you.
00:03:02:10 - 00:03:22:23
Speaker 1
We have a team together that is trying to take simple use cases that we have and put them into AI to, you know, make our form more efficient. But I will say that it is a lot of overhype. There's a lot of things you can't do or can't do well. And the more complex the task, the worse it is that, for example, if you say, hey, draft a brief for me, it's going to be terrible.
00:03:23:01 - 00:03:39:02
Speaker 1
If you say write this small paragraph, it might be great. And also you have to be really careful when you're doing legal research. You know, it will hallucinate cases. I know that's happened to a lot of people in court, and they've gotten in trouble and sanctioned for that. Wow. And that's like, literally just making up a case that doesn't exist.
00:03:39:08 - 00:03:40:19
Speaker 2
Wow. And that's embarrassing.
00:03:40:22 - 00:03:59:19
Speaker 1
That. Yeah, it's really embarrassing. And you can get, in trouble with that. I know a couple attorneys in federal court got fined for putting in bad citations in case. Wow. But I do think, like, there's some ways you can start using drafting emails is a great way. Works for me when doing medical timelines. Drafting demand letters.
00:03:59:21 - 00:04:18:08
Speaker 1
We've developed a way to do deposition summaries, but it took a lot of work. And there's not a lot of things off the shelf that can make that happen. So I would say play around with it. I would get a subscription to all three different, you know, agents out there. There's anthropic, there's open AI, there's Gemini are the three main ones that I look at and play around with them.
00:04:18:09 - 00:04:34:00
Speaker 1
Could be also really great for marketing. Yeah. Doing images now you can do videos through Gemini. Wow. You can also, you can record stuff on video and ask you questions about it as well. I've used it to go through voluminous documents to try to find certain pieces of information, and it's getting better and better at that.
00:04:34:01 - 00:04:44:07
Speaker 1
Yeah. But I don't think it's at the point now you're missing out by not being involved. And in fact, you know, if you get too distracted by the shiny object, you're not going to keep your eye on the prize of, of, like, making money for your firm and doing good work.
00:04:44:08 - 00:04:51:09
Speaker 2
Yeah. Yeah. What is one thing I can actually do for me today that will save me time?
00:04:51:11 - 00:05:13:00
Speaker 1
I would say, you know, that's a good question as well. Okay. I use it a lot to draft emails, like the first draft of emails. It's really helpful. I also think we've been playing with it. To review resume is not enough to be careful about this, because there have the same biases of, you know, a human if you ask you the wrong question.
00:05:13:01 - 00:05:31:17
Speaker 1
So if I'm looking for an attorney, I might have a go through a resume, say, hey, identify people who are licensed in Texas, but I would not tell it to find the best lawyer for us to look for. And unfortunately right now the job market is really tough for employees and people looking for jobs. So I know you are in charge of hiring.
00:05:31:17 - 00:05:33:16
Speaker 1
We've just been getting inundated with resumes.
00:05:33:19 - 00:05:37:04
Speaker 2
So yeah. And it's definitely helps go through just volume for sure.
00:05:37:09 - 00:05:56:09
Speaker 1
You know it's you know it can be really time consuming to approach one out and go through each one individually. So that's been a big help. Another thing you can be useful for is trying to find names and discovery, or trying to take, you know, a page and kind of summarize into a smaller piece. For example, if you have a crash report trying to put together a simple summary of that.
00:05:56:11 - 00:06:05:18
Speaker 1
Also, it's getting better, better looking at photos, I know Gemini is really strong. You can put photos into it and ask it to try to identify things in a photo, or people in a photo as well.
00:06:05:19 - 00:06:07:08
Speaker 2
Wow, I didn't know about that.
00:06:07:09 - 00:06:10:00
Speaker 1
Yeah, it's pretty cool thing. Yeah, there's so much you can do, right?
00:06:10:01 - 00:06:22:04
Speaker 2
Yeah. That's awesome. Very cool. Okay, let's switch gears a little bit. Let's do case selection and strategy. Right. What are the red flags that tell me to walk away from a case, even if the client really wants me to take it.
00:06:22:06 - 00:06:40:16
Speaker 1
That is a great question. I will tell you, as a young lawyer, I see this is the biggest mistake a lot of attorneys make. Saying no to cases is just as important as getting the right cases. Because we work on a contingency fee and this can apply to any practice. Honestly. But if we don't win, we don't get paid.
00:06:40:17 - 00:06:55:06
Speaker 1
And when you first start out, you're usually desperate for business. You take a lot of cases that you might not take in the future, and you might take a lot of cases that are bad. The first thing I say is, if I really despise the client, I think they're a bad person. I don't think I belong with them.
00:06:55:06 - 00:07:14:05
Speaker 1
I will reject the case. There's some rare exceptions. Maybe, you know, they lost a child. Maybe to just catastrophic damages. But for the most part, if I really dislike the client, I'll try to walk away. Especially I think they're dishonest. Or they've done something that, I think is, you know, unethical that I couldn't agree to.
00:07:14:05 - 00:07:33:02
Speaker 1
That's part of the case. Now, it doesn't mean all of our clients are saints. But I use that as, like, one line, to if a client is disrespectful to our team, in a way that's abusive. All clients get frustrated. They get upset. You know, it's a difficult time. Especially if something terrible happened. Say their their spouse got killed.
