Archive for September, 2010


How To Ruin Your Malpractice Insurer’s Day – III

Ben Stein Is Also A Lawyer

This post is the third based upon a series of books written by the funniest economist in America, Ben Stein.  His series of books are called “How to Ruin Your _________.”  In his series, the “blank” could be your “Life,” your “Love Life,” or your “Financial Life.   

Ben Stein reasons that “failure is a virtual road map to success in reverse.” He advises such nuggets of anti-wisdom in his how to ruin your life book that you refuse to learn any useful skills.  The roadmap to success may not be as clear as the one to ruin, but both maps are useful.      

By doing the opposite of Ben Stein’s advice, perhaps success will come your way.     

By following my advice, a legal malpractice action is inevitable.   

Never document it – an oral conversation is sufficient:  When deals and cases fail, you should never worry. You are certain that the client’s memory will recall that you limited the representation to certain issues, that you never promised that the case was a winner and that you never agreed to also be the client’s business advisor. Besides, you are the lawyer. No jury is going to believe a client’s sour grapes story over your recollection of what was agreed upon three years ago when the representation began.   

* * * *   

A client’s memory can be short, clouded or self-serving. When creating the relationship, documenting the engagement and the scope of the work expected creates clear guidelines and protects you from claims later. When terminating or not taking the representation, documentation helps clarify the client’s expectations and protects you from a clouded memory later. When engaging in any transaction that causes you any concern, such as a risky settlement, documentation can identify the factors that were considered and avoid swearing contests in the future.


How To Kill A Mediation

Several Federal Judges were interviewed about what foils mediation.  These complaints were reduced to 5 themes, and some expected subjects were mentioned, e.g., having someone with full settlement authority at hand and creating higher expectations for the client than justified.   

We can work it out.*

Several of their complaints, however, focused on the professionalism of the attorneys.  Several judges identified personal disagreements and clashes between opposing counsel as a problem that often derailed mediation.  The issue was more likely to arise in a private mediation (compared to court sponsored mediation) according to Magistrate Judge Sally Shushan, U.S. District Court, Eastern District of Louisiana.  

 Individual attorney vanity was also identified as a settlement inhibitor.  Some attorneys are so focused on their own agenda and prior successes that the settlement cannot focus on the case at hand.  This braggadocio also causes client over confidence.  Reading this reminded me of something I may have said on one or more occasions:  “He is a great attorney.  If you don’t believe me, just ask him.”  Finally, several judges complained about arbitrary money demands.  One judge mentioned a case where the plaintiff’s opening demand was three times the statutory cap on all damages.  Other attorneys would change their pre-mediation offers without reason.  Some attorneys will indicate to the mediator that a fact unknown to the other side, and not to be shared with the other side, changed the value of the case.  By not sharing the information, mediation had no chance to succeed.  I have witnessed this behavior as well.  Typically, it does more harm than good and leaves a poor impression on the mediator.  Judge Celeste Bremer of the Southern District of Iowa usually concludes that the attorney making arbitrary demands is unprepared.

Mediation with the best of intentions is not always going to succeed.  Engaging in the type of unprofessional conduct discussed in this article prevents the process of mediation from succeeding.  This is simply unprofessional.  Fortunately, this unprofessional behavior is not typical.  Even better, when this behavior occurs, it often dissipates over the course of the day, especially if you have a good mediator.

*Photo from Phineas & Ferb television show from Disney Channel. All copyrights reserved by appropriate parties.


Uncle Sam Seeks Repayment Under Medicare Secondary Payer Act

How Come I Don't See "Sue Plaintiff's Lawyer And Insurance Company" On This Chart?

The Medicare Secondary Payer Act went into effect in 2009 and greatly increased the liability exposure for settling defendants/insurers and claimant’s attorneys if the claimant had medical expenses related to the claim paid by Medicare. While the scope and interpretation of this law is beyond this post, what is clear is the U. S. is already aggressively using the law to get its money back from plaintiff’s attorneys and settling defendants.  

In U. S. v. Harris, (2009 WL 891931 N.D.W.V.), a lawyer was required to repay Medicare over $11,000 plus interest because conditional Medicare payments to his client were not paid at the time of the settlement.  Harris is a good place to start to get familiar with the law as the court’s order granting summary judgment against the attorney clearly explains an attorney’s exposure for when a client’s Medicare payments are not repaid, including statutory and regulatory citations.  

