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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
Speaker 1
Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. Welcome to another episode of the Effective Lawyer podcast. Today, I want to talk to you all about some really difficult cases that very few firms are able to make money on, and that is premises liability cases or slip and fall cases. As any experienced attorney knows who practices personal injury law, slip and fall cases can be very difficult. And if you take too many of them, you can actually go out of business handling those. So what I want to talk about today is how do you investigate these cases, and how do you make the decision on whether or not you want to take a slip and fall case?
01:00
Speaker 1
First, to zoom out a little bit about our law firm, we probably take 2% of all of the potential clients that come to us on premises liability or slip and fault cases. In fact, I know that's right because that's what our data tells us. We've tracked every potential client that comes our way, and we analyze whether it becomes a case or not. Now, the first thing I want to walk through is the types of fact patterns we see in premises liability cases and which ones I think are more or less likely to be successful. The first type is where you hear about someone slipping at a grocery store or some sort of retail location. You know, it could be from a food substance or a water substance or something like that. Typically, we find that those are the most difficult cases to pursue.
01:49
Speaker 1
And the reason why is it involves a third party that may have caused the hazard. So that's like type one. Type two is going to be a type of case where there's a similar type of hazard, but it was caused by the owner of the premises, by them not maintaining something. So an example would be there's water on the floor at a grocery store and it is caused by a leaky air conditioner. Those cases are a little easier to pursue on liability. And then the third is where the defendant actively did something that led to the hazard. And of course, there's hundreds and hundreds of different types, but I like to think of those in those three different buckets.
02:33
Speaker 1
So the first thing you want to look at when a case comes in the door is do the damages justify us taking on the risk to pursue these cases? Because you want to look at every case as if it's going to go to trial. And even if you're able to make your liability case in a premises liability case, you still have to convince the jury that the defendant did Something wrong, and it's fair to hold them accountable for the harm they caused. Keep that in mind. Just because you can beat the meet the bare bones of the elements of a charge doesn't mean you're necessarily going to convince a jury that you should win and if so, if they should pay you substantial amounts of money.
03:13
Speaker 1
So we typically want to see a case where we think the total value is in the high six figures, seven figures where there are substantial injuries to the client. Doesn't mean you can't be successful in those other cases. But these types of cases are going to take three to four times as much work. You're typically going to need several expert witnesses to be successful there. And keep in mind that 10% rule that we talked about in a previous podcast on you don't want to spend more than 10% of the case expense on the potential result of the case. So we've decided, okay, we have a client that's injured and we've decided this is the type of case where did the defendant lead to the negligence lead to the problem that occurred?
03:54
Speaker 1
A few examples that we've seen, we had a case where there was a sidewalk and a construction company did not put in one of the sidewalk cement blocks and there was rebar exposed and did not block it off so it wasn't exposed. We had a case where there was a leak from an air conditioner, like I mentioned before, and someone slipped on, fell on that. We've had cases where a chair collapsed because it was defective, which is, you know, semi premises liability case. So we've got an injury and we have a case where something happened that shouldn't have. The other thing I like to think about when I'm thinking of liability is this a I can't believe that occurred type of case? You know, if it's just something where someone fell, you got to be very careful about taking that type of case.
04:44
Speaker 1
The next thing you want to talk to your client about is what type of shoes were they wearing, where were they going, what type of substances had they consumed? All of those things that could lead to them being off balance. Because those are the things that a jury is going to want to know. And it could be something simpler. They had one glass of wine 30 minutes before. Were they wearing flip flops, Were they wearing shoes? Things like, so step two is figuring out what sort of mental state and physical state your client was in. How were they walking, where were they going? We had a case where a client tripped over a pallet that was in a place it shouldn't have been and shattered their wrist really badly.
05:27
Speaker 1
And part of the defense in that case was, hey, you shouldn't have crossed over there because that's a place you shouldn't have gone.
05:36
Speaker 2
This podcast is presented by Zynda Law Group, a nationwide personal injury firm. For over 10 years, the experienced lawyers at ZLG have been partnering with outside counsel across the United States on all types of personal injury and wrongful death cases. With over 30 attorneys, Zynda Law Group has paid out millions in referral and joint venture fees since 2015. To learn more about partnering with Zynda Law Group, please email us@re referrals zyndalaw.com we'll schedule a time for you to meet with Jack Zinda or one of our trial lawyers to discuss your case.
06:14
Speaker 1
Now we have the client's version of events. We know that they're hurt enough to justify pursuing the case, and we feel like it fits into the type of case that we could be successful on. And what I'm trying to decide is it worth pursuing because of the injuries to the client? I'm assuming that, you know, the defense is 100% liable with what do I think the maximum amount the case is worth? And if it doesn't meet that bar at that point, I'm definitely not pursuing it. And I look at every premises liability case as being a 5050 proposition on if you're going to be successful or not.