00:07:33:04 - 00:07:50:04
Speaker 1
But when it crosses the line to abusive to our team, we make that very clear that that's not okay. Because we want to have a safe environment. So that's true. And what's key in these situations, I find, is make the rules ahead of time, because it's really hard in the heat of things to make a decision. You know, everything's subjective.
00:07:50:06 - 00:08:17:00
Speaker 1
Then you, it's tough to call shot. And there's a thing of decision fatigue where, you know, you're worn out the entire day. You just end up doing stuff that doesn't make sense. The other way you want to step away is if you cannot see a way to help the client financially. You know, our job as a trial lawyer, especially personal injury, is to help our client get money so they can pay for their medical bills, and they can get a recovery for what happened.
00:08:17:02 - 00:08:33:08
Speaker 1
If you have a case where you don't think you can make a difference in the client's life, then you're not helping them, either by dragging them along and, you know, working. And it doesn't make sense, then they're going to be disappointed and upset. I found the clients are the most upset or the ones that I, you know, they're bad cases.
00:08:33:08 - 00:08:51:07
Speaker 1
I worked my tail off to get a bad outcome, and they're upset because we didn't get what they wanted to out of the process. Another key point to remember is if the case doesn't meet your minimum threshold, I think that's really important to establish. What is the minimum type of case my firm is going to handle. And in the beginning, it was one number.
00:08:51:07 - 00:09:07:20
Speaker 1
And then over time it's increased three or 4 or 5 times. But every year we look at that again. And you want to stay true to that because that's your you know, otherwise you become a volume practice where it's just volume, volume, volume. And then you don't you can't do the great work that you really want to.
00:09:07:22 - 00:09:26:06
Speaker 1
So I'd say one if you have if you have ethical issues for the client, two, if you're abusive, three of the cases meet your threshold. And I'll say for if they're being extremely uncooperative, you know, we have a process where if a client won't get back to us, we'll send, you know, just initial calls and some letters.
00:09:26:08 - 00:09:41:21
Speaker 1
But if it's not a big case and they're not caring about it, you know, I don't want to care more about the case than the client does. It needs to be important to them. And if they're not putting in the effort themselves, it doesn't make sense. And you actually get less money if you work on a case versus one where the clock really needs your help and really wants it.
00:09:43:09 - 00:09:50:01
Speaker 2
Yeah. That makes sense. How many cases can I really handle at once without hurting my clients?
00:09:50:03 - 00:10:14:18
Speaker 1
That is another great question that is different for every person. You know our firm, we average about 25 cases per lawyer and we work in teams of two. And those teams will have 50 total cases. So there's two lawyers. Usually one is a lead, other one's an associate. And we found 50 is a good number for us, because of the amount of work we put into every file from some law firms.
00:10:14:18 - 00:10:45:00
Speaker 1
You know, I know some firms are primarily litigation, or maybe they divide things between and but I think that is since, you know, I've seen similar handle, you know, 75, even 100, I think that gets a little tight. And also, I want to know every file. I want to know every client. And I think you can tell when you're getting beyond your capacity if you are not keeping up with deadlines, if you can't get back to clients, we have a 30 day rule and a one business day rule, which means we have to call the client back once every 30 days to give them an update on the case, and we have to get
00:10:45:00 - 00:11:06:00
Speaker 1
back with them within one business day. If you're not able to live up to those, you may have too many cases, on file. And remember, you know, if you have a case where you get $300,000 and you put a lot of work into it, or you have three cases where you get 50,000 because you can't put enough work in it to to get to 300,000.
00:11:06:00 - 00:11:23:21
Speaker 1
You're in worse position there. And I think a lot of attorneys miss the point. And I see a lot of times where we'll get a case where maybe it was referred from the lawyer, or maybe they fired their attorney. They can't bring down the relationship. And they were leaving a lot of money on the table by not working the case up on that, finding the damages, not establishing liability.
00:11:23:21 - 00:11:41:19
Speaker 1
We had a case recently where they did it a firm and, that law firm was trying to get them to accept, a settlement of $35,000. They fired the firm. Then they contacted us and we contacted that firm and worked it out. But we end up giving, like, $2 million. Wow. It is because we we dug deep.
00:11:41:19 - 00:11:57:17
Speaker 1
We found a better source. Recovery. She was still suffering TBI issues. And so you want to ask yourself, am I doing a great job on this case? Will this person get the best result from the work I'm putting into it, or am I leaving stuff up if I'm not doing a great job? Do I feel like I'm keeping up with my clients?
00:11:57:17 - 00:12:09:23
Speaker 1
If you're doing hourly work, you know, it's a little more difficult to decide, but I think kind of the same principles apply of can you get back to them? Do you know your cases? And are you pushing them at the patient? Need to.
00:12:10:04 - 00:12:18:18
Speaker 2
That's great. That's great. Kind of along that same vein, what's the biggest mistake lawyers make when they choose a big case?
00:12:18:20 - 00:12:35:19
Speaker 1
You know, I would say one error that I made a lot was, offering too much in a joint venture with another law firm. Because when you, for example, split a case, you know, 50, 50, sometimes one through two thirds, but if you give away too much, you actually end up getting a lot less. If it was a smaller case.
