Speeding Up Cases and Settlements

Jack Zinda: Welcome to The Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. Kevin Tully: Hi, I'm Kevin Tully, the Chief Marketing Officer at Zinda Law Group. Today, we're going to be talking about How to Push Your Cases Faster with Larger Results. Joining me is Jack Zinda our founder and lead trial lawyer at Zinda Law Group. How's it going, Jack? Jack Zinda: It's going great, Kevin. Good to see you, man. Kevin Tully: Yeah, thanks for being here. So the topic today, How to Push Your Cases Faster with Larger Results. Can you frame this issue up for us? What are we getting into and why is it important? Jack Zinda: Yeah, well I was thinking about what makes a firm either successful or not successful. And a lot of that's driven by how long a case takes to resolve. And I use the term resolve specifically instead of settlement, because you can resolve a case a lot of different ways, primarily via trial or pre-litigation settlement or at mediation. And those successes are driven by two main factors. Okay, how long does a case take and what is the result that I get on that individual case? So what I want to talk about is, how do you achieve that on an individual case level, then zooming out and talking about how you can accomplish that on a docket as a whole. And when I say docket, I'm just referring to a group of cases that a law firm or a lawyer might have. Jack Zinda: Starting with that principle, the first idea I want you to keep in mind is, you've got to start at the beginning of valuing your cases. So first, you need to have some idea of what a case is valued at. You can find out that information by looking at your past results, by looking at what other law firms have gotten with similar results. And I understand at the beginning of a case, when you first sign it up, you're not going to have all the facts that you might need, to know what the true value of the case is. But you have to start with some compass point or some direction that you're going with there. Jack Zinda: The next thing you have to decide is how long should this case take to resolve based on the complexity, the jurisdiction I'm in, past results I've gotten in similar cases. Again, I can already hear people saying, "Well, how the heck can I do that at the beginning of the case?" Well, you've got to use past historical results and it's more of an estimate. And as you get closer to trial, it becomes more like a laser beam, like this is when I think the case is going to get resolved. Kevin Tully: Jack, if you were a new attorney, would you feel comfortable reaching out to other plaintiff's lawyers to ask for advice on those types of things? Jack Zinda: Absolutely. I mean, I reach out to other attorneys all of the time. If I'm in a state that we haven't had a lot of cases in, if I'm in a county I haven't had a lot of cases in. This is a practice where you've got to collaborate. I think any young lawyer should have a group of three to five people that they reach out to, to get their insights on cases. List serves through trial lawyers associations are another great option for that. And I'll tell you know, as someone that's kind of transitioned from a baby lawyer to intermediate and now I'm in my 15th year of practice, I'm flattered when people reach out to me and ask my opinion on a case. I'm like, "Wow, they think I have something to offer there." So I wouldn't hesitate to do that either. Jack Zinda: So you start with the beginning of what's this case valued. And so if you take a simple case, you might say, okay, this case's attorney's fee is valued at a $100,000. I believe it'll resolve in 10 months or 12 months. So you start with that idea and that number should line up with your targets that you're trying to hit for the firm as a whole if you added up all of your cases. Otherwise you're going to miss your target on those case, for your law firm. The next thing you want to keep in mind is as you're working through the case, you're going to have three main objectives at different stages. The first is, you need to strategize what you're going to do in that phase of the case. Then you need to have some way of writing it down so you know what your strategy's going to be. Jack Zinda: So you take your strategy and then you put it into actionable items. Then you save that information away so you can then execute on those actions. And then you're going to review that on a regular basis, update the plan and repeat. Now, again, this sounds very simple, but I can tell you after having mentored at this point, probably well over 25 attorneys, that this is actually an area where a lot of lawyers struggle. Because you get caught up in the chaos of an individual case, or you're in a deposition or you're going to trial, and this gets put on the back burner because it doesn't have that burning sense of urgency. Jack Zinda: So let's go through a few examples of how you might execute on each of those steps. So you sign up a case and you're meeting with the client. The first thing you want to do is decide, do I want this case? And let's assume you say, "Okay, yes, I want the case." You find out all the facts the client knows. You need to strategize, what am I going to do to the next phase of the case? In our firm, that initial stage is called the investigation phase. And we know we want to be through that phase in 14 days to 30 days on the outside. And this is our second analysis of the case. We kind of know what the client told us. Now we're evaluating the case a second