Host Sean Harris talks with OAJ member Rob Miller from Columbus, OH about client expectations and how to manage them.

Sean: Hello, I’m your host Sean Harris. This is episode 42 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is January 10, 2019 and I’m here with our guest Rob Miller. Rob is an attorney here in Columbus. Thanks very much for joining us here on Civilly Speaking.

Rob: Thank you for having me.

Sean: In our business, whether it’s personal injury, medical malpractice, workers’ comp, etc. it is undeniably a human endeavor and we’re dealing with clients who have been, had their lives altered in dramatic ways. Often as you know, clients come to lawyers with expectations and sometimes, those expectations, I saw facilely, are not reasonable. Have you noticed this? How do you deal with this? Talk to us about managing client expectations.

Rob: Sure and I think that’s an important topic and I think client expectations seem in my practice to be different depending on the three main areas of practice and depending on where they fit into that and the three main areas that I deal with would be your general personal injury case which is often an automobile crash or something of that nature, a premises liability case, something like that. A product liability claim, which is a considerably different animal and often involves more catastrophic type injuries and the third being medical malpractice and all three of them I think have road blocks to them in terms of the clients meeting their expectations. In a garden variety PI case, and this is also true I suppose of medical malpractice and product liability so I guess it’s applicable across the board, but damages caps have had a profound impact on not just our ceiling in terms of recovery, but our bargaining position and what has to happen at the outset is clients have to be aware that this law exists because they often almost universally don’t know about it.

Sean: Nobody has heard of it.

Rob: Right and so what I like to do from the outset is at least give them some, some broad prints as to what we’re dealing with in terms of our legal burden and what might be a ceiling for us. Even you know, I think they all kind of believe that their case has a value higher than what a jury might think so I think that at the outset it’s important to set an absolute legal ceiling. Let them be aware of that because if the case is ever going to resolve, which is always something you want to try to explore, they’re never going to pay the ceiling. It’s always going to be something less than that and that’s usually eye opening and if you start with that I think that it prompts further discussion on all kinds of different things and you can use that to parlay into that’s not our only challenge. One of the things that happened to me, probably within the last week, we had a mediator’s proposal on the table of a very significant motorcycle accident case and it wasn’t a products case, this was just a garden variety personal injury case, but we had a rental car so we had a large policy and we had significant orthopedic injuries. When we were evaluating whether or not to accept the mediator’s proposal, which of course was causing my client to stretch from his expectation and what we were told by our mediator was causing the insurance company of course to stretch from their expectation, lots of questions started popping in. One of the questions was whether caps would apply or not. The inquiry was about whether or not he had a substantial permanent deformity. In his case it was a situation where his injury was more lower extremity so he had some scaring but he had internal hardware, it’s very difficult to know exactly how a courts going to cut on that, but that’s going to make a large difference in terms of what our ceiling would be. So that was a variable that was very difficult to explain to sit down and work through and to handicap and there’s not a whole lot of jury verdict data you can look at that’s going to tell you one way or another whether a jury’s going to find his injury to be permanent and substantial deformity. So we had that issue, but what was most eye opening to him was that conversation prompted other conversations, like what is a jury? How do their minds work? And aren’t they going to be influenced by the fact that we’re against an insurance company?

Sean: A jury will understand my case, right?

Rob: Right. He didn’t realize that the jury doesn’t get to hear about insurance and what the coverage is. That was eye opening. That’s something that I had never initiated with him and caused me to think well in my higher value cases where there is insurance coverage and we have those conversations early on I need to start making sure that everybody knows the jury doesn’t get to hear that. That it’s still going to be a common person at the table across from them, that the jury is going to think, is footing the bill for this or unless you have a sophisticated juror that knows that there’s probably insurance coverage for that. So, I think we’re always trying to evolve our conversations with jury expectations and always trying to think of what are all the variables that I need to bring up? The sooner you bring it up I think the better you’re going to build your level of trust and be able to work with that person towards a fair resolution based on all the variables down the road.

Sean: I think that’s an excellent point, as far as the timing of when to have these conversations. I remember being a younger lawyer and thinking you know stage one, sign up the client, stage two, talk about the merits. I think what you’re advocating is from the initial client meeting discussing what their expectations are and what the legal realities of their case in Ohio is today.

Rob: Yes, and I’m with you. When I first started I was of the mindset that if you can’t hit them with everything at once, it’s too overwhelming, but as I’ve grown in the practice, I’ve learned that I’ve never had a client who takes the time to come see who’s trying to hurry out the door. I’ve never had a client upset that I called them to talk about their case. So, they’re there, they’re captive, they are completely new to this and it’s usually the lawyer who’s in the rush to get out of there and in our mindset I think needs to shift a little bit, that if you’re going to bring somebody in be prepared to sit down with them for quite a while and don’t dull it out slowly over time. Go ahead and hit them all at once and then revisit certain things over time and I think that goes a long way to building a repour, towards avoiding surprises that occur at depositions, which is another area where you learn at least, I’ve been guilty of learning more about my client at their deposition than at the initial intake and that’s something that you really shouldn’t, shouldn’t have occur to you so where I’ve gone with it, in any of the three areas of my cases are really if they are going to come in we are going to have a long talk and we’re going to start at, you know, at the beginning of the facts and end at this is, if it goes all the way to the end of the day, this is what we’re looking at and yeah it takes a little bit of time, but it’s, I think it pays off in the end.