00:12:35:19 - 00:12:57:03
Speaker 1
That's one I see attorneys make a lot. The second is being too aggressive to try to get the case to sign up. If someone was killed in, say, a family member contacts you, you want to tread lightly in how you pursue that because they're going through a lot of you don't want to seem slimy or sleazy or pressured someone into a sale.
00:12:57:05 - 00:13:21:02
Speaker 1
And I find that the more you sound desperate, the more the client is less likely to sign up with you. So I see some attorneys that are over-the-top aggressive on things, and it comes across as weird and odd, and it makes you feel seem a little desperate. The other bigger I see lawyers make a lot is not, going to meet the person in person.
00:13:21:04 - 00:13:42:08
Speaker 1
You know, we had a case we signed up a couple of weeks ago where it happened in rural New Mexico. And, one of the partners was on a call. Was on a flight over there within, a day to go meet with I. And she was really messed up, hurt very, very badly. And if we hadn't done that, no law firm would have gotten the case, would have not seen them, and gotten them there.
00:13:42:10 - 00:13:59:12
Speaker 1
Another mistake I see is not having someone who sounds the part, looks the part of an established lawyer. If it's a big case. Not saying you have to be, the oldest or look a certain way, but, if you send someone that looks and sounds like a law clerk, they're not going to feel comfortable right there.
00:13:59:13 - 00:14:23:00
Speaker 1
I don't feel confident in it. So one, not going in person. Two, paying too much on, a referral or joint venture fee. In three sending the wrong person to go sign it up. And also, you got to be aggressive. I had I remember a client one time, kept emailing me but would not give me her phone number, and we played, like, email tag for, like four months.
00:14:23:02 - 00:14:41:01
Speaker 1
And it was a really big case. And finally she, she reached out to me, and I was working for a guy at the time. He was, he had kind of a weird way to pursue stuff. And he somehow, like, back home and found her address, and he wanted to go to her house and, like, just show up at her door.
00:14:41:01 - 00:14:42:07
Speaker 2
And I was like, oh, my gosh.
00:14:42:09 - 00:14:53:03
Speaker 1
I was like, this feels creepy. And luckily I talked him out of it, and heard I talked on the phone and we ended up setting up the case, but that would have been so odd, I think. I don't think we would have got if we'd done that move.
00:14:53:03 - 00:15:03:23
Speaker 2
Yeah, yeah, it sounds like there's a lot of, like, people intelligence that goes into that, being able to understand what what people respond us to.
00:15:04:00 - 00:15:26:00
Speaker 1
Oh, 100%. Yeah. It's it is so much psychology and it's weird. The more desperate you seem, the less likely you are to get the case. Yeah. I also find a lot of attorneys are bad about bragging on themselves. So I created a strip that I give my lawyers, even the junior ones, to read. They go through our wins in a way that doesn't sound, I don't know, arrogant or preposterous.
00:15:26:02 - 00:15:42:07
Speaker 1
It just is stating factually, you know, we handle these types of cases. Here's some of the results we've gotten. Right. We also will tell them what to look out for and lawyers that they should not hire, ones that don't specialize in a case or they don't try cases, things like that. So they know what to look out for there.
00:15:42:10 - 00:15:48:23
Speaker 2
Yeah, yeah. That's awesome. Let's switch gears to case value and damages.
00:15:49:02 - 00:15:50:12
Speaker 1
All right, let's do it.
00:15:50:13 - 00:15:54:19
Speaker 2
How do you explain a TBI to a jury when the MRI looks normal?
00:15:54:21 - 00:16:15:11
Speaker 1
You know, I love working on TBI cases. There's some of the most rewarding, and they're a damage that you can't always see. And also, you know, it's not always apparent even from how they're reacting to it. A lot of times the TBI can cause emotional issues, which recently, you know, cases. And the more we know about TBI and concussions, people are now getting more.
00:16:15:11 - 00:16:33:08
Speaker 1
You said about 4 or 5 years ago that was considered, people didn't really understand how it could cause an emotional outbreak. I remember we had a client one time who, he had an amazing relation with his wife. They've been married 30 years, had three grown kids. He was a great blue collar guy. And all three kids went to college.
00:16:33:08 - 00:16:50:20
Speaker 1
Were, you know, professionals. And he had never raised his voice, said his wife, ever, in three years of marriage and all of a sudden he gets this brain injury and he's yelling, he's throwing things, you know? And it was a total change in, his personality. Yeah.
00:16:51:00 - 00:16:52:02
Speaker 2
Yeah.
00:16:52:04 - 00:17:18:11
Speaker 1
So a few tips on how to prove that to a jury. One you can get imaging done. This called DTI, diffuse tensor imaging, which you actually showed the parts of the brain that aren't functioning as well. And you need special MRI to do that. So that's one option. Two. You get a neurologist or a neuro radiologist to explain why, even though the MRI looks normal, there's still could be brain damage.
00:17:18:12 - 00:17:36:21
Speaker 1
And the literature has gotten very strong that, you know, once you get a concussion, you're dealing with those symptoms forever, right? Potentially. And so what I like to do is like, connect the breadcrumbs. So first you see, okay, they had a wreck. How did the head get injured? They caused the brain injury. So I want to explain that to the jury.