time. And you might look at this and go, I need to figure out what are my liability facts I need to establish? What is the damage model that I think this client has? And then do I have a valid source of recovery? So is there an insurance policy that's going to pay for the damages my client has. Jack Zinda: So I would look at that case and say, "Okay, here's the things I need to establish. How am I going to achieve that?" And I'd say, okay, number one, I need to get copies of all of the client's insurance policies. Number two, send out a letter of representation to the third party insurance company that's involved. If it's a larger case, you may say, "I need to put it directly into a lawsuit right away." For the investigation, what photos items do I need? And it's important that you take the time at this stage to really map that out. And everything that you want to get done to the next stage. Jack Zinda: And so once you've done that, you'd have a list of maybe 10 to 20 items, and then you would decide who's going to do those items. Is it going to be me? Is it going to be my paralegal? Is it going to be my legal assistant? Is it going to be another lawyer? And so you make a list of all of those things that need to happen and when they need to happen by, and now you execute. And then you're going to come back and review your game plan again in 30 days. And what's important is that you're tracking those action items. A lot of lawyers will do the first part of strategizing it, but they don't put it in a way that becomes actionable. And that's really critical, otherwise you're going to miss the boat and not get everything done, you need to get done. Kevin Tully: Now, how do you keep track of those timelines, both on a case basis and also at a docket level? Jack Zinda: This is where technology and software and being organized is really important. So you have a few options. One, you could just use an application like Outlook and use Task Manager. I think the best practice is to use some sort of practice management software, that then has each case has its own tasks that are assigned to it. So you would take your memo with the action items, you'd ask your legal assistant, or you would put it in yourself into assignments, into your practice management software. And then assign it to someone and then make sure that there's a clear deadline that you want that action done by. And it's really important that you have the deadline because things don't get done, especially as lawyers without deadlines. Kevin Tully: Right. And then you can zoom out and you can look at all your cases that are in that phase and see which ones are meeting those deadlines and which ones aren't. Jack Zinda: Exactly. And just taking that investigation stage, we said we want a range of between 14 and 30 days for the case to leave this initial evaluation period. And so you'd have your list of cases in the investigation stage. You see which ones are outside of that period, and what's the average time it takes me to leave that period? So now I have a metric that I can focus on. That's going to help me get the case resolved more quickly. Getting that number smaller, the amount of time it takes. And then evaluating the ones that are taking longer than they should and figuring out why. And in my experience, usually when an attorney is not getting out of that phase quickly enough, it's because there is ambiguity, indecisiveness, lack of experience. And those are the cases you really want to hone in on because that'll really drain your docket if you don't make a decision on those cases. Jack Zinda: And there's not always perfect decisions. It's better to be decisive than perfect. And in our cases, there's a lot of gray. So you got to have a decision how you're going to proceed. And the next thing you can do is once you figure out what are the steps I take in a typical case, you can then make that a checklist or an SOP that you use for every case. Doesn't mean you're going to follow that blueprint exactly every single time, but you can use that as your model, your baseline. And then you save that, so the next time you have the investigation stage pop up in a similar case, you don't have to reinvent the wheel. You say, "Okay, boom, I've got this checklist." And then as you're hiring people to join your organization, you can have them execute on that piece. Kevin Tully: This podcast is presented by Zinda Law Group, a nationwide personal injury firm. For over 10 years, the experienced lawyers at ZLG have been partnering with outside counsel across the United States, on all types of personal injury and wrongful death cases. With over 30 attorneys, Zinda Law Group has paid out millions in referral and joint venture fees since 2015. To learn more about partnering with Zinda Law Group, please email us at referrals@zindalaw.com. We'll schedule a time for you to meet with Jack Zinda or one of our trial lawyers to discuss your case. Kevin Tully: So in this investigations phase, are there any logistical challenges that are common that come up over and over again, that would prevent you from getting through this period? I know we talked a little bit about not having a plan, not measuring your timelines. That certainly can be an issue, but is there anything just from an information collection standpoint, that's a common blocker? Jack Zinda: Yeah, that's a great question. So for our cases, in order to leave the investigation stage, we have to do a few things. One, we have to establish liability and the attorney is not allowed