00:00
Speaker 1
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. Welcome to another episode of the Effective Lawyer podcast. This is Jack Zinda and today I want to talk to you about child injury cases. You know, these have been some of the most rewarding cases of my career. Situations where I've helped young people who have either been catastrophically injured or have lost a parent or a loved one. And I want to talk about some of the common mistakes I see lawyers that refer us make in these cases in some of the ways we avoid those pitfalls. So I want to break these out into a few different types of cases. The first are ones where you know, someone is injured and they're under the age of six. 

01:00
Speaker 1
The second is going to be, you know, someone who is hurt and they're an adolescent. And the third is when they're going to be teenagers. And then another consideration is going to be who is hiring you, is it the parent and what occurs. So let's go through a few reasons why these are important. The first thing you need to know is you cannot treat a child case like an adult case. Now why is that? Three, there's going to be different types of recoveries. You can make different damages. There's also going to be different people that can actually bring the claim on the child's behalf. Also you're going to need different levels of approvals and know what's going to happen to the money. I see a lot of people make very serious errors on subrogation. 

01:40
Speaker 1
They pay back health insurers they shouldn't or they leave money on the table or they don't understand how the money should be split or they put the money in the registry of the court once you go somewhere else and all sorts of things that can have a really big impact on your client and what's going to happen. So let me give you an example. I had a referring attorney that brought me a dog bite case, this is probably eight or 10 years ago, asked me to lunch if I could talk about with him. It was a very serious case where six year old was mauled very seriously by a pit bull, had really bad injuries, liability looked strong and it wasn't clear know what was going to happen, the child, how well they're going to recover. 

02:17
Speaker 1
Not there's some lingering issues with some eye issues. And were about 18 months post incident. So this attorney takes me lunch, we're sitting down talking about the case and Talking about, he says, well I'm just going to tell the clients to wait until he turns 18 to bring the case so then we can know how the eyes turned out. And because the statute of limitations doesn't run until the age of majority, which is 18 in most places, plus two years, I should be all set. And I had to point out to him, I said listen, you have to understand that the medical bills actually belong to the parents. And that statute runs two years from the date of incident, which were very substantial. And this attorney was about to blow the statute of limitations on a key part of the damages. 

03:01
Speaker 1
So that brings me to my first tip. You've got to go get the charge. You have to look at the cause of action. You have to figure out who can recover what in your state. Typically the parents are going to be able to recover the medical bills and in economic damages and the child is going to be entitled to the non economic damages. Now whether the parents get the future medical bills or not is going to be state specific and depending on when those are going to be incurred and how old the child is going to be. So that's tip number one. Make sure you understand what the child is entitled to and keep an eye on the statute of limitations. You've got to know that rule. So let's talk about another example I had. 

03:38
Speaker 1
We had a wrompo death case where a really sweet guy was killed when an 18 wheeler ran a red light and killed him and left. He left a two year old doctor, he was at work at the time when this happened and him along with his mom were raising this child. The mother had not been seen, you know, really essentially since the child was born about two years ago, is completely out of the picture and the grandmother had been doing most of the heavy lifting, was truly the main supporter of the child's life. Well, we get hired on behalf of the grandmother to represent herself and as next friend of the child and in Texas next friend means that you're represented on someone on behalf of the child. 

04:17
Speaker 1
And I'm going to talk a little bit about in that a minute and how it matters. Well, what do you know, we're about a year into the case and the mom shows up back on the scene and heard there was a wrongful death lawsuit and all of a sudden decides they want to be a part of the child's life and want to participate in the case and she was trying to take the right of the grandmother away to pursue it and also was going to really make a mess of the case because they were going to jump in midstream and really change our approach and tactics. And it was not going to be good for the ultimate outcome. 

