(You can read Evolutions of a Solo Practice- Parts 1 -3 here).

Taking on Negligence Cases

I learned the basics of negligence cases when I worked part-time for Fred early in my practice.  I knew enough to handle basic cases if I got a call to do that.  In those days (early 80’s), you could settle most auto cases if you got the police report and medical records, sent them to the insurance company, and called to negotiate a settlement.  If I got a call for something a little more involved, I could usually ask around and figure out how to do it.  One thing I learned back then, which is true in most areas where you dabble but don’t specialize, is that there is often more to something than it appears.

Some of the best fees I have made were on cases I referred out.  There are several reasons for this.  One is that no matter what, the value of the fee will always be disproportionately high to the work you ultimately have to do as the referrer.  Seems like a smart business move, getting paid disproportionately high to the work and the risk (and the stress).  To any attorneys who scoff at making referrals (and receiving referral fees) I say this:  You’re nuts!

In my jurisdiction* the rules specifically permit referral fees.  The rules tell you how and what to do, they are not prohibitions.  The overall fee must be reasonable (you can’t “add-on” for the referral), you have to maintain “co-responsibility” for the case, and the client has to be aware of the referral arrangement.  Co-responsibility, however, is a very loose standard.  Essentially, the other firm does all the work, while you monitor what’s going on and stay involved as needed or desired.  You want to do this anyway, just to make sure they don’t stiff you.  This has happened to me once in 30 years, because I didn’t monitor as carefully as I should have.  I didn’t know the firm that well and they settled the case without telling me.  Actually, it was worse than that – they specifically told the clients not to tell me about the settlement, knowing full well I was doing other work for the clients and was in contact with them.  They made me sue them.  We eventually settled, and I never referred them another case.  (You never want to be known as a firm which does not honor referral fees). And, I learned to monitor more carefully.

Another thing I learned when referring out bigger cases is that high-end negligence practice is a different ballgame than lower-end negligence work.  These lawyers are fully committed to their practice area.  The firms invest a lot of money in their cases (expert witnesses, investigation, technology, education, etc.) and when they get big cases, they hit home runs.  Lots of them also share a trait with the smaller firms who specialize in negligence work: a palpable love/lust for money.   There is nothing wrong with this.   Some folks have it, and……fortunately or unfortunately, I don’t.

My relationship with money is like dating.  I enjoy spending time with it, I like to be around it, and I like to have fun with it.  BUT I just can’t make a commitment to it, and I don’t want to marry it.

In the late 80’s, I noticed a problem with my practice.  Focusing on real estate and closings allowed me to make a living.  However, the prospects for the future were to go on making a living, at best.  This is because making a flat fee on cases where you can’t control the time, is ultimately bad business.  (Unless you are so good that you can raise the fees very high, or unless you have so much volume that you can hire paralegals to do most of the work and really push the volume.)  I saw this and decided I was not ready to commit to this way of running my practice.

Real estate was good for cash flow, but I needed and wanted some jolts of bigger and better money. I decided to see about doing more negligence cases.  I wasn’t thinking about a long term relationship with negligence work, and I was not wanting to be known as ‘the negligence guy’.  I just wanted to make more money.

So, in the early 90’s.  I made a few marketing moves to bring in some new negligence cases.  These were the moves:

• I placed classified ads in out of State Bar Journals.  I thought of this after noticing a few out of State attorneys advertising in the New York Law Journal.  At that time I had a law student working for me part-time.  I asked her to write to 50 bar associations (the other 49 States plus Puerto Rico) and get their monthly bar journals and advertising rates.  This was not difficult to do, even in the pre-internet era!   All the bar journals had classified sections.  Most of them published between 8 -12 times per year.  The rates were not too expensive.  I decided to try a few, just to see what happened.  The first States I tried were Connecticut, Pennsylvania, Illinois, Texas and California.  I skipped New Jersey and Florida because a lot of New York attorneys were already there, and they were a little expensive.  My ad was essentially “New York attorney available for referrals of personal injury cases in metropolitan NYC area.”   The monthly charges on these ranged between $40 – $80 per State.  I got a few calls from the ads in Connecticut, Illinois, Texas and California, but nothing that amounted to much.  Pennsylvania, on the other hand, got me in the negligence game.

The Pennsylvania ad cost $42/month.  There were no other New York lawyers in there when I started.  The first month the ad was in, an attorney from Pittsburgh referred me a pedestrian knockdown where his client was hit in downtown Brooklyn and broke her leg.  The vehicle had a $100K policy and I settled that case for $90K without filing suit.  The lawyer didn’t even want a referral fee!  I figured that case paid for the Pennsylvania ad for the next 877 years.  I then got a call from a lawyer in Philly who was placing ads on cable TV for his negligence practice.  He was also assisting other lawyers in using 800 numbers for TV ads on cable, all over the country.  He said that sometimes he got calls from people in New York who had cable and were watching networks based outside New York (like TBS), where his ads were running.  He would do a telephone intake and then wanted to refer the New York cases to me.  At that time, 800 numbers and ads on cable were relatively new.  It seemed like a no-risk offer with a lot of upside, so I agreed to receive the referrals.  Some of the cases were really low-end and I rejected them….he didn’t mind.  But MANY of them were pretty darn good.

I stopped running the other ads and stuck with Pennsylvania.  What can I say, for $42/month it made the phone ring and kept bringing in new cases (besides the steady stream from the cable TV guy).

• Another thing I did was network with some local doctors and chiropractors.  I found they were very interested in working with a young personal injury attorney. All it took to get some referrals was asking, and referring new matters to them.  Back then one could handle soft-tissue cases and make some money.  Things evolved away from that over time, but this was a viable marketing move when I did it.
• Another thing I did was to answer the “what do you do” question by saying “general practice with an emphasis on accident cases”.  Unless somebody approached me who already appeared injured, in which case I would answer that I did “accident cases”.  Since I had been in practice for 10 years already, and worked near where I lived (making me somewhat known in the “community”) this slight change in emphasis directly led to new business in my newly chosen field.
• I also made sure to identify myself to other negligence attorneys.  It may be counter-intuitive to market to “competitors”, but I never saw it that way.  I was looking for certain kinds of referrals.  Cases that were “too small” for their firm, but where they wanted to make a referral fee and not have the client “stolen” from them.  Cases where there was a conflict of interest so an additional attorney was needed (this is usually a driver/passenger situation).  Cases venued in Queens, which some lawyers at that time did not want to take.  I was in the Queens Courthouse a lot, so I began to identify myself in the negligence world as “the Queens guy”.   A few lawyers began to hire me to do portions of their case, if they needed something in Queens.  These were mostly depositions, but sometimes appearances in the Queens courthouses.  I even had some lawyers pay me to accompany their clients to insurance physicals in Queens.  Maybe a little degrading, but, like most aspects of working on other lawyers negligence cases, I learned a lot.

To handle the volume of negligence cases, I became an early user of the SAGA software.  At that time this was the state of the art in document production for negligence lawyers.  I hired a secretary/paralegal who was an expert in using SAGA.  She was expensive, but it was worth it.  I was able to handle volume that I could not have managed with lesser support.

Negligence cases are great when they settle, but managing volume is a challenge.  In fact, I should call it was it was for me.  Big time pressure.

Next phase – Building a “per diem” practice while being a “negligence guy” (and what happens when ‘big time pressure’ builds).