How To Increase The Average Case Value Of A Personal Injury Case

Summary

In this episode, Jack discusses how to increase the average value of a case. He shares tips and tactics such as valuing the quality of a case over quantity of cases, having a strong knowledge of your case, knowing your client’s personal story, understanding the elements of liability and damages within your case, and running up the score on loss of earning capacity.

Transcript

Jack Zinda (00:10):

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.

Kevin Tully (00:22):

Welcome to the Effective Lawyer Podcast. My name is Kevin Tully. I’m the Chief Marketing Officer at Zinda Law Group, and with me as always is Jack Zinda. Today we’re going to be talking about how to increase the average value in a case. Jack, how you doing today?

Jack Zinda (00:35):

I’m doing great, Kevin. Great to see you my friend. We’re getting ready for March Madness and spring break. So a lot of fun stuff is happening right now in my world. On top of trying to keep this place running.

Kevin Tully (00:47):

Do you any Final Four picks you want to share with the audience?

Jack Zinda (00:50):

Definitely Baylor and UT, and then I think Baylor and UT again. I think they’re going to somehow both being the final four, twice.

Kevin Tully (00:57):

I’m going to put all my money on it.

Jack Zinda (00:59):

There you go.

Kevin Tully (01:00):

So take us through it. How do we increase the average value in a case?

Jack Zinda (01:04):

Well, the first thing that I want to talk about is I think a lot of firms pay too much attention to the number of cases they have opposed to getting maximum value for every file. Our law firm takes a slightly different approach than other personal injury firms, or at least some where we have a relatively small docket per lawyer. Our attorneys will have on average between 30 to 50 cases per what we call lead trial lawyer. Some will have a little bit more, but our idea behind it is we think we can increase the value of a case by putting more time and energy into it. Whereas a lot of law firms, I think they make the mistake of focusing on volume of quantity over quality. And the mistake that can happen when you do that is sometimes you may have upset clients because they don’t get a lot of money out of the process.

(01:59):

A lot of times a small case will take as much work as a medium size case, and you end up needing a lot more staff and overhead to manage that caseload. So that’s kind of the first big picture. Now that does work for some firms and there’s some practice areas where volume only makes sense. And so I’m not saying anything wrong with the other approaches, it’s just what we found has worked for us. So let’s talk about the things you have to do to maximize the value in your file. The first is you need to have a strong knowledge of the case and you need to know the client’s story as well as what are the elements of liability and damages that you need to focus on. In my opinion, and this is just my opinion, the results you get is driven by a few things.

(02:50):

One, the defense conduct the bad guy, what did they do and how bad was that harm? If I have a drunk truck driver who’d taken methamphetamines, that’s one set of bad facts versus someone who doesn’t hit their brakes in time and rear end someone on their way to church. Those are two different sets of facts. So one, knowing what the defendant did in getting into their conduct, you also want to try to go deeper and look at if it’s a case involving a commercial defendant, what was the conduct of the employer in that process? You’re trying to make the case bigger than just this one incident, and you want to make clear that this wasn’t just a mistake where things happen, you want to try to show a pattern of behavior. And if you want to think about like a 60 minutes episode or a 20/20 to where they set up the defendant showing this bad thing happened, this bad thing happened, this bad thing happened, then boom, this really terrible thing happened.

(03:55):

There was warning after warning after warning. If you notice in the railroad case recently in Ohio where the train went off the tracks, they’re bringing up all of these other terrible things that has happened with Norfolk Southern, which is going to have a big effect on what the outcome is. If there is, and I’m sure there will be litigation on those cases. The next thing you need to know is what is my client’s story? So we’ve talked about one driver of value is defense conduct. The other driver of value is the client. And what is their story prior to what happened? I’m sure a lot of you’ve heard of the hero’s journey. That’s a nomenclature that people use to describe the different types of stories that we tell as humans. But you want your client to be the hero of the story, and they need to have been on their way to do something that’s important when the injury happened.

(04:52):

Now, it doesn’t mean literally they were on their way to do something important. If it’s a car wreck, it means they were a student going to go to college to do something great. They’re a mom who wanted to help raise their kids to get them to college. They’re a grandmother that wanted to make sure that her grandkids were taken care of. But you want to look for that story. And the only way you can do that is by spending time with the person. Go to their house, look at their photos, talk to their friends, talk to their family, talk to their neighbors and find out who they were before the incident happened. On a side note, if you have a hard time showing there was any change before and after, you may not have a good case. The next thing you want to look at is what happened to the client and what was the mechanism of harm?

