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When Lawyers Scream at Lawyers

In my previous blog, I discussed lawyers with certain traits to avoid – including instability and lack of investigation into your case. Here, I will talk about a situation that involved a lawyer with some of those traits. I ask that when you see interactions among lawyers, especially your own, to keep this situation and the sides that were taken in mind.

The case which brought us all together was an emotional one and involved an infant suffering from a very serious injury.

As is commonly the case where a child suffers such a serious injury, the county office of Children, Youth, and Families (“CYF”) started an investigation into whether the family conditions were safe for the children. The CYF case involved an investigation of both parents as potential risks of harm or abuse to the children.

In addition to being one of the subjects of the CYF investigation, my client, the mother of the injured child, was criminally charged on the allegation that she caused or was otherwise at criminal fault for the injuries.

The father of the injured child was not criminally charged, and, in fact, he is the person who hired me to defend the mother. Before I was hired by the father, I had multiple meetings with him to discuss the facts of the case, his concerns, potential defense strategies, and the like. I presume that these meetings were also used by the father to assess my intelligence, skill, and temperament.

On the day in question, we were all down at family court. The mother was still in jail awaiting trial on the criminal charges, but the father was present, along with the oldest daughter of the family (3 years old). We had information that CYF was going to drop the family law case against both parents, which we were all pretty happy about.

While we were waiting for our case to be called, the father was speaking with a social worker about certain details of the still ongoing criminal case against the mother.

In particular, he was talking about my ongoing efforts to get certain medical records not provided in discovery relating to the quality of medical care received by the injured child. Speaking to the social worker, I offered part of a strategy to have the father order the medical records himself under the belief that he could obtain the medical records at a considerably lower cost than I could.

At this point my colleague, the father’s lawyer for the Family/CYF case, interjected. She didn’t want him her client, signing anything. She indicated a concern that signing for medical records would expose him to a significant cost. Then significant agitation and anger manifested in her tone and volume. It went something like this:

Colleague: In fact, don’t talk to my client. You talk to me, not my client. You know of my representation and you know better than that.

Me: What is the purpose of this posturing?

Colleague: You are trying to get him to sign for medicals which will cost him thousands of dollars and there are other ways to get those records – we do it all the time. These people don’t have a lot of money. You have already been paid for this case, handsomely, I might add, and I’m telling you that you talk to me not my client.

Me: Ok, I will honor your request.

Colleague: It’s not a request, I’m not asking, it’s right there in 4.1, you should know that you aren’t allowed to speak with represented parties, and you knew I was representing him. What you are doing is shifting the cost of those medicals, which will be thousands of dollars.

Me: No, it won’t cost that, people are entitled to copies of their own medical records for free or nominal charge, [name of another lawyer] taught me the procedure.

Colleague: I know [name of another lawyer]. It doesn’t work that way. You talk to me not my client. If you want to talk to my client you do that through me. You know the rules, you have to know better than that, what you are doing is going to cost them thousands of dollars that they don’t have. You don’t talk to my client.

Me: What do you want me to do if your client calls me?

Colleague: I don’t control my client.

Things had escalated quickly. I asked my colleague for a word in private but she wasn’t interested in speaking out the earshot of the clients, social workers, the child that was there (by then hiding under the chairs), and the CYF representative.

Observations

My colleague’s behavior was highly unprofessional. Her client did not hire her to throw a tantrum and her doing so was unnecessary and probably quite stressful for him. My colleague could have easily asked me for a word in private and expressed her concerns, lawyers do this all the time and there was no legitimate reason not to do so.

There may have been an illegitimate reason for making sure her client saw and heard her yell at me and accuse me of unprofessional, unethical and irresponsible conduct. Why put on such a show when the objective could be accomplished with a private conversation? Why refuse to discuss the matter privately? I have my suspicions, but I will leave you to ponder what benefit could accrue to my colleague airing these false accusations in the way she did.