04:51
Speaker 1
So the first thing we did is we had a guardian ad litem already appointed and we brought the guardian line into the case and into the no on the situation. Already knew that the child had a mom. And a guardian line typically is someone who's going to represent the interests of the child and be an independent advisor on the case. There's two times you can ring that person in. One is like during the case while it's actually active litigation, and the other is at the end, right before settlement to get their approval on any settlement that is done. We typically bring them at the end. In this case, we brought them in early because of the issue with the mom. So first off, we explained the situation. 

05:26
Speaker 1
The mom or to the ad litem, the adlatum vet with the mom kind of diagnosed the situation. And he was going to recommend to the court that we should continue representing the child on behalf of the grandmother. And then also we sat down with the mom. She'd hired a family law attorney who didn't know anything about personal injury law. And we explained that she was not going to get anything even if she represented the interests of the child. Well, all of a sudden her interest in the case waned and she decided she didn't want to be part of the child's life anymore, and so she stepped away. But something key on that I took away from it is you have to understand who has the legal right to pursue the claim on behalf of the child. 

06:08
Speaker 1
Typically it's going to be a parent if they are separated and divorced. And it's going to be whoever has the legal right into the based on the divorce decree or the custody orders that are issued now in Texas, anyone can bring a suit on behalf of a child if they are what's called next friend. That just means someone is bringing on behalf of the child. And the person who has a legal right to block it or to do it themselves could come in and object to that. And ultimately an ad litem would decide who is going to pursue in the child's best interest. They typically would hand it over to the parent. But you don't always have to have the parent be the next friend. 

06:43
Speaker 1
It can be a friend, it can be a cousin, it can be an aunt, it can be a lot of people. But you typically want to make sure you have the parents sign off on that. If you'd like a copy of any. 

06:56
Speaker 2
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. Things or any case in particular. 

07:19
Speaker 1
Let's talk about some of the stuff that you want to get to establish who has the legal right to pursue the claim. One, make sure you get the birth certificate. Make sure you get the death certificate. We had a situation where the dad said, I adopted the child. Well, it turns out he didn't technically adopt them and so he actually could not bring the case on behalf of the child. It had to be the biological parent. You want to go pull all family law records. Do not take your client's word for it about what happened in the divorce. See it for yourself. Those should be all available online. And then you want to make sure you get what's called an affidavit of heirship if it is a wrongful death case to establish the parentage of the child. Okay, let's talk about another example. 

08:00
Speaker 1
So we had a case where our client was another 12 year old, was a 12 year old child and the child's mom and the dad had fallen at a construction site and was killed. They did not have fall protection and they were in violation of a lot of safety regulations on the construction site. The child was going to net $1.2 million out of the recovery we made on their behalf. And the question is, what happens with that money? Okay, okay. The child is young. You obviously don't want to give it to the child. The court will not let you give it to the parents in almost all circumstances. There's a few exceptions I've seen, but it's very rare because the court doesn't want the parents spending it for the child or wasting the money. So you typically have three options. 

08:49
Speaker 1
You can look at number one, a structured settlement. A structured settlement is annuity that is guaranteed that will payments to the child at a date in the future. And it typically would be monthly, quarterly, semiannually, or annually. And they'll have a lump sum payment at the end. It will accumulate interest where the child's payments will actually end up being more than how much they recovered. Typically what you'll do is that structure will be set up to start making payments at either like 21, 22, 25, and they have ones they call the college plan. And there's companies that can help you with that. And there's not a real charge to the client because they take a fee on setting up the structure. And also the structure is tax free, so the child does not have to pay taxes on it. 

09:34
Speaker 1
You have to do at the time of settlement, it has to be in the release and you have to get court approval. The next way you can handle the money is you can put it in the registry of the court. This is usually the worst approach on how to handle it. Let me tell you why. The interest rate at the registry court I think is like 0.02 or 002 or something crazy. It's basically you're losing money every day it's in there. So the only time you want to do that is if it's a deimous amount of money. And the child is going to turn 18 pretty soon. So the child has access to those funds pretty quickly. But I highly discourage and I see a lot of attorneys just do that as their default without looking at a structure or other options. 

