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Max Kennerly, a fellow Philadelphia trial lawyer wrote an interesting blog post a few  weeks ago which I'd like to share with my readers here. It puts into perspective the balance which has to be maintained between professional and personal life  for lawyers who do the type of work that we do. This is sometimes a rule more kept in its violation than in its practice, as I write this post at 6:30 p.m. on a Monday, after my wife just called asking when she should have dinner ready, and after I finished a very long call with a client.

Here's some of what Max says:

But there are only so many hours in the day. Even if a lawyer obsessed about their cases every hour of the day — which we don't want them to do, since it will cloud their judgment — they still wouldn't be able to explain every hypothetical possibility to the client.

Fact is, if a client wants a perfect lawyer, they need to find one willing to devote their entire practice and personal life to their case alone.

The rest of us imperfect lawyers use two techniques: triage and ticklers.

Triage is just like in the hospitals: we attend to the most pressing matters first. David Dow, who represents defendants on Texas' death row, is one of the most respected lawyers in America, yet his The Autobiography of an Execution concedes letting cases go by the wayside for months, sometimes years. He's a less than perfect lawyer, and understandably so: he can't hunt down every trace of exculpatory evidence for a client whose execution is years away when another one of his clients is weeks, days or hours away from death. My triage in civil litigation doesn't carry as much gravity, but it's no less real: I must prioritize the most urgent matters. I do the same for every client when their matter becomes the most urgent matter.

A "tickler" (part of a "tickler file") is a funny name that lawyers dreamed up for "reminder." Litigators in particular are always on some sort of deadline, either by way of the statute of limitations, a deadline for filing or responding to a motion, the closing of discovery, the submission of expert reports, the preparation for a hearing, the taking of a deposition, or trial. Sometimes, the necessary work can be done in minutes. Sometimes it will take weeks. The ticklers are ways of interrupting the triage to point out that work due later needs to be started now....

If you want someone to teach you the intricacies and contradictions of the law, that's available, just be ready for $60 for each courtesy email. But if you've hired someone on a contingent or fixed fee to do battle, it's not unreasonable for them to contact you only as necessary and as useful for your case.

For my clients, if you haven't heard in a while and don't know the status, please write or call, and we'll put your call in the triage and the tickler file and get back to you. If we don't get back to you in a few days, call again. (Email is even better, since I get it outside the office.) If you've learned of or thought something interesting, please write or call, and I'll consider it. Otherwise, I'll contact you when necessary and useful for your case, such as when you need to review an allegation, prepare for discovery, or consider an offer, and I'll forward you the court filings I made on your behalf.

I try to be available to all of my clients by way of office phone, cell phone, e mail (or of course  through contact that clients have with my employees), as much as humanly possible. Some of my colleagues say I am too available, and they opt for a different system.  Like Max, if you can't reach me I am probably in court or in a deposition.

Right now, I have to leave to go home and eat dinner.

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Former Washington Mutual (WaMu) CEO Kerry Killinger doesn't understand the concept of personal and financial responsibility. He told lawmakers in Washington this week that the reason Wamu went under (the largest bank failure in U.S. history) was because the Fed, Treasury, and D.C lawmakers decided not to save his bank, yet chose to save other banks.

Specifically Killinger said, "for those that were part of the inner circle and were 'too clubby to fail' the benefits were obvious. For those outside the club, the penalty was severe."

Let's be clear here. Wamu made bad decisions on mortgage backed securities, as did other banks. The fate it suffered was due to poor decision making, poor investment decisions, the rose colored glasses syndrome, hubris and greed. CEO Killinger wanted to make Wamu a "supermarket bank" where borrowers of all types could seek loans. That is not a good policy for a bank to have. All businesses must specialize or fail.(Mine included.)

Senator Carl Levin (D-MI), chair of the investigations subcommittee has stated:

"WaMu built its conveyor belt of toxic mortgages to feed Wall Street's appetite for mortgage backed securities.To keep the conveyor belt running and feed the securitization machine on Wall Street, Washington Mutual engaged in lending practices that created a mortgage time bomb."

Meanwhile, Mr. Killinger has two homes; one in Palm Desert, California (outside of Palm Springs), and one in a a gated community in Seattle, Washington. While CEO of Washington Mutual in 2007, Killinger earned a total compensation of $14,364,883, which included a base salary of $1,000,000, a cash bonus of $0, stocks granted of $10,120,731, and options granted of $2,846,400. In 2008, the year Washington Mutual ceased to exist and Killinger was fired as CEO, he earned $25.1 million in compensation. Killinger received a $15.3 million severance payment in September 2008 as well as a $445,200 lump-sum payment for vacation benefits and an additional $300,669.He has no problem blaming others for the demise of his bank.

This is a  blog about personal injury law. So what does the Wamu story have to do with that?

All I know is not watching the bottom line is no way to run a business. As a personal injury lawyer, I have to finance each case I take. I don't get paid until the end of the case. That's the essence of the contingency fee agreement I have with every one of my clients. Careful evaluation of each case is required, or I, like Mr. Killinger, could see my law practice go down the tubes. That's why from a philosophical and practical point of view  I only take on meritorious personal injury cases that have a good chance of success. I represent people who have real problems, have suffered real losses and terrible injuries. I have no interest in filing lawsuits on any other type of case. To me, that would be like investing in toxic mortgages. And, to my knowledge, Washington has no plans to come to the aid of the owner of a personal injury practice who didn't pay close attention to the business side of the practice.