00:17:36:23 - 00:17:56:15
Speaker 1
And I want to try to show them how that occurred. The second piece I want to do is where in the medical records does it say that someone had, hit their head? You know, as I say, hit the on the dashboard, say, at the window. Also side note, don't you know, fall for the defense strike of, like, hey, there's no evidence of it.
00:17:56:16 - 00:18:17:10
Speaker 1
Find out for yourself, like, look and see. Like the car. Right. In case we're client hit on the side glass. The defense that that's not possible. They were in their seatbelt, but it sure enough, it was. It was cracked. I just pretty clear. I've had situations where EMS did not note a head injury that I talked to the EMS, person, and they said, yeah, I she did have a head injury there.
00:18:17:15 - 00:18:41:22
Speaker 1
Yeah. Check the er, records. What? The, ER doctor says then after the er I'm going to what are the things that family and friends are noticing that are different about them or the, their behavior. He breaks out into two categories. Usually it's cognitive. So their memory is not as good. They're stuttering vision a lot of times is impacted by, TBI.
00:18:42:00 - 00:19:06:03
Speaker 1
We had a quite recently I was having cardiovascular issues that was related to TBI. And you want to get credible witnesses that will testify. Here's what they were like before and here's what they were like after. Then line that up with the symptomology that is in, you know, their allergy books explains here is the causation. And you've got to have a doctor tell the story in my opinion, tier four value in a TBI.
00:19:06:05 - 00:19:25:21
Speaker 1
Because if you don't, it's going to be really tough to have the jury understand causation. The other thing that you can do as well is, get a PTSD counselor, someone who can help talk about the psychological impact. They have to be careful if they had preexisting mental health problems, because then that could make that admissible in the case.
00:19:25:22 - 00:19:27:14
Speaker 2
Oh, right.
00:19:27:16 - 00:19:45:12
Speaker 1
And also be careful about the type of therapist you might hire because, we heard, one one of the first cases I worked on. And for whatever reason, instead of talking about the traumatic event that happened, they got into, like, her husband and her husband's drinking habits. And like, and, you know, it's like, this is so irrelevant.
00:19:45:12 - 00:19:50:06
Speaker 1
But it was in the record. So, you know, it made it tough. And that was going to come into the case. Right?
00:19:50:06 - 00:19:53:14
Speaker 2
Right. And is it relevant to whatever you're trying to talk about.
00:19:53:16 - 00:20:20:04
Speaker 1
Exactly. So I learned the hard way that you want to make sure that you have someone that specialized in TBI and brain injury, cases. So, you know, step one, check the, your records, EMS records. Step two, ask your client what they're going through, what they're seeing, feeling, hearing. And I'd also yourself get familiar with the literature on what the symptoms are on that, because a lot of times the doctors won't even look for it.
00:20:20:06 - 00:20:33:09
Speaker 1
The client's telling you about it, and you have to make sure you recognize. You say, hey, I need to see a neurologist to see if there's something more going on here. Three. Look at getting a DTI, for before and after witnesses and five having a doctor title together.
00:20:33:12 - 00:20:42:10
Speaker 2
Yeah, yeah. That's awesome. What about what is the best way to prove future damages when the client looks fine on the outside?
00:20:42:12 - 00:21:03:23
Speaker 1
Another great question. I love these damages questions. I think they're so much fun. You know, that's also why I love what we do. I look at my job is to tell the truth and so I start with, do I believe in these future damages? I'm reminded case one time, that one of our attorneys was working on and it was a child was hurt and they were like, two.
00:21:04:01 - 00:21:20:06
Speaker 1
And the therapist said, they're going to need therapy every week until they're 18. And it just sounded ridiculous. Yeah. It's like a two year old. They were hurt. They really going to come every week until they're 18 years old about this thing that happened when they were two years old. No, it sounded so silly. Right? I was like, we can't use this.
00:21:20:06 - 00:21:39:11
Speaker 1
This is this is crazy. So first asked, okay, does this pass the smell test? And then you actually kind to know the medical literature a little bit because you have to understand, like, how could it be caused by this one way, the other, the second is you need to have credible witnesses that can talk about what they went through.
00:21:39:12 - 00:22:02:01
Speaker 1
In the symptomology. So, for example, if you have a wife, their husband is probably the least credible person besides themselves. Now, their supervisor at work, that's a very credible person. They can talk about what they've seen them go through. Also, imaging is really helpful if you don't have images like x rays, getting images of what the type of harm looks like is a demonstrative, and having a doctor explain it.
00:22:02:03 - 00:22:18:15
Speaker 1
So if you have a nurse, you know, herniation, having the doctor show how that could cause tingling in their legs, through the nerve damage, which then can make it difficult for them to walk, which then would be very painful. And I try to pull out as many details as I can from the testifying doctor, explain what it feels like.
00:22:18:17 - 00:22:48:15
Speaker 1
Does it feel like, you know, glass going across their skin? Does it feel sharp? Is it electrical? Does it burn? What's the sensation? Because you want to bring it to life, to the jury. And I'm a big believer in visuals and privacy. What is privacy being? That means just people believe what they see first. So that's why credibility so important okay, so if the jury believes me and trust me and then I'm telling them a story and I show them a picture about the harm, and I see what the harm means and how it affects them.
