Practical Tips For Lawyers 8-14-2012

For those “Important But Not Urgent” research and writing projects, have a home office where  you can get away and get things done, but make sure you can stay connected to staff, clients, colleagues, family, friends; a challenge but “do-able”

So how can a dedicated blogger lose almost a month? Try having two (out of five) staff members go on maternity leave, a summer vacation or four, and a gaggle of children and grandchildren coming through for WV Irish Road Bowling and Camp WV. When you have a comfortable place to visit, people visit. We love it! Add a “southern tour” and 10 acres to mow, and summer time is a busy time. I promise to dedicate a day to shaping up my document assembly system with Pathagoras, just as soon as the weather breaks! More on that later.

Here are some useful tips for anyone with a practice similar to mine; and even, perhaps, for non-lawyers:

Reaching Someone Via Mail 

1. We all have to send things to people and make sure they arrive. I wasted years sending “certified mail” to people who refused to pick it up.

2. I used to try to figure out the differences among registered, certified, return receipt, priority, etc. But, for this tip,  I am talking here about plain old mail (snail mail) and certified (or is it registered?) mail with a return receipt card.

3. I do not worry about restricted delivery. I just want someone to sign. We will worry about who they are later.

4. Half the time the recipient “smells a rat” and will not pick up the document. So, I just add a certificate of service which is an affidavit by me swearing that I mailed it, and I certify I mailed it return receipt and regular mail. When the regular mail does not come back, I figure I have them! Most judges will accept that if we went to all that trouble, we probably reached our target.

5. Since I want the recipient to appreciate the importance of what I sent, the double delivery, and personal delivery, really help.

6. Of course, in lawsuits, we can get the Sheriff  or a process server to serve the documents, and there are always times where “over-nighting” via Fed Ex or UPS is the only way. Rarely will I resort to a telegram, although I here that service still exists.

Achieving Personal Service
1. We no longer have to serve the respondent in person when filing a lawsuit in family court, divorce, custody, or contempt, but I prefer doing so for reasons I touch on above. Too many chances the recipient will claim not to have received the documents. And, most of the time I want them to feel the impact of the suit. It is important, and they should feel that it is important.

2. Over the years we have had hundreds of conversations with process servers who have not or cannot find the person to be served. I cannot remember an occasion however where the sheriff/process server called to complain we provided too much information on the CCIS (Civil Case Information form). Never, “Why did you give me a cell phone and home phone number? Or, “Why did you tell me what bar he hangs out in?”

3. Therefore, more is always better. The mailing address, physical address, e-mail, cell, land line, and personal habits. (e.g. Will be away all of deer week.). That information is very much appreciated by the server, who is already busy and wants to finish this task as easily as possible. Recently, the bar tip was the only effective way to reach our essentially homeless former spouse, but we had to get him served.

4. A good private investigator is an excellent way to track town a missing defendant. Recently, I filed suit on almost the last day of a two year statute of limitations. (Client waited 22 months to hire a lawyer.) Eventually he located the vehicle, still in possession of the defendant, his employer, and at least a million dollars ($1,000,000.00) per person liability insurance coverage. Now that’s helpful!

Getting Someone to Respond to a Mailing
1. Have a tight suspense system. Always post, 2-4 weeks ahead, a reminder to follow up. Practice management programs are expensive but often comprehensive, but you can have a workable suspense system using Microsoft Outlook.
2. Have the file copy at hand. We now have digital copies of almost everything on our file server, in the 1. client’s digital file. We have Fujitsu Scansnap 1500 scanners on each desk and a high speed Toshiba Studio Scanner/printer/copier. I have written of them in prior posts to “Perspectives of a Small Town Lawyer”, www.burtonhunteresq.blogspot. com.
3. Follow with another request with a bold “SECOND NOTICE”. That is often all we need for getting medical bills or records.
4. Do not hesitate to follow up with a phone call. Get a NAME and try to bond. That key person, such as the doctor’s wife or records clerk,  can be a Godsend.
5. Good luck with the military or federal government; they love to write you to tell you they need your client’s SSN which they have in the subject line of their letter to you! This is how I know they do not do enough drug testing at the federal level. Be prepared for a 1/2 hour journey through the federal, or state, phone system.
6. If you have resorted to the phone, take notes, that can help later; write down each extension, each name (at least the first name), the short-cut buttons to a particular office, and do a memo to others.
7. Often, and this is just my stubbornness, I attach my prior correspondence. That means each mailing is larger. And, boy do I have documentation of attempts to get through. Sometimes we get calls begging for us to let up, and even promising service if we will.
Getting a Case Ready to Settle.
1. My intuition told me not to send multiple letters to insurance adjusters. That intuition was wrong. It is essential to keep the adjustor informed, and that he have multiple opportunities to review the file’s status and “up the reserve” as necessary. Do not expect to get an adjustor to vary greatly from his/her reserve.
2. Although an adjuster recently complained that I was causing him more work, periodic updates of medical bill totals, my clients recent chat with her doctor, the prospect of future care, information about relapses, and predictions of when I will file the (settlement) demand package, tend to get the adjuster to nudge the “reserve” into a acceptable level.
3. In my family law practice, I have moved to another level. I like to use e-mail, be more conversational, and persistently make my case with the other side. That drives the lazy lawyers nuts, knowing that I am documenting their failure to respond or cooperate.
4. When my client messes up, I try to correct the error quickly, apologize, and focus on something constructive. Other times,  I respond to, “Your client’s wife hit the child with a rubber snake!” by learning my client’s version and writing back the the person wielding the snake was the four year old cousin of the other party. That makes a BIG difference. (Editor: I chuckled at this when I read it, but I have since defended (successfully) a domestic violence petition filed against a five year old and a three year old, by the mother of a two year old. 2-26-2015).
5. I try not to defend my client blindly by repeating everything they say. I test what they say, and apologize quickly if it turns out not to be fact.
6. Rarely, and I mean once a month, I have a case that is just too obvious not to settle. In those cases, or when we are working on a preliminary issue, I make a settlement proposal with numbered, one or two line, paragraphs.
7. I try to ascertain personal injury settlement limits (WV’s minimum per person for auto injury is $20,000) as early in a case as possible.
8. Clearly, if the medical bills are pouring in, and are already at $10,000; or $5000 but with the inpatient bill not yet here, I ask for “the limits”, and I ask my client’s carrier for permission to settle. They have “subrogation rights”, but most of my party defendants with small limits have small assets. We alert the under-insured carrier (my client’s insurance company) that a “U.I.M.” claim is coming, settle the direct liability claim, work to limit the amount paid to subrogated carriers, and focus on reaching the undersinsured (U.I.M) limits too. That can make a $45,000 settlement be closer in net value  to a $75,000 jury verdict as far as what the client realizes. That is VERY important to the client.
9. Communication is key to a settlement, especially if you are trying to settle without going to mediation or trial. Use ingenuity, wit, careful documentation, and experience to turn the other side slowly to your point of view.
10. And DO NOT overreach, over-promise, or even over-threaten. Those behaviors tend to backfire.
Good luck!

This post was written by Burton Hunter

1 Comment

  • A couple subtle tips from the photo.

    1. The quilt is to keep the vinyl of the recliner from sticking to me on a warm summer afternoon.

    2. The upright rocker promotes more productivity than the recliner.

    3. Yes, that’s a “swatter” in the right beverage holder; our upper deck has its share of wasps.

    4. The cool breeze and WV rural view are a bonus but not essential. j.b.h.

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