to use the client's testimony to establish liability. We put that in there specifically, so we have to go find outside evidence. If you're dealing with cases like motor vehicle collisions or truck accidents or trucking collisions, you can get caught up too much on the crash report and the ability to get a crash report or not, as that driving factor can establish liability, when there's a lot of different options. Jack Zinda: Okay, what witnesses can I talk to? What photos do I have from the scene? What photos does the insurance company have and are they required to provide them to me under law? All of these different components that could establish liability outside of just the crash report. And I see a lot of attorneys get hung up, or at least newer attorneys at our firm at that piece of data. And frankly, a crash report isn't even admissible in a lot of states in it's one person's interpretation of what happened. It's not actually going to be factual all the time. Kevin Tully: Got it. So after investigations, where do we go next? Jack Zinda: So we're done with the investigation stage. In some cases it'll go straight into litigation. In other cases, we're going to have a treatment phase of the case and the treatment phase is going to be involve, okay, making sure the client gets to maximum medical improvement through the doctors that they're seeing. And that's so you can establish your damage model. So you want to know what's the average timeline that someone typically takes to treat for this type of injury? In some injuries that are so catastrophic that are going to treat forever potentially, you want to figure out, okay, when does it make sense to get into a lawsuit versus holding back and waiting for the client to get done treating? And it's all with the idea of using the finish line of trial. Every case you have to look at, the finish line is trial. Jack Zinda: And I will tell you another key factor is, lawyers that don't focus on getting the cases to trial, also take significantly longer. Because they're playing for settlements, and if you play for settlements, you're going to go slower and you're going to be indecisive, and you're going to take lower results as a consequence. Because you don't have that leverage of, I'm taking this case to trial. Now that goes back to like, what cases do I want to take, right? Because you can't take a case to trial, if it doesn't warrant the work you're going to put into it. So my recommendations for every lawyer to figure out, okay, what is the minimum value of a case that I need, that I would be willing to take that case to trial? And that'll lead to the vast majority of your cases resolving without a trial, because you're being aggressive in pushing it, towards getting to that trial date. So the next stage we have the treatment phase, like I was saying. Kevin Tully: Yeah. So same question for the treatment phase. As someone who doesn't like to go to the doctor, I can imagine that often you will have clients who are maybe slow to get around to treatment. Is that something that can slow the pace of your case? Jack Zinda: Like we were talking about, the medical treatment phase or the pre-litigation phase, that's the portion of the case where the client, you're trying to figure out how hurt is the client and what is the client's damage model? That time period for some cases is very short. In other cases it's much longer. So again, for this phase, you want to look and see what is the average time that this should take, based on the client's injuries and the historical data that I have. And you want to track that and see when a case gets outside of that range, why is that? And how do I ensure that I stay on track for where I want to be? Now there's always going to be exceptions. We're lawyers. We love exceptions, right? We love to find the comma, the accept win. But in my experience, attorneys that are missing the targets, let the exception swallow the rule. And they kind of justify every delay as being outside of their control. And it's just an "exception" when it's really, there's something in your power that you can help control there. Jack Zinda: And so to zoom out a little bit, the different phases in our cases, we've got the investigation stage, we've got the treatment stage, we have the demand stage in some instances. We have pre-litigation, which is where you're getting ready to file the lawsuit. Litigation without a trial date and without depo dates. Litigation with those dates. The initial discovery phase. Then we have experts. Then we typically might have a mediation, then additional expert discovery, then pre-trial, then trial, then post-trial. And in our case roadmap, we actually have each of these phases lined up and we know the time that each should take based on a different case type. And you can apply this to any case. Jack Zinda: You can apply it to a medical malpractice case. You can apply it to a mass torts case. You can apply it to a approx liability case. Each case has a phase that's going to be somewhat similar to this. And I think the key to being successful to staying on track is, you are actually looking at how to get to the next phase. Instead of looking at, okay, the case kind of tapers off at the demand stage and I'm going to settle in pre-litigation. So, in our case, our average time to resolve is 10.4 months. And you say, "Well, wow, how do you know that?" Well, it's because it's really important to know that if you don't, you don't know where you're going. Jack Zinda: And some key metrics