10:13
Speaker 1
The third option is you can get a trust set up. Now, the last few years interest rates have been very low. And structured settlements have not been really great options for a lot of our clients because the interest rates are so low. So trusts are another option where you can set up their. They are going to cost some money because I have to hire a lawyer to help you with it. But you can get it set up and then they can go to the court to get approvals on money getting dispersed to the child at certain dates. Let's say they're going to need to go to a private school or they're going to need treatment in the future as well as investment they can make on behalf of the child. It's not going to be as expensive as you think. 

10:49
Speaker 1
And that can be a great option as well. If we're back in a market right now, interest rates are high or higher, but not as well as they were like 15 years ago. Okay. So that's what happens to the money. All right, let's talk about cases involving conflict of interest. Okay. We had another case where dad was driving. He had his four kids in the vehicle. He was divorced from the mother and they were hit. The commercial vehicle ran a red light. They were all injured pretty badly. The only problem is there weren't enough seat belts in the car for all the children. So this created a conflict of interest between the dad and the children that are injured. So you have to decide, is this a wavable conflict, number one? And number Two, is it a good idea? Right. 

11:42
Speaker 1
So he had just gotten divorced and went through the analysis and said, you know what, it's probably not a good idea for us to represent the children, given that dad is probably not going to have a great relationship with mom and it's probably not going to be a fan of us representing them in those circumstances. So what we did do is we asked dad if it would be okay if we spoke to mom. And then we introduced mom to another really good lawyer in town that we know does good work, that works fast, that does work at a high level, and that lawyer represented the kids. 

12:13
Speaker 1
We did not take a referral interest or joint venture interest in that case, but were able to maximize their recovery and it let us work with someone who we knew was going to do a good job so it wouldn't be difficult. The problem is a lot of times people will hire like a family law attorney or a probate lawyer. No offense to those out there, you know what you're doing. But a lot of times they don't understand personal injury law, so they really slow the process down and they minimize value for everybody because they're going slower and they're not doing a good job there. Back to what we want to check. So the legal documents are going to tell you who can bring a case on behalf of the child. And that one, it was shared. 

12:46
Speaker 1
But the conflict is what got us in that circumstance. Now let's talk about another example. I see all the time, mom is driving, she gets hurt, child gets hurt, her and dad are together, they love each other, no problems in the relationship. But mom may have 10%, 20% contribut, you know, contributory negligence. Well, can she still hire you? In my experience, the answer is yes. But you want to make sure you get that ad litem appointed early in the case and you want to explain the situation because it doesn't make sense to bring another law firm that the mom is going to be in charge of as next friend when there it's the same person making the decision, both side. So in that circumstance, I think you're okay representing both. But make sure you consult your local ethic rules and walk through. 

13:30
Speaker 1
I have a two prong analysis. Am I ethically allowed to do it and should I do it? The should I do it is where people get mixed up. Because just because you can doesn't mean you should. Like that case involving the child. We probably could have technically represented them, but it would have created a lot of headaches down the road and could have ended up in a bar complaint that we didn't want to be a part of. So remember that when you're representing kids. So let's recap some of the things we talked about. Okay? Number one, understand what you're entitled to get. Check the charge, check the cause of action, know the statute of limitations. Number two, get all the right legal documents you need in the case. All right, you know, birth certificate, death certificate, legal documents. 

14:07
Speaker 1
Number three, be careful of conflict of interest. And the fourth one, which I really didn't go into a lot of detail on, is you have to make sure you're working up the damage model different with the child. You're probably going to need a counselor involved. You're probably going to need someone who understands PTSD if it's a serious injury, to tell this story, especially if it's a younger child, because that can be very difficult and you don't want to leave money on the table and put them in a bad spot for later on. Well, I hope this was helpful. If you have any questions, feel free to reach out. 

14:33
Speaker 1
You can email me, you can call our firm or text me wherever you'd like, and we're happy to answer any questions you have on this or any other case, or share any forms or just templates we have. Until next time, thanks. 

14:49
Speaker 3
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.