Recently, the U.S. filed a civil action called U.S. v. Stricker to recover over $67,000,000 in conditional payments that were made to approximately 907 Medicare beneficiaries involved in a $300,000,000 class action liability lawsuit named the Abernathy Settlement.  Defendants include the Medicare beneficiaries’ attorneys and the payors of the settlement proceeds, including numerous well-known insurance companies and several large corporate defendants.  The complaint alleges that 42 CFR §411.24(i) allows Medicare to seek payment from the liability insurance carrier regardless of whether payment has already been made to the Medicare beneficiary. The US is seeking reimbursement of these funds along with double damages plus interest.  The U.S.’s motion for summary judgment is pending.  

Next week I will include some general tips on how to avoid liability and client disputes with respect to this issue.


How To Ruin Your Malpractice Insurer’s Day – II

Click Ben Stein To Buy His Books.

This post is the second post based upon a series of books written by author, occasional TV host, and actor Ben Stein.  His series of books are called “How to Ruin Your _________.”  In his series, the “blank” could be your “Life,” your “Love Life,” or your “Financial Life.” 

 Ben Stein reasons that “failure is a virtual road map to success in reverse.” He advises such nuggets of anti-wisdom in his financial life book that you forget about tomorrow.  Financial ruin is just days away.    

By doing the opposite of the advice given, perhaps success will come your way.   

By following this advice, you too can count on an eventual legal malpractice claim to report to your carrier.   

Take any type of legal problem that walks in the door:  The client is an elderly, wealthy nun with an estate planning issue. You have never done estate planning and cannot even identify the tax issues that a wealthy, spouseless client might have. One thing is certain, though – the client seems nice. What could go wrong?   

Your neighbor has been hit by a tractor-trailer and is severally injured. The doctor may have committed malpractice during the surgery to repair some of the damages. Your neighbors want your help. You have done nothing but close residential real estate loans in your three years of law practice and have never spoken to a judge during court. This is the perfect opportunity to score a major case and retire.   

* * * *   

Dabbling in areas in which you are not familiar is a great way to increase the risk of a claim. Branching out requires either a mentor or partner that already knows the area or a dedication to learning the new area of the law. If you are typically a focused attorney branching out into many new areas due to tough economic times, you may not be able to adequately learn all of the new law you are practicing. This makes your practice much riskier for malpractice.


How To Ruin Your Malpractice Insurer’s Day – I

Ben Stein has a series of books called “How to Ruin Your _________.”   In his series, the “blank” could be your “Life,” your “Love Life,” or your “Financial Life.”  

Bueller? Bueller?

Ben Stein reasons that “failure is a virtual road map to success in reverse.”  He advises such nuggets of anti-wisdom that you make yourself useless, be a slob and act like the world owes you.  

By doing the opposite of the advice given, perhaps success will come your way. 

This post will be the first in a series of suggestions about how to operate your law practice.  By following this advice,  you too can count on an eventual legal malpractice claim to be served by the local sheriff. 

Take any client that walks in the doorThis is still an economic downturn. Lawyers cannot be expected to screen clients or ask background questions. There are bills to be paid. Although you would normally not accept a case from a client who already fired four lawyers and sued two of them, certainly you can make this person happier than those prior losers. Your client’s litigious nature will never be directed at you – you are way too outstanding. 

 * * * * 

Obviously, taking a client that your gut tells you to avoid should not be done lightly. Client screening is important to ensure that you have someone with whom you can work effectively. Stated simply, some malpractice claims can be identified when they walk in the door. 




To Prevent Use of Renewal Statute, Bring 9.1 Motion With Answer

The Supreme Court held in Openside MRI of Atlanta, LLC v. Chandler that a medical malpractice plaintiff was entitled to continue with her renewal lawsuit against an MRI provider because the defendants had not filed a motion to dismiss pursuant to OCGA 9-11-9.1 with the answer in the first lawsuit.  

What's On Your Mind?

OCGA 9-11-9.1 provides generally that any claim for professional negligence in Georgia must be accompanied by an expert affidavit supporting the claim.  In Openside MRI, the plaintiff filed an action but failed to attach a supporting affidavit.  The defendant answered, but did not file a motion to dismiss for failure to attach the affidavit until more than five months after the answer was filed.  The complaint was dismissed without prejudice prior to a court order on the motion to dismiss.  The claim was then renewed within six months outside of the statute of limitations as permitted by OCGA 9-2-61.  OCGA 9-11-9.1(c) provides: 

If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 . . . . 

Raising the defense in the answer was not a “motion” sufficient to take advantage of the bar in OCGA 9-11-9.1(c). 

The current version of OCGA 9-11-9.1 does not require a defendant to file a motion to dismiss contemporaneously with the answer (though prior versions of the statute did).  Nonetheless, it is a good idea.  As this case proves, the failure to file such a motion  contemporaneously with the first defensive pleading gives the plaintiff an opportunity for a “do over” by taking advantage of the renewal statute.

Kim Jackson Cleans Up The Mess

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