(05:43):

So you can really build up your damages by walking through how did the injury happen and how bad is it, what the person went through. And that’s really helpful by using visuals such as x-rays, MRIs, pictures from the scene, and you’re looking for those things that really describe, oh, that was a really terrible injury that occurred. I heard a great description. I believe this is one of David Ball’s, damages books and one of his seminars where he talks about going through my new detail if someone is shot by a gun. Because in the movies, they make it seem like, you know, you just get hit by a bullet and you fall down and you die. But in reality, the bullet’s going to pierce the skin, then it’s going to pierce the bone, then it’s going to pierce the muscle than if it goes into your lung. Blood’s going to go into the lung and you’re going to start choking to death on your own blood. That’s a lot more graphic about what it’s like to get shot or if you break your leg, okay, the, you know, femur snapped into at the same time the nerves tore and then the muscle ripped apart. And you take that snapshot in time and you take it from a small piece to a really large extended story that’s a part of the story, that’s an inflection point.

(07:02):

This podcast is presented by Zinda 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, Zinda Law Group has paid out millions in referral and joint venture fees since 2015. To learn more about partnering with Zinda Law Group, please email us at referrals@zindalaw.com. We’ll schedule a time for you to meet with Jack Zinda or one of our trial lawyers to discuss your case.

Jack Zinda (07:40):

And then you want to tell the story for what happened after the incident. How did they change? I used to watch this show Quantum Leap, which, I don’t know if our listeners have listened to that, I think, I think they’re doing a remake of it, but it was this great show where this guy would travel back in time and you’d have to fix something that was wrong on the history timeline, so you’d like leap into their body and something would change. So I think of our stories as like the quantum leap moment, but in a bad way. You know, they were going along a path somewhere and then this terrible thing happened and they changed directions. And you want to be able to explain like how much worse that direction was changed. And that applies to small cases, medium size cases and big cases.

(08:25):

You know, if someone missed their child’s third birthday party, that’s a big deal. If they missed, you know, their family vacation, that’s a big deal. It could be something as extreme of they didn’t get that job that they wanted. But you want to make sure you can tell that before and after and that it’s a big deal to the person and to the jurors. On a side note, a lot of the ways I evaluate how good a case is, is what are the types of non-economic damages witnesses I can get? Like, who can tell the before and after story? How strong are they? You know, can they tell good stories? One rule of thumb that I’ve heard people use is, you know, one witness, one story. You don’t want to use the same witness for a lot of different stories and you don’t want to tell the same story over and over again.

(09:11):

Now, we’ve talked about non economics, we’ve talked about knowing the client’s story. Now let’s talk about the economic damages. I think in a lot of cases, attorneys leave money on the table by not doing what I call running up the score. When, when identifying what is the harm that the client’s been through, this doesn’t mean you’re manufacturing damages, you’re not binding harm that wasn’t there. You’re looking for things that you may have missed. So start by looking at the medical records and saying, is there any other future care that’s going to be needed? Not just in the media future, but 10, 15, 20 years from now. We’ve had cases where a doctor said, you know what? I think there’s a high likelihood that they’re going to have arthritis in 30 years because of this injury. Well, that’s going to require medication that’s required doctor’s appointments, that’s going to affect their physical impairment.

(10:01):

It’s going to have this massive effect on the case, but you have to look for it and ask the question. Another way you can do that is getting a meeting with a doctor and then asking for a written narrative, walking through that information. The other thing you want to look for is medical bills that you may have missed in the future. You know, are they going to need prescriptions? Are they going to need any sort of physical therapy if they had hardware put in? Most of the time hardware has to get put out if there’s taken out, if there’s a surgery. Did you identify that on the lost wages front? A lot of times we, I see attorneys miss lost wages in the past because they don’t ask the clients enough questions. You would look for things like, is there overtime involved? If they worked on average 55 hours a week and their pay rate is 20 bucks an hour, you actually get overtime for that time and a half if they have their own business.

(10:55):

I’ve had success getting letters from their customers saying that they were unable to do the job for these months or weeks at a time. It had a really great case involving an amazing woman who was a bookkeeper. And we got each of her clients to write a letter saying that she did not work with us from, you know, January through April. And she said it was because she was hurt. Which is good evidence of what you’re going to present to a jury. The same goes for in the future. Now if you can look for opportunities, let’s say the doctor says they’re going to have to retire three years early, well that just added three years of loss, of earning capacity in the future. And we use SOPs and checklists to remind ourselves to catch all of these different things. But the big theme is it takes time and you have to make sure that you’re being thoughtful for how you look at it on the case.