Hilariously, my colleague was wrong on almost every premise underlying her anger, indignation, and disgust:

  • It is Rule 4.2, not Rule 4.1, which governs lawyers’ communications with represented parties
  • Rule 4.2 is designed to prevent attorneys with adverse interests from directly contacting a represented party. For example, the lawyer for the “other side” in a case isn’t supposed to talk to you about the case without your lawyer present. I was not on the other side.
  • Additionally Rule 4.2 prohibits attorneys from making contact with represented parties in regard to the subject for which they are represented. Even if I had been on the “other side” of the family case, I could talk about baseball scores, weather, and, in fact, strategies to order medical records without breaking Rule 4.2
  • I was talking to the social worker, not my colleague’s client, in any event.
  • I was trying to save money for both her client and mine. Unknown to my colleague was the fact that the medical records provider, Verisma, had themselves suggested the strategy I was proposing as a way to save the family the cost of getting medical records.

Conclusions

I have written about this personality type before in my article about fake leadership in the law. Unfortunately, I have also met this personality several times in real life. They are always quick to become incredibly angry about some imaginary thing you supposedly did. They will never tolerate any reasoned argument that you did not do what they falsely accuse you of, or that perhaps their emotional response is overblown.

This sort of behavior is a pathology that damages my profession. It is a projection of the bad actor’s own poor ethics, greed, and unprofessionalism onto another.

Known to my colleague was the fact that, in perhaps 30 minutes, the family case for which she represented the father for would be over. Also known to my colleague was the fact that my representation of the mother would continue into late summer and that, in my colleague’s estimation, I had been “handsomely” paid for that case.

There is an accepted truth that people intend the natural consequences of their behavior.

My colleague had no concern whatsoever that her behavior might damage the ability of my client and her family to take comfort and support from my representation. My colleague had no concern that her behavior might create a lingering question of my trustworthiness and competence.

I will leave it to you to decide what the natural consequences of damage like that might be and whether my colleague intended those.

If you or a loved one have suffered from a personal injury-related incident, please contact me and my law firm.

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Ten Mistakes People Make When Representing Themselves And How to Avoid Them

I am an auto accident attorney and personal injury attorney in Pittsburgh, but I handle cases all over Pennsylvania. My firm offers free consultations and free legal advice. I accept limited tort cases and have had some good successes getting people out of limited tort.

I was recently interviewed about the personal injury business and the interviewer asked me what I thought was the biggest change or challenge facing the personal injury business. I pointed out that life has become very busy and people simply don’t have the time to take half a day off and drive into the city to meet with a lawyer.

In many cases, people are so time strapped that they will fail to pursue a valuable and legitimate personal injury claim rather than deal with the hassle of hiring a lawyer, let alone the hassle of dealing with one.

We have noticed that, because of this, a certain portion of people will try and represent themselves in an injury case. Of course, we advise against that, but if you insist on representing yourself, I have compiled a list of ten mistakes that people commonly make.

Before we get started, if you are settling a case yourself it means you are going to be dealing with an insurance adjuster. That adjuster is going to be evaluating your ability to present yourself and your claim as a factor in how much they will pay to settle the claim.

The adjuster will be assessing, among other things, their litigation risk – how likely is it that this matter is going to court if they don’t settle. When someone represents themselves, it does not mean that the litigation risk is automatically zero because for all they know you are an attorney, or even another adjuster, settling their own case.

Another thing the adjuster will be doing is setting and adjusting reserves for payment of the claim. Click here for a link to my article on reserves.

Your ability to avoid these mistakes can make a large difference in how much your case settles for, or even if they will settle at all.

1. Misuse of jargon

The personal injury industry, like any industry, has its own “jargon.” If you don’t know it, or don’t understand it, the adjuster will know that you don’t know what you are doing and they will adjust the reserve and ultimate settlement of your claim accordingly. There are hundreds of common personal industry terms such as “PIP,” “BI,” Tort option,” “UM/UIM,” “Intercompany Arbitration,” ”Loss reserve,” and the like. If you don’t know these terms it will show, and it will negatively affect your prospects for settlement at full value. That being said, you should read up on lawsuit settlement terminology.

2. Trying to relate to similar cases

How much money are you going to demand in order to settle your claim? How would you come up with that number? Maybe you know someone that had a similar case, and you think that you can just demand the same amount.

This is foolish thinking.  

Even assuming that the other person told you the truth about how much they got, everyone knows that no two claims are the same – all the adjuster has to do is show you how your claim is different and you have no basis for what you are asking for. Refuse to give information about how you came up with your demand amount.

