CHAPTER 9
WHY IS IT CRITICAL TO HIRE AN ATTORNEY TO REPRESENT YOU?
The insurance industry claims they do not treat people any differently with or without an attorney. They are fair to everyone and analyze the value of each claim based on its merits, regardless of who is involved. This is patently false. Of course it makes a difference if you have a trained advocate. Do not show up to a gunfight with a clenched fist. It will end badly for you.
An attorney’s trial and negotiating skills are critical to achieve maximum results on a claim. The difference between a good lawyer and a great lawyer is not much. The difference between a good lawyer and a bad lawyer is as wide as the Grand Canyon. Real lawyers do not need to say they are tough. It shows in their work.
After 28 years of handling personal injury cases, there is nothing corporate America could try and pull in a courtroom that would shock me in the least. A true story. Jason (not his real name) was an iron worker, twenty feet in the air, straddling an iron girder that was being connected to a column on a massive construction site. The column had not been secured to the concrete pedestal properly and the entire column and iron beam tipped to the side. Jason was thrown off the girder and fell feet first to the ground below. His knee blew out the back of his leg and the side of his face was crushed. A life flight helicopter airlifted Jason to a trauma hospital that saved his life. While enroute he was given a sedative to calm him down. Upon arrival at the hospital they drew his blood to perform an immediate drug screen before giving him powerful sedatives and painkillers.
All the companies involved refused to pay Jason a dime. They all claimed they did nothing wrong. While I can understand a company trying to avoid responsibility for an injured worker when it is not their fault, what happened in this case was outrageous. They tried to blame Jason and fabricated evidence to destroy any chance he would have at obtaining economic justice for all he had lost. During depositions one coworker said he saw him smoking marijuana on the job site prior to falling off the beam. Another coworker testified under oath that Jason had told him that morning that he had taken methamphetamine. Both workers also said he had not hooked his safety line to his harness. One described the harness as orange nylon, and the other worker described it as a beige nylon harness. They each claimed both clips on his lanyard were fastened to the same D ring on his belt. They both claimed they had a specific memory of seeing the D ring on his harness. Jason’s harness, which was removed from him at the scene, before he was loaded on the air ambulance, disappeared from the job site, never to be seen again.
The insurance company defense lawyers pontificated about personal responsibility. They claimed Jason’s brutal injuries were the result of his own carelessness for not tying off and his irresponsible drug abuse. While this made things look grim for Jason, there was some additional evidence that I brought to the forefront. Jason’s drug screen at the ER was positive for the sedative they gave him on the helicopter, but negative for any other kind of drug. They screened for methamphetamine and marijuana and he was negative on both. We know the test was valid because it had a positive for the sedative they gave him on the helicopter.
I also had a photograph of Jason up on the steel at another job. Jason was an amateur cowboy and leather worker. Jason had made his own harness out of dark brown leather. He never owned a harness that was orange or beige nor made of nylon. The belt that wrapped around his waist was 4 inch wide leather. There were no D rings in his belt at all. When a worker is threatened with his job, it becomes easy to say things that your employer wants to hear, regardless of the truth. Without the photos and the hospital lab report, Jason would have been at the mercy of these ruthless individuals. Jason’s leg was eventually amputated and he had permanent brain damage. His case eventually settled for a confidential amount and I put his funds in a structure so Jason received a monthly check. He would be taken care of for the rest of his life. This, unfortunately, is the day-to-day reality when suing corporate America for large sums of money.
Anyone, no matter how poor, can afford the best personal injury attorneys in the business. This is made possible by contingency fee contracts. When we take a case, we are paid a percentage of what we win for the client. In large cases involving complex litigation, we charge 40% of what we recover. We also pay for all litigation expenses upfront, with the understanding we will recover our costs from the settlement. The client does not have to pay out-of-pocket during the course of litigation. If the case is lost, then we are paid nothing for our time and we do not get our expenses back. We only get paid if we win.