06:44
Speaker 1
In the beginning at least, the next step is you want to make sure you get a spoliation letter out right away because the defense or the store or whoever is in charge of the premise, typically there's going to be video footage that's going to be overwritten in a very short amount of time. And I cannot tell you how many times having the video footage made our case or in other circumstances destroyed the case. And one rule of thumb I have, if you ask a defendant or their insurance company pre litigation to give you video footage, they will usually give it to you if it is bad. They will not give it to you if it is good.
07:23
Speaker 1
So if they say there is footage but we're not going to give it to you, then you probably know it's good for you if they are willing to give it to you. Or you can even say, listen, if I don't have a case, I don't want to go any further. So if you could just show me the video footage to let me know if my client is at fault for what happened, that can go a long way to Deciding how you want to pursue the case. The next thing you want to do is make sure you talk to any witnesses who your client may have discussed the incident with or where they were going or was with them at the time. You also want to see if they got any sort of incident report from the store.
08:03
Speaker 1
We've gotten really good evidence in cases where the incident report lays out what happened before it was able to be cleaned up by risk management or an attorney down the road. You also want to make note of that when you're doing your discovery process to look and see if that information is available. And one thing that I think is really helpful is to create an SOP that walks through how to think about these things so you can put it on autopilot. Because one of the more stressful parts about being an attorney, or difficult, I'd say, is trying to decide if you're going to take a case. And if you have a method and a process for how you analyze different types of cases, it's going to make your life a lot easier.
08:41
Speaker 1
And, you know, if it's not a yes, I really want to pursue it, then I would probably reject it. When I was a young lawyer, I cannot tell you how many premises liability cases I got stuck on where they were not good cases. The client was not injured enough to pursue it, and we end up either having to try the case or settle for very little money. And keep in mind, if you don't get a good result to the client, you're not going to help them get what they need, which is compensation for what happened. Another big factor I consider in these cases is how much do I believe in the client, their story, and their ability to tell a story to a jury. This even more so than other cases, because credibility is really critical.
09:25
Speaker 1
You know, if I have a client who is, you know, an eagle scout, has a no criminal history, does charity work on the weekends, has had the same job for 20 years, that's a little different than someone has a very difficult criminal past, maybe some theft charges, maybe is covered in tattoos head toe. Not there's anything wrong with that, but it's something that a jury might consider when examining the liability or the, you know, believability of your client. I think these are really key parts in this case. If you have a truck wreck and someone is, you know, paralyzed, no one's going to question whether or not they are paralyzed or that the truck wreck actually happened.
10:04
Speaker 1
So to summarize a few things we've talked about so far, evaluating the Client, their credibility, looking at how badly they were hurt, what sort of negligence did the defendant take? Sending out a spoliation notice to the defendant right away? One thing you may consider doing is getting a scene inspection by agreement with the defendant, or if it's a public place, going there yourself. Make sure you consult your ethical rules, because there's different rules on whether or not you can visit a scene of an incident you were hired to pursue. The other thing you want to consider is who else could have been involved in the act that led to the person slipping. For example, if someone cleaned the floor before.
10:46
Speaker 1
I had this crazy case one time that I took where it was a slip and fall at a grocery store happened at five in the morning. Our client was on their way to work and swore that the floor was waxed and had just been cleaned. And they had a pretty bad injury. I think their femur was fractured. And we sent a letter to the store saying, hey, we want to see the video footage. They wouldn't give it to us. We filed a lawsuit. They said, there's no video footage. We did a motion to compel. They said, hey, you know, it was deleted. So then we hired an expert witness and got a motion to compel from the judge to actually let us go into the video viewing room. And sure enough, he was able to find video footage that they said didn't exist.
11:33
Speaker 1
And when we play it, there was a cleaning crew that was actually waxing the floor from another company right before our client fell. And the statute was about to run. And I think what the defense was going to do was going to divulge that after the statute of limitations had run, name them as a responsible third party and hope that went away. So that just goes to show, you have to be aggressive and you got to make sure you understand what the scene looks like, where the cameras are, all those sorts of things, you know. And I could go on for this for hours, but I just wanted to give you a few tips on the things you want to consider before you take that next premises liability case and if you do, what steps you want to take to evaluate it.
12:13
Speaker 1
If you want any additional information or any documentation or how to investigate these, please feel free to reach out. Happy to help anytime. And until next time, thanks.
12:28
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.