3. Attempting to save on attorney fees

Who cares if you get less, you won’t have to pay attorney fees, right? You may have a case that is worth $10,000, but if an attorney handles it, they will take 40 percent and you will only get $6,000. So you can settle it for $7,000 and come out ahead, right?

Think again, because the adjuster on the other side of this has done the same thing. Once they figured out that you aren’t going to have to pay attorney’s fees, in their mind, they lowered the amount they have to pay you.

In the above scenario, you would be starting at $6,000 and working down off that number. If your sole motivation in representing yourself is to save fees, a better place to start might be to simply ask. Many attorneys will negotiate a lower fee for settled cases if you ask, so ask.

4. Not understanding valuation

A lot of people simply demand crazy numbers coming out of the gate and think that this will give them room to negotiate. It won’t.

Making an unrealistically high demand for settlement simply marks you as a non-professional who doesn’t know what you are doing. Sure, a case with similar injuries and different facts may have settled for a lot more, but the average person has no idea of how those factors relate.

Even a case with the exact same injuries will settle for more if the injuries are caused by a drunk driver, or on purpose, right? Maybe, maybe not. It is possible that if you stand on the fact that the driver did it on purpose, the insurer will deny coverage outright, as insurance only covers negligent acts and does not cover intentional acts.

5. Trying to rush to settle

Everybody knows that good things come to those who wait. In my blog, I discuss at length the risks of settling too quickly.

You should understand that adjusters work normal business hours – the same business hours that you likely work. Getting an adjuster on the phone is hard enough for lawyers who do it for a living, it is going to be a real hassle for you. Plan for time to chase the adjuster down.

6. Adverse info in medical records

One of the main factors in case valuation is the nature of the medical treatment and medicines that were required to rehabilitate the injured party. This information is commonly found in medical records. Unfortunately, the medical records may have all manner of things in them that you would rather the other side not know about, for example similar prior injuries, drug habits or drug treatment records, etc.

Medical records also commonly contain duplicates of the same record or sheets that have no information that is valuable to the settlement process. You may wish to have a medical secretary or other expert in working with medical records go over your records and explain what they say before you use them to prove an injury.

7. Poor communication

In the part above about the rush to settle, I spoke briefly about how the difficulty of getting the adjuster on the phone when you are working normal hours can wear you down to the point that you will take a settlement just to get the process over with.

There are other factors that will also negatively affect the settlement negotiation process, for example. Is there a baby crying or a dog barking in the background when you speak? Do you have the ability to easily send and receive faxes? Are you comfortable giving your social security number to the adjuster (they will need it to issue a check to you)?

These subtle interruptions will work the same magic – in favor of the adjuster.

Plan for quiet communications time where you can concentrate on what you are saying and what is being said back.

8. Letting pride get in the way

You may have always wanted to be a lawyer. Maybe people in your family told you that you should be a lawyer because you always seem to “win” family arguments. Or, maybe you HATE lawyers, and can’t stand the thought of having to deal with one. Or maybe you just want the “thrill” of being able to brag about settling your case without a lawyer.

These people are all selling themselves nonsense.

If you were sick, would you diagnose and treat yourself because you always wanted to be a doctor? If family members told you that you should have been a doctor, does that mean you should operate on yourself?

Plenty of people hate doctors, but guess where they go when they need medicine? Sure, you can’t get medicine without a doctor’s prescription, but honestly, would you if you could? Certainly not, you might kill yourself with an incorrect dose, improper medicine, or even a drug interaction.

Those bragging rights you are dreaming of – blah – we both know you will be lying when you talk about what happened while you settled your own case and how cool and tough you were.  Hire a lawyer, get all the money a professional can get for you, and just tell people that you did it on your own, you can still tell tall tales about how you settled it yourself, and they will still be lies, but you will get the money easier.

9. Subrogation, Negotiation, and Litigation

If you suffered an injury, you likely paid for your medical treatment using your insurance coverage. Almost all private insurance plans reserve a right of subrogation – when you recover money for your injuries, they are entitled to recover what they paid for your medical care, out of your settlement. The insurer has a subrogation lien on your settlement proceeds

Most people are unaware that they have a contractual duty to protect the subrogation rights of their health insurance company, and either don’t know about the subrogation rights of their insurer or choose to ignore them to get more money. Even fewer people are aware of how to negotiate the settlement of a subrogation lien or how to legally avoid it altogether.