(11:47):

Also you can’t manufacture damages that aren’t there. You really have to know the story. I look at our job as to tell the truth and to put the client’s story in a way that the jury can understand what our clients have been through. I heard Mark Lanier say that at one of his seminars, and that was really illuminating to me and took a lot of stress away when I realized, okay, my job is to tell the truth. It’s not to try to hide something or make something up. And so to recap, number one, you want to know the story. Number two, know your client’s story. Number three, know what they went through the injury itself. Number four, you want to go through and look for other opportunities on medical bills. And number five, really make sure you’ve run up the score on loss of earning capacity.

Kevin Tully (12:35):

That was amazing. Jack, you talked a lot about in the beginning kind of volume versus value maybe is one way to put it, right, not taking on the volume to allow yourself the time to increase the value. If somebody decided they wanted to take that type of approach with their practice, what are the different ways they can think about kind of slicing and dicing the cases that are coming in to identify the ones they want versus the ones they want to either refer out or just not take in the first place?

Jack Zinda (13:06):

That’s a great question and I think that there’s, there’s two types of people that that could apply to. One would be someone who has an established practice and the other could be someone that doesn’t have an established practice and maybe isn’t getting in a lot of cases for the first person, I would go through all of your cases that you have resolved, let’s say in the last two years, and you could make a bigger sample size, but just use two years for this example. Then figure out which one of those cases are the ones that would meet that criteria that you say, okay, I don’t want to take a case that is worth less than a hundred thousand dollars ever again. First see do I have enough of those cases to make that possible and pay my bills and keep the lights on. And then I would look at all of the cases where I got that result are higher and see what were the common denominators that led to that information and when did I realize it.

(14:01):

For us, we look at what’s the source of recovery and then we look at what is the, what are the injuries when the person came in to meet with us. And then you create a checklist that you review each and every time and then you refine it. As you get more and more information. You can also gradually work into this where you say, okay, I’m going to start with my threshold being 5000 1st and then a hundred thousand or 25,000, you know, and work your way up from there. Now if you don’t have the case history or the numbers or understand how to identify it, you could go find a mentor and say, Hey, can I talk to you about examples of cases where this result met this threshold? You could also look at things like verdict search, which will have verdicts that people have gotten. You can check your local trial lawyer listserv to get that information and try to get a mentor or other resources that can show you the types of cases that would meet that criteria.

Kevin Tully (15:02):

Yeah. In addition to all of this that you’re doing to build value, like really sounds like leaving no stone unturned, how do you then take that and push it across the finish line? And I, I imagine it’s easy to say that you present all this to the defense and the negotiation phase, but let’s talk a little bit about that part of it versus like also trying to bring it to trial and how does the value of the case change between those two outcomes?

Jack Zinda (15:34):

Yeah, so I think one, you want to look at every case as if it’s going to go to trial. Now obviously a vast majority do not, but I start with that mindset and then I set the value of the case as if it would be tried. And then I’m going to work my way backwards a little bit. If I have to spend more money on the case, let’s have a case that is going to go to trial in May, but I don’t have to hire my experts until February. Or let’s say probably early like January. Well then I’m not going to have to spend that money until January, more than likely. And so then I would take a little bit off of what the trial verdict value is because of the risk of going to trial and then also the expense I would’ve to pay an expert. And I do that in a formulaic way because a lot of times attorneys fool themselves into reducing the value too much because they’re worried about actually going to trial and spending the time to do that. So we have our team use a formula to set that up so we don’t undervalue a case. And in my experience, attorneys tend to undervalue rather than overvalue cases.

Kevin Tully (16:42):

Yeah. Last question from me. Is there, is there anything with the amount of time that a case takes to resolve that either benefits or hurts your value of the case?

Jack Zinda (16:55):

I think time is our enemy in most cases. Because people heal, they look better, their life moves on, witnesses pass away, married couples get divorced, which I’ve had happen, which can really throw a case for a wrench of all of a sudden the ex-wife is, you know, witness against you in the case. So the sooner you can get a case resolved, the better. Now there’s limitations on that. You have to make sure that you can maximize the value, which means you know how hurt client is. And depending on how big the insurance policy is or the source of recovery, you may have to wait longer because you have to make sure you get a full idea of how hurt they are. But in general, the sooner you get a case resolved, the better.

Kevin Tully (17:42):

Awesome. Anything more you want to add before we wrap up on this topic?

Jack Zinda (17:46):

No, this has been great. If you have any more questions or want to talk about this further, please feel free to reach out to me. You can contact me at zindalaw.com or email me at jack@zindalaw.com. Thanks a lot.

(18:06):

Thanks for listening to 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.