If we analyze the basic outline of a plaintiff tort practice, it seems to me we can identify where we spend the majority of time. I think this can be divided into the following general areas of practice:

Business Considerations

(1)  Finding clients & legal work
(2)  General office requirements
(3) Making a profit

Litigation Considerations

(1) Discovery
(2) Witnesses
(3) Negotiation

Trial Considerations

(1) Pre-trial motions & procedures
(2) Trial
(3) Post trial issues

For the majority of plaintiffs lawyers  I suspect that the majority of time is spent not in trial, but rather in connection with the first two categories. As to these, my experience has been that the great majority of time in the plaintiff’s tort practice is spent in discovery, regarding witnesses and in negotiation. Most of the rest of the time is spent dealing with clients,  office finances and general office demands such as phone calls, emails, correspondence and  office management. I  think the  great majority of cases settle without trial, but only after extensive discovery, witness involvement and negotiation. Therefore, we should be far  more focused on analyzing the discovery aspects of the practice, issues  around expert witnesses and other witnesses and learning the skills of proper negotiation than on trial considerations.

Regarding my division of practice, however, I’d like to focus on the first one: – the business aspect. I’d like to share some generalities about this subject as I think we plaintiff’s lawyers tend to ignore this important part of our practice.

I don’t pretend to be an expert in plaintiff tort practice marketing. It is, however, my distinct impression that the two major areas of obtaining plaintiff’s tort work today is (1) lawyer  referrals (2) the internet and (3) TV advertising.

Referral work from other lawyers in the period of my law practice presented a problem to me. When I started the practice of law, many years ago, it was common for general practice lawyers to consider it part of their professional duty to their client to refer them to plaintiff’s lawyers  they knew were qualified to handle the case. It was rare to have a demand for a referral fee in doing this. The ethical viewpoint then was a lawyer has a duty to act in the best interest of their client. If it is in the best interest of the client to be referred to the best qualified lawyer, then the consideration of a referral fee should be very secondary given the duty to the client. Certainly the referral to a lawyer should not be primarily based upon the referral fee.

Yet in recent years it has become a common practice for lawyers to demand a referral fee before they would recommend an attorney to the client.  Even though the clients lawyer recognized that he or she was not qualified to handle the case and that the client needed the best qualified lawyer their first consideration was  to negotiate  a favorable  referral fee for themselves. I had  strong feelings about the ethics  of that approach. As a result my practice was not primarily lawyer referral nor did I seek lawyer referral cases.  However,  I recognize that, in spite of my peculiar attitude about it, marketing considerations should logically involve lawyer referral work.

As  to advertising generally, I used to think that publicity about my verdicts on television and in the newspaper would produce clients, but I was continually surprised by the fact that people with similar cases to my case results reported in the media would nevertheless use the Yellow Pages or hire someone who advertised. With the growth of the Internet the Yellow Pages soon became rather irrelevant in this connection.  More and more people began using digital devices and search engines  on the internet to find lawyers. Internet referral websites, lawyer websites and blogs had a bigger and bigger role in this regard. It’s my distinct impression that today plaintiffs lawyers should be concentrating upon their websites and blogs. Hiring a professional marketing person in this area would be my recommendation. Certainly, for those with the money to invest, television advertisements have become a successful way to obtain clients. However, two things  are essential: (1) the capital to invest with a profitable result and (2) the means to screen the incoming contacts. I suspect for most of us, the more logical and reasonable approach is improved websites and blogs.

Regarding the office management, a plaintiffs trial practice will not survive if it is not profitable. It has been my experience that plaintiffs lawyers are generally not very good business people. They tend to have a cash register attitude about the practice. If there’s money in the register they take it out and spend it and if there’s not they began looking for financing. They rarely screen incoming cases from the standpoint of budgeting time and costs advanced to the likely financial outcome and chances of success. They rarely screen cases from the standpoint of referring them to some other lawyer rather than investing inappropriate time and money in a case that doesn’t justify it or where it is a client they would be better off not having or is a case that isn’t compatible with their own values and attitudes. The first good law office management principle is screening cases.

Too often we fail to monitor the investment of our time and our money in cases as they progress. Every  case should be  evaluated for a  budget  of time and costs based  upon three factors: (1) liability (2) damages and (3) collectability.  When we invest unreasonable  time and money in case that doesn’t justify it, we do a disservice to the client. A  result that looks on its face to be a success can really be a loss from a time  involvement and fee recovery. A plaintiff’s lawyer can go broke agreeing to pay unreasonable referral fees, over investing cost advanced and devoting unjustified time to cases. A plaintiff’s lawyer can go broke by failing to monitor time and costs. Furthermore, when there is this inappropriate investment it leads to inappropriate settlements.

To have a successful plaintiff’s tort practice one must have a successful business office. Like it or not, law office management is as important as the successful processing of tort cases. Let’s spend the time to review this in our own practice.

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While driving to Seattle the car radio broadcast evangelist Joel Osteen giving a talk he titled “see yourself as a masterpiece.” It interested me enough to listen to the full broadcast and made me reflect on my belief that we are each unique from every other human being who’s ever existed. This view is in  conflict with the scientific view of an author of a book I just completed: Sapiens: A Brief History of Humankind by Yuval Harari.

