Small changes can make big impacts in shortening a case’s duration
Years ago, the lawyer listened to a presenter talk about representation agreements. “We ask the potential client to put the phone on speaker, open a browser, navigate to our website where there’s a hidden section, walk them through the terms, tell them where to put in their name, the date of injury, and have them sign with a finger.” No back and forth, no efforts to scan, or fax, or mail when the person was more focused on recovering from an injury. The lawyer took note.
Justice delayed is justice denied
Let’s be clear. Speed at thoroughness’s expense is not an option when a client’s case is at stake. Yet every system contains inefficiencies, and those inefficiencies create delay. Delayed completion means delayed compensation. It also means delayed closure, and for many, having that case and uncertainty creates significant stress. It is incumbent upon us then to identify inefficiencies and remove them.
Where do we typically see delays? Most delays stem from friction endemic to information exchange. The retainer agreement’s back and forth, as discussed in our introduction. Obtaining client answers to discovery without needing to ask for extensions of time (and then being obligated to grant extensions). Medical records. Expert reports completed in time and transmitted before mediation to ensure sufficient settlement authority.
Extra days are delays
We know the problem. What’s the solution? Examine case flow with one question in mind: Is there a way to reduce days? Let’s evaluate this with medical records. Medical records in a disorganized office can add months to a case’s duration, not to mention the potential damage done to an expert’s testimony if an expert turns out to be missing something significant. Clients are usually provided a lengthy questionnaire at a case’s beginning and asked to complete it. The questionnaire contains a section asking about medical treaters. The record ordering does not begin until the questionnaire gets returned, which can take a while. A potential solution? An initial “return this today” email or phone call with the providers’ names. The record requests then get sent out immediately.
The next delay comes from providers, who seem to require nudging like sheep by a sheep dog. Within a week of sending out the requests, follow up with the providers to make sure a given request properly jumped through the hoop. And keep following up regularly until that record comes back. Finally, for those with ongoing treatment, there are record updates. One approach? Wait until it is time to get the mediation brief done, start writing it, and realize the records need updating, and scramble for updates. A better way? Use case management software or an intake checklist. In other words, automate. When the case comes in, as part of the checklist or an automated case management entry, set a record update reminder six months out, with a meta-reminder in the reminder to set another reminder.
Documented processes and checklists
Now that we’ve examined delays through the lens of medical records, we’re ready to talk about system-wide solutions by examining firm processes. Many firms operate under oral tradition. How do we file a case? Ask Pat. If that describes your firm, consider what someone recently described as the Mack Truck problem. What happens if Pat, or you, get hit by a Mack Truck? Processes and files should be managed in a way where the work can be done whether that key person is there or not. In drafting processes and checklists that turn oral tradition into written systems, one identifies delays within the system. That’s the opportunity to edit those delays out.
As a core component to any process, build in and communicate deadlines. An example? Consider the demand package. Every demand should include a deadline, and that deadline gets calendared. The adjuster fails to respond? One has choices. Wait and see if the adjuster will get around to it, sending the message that the case is not important or the firm is one that handles cases on its heels, not its toes. Or send a communication the day after the deadline, noting the deadline has passed. We typically start nice: We expect you may have overlooked the deadline and are giving you another week but if we don’t hear a response by [date] we will be filing the enclosed complaint. Want to be a credible threat to carriers and counsel? Any deadline one makes gets immediately followed up on when blown. Any commitment made – if we don’t hear back, we’ll file – gets follow-through. Never issue ultimatums that won’t be executed. The diligence and tone further reduce days in a case’s duration.
Back to our lawyer and the retainer agreement. While it took a few years, the lawyer’s firm navigated to a digital signature system as part of a more global revise to firm processes. While these improvements may not be flashy, the results they bring make clients happier, increase the bottom line, and reduce the chances of making mistakes.
Miles B. Cooper is a partner at Coopers LLP, where they help the seriously injured, people grieving the loss of loved ones, preventable disaster victims, and all bicyclists. Miles also consults on trial matters and associates in as trial counsel. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is an American Board of Trial Advocates member.
2022 by the author.
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