that I think you want to always look at as a firm or on your individual docket, if you work at a firm, are how many cases did I sign up? What's the value of each case? What is the average time to resolve? And what's the average amount of each resolution? And you're going to have what I call current state, which is how much were you at currently? And then what is your target? Where do I want to get to? And when do I want to get there by? And then you want to look at those consistently over time. Now for average time to resolve an average amount of each resolution, you want to look at probably a six month window, depending on how large your docket is. We always look at a rolling six months for that number. Because one data point, one case could throw you way off. You settle a $1 million case and you settle a $10,000 case, your average fee is then half a million, when really that's not a really great gauge of what your average result's going to be. Kevin Tully: Right. Can I jump in with a burning question here? When it comes to timelines, what is the defense hoping for when it comes to timelines? Are they trying to slow the case, knowing that you want to push it faster? Jack Zinda: Oh, that is a great question. I look at the defense as if it's like a cartoon and they're throwing barbed wire in my way, they're shooting cannons at me. They're putting Wile E. Coyote holes in the way, because they want that timeframe to take as long as possible. And there's a few reasons why, and I always tell our lawyers, it's a battle of time. They want to make it take a long time. We want to make it take a short amount of time. One is time, value, money, right? The longer an insurance company can hold on to the money, the more interest they make. The other reason why is, your case gets worse the more time goes on. Someone looks better three years from now than they would six months from now from their injury. Jack Zinda: Witnesses disappear, both factual and non economics. People get divorces. Your client may go through a different phase in life, people move. And also frankly, the client is in a really difficult situation when they hire you. And so the longer that the case takes, the more they're going to be in that difficult situation. I had a case recently where the defense attorney, we hadn't worked together before said, "What was the rush in filing the lawsuit? I mean, it hasn't even been 18 months since this wreck happened." And I just was like, man, so many lawyers must not understand that you've got to push these cases, if on average, he's seeing cases almost two years post incident when a lawsuit's filed. And the worst thing you can do as a lawyer, if you take nothing away from this, the worst thing you can do is use the Statute of Limitations as your deadline to get into litigation. I mean, that's an artificial timeline that's created by law and that's just the bare minimum, not to commit malpractice. That's not designed to be your goal post that you're shooting for. Kevin Tully: Makes sense. Is there just a comment tactic you see from the defense in almost every case that's just predictable at this point for extending timelines? Jack Zinda: Oh yeah. First is, they will never agree to a trial date. They will say, and to all my defense friends out there, you are all great people and are doing your job. So this isn't a criticism of any individual lawyer. A lot of times they have more cases than they can handle. And they're a little overworked and overloaded. But usually the first tactic is not agreeing to a trial date. And the common explanation will be, "Oh, I'm double booked, triple booked, quadruple booked on that date." And the response should be, "Well, do you have other lawyers and their firms that can handle it?" Or, "Hey, this isn't your fault. But the insurance company needs to hire more attorneys then to work on their cases. Because it's not fair to my client that they have to wait because the insurance company doesn't want to pay additional attorneys to work on files." Jack Zinda: And where I see attorneys get a little sideways, is they confuse being professional with protecting their clients. And there's a way to do both. You can be very professional with the defense in a case, but also firm. And if you can't agree, that's okay, that's why we have judges. Sometimes you win the battle. Sometimes you lose the battle, but you want to have that fight. And I see a lot of lawyers that are scared, and maybe scared's the wrong word. They're uncomfortable with that confrontation because it feels like you're being rude to the defense council. But if you zoom out and say, "Okay, the reason they have so many settings, is because the insurance company doesn't want to pay enough people and they don't want to pay enough people so they can delay the case." And if you know that's a strategy and not an accident, you're more likely to be aggressive in that tactic Kevin Tully: Makes sense. So where do we go next? Jack Zinda: Well, a couple other tactics that I see defense attorneys use as well is they won't agree to deposition dates for clients. And so we have a policy of letter, call, letter, call, set, and then typically there's going to be a motion to compel hearing. And as a lawyer, especially a young lawyer, if you just understand that that's going to be the approach in most cases, and it's a pleasant surprise if it's not, you won't be surprised each time. Another area that I see attorneys get delay is they will send a letter for a trial date. The defense doesn't