[Update, March 21, 2013: Eric Turkewitz chimes in with his 10 Signs The New Matter is a Dog (Before you even consider the merits). I am more tolerant of #1, #3, and #4, depending on circumstances, but #2 and #5-#10 all pretty much guarantee I will not investigate further and will reject the case. One other big point that #2, #8, and #9 can reveal: do not take on hostile clients. It doesn’t matter how good their case looks, they are not worth it. If a potential client is rude to my secretary or paralegals, they are gone, no questions asked.]
Last week The Legal Intelligencer reported on the Pennsylvania Superior Court affirming dismissal of a Paxil birth defect case. (Opinion here.) The case involved a little girl born with a congenital heart defect known as hypoplastic left heart syndrome, who thereafter had a tragic course. There’s evidence tying SSRI antidepressants like Paxil to heart defects, so it’s unsurprisingly that a claim was filed, but the claim was, to put it mildly, challenging to prove. The plaintiff had no medical records from anywhere showing that she took Paxil, and no doctors who could remember prescribing her Paxil. As the trial court recounted:
Mary testified she first received Paxil from her family doctor, George Huntress, beginning September 1996. She claims Dr. Huntress gave her additional samples again in October and November 1996. Although she conceived approximately November 7, 1996, Mary testified she took Paxil until November 13, 1996 when her obstetrician confirmed [that she was pregnant]. Dr. Huntress no longer practices medicine, nor recalls treating Mary (he did not even recognize her photograph). Moreover, there are no available medical records showing he treated her at all let alone prescribing Paxil.
However, other contemporaneous medical records, including emergency room visits, indicate she took various other medications such as Ibuprofen, Bactrim, Motrin, Terazol and Flagyl. There is also evidence Mary’s obstetrician, Dr. Rick Visci, prescribed Zoloft which she took from approximately November 1995 until March 1996 and again after her pregnancy. He never prescribed Paxil.
The Philadelphia trial court dismissed the case, holding that, without medical records, the plaintiff would not be able to prove they took Paxil. (So much for the American Tort Reform Association’s claim Judge Moss is biased towards plaintiffs.) The Superior Court reversed that basis, holding that the plaintiff’s testimony created a factual issue for the jury, but then affirmed dismissal on another basis, a basis on which the plaintiff had waived its argument.
I don’t want to get into the nitty-gritty of the case, except to point out an important practice tip for plaintiff’s lawyers: don’t take cases where you don’t have any medical records to back up the plaintiff’s claims. I’ve never seen a medical record that was 100% in line with the recollections of the patient, their doctors, and their nurses, and we’ve had many cases in which we proved that medical records had inaccuracies or outright falsifications. That said, the absence of any evidence in the medical records that a plaintiff took a particular drug (if a drug case), or reported a particular symptom (if a malpractice case), or was diagnosed with the signs and symptoms of a particular injury (if an accident case) should be a big red flag for any plaintiff’s lawyer investigating the case.
The Paxil case was, in many ways, an exception that proves the rule. The case involved terrible damages (the little girl suffered a stroke at eight months old immediately following heart surgery, then passed away near their 10th birthday) and the presence of a pre-existing mass tort that made the case comparatively easier and less expensive to pursue in the pre-trial stages. So, if you have a case with huge damages, and you’re filing it alongside dozens or hundreds of similar cases, and you have a plan for proving the issue — e.g.., the plaintiff and their spouse will both testify credibly in support of the issue, like in the Paxil case — then consider it. Otherwise, kindly explain to them that the plaintiff bears the burden of proof, and recommend they get a second opinion from another lawyer before the statute of limitations runs.
So there’s our first rule: (1) don’t take cases where you don’t have any medical records to back up the plaintiff’s claims.
How about a couple more?
(2) Don’t take cases where the potential client says the case will be a “slam dunk.” When a potential client uses phrases like “slam dunk” or “can’t lose” or “the defendant will want to settle quickly,” that’s a big red flag indicating that the potential client doesn’t understand the risks and realities of litigation, doesn’t understand that what they consider “proof” is really just “evidence,” and will blame you for the length of the litigation and the size of the settlement offer. When you hear phrases like that, your response should be either: (a) ‘my fee for this case will be $X per hour’ or (b) ‘I’m sorry. I can’t help you with that.’
Bonus tip: do not try to disabuse them of their notion that they have a “slam dunk” case. The more you try, the more you’ll get sucked into a manipulative conversation.
(3) If other lawyers aren’t taking a certain claim, then you shouldn’t either. As I wrote before, when it comes to plaintiff’s work, if something was easy, everyone would be doing it. Warren Buffett can “be brave where others are fearful”; how many billions do you have lying around in case you’re wrong? If you’re not in a position where you can bounce every case off of an experienced practitioner in that field — and even new attorneys at well-established firms can run into that issue if a case raises novel issues — then you need to set out on your own to understand where the pitfalls are in these claims.
(4) Before taking a case, see if you can avoid reinventing the wheel. Surely you’re a member of one of the many practice area-specific plaintiff’s listservs, right? They’re invaluable resources, and you can learn best practices from them. On a more basic level, to effectively pursue cases, you need to understand the gestalt of the type of case — e.g., that car accident cases are usually more about proving damages than proving liability, or that malpractice cases usually hinge more on the quality of your expert than the quality of your lawyering — and focus your efforts there. You can spend a hundred hours fumbling around on a slip-and-fall to move the insurer just as far as an experienced lawyer could with a dozen hours of work.
(5) Understand your own business model and your own portfolio of cases. There are all kinds of business plans that look reasonable for plaintiff’s firms (and for business in general) but which really aren’t. Last year, I wrote about the hidden perils of solo practitioners mixing contingent fee work with flat fee work. It’s one thing to take another slip and fall at a local grocery store when you regularly handle dozens of them; it’s quite another to take on a complicated business dispute that will swallow a large portion of your time, money, and energy for the next few years.
All in all, the more you can make your practice into a rational process and less into a series of ad hoc decisions, they better off you’ll be.