Your insurer will likely find out about your settlement, as they have their ways. When they do, they will likely send a letter requesting you reimburse them for the costs of your treatment.  When you don’t have the money, or have already spent it, you may find yourself pulled into a lawsuit.

Even worse, if you received government funded medical care to recover from your injuries, the subrogation is statutory, meaning it is an automatic lien on your property, bank accounts, and the like.

Few people will try and settle a case that is big enough for subrogation to be a serious matter on their own, but it is a consideration that can come up faster and harder than you might think. Medical prices have been skyrocketing for years and the average case equals or exceeds the total amount of any settlement you or your lawyers might negotiate.

My advice: If you used your medical insurance to pay for any significant part of your treatment, seek counsel.

10. Taxation without representation

As a general matter, the proceeds of a personal injury case are not taxable.

The legal theory is that you are recovering for something you loss, not earning income. But what about where part of the settlement is for lost wages?

If you had worked and earned those wages, you would’ve had to pay income taxes on those wages, meaning you will have to report and pay taxes on settlement proceeds earmarked as lost wages.

This is just one example of some of the tricky tax angles you can get into when dealing with settlement of a personal injury case. Even if they know that taxes are due, most people wouldn’t know how to figure them out or report them. If you are recovering lost wages or lost future earnings, at least consult with an accountant.

That’s all the advice I have to offer on the matter, listen to these tips and do your research if you chose to represent yourself in a case. If, after reading these tips, you have decided that you would prefer a lawyer, my team gives free consultations and legal advice. Just click the link here to contact us.

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Lawyers to avoid

There are endless scholarly articles on the attorney/client relationship. These articles cover ethical duties owed to the client, the nature and limits of attorney/client privilege, duties to disclose and withhold information to and from the public, courts, and opposing counsel, and so on

There are no rules governing the interpersonal dimension of the attorney client relationship. A lawyer who leaves every client, no matter whether the case was “won,” or “lost,” feeling shamed, dirty, confused, or even angry can continue practicing law as long as he or she wishes, so long as none of the ethical rules are broken.

There are no rules to governing the interpersonal dimensions of the attorney client relationship

I suppose the thinking was to let the market control behavior. Presumably, lawyers with bad “bedside manner” would suffer poor word of mouth, negative online reviews, etc., and would either come into line with consumer expectations or go out of business.

I have seen far too many of this type to conclude that the free market is reigning them in. A certain portion of manipulative, abusive, power seeking types are attracted to a career in law. Consumer expectation of attorney behavior, largely driven by media portrayals of lawyers AS manipulative, abusive, and power seeking, is rather low, with some consumers actually seeking these traits when hiring a lawyer.

In his blog entry, “5 Tips for Identifying Fake Leaders,” (which can be read here) Rex Gatto noted 5 common characteristics of what he called a “Fake Leader:”

  • There are no facts or truth, Fake Leaders tell people what they want to hear;
  • Fake Leaders tend to be impulsive, and this impulsivity usually lacks reason;
  • Fake Leaders do not create stability, rather they thrive on chaos;
  • Fake leaders love to exaggerate their own personal successes, and;
  • Fake leaders use their success in unrelated situations to convince you to expect the same in your situation.

The Fake Leader is manipulative, abusive and power seeking. He or she will usually be self-aggrandizing. The Fake Leader will cause everyone around him or her to end up feeling shamed, dirty, confused, or even angry, even if the underlying mission is successful. Great Leaders are outwardly focused and therefore care about the people being led. Fake Leaders are self-focused and only care about themselves.

Lawyers, in a certain sense, are the leaders of the clients that hire them, leading those clients through the thicket of laws, regulations, hearings, depositions, and even trials. Businesses face competition, but lawyers and their clients face adversaries, usually the winner-take-all type of adversaries. If there is any situation where you really don’t need a Fake Leader it is when you have a legal matter.

If there is any situation where you don’t need a Fake Leader it is when you have a legal matter.