00:22:48:17 - 00:23:12:04
Speaker 1
And then the doctor backs me up. They're going to remember that as if it's a it's a fact that no one's contesting now. They don't have credibility or the client does it. I'm in trouble. Right? That's why you have to also discard anything that kills your credibility. We do that a lot. If it's, loss or any capacity claim where, you know, maybe the client didn't their taxes, or maybe it's a little bit of a stretch.
00:23:12:06 - 00:23:36:05
Speaker 1
We don't claim that because it's going to create more harm. And now the client's not credible, so. Right, a lot of times will nix anything that doesn't make sense. And I think you always need to have a doctor testify to what the future medical care is going to be. And we usually try to find somebody who, it could be their treating provider, could be their allergist that understands the medicine and can communicate it well to a jury because it's all about credibility.
00:23:36:05 - 00:23:52:16
Speaker 1
And then also, sometimes we will have the client at trial. Yeah. Why should they have we have to, you know, if we're down that with the jury. But if you have someone that has a TBI, they're going to be staring at them the whole time. You're like, well, they didn't look hurt or they they laugh. Why did they laugh?
00:23:52:16 - 00:24:01:13
Speaker 1
That's weird. They'll see that sad. And we've done some really great results without the client there. But you have to be careful. It's kind of a case by case, situation.
00:24:01:14 - 00:24:10:07
Speaker 2
Right? Right. I actually just had this question, too, while you were saying that, somebody wants to know when a treating doctor doesn't want to get involved, how do you still get their story in.
00:24:10:09 - 00:24:27:14
Speaker 1
And that is the worst. I've had so many doctors who do not want to testify. I remember one of my first cases, our client went to orthopedics that was covered through the health insurance. And the doctor put in the records. I think they gotten sued for malpractice or something. And someone because they really hated personal injury lawyers.
00:24:27:14 - 00:24:31:02
Speaker 1
Now I try to call them up, and he said $10,000 an hour.
00:24:31:04 - 00:24:32:10
Speaker 2
Oh my gosh.
00:24:32:12 - 00:24:40:23
Speaker 1
A minimum of eight hours. So obviously you in one testify. Yeah. And then he also put in his records the personal injury lawyer called me to ask me that. That's fine.
00:24:41:00 - 00:24:41:11
Speaker 2
Oh, great.
00:24:41:11 - 00:25:03:00
Speaker 1
Which was just like it was terrible. But anyways, that doesn't happen very often. The first thing is you don't. You can have another expert witness rely on the medical records of that doctor to testify. I personally, I don't like dragging people there against their will. Because who knows how they're going to react. Also, they may not be credible, or they may be credible.
00:25:03:00 - 00:25:21:13
Speaker 1
This may sound bad in front of a jury. But sometimes those make the best witness is also may call them up and explain the situation, or have the client contact them for me. And you want to be careful how you explain it. So I'll say something along the lines of, you know, I know you're representing, sorry, I know you're treating Jane Doe.
00:25:21:15 - 00:25:39:09
Speaker 1
And as you know about her, she's such a sweet woman. You know, she's been going through hell with this. Incident. This accident that happened, she's missed a lot of work. She's in a ton of pain, and we're trying to help her. And unfortunately, the insurance company says that you're a quack. And this very nasty quackery like that.
00:25:39:15 - 00:25:55:22
Speaker 1
She's not really hurt and doesn't believe what you're saying. And is there any way you'd be willing to help us out and testify? I would actually say I was up. Would there be a way you'd be willing to testify and tell them what happened? And we just want you to tell the truth. That's it. I'll be very respectful of your time.
00:25:55:22 - 00:26:12:11
Speaker 1
I'm willing to meet you any time or day, to try to see if you can get them to to come and talk to you in a deposition. And if they won't, then some of us will hire an expert just to review the records. Almost like a second opinion. Then they can testify as to what happened to the client.
00:26:12:13 - 00:26:18:19
Speaker 2
Oh, awesome. How do I handle it when the defense lawyer is more experienced than me?
00:26:18:21 - 00:26:35:00
Speaker 1
I dealt with this question just about every case, like the first 12 years of my career. The first one was that I was actually hired to start the practice, which was crazy because I was right at law school and every attorney was like 20 years older than me.
00:26:35:02 - 00:26:36:03
Speaker 2
Well.
00:26:36:05 - 00:26:53:08
Speaker 1
And they all knew it. And they all tried to push me around. Yeah. So step number one is be confident, don't be cocky and don't back down. There's also you can go too far. I call it a yappy dog syndrome where you're so aggressive it's obvious that you're scared.
00:26:54:08 - 00:27:18:08
Speaker 1
He's like it's like fighting for no reason. The second is no the law. I was amazed by how many experienced attorneys do not know the law. Right. That's like a superpower. And when you if let's say you're in a deposition and the defense attorneys objecting, you know, and they're not allowed to they're doing speaking objections. If you cite the rule for your state and say, hey, this is against the rule, I've said it 3 or 4 times, I'm gonna suspend the deposition.
00:27:18:08 - 00:27:39:06
Speaker 1
If you don't stop. All of a sudden, like, whoa, okay. And I kind of look at, like, you want to keep them on a short leash. You want to be professional, but know the law. That's one, two. Show them you know what you're doing early on in the case. A lot of times I'll call the defense attorney just to talk to them when the case starts out, and get to know them a little bit.
