Monday, July 2, 2012
From a podcast sponsored by WestlawNext and the ABA Journal blog that features two very experienced and successful plaintiffs' attorneys. The podcast can be downloaded here. Below is an excerpt of the transcript.
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Stephanie Francis Ward: If you do plaintiff work, sometime in your life that million-dollar case will come in your door. But how do you know it’s the one?
I’m Stephanie Francis Ward and that’s what we’re discussing today at the ABA Journal podcast. Joining me are Paul Kiesel, a partner of the Los Angeles plaintiff firm Kiesel, Boucher & Larson, and Kerry Wisser, a Partner with the plaintiff firm Weinstein & Wisser in West Hartford, Conn.
Gentlemen, the first question I have is for both of you. What is the best way to determine if a defendant has any assets?
Paul Kiesel: Well, Stephanie. It’s Paul Kiesel here. I’ll say this. When I’m looking at taking a case, and almost all the time, it’s a contingency fee case, meaning if there’s not a recovery at the end of the day there’s not gonna be a recovery for the client or a fee to the firm.
I am rarely looking at the assets of a company or an individual to determine whether or not I’m gonna take that case, because 99 percent of the time you're hoping that there’s going to be insurance coverage available. If you’re looking at someone’s individual assets there is great risk in taking a contingency fee case or assets are what you’re looking for compensation. What are your thoughts, Kerry?
Kerry Wisser: Yeah. I do more commercial work, and from the commercial side there are often circumstances in which you’re not dealing with insurance. So under those circumstances you do have to be very cognizant about the collectability of the case. I often advise clients that a judgment’s only a piece of paper. If it’s uncollectable, it’s uncollectable. And if you have a client or if you have a defendant that’s teetering, they can file bankruptcy.
So under those circumstances, for those folks that use Lexis there is the opportunity to offer products that can identify commercial real estate and residential real estate ownership. They can identify ownership of vehicles. They can identify prior addresses. They can give a lien history, a tax payment history. Some of that can give you some basic information as to whether or not you’re dealing with what I deem to be a deadbeat or someone that is viable or a company that’s viable.
At least in my state you also have the opportunity to start an action before a lawsuit. It’s known as an Application for a Prejudgment Remedy. And if you can establish probable cause that you can prevail–and that’s a very limited standard–you then can get a disclosure of assets. And that’s a great tool to utilize.
You establish before the court probable cause that a judgment will be rendered for a certain amount of money, whether it’s a liquidated claim or an unliquidated claim, and commensurate with that the court will give you this disclosure of assets. And that requires the defendant to provide, either in writing or through a deposition, information relevant to all the assets they have up to the amount of the prejudgment remedy as the court would grant. So that’s another tool.
. . . .
Stephanie Francis Ward: A question for both of you. In terms of evaluating the defendant and his or her ability to pay, are there some red flags that plaintiff lawyers commonly miss?
Kerry Wisser: Well, actually, I just wanted to add a bit to what Paul was just indicating. Connecticut has a $20,000… $20,000/$40,000. So it’s not much great than the 15/30 that California offers. And I find that most of the surrounding states in the northeast are very similar in terms of they are small thresholds.
And the back of the envelope’s not only the car they’re driving but maybe even the address that they live in. That’s very helpful also. But what is unique again to Connecticut versus California is just recently, in the past year or two, Connecticut did pass a law that requires an insurance company to disclose its coverages upon a written request, and they have 30 days to do so or they could be subject to a bad faith claim.
And given the fact that California seems to be the most progressive state in our union I’m surprised that they don’t have a similar law, because it would appear to me that why do you want to have to start a lawsuit and burden the judicial system when in fact a simple letter and a simple response would be there?
When you have the circumstances of the coverage as it relates to the individual that caused the accident–we call that the tortfeasor–you also want to ask your own client in regard to their what’s known as underinsured motorist coverage. Because if the individual that causes the incident has $20,000 in coverage but your client has $300,000 in coverage, again referencing Connecticut law you can collect the $20,000 against the individual that caused the accident, exhausting that policy, and then bring a lawsuit against your own client’s insurance company for the remaining value of their coverage, assuming that the injuries as substantial enough.
And, again, Connecticut offers the ability to enhance that even further. You can buy something called conversion coverage, so you can collect all of what the tortfeasor has without a subtraction against the $300,000 policy, and there’s double conversion coverage so that there’s the opportunity not only to look at the individual that caused the accident but the coverage from your own client themselves.
Paul Kiesel: And you call California progressive. I ought to be living in Connecticut and working in Connecticut! Stephanie, the red flag I’m looking for at the outset of one of these cases is–and you raised this is some of the earlier questions that you posed–looking at your client and what the expectations are of the client, the initial meeting and determining both the injuries that your client has and what your client’s expectations are going to be.
Really at the outset your biggest red flag, the thing you have to be most cautious of, is your initial meeting with the client, what your client’s expectations are, and managing them, I think, are one of the larger challenges that a plaintiff lawyer faces today.
Kerry Wisser: And I absolutely agree with that, because I think that Paul and I can both tell you that over the years there have been folks that have come into our respective offices, advise of the nature of the accident, the mechanics of the accident, and at least giving you a brief outline of the nature of their injuries, and then they have unrealistic expectations. The person says, “Well, my next-door neighbor had an injury like this and collected a million dollars.”
And I said, “Well, then you ought to find the lawyer who represented your next-door neighbor because that’s you ought to go see.” When the case clearly… unless something enhances in terms of the injuries or something’s found that has not yet been found by the physicians, the nature of the injury could be fifty to hundred and they’re talking to you about a million dollars.
Paul Kiesel: And what I want to caution your listeners about is this: do not feel compelled when the client pushes you to ever come up with a number that somehow approximates the value of your client’s claim. If a client comes to you and says, “I’ve been to a lawyer, who’s already told me my case is worth x,” you need to explain very carefully that that is likely not a well-founded number that’s being put out there.
And, as Kerry just said, if the client says, “An attorney told me my case was worth x,” then you have to very politely tell the client to go hire out there, because you cannot be put in the position, regardless of how badly you want the case, to have the client control the ultimate outcome at the early stage of the litigation.