You are not required to have an attorney to handle your case, but only an idiot would litigate without one. Handling a personal injury case without a lawyer is like performing your own surgery. Not a good idea because no matter how simple it may look from the outside, there are a million things that can go wrong. The differences between trial and mediation are stark.
In trial you pick a jury of 12 people chosen at random to hear the case and render a decision. Trial is war. You present your evidence while the other side tries to minimize or undo what you are trying to prove. Then the defense puts on their evidence while you try to minimize or undue everything they are presenting. To call it adversarial is an understatement. The jury is not just judging the evidence. They are judging the lawyers as well. Every move, every question and response, another opportunity to save the day or blow it. If you truly understand litigation, the stress is enormous. I laugh when lawyers claim they are not nervous in trial. For that to be true they either do not know what they are doing or they are liars. Every mentor I have had who was a lion in the courtroom always admitted to being nervous before the trial would actually start.
I will share a true case example. A car fell off a jack, in a garage, and injured a mechanic. The adjuster came out to the shop, inspected the scene, and spoke with the injured man. He wrote him a $20,000 check on the spot. This man bragged to his friends about how he “didn’t need a lawyer and got to keep all his money.” Unfortunately, our hard working mechanic had no health insurance. When his back pain did not go away, he finally went to a doctor. He had a ruptured disc in his back and needed surgery. It would cost over $100,000.
He came to my office to hire me to represent him. We immediately called the insurance carrier to open a claim for him. They informed us the case had already been settled for $20,000 and the client had signed a release. When we confronted him with these facts, he admitted he took $20,000 and signed the release, but claimed he did not read the release, so it was not valid. Wrong. I will never forget the look of disbelief on his face when we refused his case. He had settled a possible $500,000 fusion case for $20,000. The law and the facts determine the value of a case. If you are untrained in the law, you will not be able to assess the value of a claim other than to make a wild guess. As Abe Lincoln said, “A man who represents himself has a fool for a client.”
CHAPTER 10
HOW IS HAMPTON & RAWLINGS DIFFERENT FROM OTHER FIRMS?
Hampton & Rawlings predominately handles personal injury cases. We have successfully prosecuted numerous 18-wheeler and auto accidents, home fires, train derailment, ATV rollovers, bus fatalities, and product defect cases to name a few. Since 1991 we have resolved well over one thousand cases. We screen our cases closely and stay current on the law, which is why we seldom lose. I prefer to work on serious cases involving brain damage, amputation, or death. The devastating effect these cases have on a family is enormous. They deserve an attorney that will take these problems on as if they were his or her own.
Creativity, honesty and courage is what sets us apart. We are constantly looking for effective ways to make our cases come alive, to make the other side feel the fear and horror that our clients were forced to endure by the careless and the downright malicious. We have a medical illustrator who renders the scans and X-rays in color and 3D so they convey the true horror of what lies beneath the skin. We use professional photographers to capture scars on film in vivid color.
We have a studio that creates our media and power point presentations to allow us to give gripping presentations at mediation or trial. We video tape our depositions so the animators are able to edit the video so the jury is hearing the witness testimony along with our arguments. It prevents our opponents from misstating the evidence or accusing us of manufacturing things. It allows us to own the room.
For example, I once put on an animation for a case that involved a man who had died of mechanical asphyxiation after being pinned underneath a heavy-duty truck. Unable to expand his lungs due to the way in which he was trapped by the truck, he literally drowned in the air. The exhibit was an animation that depicted a human frame enclosing the circulatory system, and included the sound of a beating heart. There was a time clock in the upper left corner that was running down to zero while the blood was turning from red to blue, and a classic heart monitor graph on the top right that showed each heartbeat. As the audible sound of the heartbeat began to slow and the blood was turning blue, the clock eventually hit zero, the heart monitor flatlined, and the alarm sounded. It made our client’s death become real for everyone in that room.