respond. They forget about it. Then they come back and see the file, oh shoot, a month later, I need to send a letter to follow up on that. Then they send another letter a month later, forget to follow up. The defense doesn't respond. Jack Zinda: So then the attorney starts calling and leaving messages and the attorney calls 3, 4, 5 times. And so now you're like three to four months in, you're also coming from a position of weakness. They're not even being responsive to you and you're basically bugging them like a debt collector. Opposed to saying, "Okay, I'm going to inform my team either myself or my associate or my paralegal to keep on our calendar, okay, we're trying to get this trial date. I'm going to make a phone call, send a letter, make another phone call, send a letter in two week timeframe. If I don't hear back, I'm going to set it unilaterally. If I'm allowed to, in that jurisdiction. If not, I'll set a hearing with the court and then I'm going to know that they're not going to agree to it and I'm going to need a hearing on the issue." And so if you just know that framework, you will get that trial date and those deposition dates much more quickly. Kevin Tully: That's great information. Any other common tactics from the other side that you want to hit on? Jack Zinda: No. I mean, delay is their friend and the other area that I see this happen a lot is on expert designations and discovery deadlines. And those will sneak up on attorneys, especially ones that haven't tried a lot of cases because you're not thinking about, okay, what are the last little pieces of the puzzle I have to put together before trial? And this is back to the idea of strategize. So when you're filing the lawsuit, you want to have your discovery roadmap in place. What are the depos I need to take? What's the evidence I need to get all the way from here until trial? And then as I'm going along, I'm checking the box. Have I accomplished that? And have I done it with plenty of time in the discovery deadline? Jack Zinda: And if you don't, what'll happen is you'll get right up to the edge of it. And you'll say, "Oh shoot, I need to get this deposition set." And the defense says, "Oh, sorry, not available for a month, two months, but hey, we can move the dates back. Yeah. But unfortunately that's going to have to move the trial back. Oh, shoot. The court isn't available and I'm not available for 14 more months past the original trial date. So we're going to have to kick this down the road 14, 15 months." Jack Zinda: And I see that every single case, that's a large case, especially. And that's kind of what they're getting paid to do. And some attorneys are great at that tactic and some aren't, but you have to be on the lookout for that. And I will tell you most large cases, unless it's a policy limits case, don't resolve until the eve of trial or even as trial is starting. So if you don't have that deadline, you're either be under settling your cases, or it's just going to take that much longer to get the case to trial. Kevin Tully: Yeah. Just another reason having that goal line is super important. Jack Zinda: Yeah. And we have a report in our system that measures how many cases don't have a trial and for jurisdictions where trials are not allowed to be gotten without court permission. Sometimes courts say you have to get discovery done or we'll set the trial after the close of discovery. We use an ASO as the second best thing. So you have your expert designations and your discovery deadlines lined up. So, to recap the things we've talked about. Step one in a case is you need to set the valuation of the case and you need to set a target for when the case is going to resolve. The second thing you want to keep in mind is you need to have a roadmap for each phase of the case. And at each phase, you need to strategize memorialize, execute, and then review. Jack Zinda: In the phases you're going to look at in a typical case, you're going to be investigation stage, the pre-litigation stage, the litigation, trying to get your date set, discovery, then expert discovery, mediation, and trial. And for each phase, you want to have some sort of playbook that you use to get through that phase and the average amount of time it should take. And then you want to review that on a regular basis and line it up with your results, which would be, how many signups did I have? What was the average value of the signup? How long did a case take to resolve on average? And what is the amount of each resolution? And you want to have two things you're looking at. One is current state, which is how you're actually doing and then where you're trying to get to. And then if you do these steps every month, you will have a very successful practice and you'll get your cases resolved more quickly for hopefully larger amounts of money, which means you can do a better job for each case. Kevin Tully: Well, Jack, this has been a ton of great information. Where can people contact you if they have questions? Jack Zinda: Yeah. Anybody has any questions, feel free to reach out. You can either email me directly at the firm at jack@zindalaw.com or feel free to call me anytime at (512) 246-2224. Thanks. Kevin Tully: Thanks so much for sharing all the information, Jack, we'll talk to you soon. Kevin Tully: Thanks for listening to today's episode of The Effective Lawyer. You can learn more about our team and find other episodes of our podcast at zindalaw.com. As always, we'd appreciate that you subscribe, rate and review the pod. Thanks.