00:27:39:08 - 00:28:00:07
Speaker 1
And then, you may also put things on your website that show you're very experienced. But I think no substitute for knowing the law well and being confident. And you can also go get that attorneys depositions. I did that early in my career. You'll find copies of deposit taken. I would talk to my colleagues that had been up against that word before to find out what their tactics are in.
00:28:00:07 - 00:28:14:20
Speaker 1
Unfortunately, some of them have the same M.O. where they try to do kind of like shady things and try to push you around, and you know what they're going to do if you know ahead of time and you can be prepared for it. Also outwork them. I mean, if you all work them, you know, the law better.
00:28:14:22 - 00:28:25:15
Speaker 1
You'll be fine. And don't be afraid. I mean, rarely does experience equal greatness. You know, it can sometimes. But sometimes I've just been doing the same things wrong forever.
00:28:25:19 - 00:28:42:23
Speaker 2
Right? Right. I'm going to go off script, but only because, you kind of judge. And I think I've spoken a lot about knowing the law and knowing the literature for TV. If you're a new attorney, where I'm sure that that's got to be very overwhelming. Where do you start? What would be your recommendation?
00:28:43:01 - 00:29:03:04
Speaker 1
I would start really simple. Okay. Honestly, I had a medical dictionary and I would just every time I read a medical record, I would circle the words I didn't know and I would look it up, then get a primer. Like, there's these great cells that are the cross between, an injury type and the law. AG has a brain injury, section.
00:29:03:06 - 00:29:19:16
Speaker 1
And if you join AG, it's like 300 bucks to be a member of the brain injury group. And there's great clues on that topic. And also just start with the basics, like, you don't have to know everything. She's okay. What is the mechanism of someone that has an injury? Where would I find that out?
00:29:19:16 - 00:29:37:06
Speaker 1
So I might go to first a medical dictionary to look that up. Then I might see if there's like an article someone wrote on how that causes the injury. Then I might say if there's a clear article with AJ, that brain injury, group, then I might see if there's a book I could buy. But don't stress yourself out.
00:29:37:12 - 00:29:52:10
Speaker 1
I think a lot of the things we do, you want to get a baseline knowledge. The way I like to learn things is I will dive deep in, kind of go through all the materials one time, then I'll know where to find the information and come back to it. I used to stress myself out by trying to remember everything.
00:29:52:10 - 00:29:55:11
Speaker 1
Yeah. And then when I realized I don't have to remember, I just have to know where to find it.
00:29:55:12 - 00:29:56:16
Speaker 2
Right? Right.
00:29:56:18 - 00:30:14:16
Speaker 1
Then I can come back to it and identify. The other thing is, and this is a big mistake I see words make is be modest. Ask a lot of questions when you're talking to their doctor or the expert. Acts like a novice. I still do that in cases. I think I know a lot about trucking and, you know, a lot of brain injuries.
00:30:14:16 - 00:30:20:21
Speaker 1
But I will ask rudimentary questions just to confirm I'm right and I'll be surprised. I learn a lot of things that way.
00:30:20:23 - 00:30:21:10
Speaker 2
Yeah, but.
00:30:21:10 - 00:30:31:18
Speaker 1
If you're too egotistical to act like you have a question, you will not learn, right? And it's also a great way to get free information and learn from an expert, actually, how these things work.
00:30:31:22 - 00:30:44:14
Speaker 2
Definitely. Let's go to settlement versus trial. Okay. Yeah. I think we haven't had this part yet. How do you know if a settlement offer is the best the defense will ever give you?
00:30:44:16 - 00:31:07:09
Speaker 1
That's another great question. And this is a very difficult thing to figure out. First, I would not let the defense be in charge of how much you're going to take. I would decide what the number is for yourself and make that your bottom line number. The one reason why people undervalue cases is because they're not confident in their number, and they don't know how much it's worth themselves and how much to ask for it.
00:31:07:13 - 00:31:32:01
Speaker 1
So first, I would shift your mentality from, how much is the defense willing to pay to how much am I willing to take. Then a lot of it's going to depend on your opponent. If you're new to the practice and you don't have a reputation for trying cases, you're going to have to push it much further than if a more experienced attorney who they know is going to try cases.
00:31:32:03 - 00:31:52:23
Speaker 1
And once you've proven yourself that you will take a case to trial, you'll get better offers earlier. The second is obviously, if it's policy limits, you know, that some of us are going to pay rates. I have done rarely do people offer serious money in a big case early in the case, and if they do, it's usually a much better case than I know.
00:31:53:00 - 00:32:11:06
Speaker 1
Because they're trying to hide some information. So I would take that as a sign that they have a lot more to offer. Also, I find in a big case, rarely will they pay you full value pre litigation. I think it's always on the side of the defense to delay your client to die. They could get arrested.
00:32:11:06 - 00:32:30:18
Speaker 1
They forced, they could get another wreck that that screws up your medical record. So things can always get worse in their mind. So they trying to delay things to try to get the most money available. Also, if you get to know the defense attorney, well, they'll share information with you to try to kind of, you know, figure out what the value is.
00:32:30:20 - 00:32:52:08
Speaker 1
The adjusters are motivated by not getting fired and to not get embarrassed at trial. So they get fired if they tell their, you know, their boss that the case is worth 100 and they end up getting hit for $1 million verdict. So showing how much the case is worth talking to the defense, you find out what the insurance adjuster might have is a great way to figure that out as well.