How to identify fake leadership in lawyers:

  1. They never bring any harsh realities of the case to your attention. The fake leader loves to tell you what you want to hear. The fake leader won’t mention, or allow you to consider, the possibility that anything in the case will require effort, or go any way but yours. In many cases this is because the fake leader has a low self-esteem and enjoys presenting his or her self as someone much more powerful and omnipotent than they actually are. The fake leader will turn on you when these harsh realities inevitably come up as you now know that they are fallible and are no longer useful as someone to show off their fake omnipotence to.
  2. Lack of investigation of your case. The fake leader is impulsive and may be eager to sign you as a client, or even to start legal proceedings, without fully investigating your case. Why do an investigation when it might reveal harsh realities and ruin the artificial ego boost described above?
  3. Instability. You may notice the fake leader changing positions, plans, even volume and tone of voice over and over, and/or at odd times. He or she may be emotional and unprofessional in dealing with colleagues and staff. I have personally known lawyers who have bragged about having been in physical altercations with other lawyers. The fake leader loves chaos, creating and using it as a cloak to hide his or her own incompetence. Chaos commonly creates an enormous amount of extra emotional and actual work for those being led, depleting the strength and emotional reserves of those being led until they ultimately fail, at which point the fake leader blames the subordinate (or client) for the failure, literally adding insult to injury.
  4. Exaggerated Personal Success. Lawyers, just like everyone else, have both successes and losses, even great successes and great losses. The Fake Leader will only talk about his or her great successes – in the Fake Leader’s mind, the “plain old” successes are not big enough to create the omnipotent image he or she wants to create, and the losses and great losses are unmentionable as they are impossibly inconsistent with the fake omnipotent image the Fake Leader needs to create. Great successes do happen but they are rare. More likely than not your case will result in a “plain old” win, or loss, and then you will know the Fake Leader’s secret – he’s just a “plain old” lawyer. The Fake Leader, when faced with being exposed, will take steps to transfer “fault,” even for a win, onto you, to avoid being exposed.
  5. Applying Successes from Unrelated Situations. You may find that the Fake Leader will tell you about unrelated or vaguely related successes. Let’s face it, the fact that Lawyer X was solicitor for your local school district has no bearing on his ability to handle a divorce case. Similarly, although they can be a foundation for comfort, shared political, religious, or moral beliefs are not legal qualifications. If you want to support your political party, house of worship, etc. donate or volunteer directly. Too many Fake Leaders hide behind these “reverse ad hominems” which are just as fallacious as direct ad hominem attacks, and nothing more than an inability to demonstrate, or complete lack of, competence and leadership ability.

What’s so bad about Fake Leaders in the legal profession?

At the beginning of a case, every client wants to “win.” Numerous studies have been conducted by the various bar associations concluding that, when all is said and done and the case is over, clients who “lost” with a lawyer that delivered true leadership (by means of truthfulness, careful investigation, stability, humility, etc.) reported higher levels of satisfaction with their attorney, the legal system, and the outcome in their case than clients who “won” with a Lawyer who was a Fake Leader. Interestingly, the “losing” clients felt like their “loss” was legitimate and reasonable, while the “winning” clients simultaneously suspected that their “win” was somehow ill-gotten, and not large enough.

Of course everyone wants to “win” their case, and no lawyer takes a case to “lose” it. This is particularly so in the arena of personal injury cases, where the lawyers will make no money and in fact will lose money if they “lose” the case. If a “loss” with a lawyer who exercises true leadership is a better result for clients than a “win” with one who does not, it stands to reason that a win with a lawyer who exercises true leadership is the most desirable result and a loss with a lawyer who exercises Fake Leadership is a worst case result.

These post representation studies of client satisfaction reflect that a lawyer who respects his or her clients and their rights by being truthful, stable, steady, careful, and humble has, in so doing, created a safe, predictable, reasonable, and ultimately supportive environment for the client. This supportive environment creates emotional and intellectual “breathing space” in which both lawyer and client can plan for and work toward excellent outcomes, ultimately increasing the likelihood of achieving those excellent outcomes. So watch out for fake leadership, not just in Lawyers.

Joe Murphy
J. Murphy Firm
Pittsburgh, Pa.
November, 2017

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