Sean: And again, you make a good point that by covering it at the, as early as the initial client meeting, when you say it again and say it again, and then say it again, throughout the course of the case they’re not hearing it for the first time, right? They’ve heard it from you, by the time they get to mediation they are now hearing the same thing from the mediator building up your credibility as counsel.

Rob: That’s right and the cue I get when I think I’ve done my job the right way is sometimes sentences begin with, I know you’ve said this, right, I’ve heard this or you mentioned this and that means hey that’s good. That means it’s registering and they’re starting to get it. Now they still push back on you and fight about it, but my case is different, but isn’t this different, something to that effect. You know, on the same vein when you’re talking about for instance a medical malpractice case, we have affidavits of merit requirements. We have expert requirements. We have incredible expense that they need to hear about right away. They need to hear that as important and as horrific as their incident may be our hurdle is different in terms of what can we prove and what can we find by way of an expert in that field. What can we find that’s going to help carry the water here to say that there’s been this deviation from the standard of care and obviously you know, I can’t tell you how many people call and think well there’s insurance that covers these injuries not understanding the difference between malpractice and an unfortunate outcome that’s a risk in complications. So I would say a good twenty-five percent think that if you’ve had that bad outcome, well that’s why we have insurance to cover me for this and I wish that were the case, but that’s not the case you know and then the other one in the medical malpractice world that I think conversation that has to be had initially, even if you’re going to take the case and it’s a border line damages case in terms of whether it makes economic sense to pursue the case, think that conversation has to be had because there is a wide discrepancy in terms of the cost of experts and sometimes you don’t know if you, if this is a seven-thousand-dollar retainer case or if this is somebody who’s going to look at it for two hundred and fifty dollars an hour. That can make a big difference if you have a medical malpractice case that’s capped and you know and you’re not sure if it’s ever going to make economic sense how many experts are you going to need? Sometimes you don’t know those answers until you’ve actually looked at the records so you have to leave that meeting saying I will sign you up, I will look at these records, I can’t promise you this is going to make financial sense, we’re just going to have to figure out what we see when we get there.

Sean: I certainly found that out the hard way too. I think that clients appreciate that kind of honesty up front, certainly if you frame it correctly right? If you tell the client I am not going to take your case because it’s not big enough, that doesn’t sound so good, but if you frame it as you’re going to end up worse off for hiring a lawyer by the time we go through all the time and expense and spend whatever it is on experts, etc., discovery, you’re going to have less money than you went into it, I don’t want to do that to you, it doesn’t do you any good, and it doesn’t do me any good. We’re trying to get a successful result for you under the circumstances.

Rob: Yes, and the nightmare scenario which happens all too often I think for all of us because we have clients that are emotional about it and they don’t like hearing that and all the sudden you can get into a contentious situation where it’s not uncommon for them to become very upset and start blaming you and yelling at you and things like that and one of the things I have recently started doing, that has been very effective is immediately explain the business side of it, that we work on a contingency fee and we found all of our own cases and that this is one where partnership would never agree to fund it because it’s too high risk for us, but if you wish, you can fund it and it would be a retainer of five thousand dollars to allow us to do the work up or whatever the case may be and you can pay for it to be reviewed and then we’ll work on an hourly fee of whatever that might be and we’d be happy to do that if that’s your preference, but I wouldn’t recommend that because I think that at the end of the day it’s probably not going to benefit you financially for the reasons that I’ve already stated. Then it suddenly starts to focus in on them and it is hard to do this when it’s not house money anymore, they start to understand it from your perspective.

Sean: Yes, and talk about things that clients always a lot of times don’t understand, not talking about insurance, those kinds of issues, but the difference between legal fees and case expenses, right? Oh, you told me it was a percentage and that’s it, well no, we talked about that, but we can go over it again.

Rob: Yes and that’s why you’re fee agreement obviously has to be very clear about that because that is a common one, people have a misunderstanding about that all the time and I make it a practice to actually point that out even though, two, three years down the road it’s forgotten, you can even highlight it at times if you have somebody that your concerned about whether they’re retaining the information and then you make a copy of that in color and you hand them you know their copy and your copy and their initials are all on it and that can help with that because yes, that is a big deal, especially in the high expense cases where, wow this costs seventy thousand dollars to pursue, yes it did.

Sean: I was thinking about as far as you know, initial client meetings and intake I’ve had situation, you talked about some of the practice pointers, I’ve had conversations with new clients where I ask them do you have goals or expectations for this case if I’m concerned that they may be out of line for what we can reasonably accomplish and whatever they say I try and write down verbatim, nine times out of ten they just say I want my bills paid, whatever it is…

Rob: And I don’t want this to happen to somebody else.