00:32:52:10 - 00:33:12:21
Speaker 1
And it just takes time to be good at that skill. Yeah, but I really go back to the idea of figure out what do you think the case is worth? You can you focus groups, you can look at jury research. You can ask other attorneys. We do we roundtable cases and we will go through each line of the charge and each attorney that has experience will go through.
00:33:12:21 - 00:33:33:18
Speaker 1
What do we think a jury might do? Best day, worst day. And then we'll look at all the numbers on the board and see okay, what is a fair number now versus at trial. It will subtract out expenses. And and if the fees are going to go up that sort of thing. But you can make it a process and make it a process for yourself and then just refine it and make it better and better.
00:33:33:20 - 00:33:40:20
Speaker 2
That's great. When is it worth turning down a sure thing and taking the risk of trial you know.
00:33:40:20 - 00:34:05:19
Speaker 1
Well in any case that you're getting an offer that's a sure thing. Right. I asked myself three questions. One, is this number within a range of what a jury would get to, would this money make a meaningful difference in my client's life? In three? Well, I didn't mean solely to pursue this. I thought there was a third.
00:34:05:21 - 00:34:22:13
Speaker 1
Maybe it's, I know the big ones are. Would this make a meaningful difference in the client's life? And then is this within the range of what a drew would give? And why do I. I said to questions one, if they offer you $1 million in the client has $900,000 in medical bills. That's what we call a zero offer.
00:34:22:15 - 00:34:34:10
Speaker 1
If they offer $1 million in, the client has $10,000 in medical bills, well, that's going to be a lot of money in the client's pocket. So the first thing is, is is this going to be a meaningful difference in their life? And it doesn't mean the size of the case. It could mean, am I make any difference for them?
00:34:34:11 - 00:34:50:14
Speaker 1
You know, sometimes you have really tough cases and getting the medical bills is like a good victory. But that's really the case. And also what is the range of drug we give? And then I will subtract out the amount of expenses that I'll have to put into the case, because that's coming out of the client's settlement.
00:34:50:19 - 00:35:04:23
Speaker 1
And so you're going to discount it slightly than what you would take from a jury at trial. And you have to bake in the receipt. And always remember, if you have a case where you could get zero, make sure that the client knows that if they're turning down a reasonable offer, you know, if it's a slam dunk liability case, that's one thing.
00:35:04:23 - 00:35:11:07
Speaker 1
But if it's a chance they could get zero because it's, you know, 51, 49 the other way, you have to make sure they're aware of that so they don't make a bad decision.
00:35:11:10 - 00:35:20:09
Speaker 2
Yeah yeah definitely great questions. Last one. How do I manage a client who wants to settle cheat because they're tired of the fight?
00:35:20:11 - 00:35:39:00
Speaker 1
That happens a lot as well. One push your cases aggressively. The longer you take, the worse it is on your clients. So I think that's mistake number one. If you know, our average time to resolve a case is 12 months, that means these are cases where litigating because we're very aggressive. It's a big case. We get into litigation right away.
00:35:39:02 - 00:36:01:12
Speaker 1
We do not like to give extensions on expert designations or discovery deadlines. So that's step one. Don't stretch it out. Step two, you want to make sure you're educating your client along the way about what the outcomes could potentially be. And prepare them for the numbers that are going to come down, the system, and make sure they're aware, like you can always accept this number later.
00:36:01:14 - 00:36:23:03
Speaker 1
It doesn't mean we're turning down that you can't get it later on in the case or right before trial is, you know, a lot of experience. Trials know a lot of times the case sells in for dire, or so opening statement. And rarely does the defense ever go down from their last offer. And if they really, really want to settle, you have to obviously do with the client says, but, make sure it's for the right reasons.
00:36:23:03 - 00:36:37:03
Speaker 1
They really understand the risks. And do they know what the net is going to be to them at that number? Now, I see a lot of attorneys. They make the mistake of just talking about the top line number. When they talk to clients. You have to talk about what's the bottom line number, what are they going to get into getting very little money.
00:36:37:05 - 00:36:58:01
Speaker 1
They may change their mind change or to. And every circumstance is different. We had a case where a client really needed to move overseas. And you know it wasn't a massive case. And so to them it wasn't worth sticking around in the States longer to get to the trial. Other instances they're just scared. And so you might also explain this is not a scary process.
00:36:58:03 - 00:37:07:09
Speaker 1
I'm going to be with you at trial the whole time. You know, no one's going to yell at you. I'm going to make sure you're protected. And that may also help them calm down as well.
00:37:07:09 - 00:37:21:03
Speaker 2
Yeah, yeah. I'm sure. Okay, let's do a couple more if you're up for it. Yes. Okay. Let's head over to depositions and witnesses. Okay. What's the number one mistake that trips up lawyers and depositions?
00:37:21:05 - 00:37:40:00
Speaker 1
I would say if you're a new lawyer backing down from the defense and letting them, talk over you, do running objections or bully you, and so to prevent that, you need to know the law and know how to defend against that. Every state and federal court has rules about what you can objective, what you cannot.
00:37:40:02 - 00:37:54:23
Speaker 1
You know, I would also recommend, instead of calling the judge, suspend the deposition, because you don't want to. It might appear at least I don't like bothering the judge. And also, you don't want to ask questions if they're going to keep doing speaking objections because they're going to get a free peek of what you're gonna ask him.