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Two articles caught my attention today in the Philadelphia Inquirer business section. The first had to do with the number of increased bankruptcy filings. The author talked about bankruptcies among the rich and famous, including that of former Phillie Lenny Dykstra who apparently owes between $10 and $50 million. I am no bankruptcy maven, and there may be very good reasons Mr. Dykstra is pursuing bankruptcy, perhaps to protect his other assets from creditors. Sure seems like he was irresponsible with the large sums he made as a player.

The second story I read today was about the trials and tribulations of large law firms who are having a tough time in the current recession because big firms, as the writer puts it, don’t have coherent business models.

That’s surprising to me. Having a business plan starts with putting on paper your purpose for being in business. For instance, mine is to have clients who are regularly informed of the status of their personal injury case and who are kept informed of the process throughout the litigation of the case. This creates a steady stream of satisfied customers who speak well of me and my firm, simply because they are informed. Of course, I am in business to make money. But, as far as I am concerned, that cannot be the primary purpose of my business. If my primary goal was simply to make money, my clients and their cases  would become a secondary concern. It’s a simple business plan that is regularly communicated to my staff.

Incidentally, I have found that doing right by my clients equates to better settlements and verdicts for my clients. My clients are well informed of the risks of both settlement, and trial. This process of constantly keeping my clients educated about their case leads to happier clients, who then refer more clients to me. No surprise there.

At a minimum large law firms need to end the excessive waste of time, and waste of their clients’ money. Hourly billing rates by defense firms with no end in site in the litigation of a case, the filing  of needless motions (something I see every day in the personal injury cases I litigate for my clients) is sure to raise the ire of a client, big or small.  It’s simply irresponsible money management.

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A client came into my office the other day having been in a car accident. She was taken to the hospital by ambulance. Her car was wrecked. The accident was not her fault. She had some questions and some comments which I hear fairly often.

• I am not the "suing type".

One of the first things she said was that she was "not the suing type."  (She meant that she was opposed to litigation generally, and that there were "other" people responsible for litigation, regardless of whether those "others" included individuals or business attempting to enforce or protect their legal rights). When I come across a client like this, I try to make it clear that litigation is not an easy undertaking.  (I call it a "meatgrinder" to drive the point home) and I rarely file suit except as a last resort.  I try to politely suggest that categorizing someone as the "suing kind" is nothing more than an urban myth.

• I think I should get punitive damages.

In a typical personal injury case, recoverable damages include "special damages" and "general damages."  Special damages are for itemized amounts, like wage loss and medical bills. General damages are for non-economic damages, that is,  pain and suffering. Punitive damages, designed to punish the wrongdoer, are rarely if ever applicable or recoverable. I try to explain to my client at the outset that my role is to try to help them recover their out of pocket expenses and non-economic losses related to their accident.

• The other guy injured me. Why should my (car insurance or health insurance) pay for my medical bills?

I explain that Pennsylvania law rightly and correctly requires your own insurance company to pay for your own medical bills, whether it's your car insurance, health insurance, or through workers compensation benefits if injured on the job. This is a benefit to you that you paid for in some way, either directly or, in the case of workers compensation benefits, by the very nature of being employed. You may also be a beneficiary of insurance benefits, say for instance, if you are a passenger in someone's insured car and you have no insurance of your own.

• Should I not go to work? How long should I go to the doctor?

These are issues that require medical consultation and advice. I always explain that issues related to medical treatment  and disability should always be left up to the doctor that my client sees, after consultation with my client/their patient. I urge my clients to go to their doctor visits armed with questions.

• This didn't hurt before, but now it does. It had to be caused by the accident.

It very well may be. But unless an injury can be related to an accident by credible medical expert testimony, it cannot be proven as related to the case. Put another way, your doctor must make the causal link between your injuries and the accident. The worst thing to do in a personal injury case is to overreach. That's not to say you should not tell your doctor of all of your ailments. But  you should also rely on the competency of your treating doctor to causally connect your injuries to the accident and only those injuries that are related to the accident.

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Layoffs are pounding the legal profession in the Philadelphia legal community. Firms are merging in order to stay alive in the recession. Wolf Block, with over 300 lawyers,  went under in late March. In early March, Morgan Lewis & Bockius announced it was laying off 55 lawyers and 161 support staff. Big and medium size law firms have lots of overhead in terms of salaries, rent, equipment, you name it. They can't be nimble in an economic downturn, at least not nimble enough. They can't change course quckly enough to catch new opportunities in the legal marketplace.

Of course, the same pressures that medium and large law firms face are no different than the pressures faced by other businesses. Any business owner can testify to the fact that opportunities for growth abound, even in this recession. But  slight adjustments in a company's or law firm's business plan must be on the books (at all times) and ready to be acted upon (when needed).

Smaller law firms don't face quite the same financial pressures as their larger counterparts. In this economy, that could turn out to be a benefit for consumers in need of legal services.

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