The author is a biologist who sees the universe entirely in scientific terms with no supreme power, no individual value and religion as a myth.  He begins by pointing out that  13.5 billion years ago matter, energy, time and space came into being in what is known as the Big Bang. He says about 3.5 billion years ago on planet Earth molecules combined to form organisms and that about 70,000 years ago organisms belonging to the species Homo sapiens started to form structures called cultures. He rejects individualism or uniqueness because he says we are simply the end product of this evolutionary process and have created religion to answer our questions.

He says:

“Our liberal political and judicial systems are founded on the belief that every individual has a sacred inner nature, indivisible and immutable, which gives meaning to the world, and which is the source of all ethical and political authority. This is a reincarnation of the traditional Christian belief in a free and eternal soul that resides within each individual. Yet over the last 200 years, the life sciences have thoroughly undermined this belief. Scientist studying the inner workings of the human organism have found no soul in their search. As far as we can tell, from a purely scientific viewpoint, human life has absolutely no meaning. Humans are the outcome of blind evolutionary processes that operate without any goal or purpose. Hence any meaning that people ascribe to their lives is just a delusion.”

Now, I happen fully accept the science of evolution which I don’t see as excluding belief in God or a higher power. I am not one who believes we  must read Scripture in a literal sense regarding creation nor that we must reject science in conflict with the literal words in  Geneses. I differ from the author over his argument people are not unique creations but  simply an evolutionary by product produced by chance. Nor do I agree with his rejection of our value as human beings and rejection of any spiritual or religious beliefs.

As to our uniqueness , Scripture makes it clear we are one of a  kind. For  example, Ephesians 2:10 says: “For we are God’s handiwork, created in Christ Jesus to do good works, which God prepared in advance for us to do.” Jeremiah 1:5 says: “Before I formed you in the womb I knew you, and before you were born I created you;” Isaiah 64:8 says: “We are the clay, you are the potter; we are all the work of your hand.”

I choose to believe that we are each unique because there is uniqueness  in the world around us. Millions of snowflakes fall every year and yet no two snowflakes are alike. Every single snowflake is completely unique.  it is astounding to think of the human beings who have lived, now live in, will live on planet Earth with each a unique creation. No one else is just like you. Your physical appearance, your voice, your fingerprints, your personality traits, your habits, intelligence, personal taste – all of these make you one-of-a-kind.  You are not simply an product from some cosmic assembly-line. The evolutionary process that created you created one-of-a-kind. You are a masterpiece unlike any other human being. The likes of you have never existed on the face of the earth and will never exist on this earth again because you are totally unique.

What is important is being a real person in our uniqueness. Between 18 and 24 months of age science tells us that human infants become conscious of their thoughts feelings and sensations. They begin the  process of creating an image of who they are. The authentic child we start out to be often times becomes hidden behind  masks we create  to pretend like we are someone we are not. Culture teaches us to hide our feelings and to learn behaviors. What we say to ourselves defines who we think we  are. Yet, Americans are deeply invested in the idea of the importance of being authentic. Authenticity is part of our national consciousness. We look for  it in others.

We see that in the political campaigns going on now where the issue is the trustworthiness and authenticity of the politicians running for office. Saying anything to become elected is far too common.  This is part of our contemporary culture which mocks the idea of being ourselves. We are a culture of cosmetic surgery, steroids, pharmaceuticals and dieting to change how we look and to adopt a personality for others benefit. Yet the components of authenticity are self-awareness: knowledge of the trust in one’s own motives, emotions, preferences and abilities. Accurately evaluating our strengths and weaknesses as well as accepting responsibility for our actions without resorting to denial or blame are part of being an authentic person. Authenticity includes acting in ways that are congruent with our own values and  having a sold value system is essential to being  authentic. That’s where  religious beliefs become important.

Authenticity involves the risk of criticism or even rejection. Authenticity is not for the faint of heart. Accurate self-knowledge can be painful. It can feel better to be embraced as an imposter then to be rejected for the person we really are.

The most important beliefs we have are the beliefs we hold about ourselves. How we define ourselves and what we believe we can achieve is the strongest force in human personality. Our self identity is the most important power that determines who we are and what we accomplished. We act according to the views we hold of who we are whether those views are accurate or not. We also have the power to reinvent ourselves and create a new identity by what we say to  ourselves  and believe.

In addition to the fact that being an authentic person is a strong factor in having peace of mind it is a requirement for greatness for a trial lawyer. Our professional role is that of persuasion, but, within the rules and with professional ethical conduct. Truthfulness is the most important weapon in our arsenal for trial. Truthfulness includes not only what we represent to others, but also being honest to ourselves and to others about who we really are. We will be identified as fakes and imposters if we pretend to be somebody we are not by others and by jurors. It can happen in the blink of an eye during trial. Jurors are looking for truthful and trustworthy people they can rely upon. They reject people who they believe are not being real.