Sean: Right, and that’s the principal and the way I use that, how it’s beneficial is inevitably when you show them the initial offer and they say well that’s a slap in the face, that’s outrageous, let’s file suit right away, I say well you know when we talked initially you only wanted your bills paid, apparently that goal has changed now and so let’s have that conversation so it serves as kind of, you know a re-centering, but also a jump off point to talk about okay let’s continue this professional relationship talk about how do we get the best result under the circumstances.

Rob: I love that idea. I think that’s a great idea and I’ll start doing that.

Sean: Alright, well maybe this podcast is worth something to somebody now.

Rob: Alright, yeah.

Sean: Rob you mentioned that you handle a fair amount of products liability cases, what percentage of your clients and potential product liability cases know about a statute of repose in Ohio?

Rob: Right, so the statute of repose has come up I would say in three critical places for me. None of my clients of course know about it.

Sean: What?

Rob: It exists in medical malpractice as well. There’s a four-year statute of repose and that one comes up fairly frequently. Three times it happened to me in a product liability setting. First was a wrongful death situation where a gentlemen was repairing a machine in a factory setting and the machine had sophisticated software in it and there was some sort of hiccup that he could only repair by accessing a panel inside of the machine and even though the machine was locked out and tagged out, it was energized, the way the software was set up was a defect and so when he reset the machine just as the manual said to do it cycled and caused a traumatic brain injury for him that he was not able to survive. The machine was older than ten years, which is the Ohio statute of repose. I remember when that testimony was taken and I went and I watched that and the naivety of people was shocking to me that they really thought that it’s simply not practical that there would be machinery out there or products out there that are ten years old that would be completely unfair to hold a manufacturer to a standard like that, but the other one that came up, so that’s number one, that’s an error code that had never been a sophisticated machine like this has potentially millions of them. This is an error that had never occurred before, in ten years of use. Classic example. Second one automobile seat belts. How many people are driving around out there in cars that are ten years or older? A lot, that have never been in an accident or that have never been in an accident with for instance, somebody sitting and belted in the right rear where we have a defective seatbelt for instance so in that particular case there’s no ability for the consumer to know that they’re riding around, they’re children riding around a car with a defect in it. The third one was, course both of our firms have been involved in the Ohio State Fair case, where we have carnival rides or fair rides out there that are older than ten years old. Putting our children on it, our communities putting their children in it. Ohio law says that in these three instances there is nothing we can do, our hands our completely tied, it’s an air tight statute. It’s always shocking, it’s always shocking to clients when you say yeah, you didn’t know about that. They don’t know what our general assembly is doing, they never do and it’s a frustration to all of us every election year we go through and I know it’s not high on people’s radar what’s happening with respect to people’s access to the courts because it’s only important to them when it happens to them. If it doesn’t happen to them then everything’s ship shape and there are other issues that are more pressing and I understand that. I think one of our greatest challenges is trying to figure out a way to continue to try to message this, but it’s really trying to message to people that are just not going to be capable of receiving it because they don’t have that human experience.

Sean: Yes, I always thought with the statute of repose and products, the least they could do is require a warning, right to place a sign whether in front of the amusement park ride or on the seatbelt that say this was manufactured on and sold on this date and just so you know, just fair warning after this date it doesn’t matter you can’t bring any claims. That would be the fair thing to do.

Rob: Maybe put it on the sign, welcome to Ohio.

Sean: Right, right. Statute of repose in effect.

Rob: Right, and we see that a lot too with court, when you have medical malpractice claims at Ohio State and by the way you don’t, your doctors are all immune. This is a claim against the state of Ohio with vast limitations on what can be done for you and they don’t know that. That’s not disclosed to them and you know I think there is a fair amount of people, the world of malpractice, of med mal is much more on peoples radar than products and I think people would actually elect not to go to Ohio State if they had some idea that there’s greater license to malpractice, but I understand the wisdom behind it because you’re teaching, it’s a teaching hospital and things like that, but we sure don’t do a good job of disclosing it to the patient so they can make an informed decision about it.

Sean: And speaking of Ohio State even that legal issue of immunity here, our idea or our topic today talking about managing client expectations they don’t understand that.

Rob: No.

Sean: They don’t know it and even if they know it they don’t understand, wait a minute there at fault. They caused this injury. Why aren’t they responsible?

Rob: And they’re deeply offended by that notion, they are. That’s just, that’s not what our countries ideals are founded upon and nobody gets a free pass, nobody gets to run red lights with impunity like that and so yeah it runs completely afoul and again that goes back to the old, well that doesn’t apply to me, why should it apply to you and it shouldn’t. We all agree with that it shouldn’t, but that’s why it offends the very nature of American citizens.

Sean: Rob, thanks very much being here today and thank you to all our listeners out there. If you like our show and want to learn more, check out civillyspeaking.com. Also leave us a review on iTunes and we’ll see you on the next episode of Civilly Speaking.