Another example involved a bar that was notorious for over-serving patrons. One of them struck our client in a cross walk in an auto pedestrian collision causing her to have permanent brain damage. We sent a camera crew into the bar before filing suit and got footage of a man passed out at the bar, people throwing up in the bathroom and a drunk couple having sex on a pool table. Not completely satisfied because I knew they would lie and claim they do not overserve their patrons, I sent the crew in a second time and they filmed their fellow investigator while he drank 7 shots and 4 mixed drinks in one sitting at the bar before leaving. Eleven drinks in a little over an hour rendered him smashed out of his mind. No one tried to stop him from leaving in that condition. During the owner’s deposition he denied his employees would ever overserve a patron. We then put the videos on screen and forced him to identify every one of his employees on film. That case would not have settled without actual footage to expose them as liars.
We have access to a safety firm that does accident recreation with very realistic animation. Every year it gets better and better. In the near future it will be as good as actual video. They use the physical evidence coupled with witness testimony to show the accident as it actually occurred.
We instruct our clients to always, always, always tell the truth, no matter how bad it may hurt the case. While some facts may hurt the value of the case, lying is fatal. We assume our opponent is a diabolical genius who knows everything about our case. Your credibility is everything. The real litigators understand this. The pretenders think they are smart enough to lie their way around bad facts. Real lawyers know there is no perfect case and deal with bad fact as best they can. Every time I catch the defense lying it is a good day for the plaintiff.
In one case during jury selection I promised the jury I would tell the truth throughout the trial. I invited them to punish us severely if any of our witnesses lied. “If my side lies, give us nothing, because that is what liars deserve.” I then said “of course fairness would dictate that if the other side lies, well, you know what to do.” I already knew the defense was going to lie and I could prove it. I had demanded $50,000 on the case. The offer from the defense was $15,000. I caught the defendant and the defense attorney both lying during the course of the trial. The jury award was $175,000. Several jurors told me afterward the contrast between the two sides made them want to give me more than they did but some jurors were too stingy to really give the defense what they deserved for being so dishonest.
Courage is hard to measure or prove. When I speak of courage, I mean an ability to act in difficult situations. While in the Harris County District Attorneys Office, I had my life seriously threatened on three different occasions. Two defendants were charged with murder and one was an armed bank robber. My family had an evacuation plan, should they ever get the call to get out. I kept those three files on my desk and worked them every day. Two of those defendants ended up with life sentences and the third received 85 years in prison. The thought of handing the case off to someone else never entered my mind. When I transitioned to civil law and some posturing insurance defense attorney would suggest I did not have the guts to try a civil case, I would laugh. I have yet to have an insurance adjuster threaten to kill me and wipe out my family. As a reminder, I carry a photo in my brief case of me skydiving. When things get rough, I pull out the photo to remind myself I have seen scarier.
Last July, I ran with the bulls in Pamplona, Spain. A man who will jump out of a perfectly good airplane or square off with a two-ton bull cannot be intimidated by some guy in a suit. My law partner was a bouncer in a west Texas beer joint while in law school. He brawled with drunk bikers and cowboys on a regular basis. He is just as tough, if not more so.
So, now is a good time to review. If you are in an accident you need to call the police to the scene and then see a doctor immediately. Follow your doctor’s instructions meticulously. Hire an attorney as soon as possible. Do not ever lie to your doctor or your lawyer. Document everything with written records or photographs and video. Do not speak to the other side. Take down all social media. (You can always put it back up when the case is over.) Do not tell people about your case. Ignore well-meaning advice from non-lawyers. Get back to work, if possible, quickly and demonstrate courage. Cooperate with your lawyer and be sure to tell him or her everything. If you do all these things, you will be head and shoulders above most who make mistakes in how they approach a litigation environment.
When mentoring young lawyers I caution them that no case is worth more than the Plaintiff. If the Plaintiff is worthless, then so is your case. Jurors give the big awards to people they like and respect. Show humility and be humble throughout the process. It will pay huge dividends in the long run.
While the system is not perfect, I promise you the system is rational. If you find yourself in personal injury litigation, stay strong, show humility, and be brave. Make sure your attorney is experienced in personal injury. Your life is being decided in that courtroom. You will be the one to decide if you will be a victim or a victor, regardless of the outcome. I wish each one of you the best of luck.