When we accept the fact that we are  unique masterpieces unlike anyone else we are empowered to become great. It is the authentic uniqueness of the masterpiece we are that gives us the power to become great. We may not be tall beautiful or handsome. We may not have deep resonant voices of great actors or in fact any of the  qualities we have come to expect in actors. Yet if we accept our greatness which flows from our uniqueness and present ourselves honestly with truthfulness, we become powerful. Scripture in 2 Corinthians 12:8 says “And he said to me, ‘My grace is sufficient for My strength is made perfect in weakness.” When we make ourselves vulnerable by exposing our inner self and being authentic we are made strong  by the reaction of  others who recognize our authenticity in doing  so.

Martin Buber relates a Hasidic parable about Rabbi Zusya. He has a deathbed revelation that he shares with friends keeping vigil at his side. “In the next life, I shall not be asked: why were you not more like Moses? I shall be asked instead: why were you not more like Zuzya?”

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Today I sorted through notebooks from my practice to organize the  material and as I did so I noticed a few things I thought might be worth sharing with you. By the way, what struck me was the fact that much of what I’ve used in trial over the years was originally someone else’s thought or idea. A whole lot of “new” tactics and ideas  are really old  ones with new dressing on them. But, here you are and in no particular order.

  • The brain isthe greatest, finest, most wonderful organ in the human body. A man thinks with it. He loves with it. He hates with it. He fights people with it. It’s the difference between an animal on the street and a human being. This wonderful brain has been damaged.
  • Remember, there is a very fundamental right involved here – a fundamental right guaranteed all of us under the Constitution of the United States – freedom of choice. This family has a right to decide for themselves how they want Sandy taken care of. No one has a right to dictate to them that they must put her in a nursing home or be told how Sandy should be taken care of. A fair verdict in this case will give this family a choice in that regard. This is a  fundamental right of freedom of choice and it’s only available  through your verdict. It’s just as simple as that.
  • What’s the importance of the loss to Joey of about 15% of his mental ability? What’s the difference to Joey for the rest of his life? The difference between possible greatness and mediocrity. The difference between Lincoln and me. The difference between poets and philosophers. This is the difference. The loss will not just endure for a time. It will grow and grow as he gets older and finds his competitive ability impaired in going through life. The boy you have seen does not even resemble the boy you would have seen had you seen him just before the accident happened. That Boyd no longer exists. The man you will see in his future does not even resemble the man he would have been. His parents who had such joy and pride in such hopes for him cannot be compensated for the loss of those hopes. His dreams have been destroyed.
  • The boy is in pain. those of us who know the Ecclesiastes chapter in the Bible know there is a time for pain, there is a time for tears and a time for laughter. Childhood is the time for laughter and not pain. We can’t give him back his carefree childhood. That’s gone. We can’t give him back a release from pain. We can only give him money. So it becomes my function to talk to you about money. That’s all that can be talked about.
  • I pray that whatever verdict you bring in will be sanctioned by your own sense of conscience, ratified by your reason and express the conscience of this community.
  • He is a prisoner in his wheelchair. His hands are virtually useless. He has no sensation below the chest. He needs a suppository to stimulate bowel movements. He can’t feel it if he breaks a leg. A common cold could be life-threatening. He views the whole world sitting down. How he must yearn to just stand up, walk, run, go to the bathroom. How he must suffer with his total dependence on other people. Maybe he’ll feel the joy of falling in love, but doctors say he will never feel the joy of siring a child. He can never walk down the aisle. He’ll be lucky to find someone to go down the aisle with him.
  • Wheelchairs are the shoes of a quadriplegic. He’s imprisoned in his wheelchair with no possibility of ever being released. Unlike prisoners in cells who were let out each day for exercise he is permanently a prisoner in his wheelchair.  His situation is worse than death.
  •  “preponderance of the evidence” is like a baseball game with a score of 9 to 8. The team with nine points wins even though the other team scored eight points.
  • Who’s in a better position to have known? Who’s should’ve spent the few dollars to make it safe?  A national railroad with many  employees and experts at their disposal or this young man?  the parties are not on equal footing.  In addition, there’s a great deal of difference in the ability to know and the power to do something about it.  The young man was there for a few minutes or a few hours, but the railroad has had weeks and months and years of knowing what’s going on on their own property. They have no right to shift the responsibility to somebody else with all the employees and  experts at their disposal.
  • If you go to Disneyland watch the people. They don’t go around and inspect all of the rides before they get on them. They expect that the facility is safe because the people who run it have the most knowledge and information as well as superior knowledge about it. If the owner with the superior knowledge wasn’t aware of the danger why is it reasonable to blame the person who relied upon the owner’s superior knowledge.
  • We all can go to the polls and vote with thousands of other people.  But here you have a chance to directly and personally do an enormous amount of good by your vote for another person. You can individually dispense justice in this case directly. You can individually vote to establish safety standards to prevent other events like this. In this case your verdict can be one that will allow you to tell your friends and your children and your neighbors that you participated in a vote that had historic significance. yes, you’ve made a sacrifice by being here for this trial, but you have this consolation: You’re not here on some trivial matter nor have you wasted your time on something insignificant. What you do here will have importance  beyond these parties and this courtroom and far into the future. You have the power to make changes and to do justice in a very important way.
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