00:37:55:04 - 00:38:16:12
Speaker 1
And that's actually tactics. And then they'll come back. They'll actually know what the question you ask and be prepared to handle them. The second mistake I see lawyers make a lot of times is they did not think about what they wanted to do in the deposition. They just wrote down a list of questions, or they have what's called like an outline where they just took someone else's outline from a similar case and just followed that script.
00:38:16:12 - 00:38:39:19
Speaker 1
Exactly. There's a really great book by Paul Scott to go through deposition, preparation and deposition questions to ask. And it really changed my mindset from being, you know, outline focused to objective focus, like, so I'm trying to establish liability. I'm trying to get them to agree with some of the harm that was caused. I'm trying to establish that they, broke rules or regulations.
00:38:39:21 - 00:38:56:16
Speaker 1
And going into that, I'm kind of following the path where those go. And then, follow the openings that they give to you. Don't just stick to your script, like, follow that hole that you're trying to scratch. Stitch on the logic. Another mistake I see lawyers make is they rush themselves. There's a lot of power in silence.
00:38:56:18 - 00:39:12:18
Speaker 1
And there's nothing more awkward than you sitting there, which I love. And you're just, like, taking notes, thinking everyone wants to say something. It's like they cannot stand it and they'll just reveal something. Yeah. Both of you rushing your apologizing. And then you don't get to what you wanted you to.
00:39:12:20 - 00:39:17:22
Speaker 2
Those are great. What's the one question I should never forget to ask in a deposition.
00:39:18:00 - 00:39:37:04
Speaker 1
That's a tough one. You know I always think it's important to ask if running medications. Right. And it's kind of a dumb one. But like when did they do that before then. Medications alcohol things like that. If I'm doing a witness, I always like to make sure. Ask everybody they've been in contact who's related to to the case.
00:39:37:06 - 00:39:48:22
Speaker 1
Man, that's one question that's hard. I, I would say the drugs and alcohol is important. Who they talk to. Are they taking a deposition before? Can they hear you?
00:39:49:00 - 00:39:50:22
Speaker 2
Yeah.
00:39:51:00 - 00:40:05:07
Speaker 1
It's funny, like, you'll be surprised. Like, I've also had people fake not being able to speak English. In depositions. I said one time, the more than one time, the person was mis translating the depot.
00:40:05:07 - 00:40:06:16
Speaker 2
Wow.
00:40:06:18 - 00:40:28:19
Speaker 1
I'm semi fluent in Spanish, and he was saying, I don't know, instead of, like, I don't remember which are different answers. Yeah. And it's because a lot of times the person translating starts empathizing with the person who's trying to kind of help them out because they think they didn't understand the question or something. So I always get the transcripts checked for the translations.
00:40:28:19 - 00:40:32:04
Speaker 1
Now, that's not really a question. More of an observation.
00:40:32:04 - 00:40:39:13
Speaker 2
Yeah, yeah. That's interesting. How do I stop a defense witness from running away with the deposition?
00:40:39:15 - 00:40:58:19
Speaker 1
You want to take charge, and if you have to explain what you're doing and that they have to answer the questions that are being asked. An object to, nonresponsive. But you want to keep them on a tight leash if if it's to your benefit sometimes. And going on and on is great and they're just telling you stuff and then sometimes they're smart.
00:40:58:21 - 00:41:13:18
Speaker 1
Like, I've had corporate witness wrap witnesses and especially experts where they know what they're doing and they just will talk over you. So I try to get the whole six hours so you can't really get good stuff out of them. And then if you did, in this case, call them out from psych. You know, Doctor Smith, as you're aware, I only get six hours for this deposition.
00:41:13:18 - 00:41:28:10
Speaker 1
Correct? Correct. And you keep talking. I'm asking the questions. Yes or no? But you're giving me a ten page answer. Are you aware of that? Yes. Okay. Can we agree that you will answer the question asked so I can get all these questions in? And if they keep doing it. So like to the judge is hey, I need more time, Your Honor.
00:41:28:12 - 00:41:32:11
Speaker 1
And then ask for your attorney's fees to be paid because it's a game. If it's an expert witness like that.
00:41:32:17 - 00:41:39:02
Speaker 2
Wow. Yeah. I think that wraps up most of the questions that we have for today.
00:41:39:06 - 00:41:41:17
Speaker 1
That is every question anyone ever had.
00:41:41:18 - 00:41:44:12
Speaker 2
Okay. Yes.
00:41:44:14 - 00:41:49:05
Speaker 1
Well, this has been fun based, everybody who submitted these questions. Thank you for coming and helping out today.
00:41:49:05 - 00:41:52:00
Speaker 2
Yeah, yeah, thanks for having me. This is great.
00:41:52:02 - 00:41:53:14
Speaker 1
And until next time. Thanks.
00:41:53:16 - 00:41:59:03
Speaker 2
Thanks.
00:41:59:05 - 00:42:24:05
Speaker 2
That wraps up another episode of The Effective Lawyer. Don't forget to subscribe so you never miss an episode. And if you've got a minute, a quick rating or review goes a long way. Want more tips, insights, and stories from the field? Head over to Zinda law.io to learn more. Thanks for listening and till next time.