“If you can’t help us with this accident, I just don’t know where else to turn, honestly I don’t.”
I’ve heard that phrase in many different versions and phrasings and languages even, and I’d like to say that the first thing it brings to mind is the “red flag” that any personal injury attorney would recognize right away. It’s the red flag which says “Watch out! You are not the first lawyer she’s talked to. Probably not the first she’s said this to. You’re just the latest, and probably not the last.” It’s a stock phrase for prospective clients who are shopping around, and the implicit message is that the other lawyers before you have all passed, because there is something wrong with the case. Most lawyers have a stock response, which they sometimes even put into a formalized rejection letter (if they’re very on top of things), saying “while we are not in a position to take on your matter, we encourage you to consult with other attorneys.”
The truth is, though, that the more you hear that rejection, the more likely it is that you will keep on hearing it. I knew that already, and I could already sense the likelihood of myself rejecting the case as well, but the real truth was that this “red flag” was not the first thing brought to mind when this particular lady said that to me. The “red flag” was an afterthought—a part of my mind calling the rest of me naïve—because my first reaction was to sympathize. I could imagine all the doors already shut in this lady’s face, and God help me, I didn’t want to be just another shut door if there was anything I could do about it. I don’t like shut doors. It’s a thing of mine; they make me want to bust them down.
“Okay, tell me what happened.”
The person I was talking to, as it turned out, was not the client himself, but rather his sister. She was a well put-together lady in her later middle age, not rich by the wear on her shoes and handbag, but sensible by their quality and durability. It was her nervousness that lent her credibility—coupled with the backward way she told me about the case. She really wanted my help but not for the money, because if she was “selling” the case she was doing an incongruously bad job of it. She led with the problem, whereas if she were selling, she’d have led with the injury, because while the injury was awful, the problem was bizarre, and I could tell immediately why everyone else had taken a hard pass.
“We really have no idea what happened,” she began, and I can tell you right now that that’s one of the worst things you can say to a lawyer when you’re trying to get him interested in a case. Most personal injury lawyers want cases handed to them all wrapped up on a silver platter, ready to go. That’s because we make our money as a percentage of the case, and not by the hour. There are good things and bad things to that arrangement, and on balance it’s a very good thing for society. That’s because (on the positive side) it allows anyone—regardless of financial means—to bring a case to court. Were it otherwise, then Goliath would always win, because the big rich insurance companies and corporations can spend whatever it takes, and the poor would simply be priced out of ever getting justice, no matter how righteous their cause.
On the negative side, however, there’s an incentive for the attorney against working too hard, because the fewer hours you spend collecting your fee, the higher your hourly “rate.” There are cases where you bust your ass fighting all the way to a jury verdict and it ends up paying less than minimum wage—or maybe nothing at all. And then there are cases where you write one letter (or rather, your secretary writes it for you) and you collect forty grand. Needless to say, a lot of guys in this business are in it for the latter kind of case.
So, when the first thing out of the client’s mouth after you ask her what happened is “I have no idea,” that sounds like a lot of work right off the bat. I can imagine she got the old thanks-but-no-thanks shortly after that line, probably more than once, and since she doesn’t come across as dumb at all, it’s to her credit for tenacious honesty that she sticks with that truthful reply. I drilled down a bit and said: “Well, why don’t we start with what you know.”
“We got a call about a week ago from a nurse at Arrowhead Medical Center, saying they had a man there named Barry Audrey who said he was my brother and was it so? I said yes, I have a brother by that name, and in fact we had been trying to find out where he was because it wasn’t like him to be out of touch so long, but I hadn’t thought he’d be in the hospital. I asked what happened and he said we’d better come out, so we did, right away. I was very worried the whole way, but when we got there and I seen him…” she paused, feeling emotional. Again to her credit, she avoided dramatics and continued in what she felt to be a professional manner, no doubt thinking it more appropriate when talking to a professional—that being me.
“Anyway, he was there all right, with tubes and whatnot sticking all out of him, all in pieces, and he had no idea what had happened to him. The hospital staff told me he’d been hit by a car, but Barry couldn’t remember any of it. They said he’d had a skull fracture and blood on the brain. He couldn’t even remember what was going on before he’d been hit. They called it, I think, some kind of amnesia.”
“Yes. They told me this happened on November 8. But we don’t know where or how it happened. I called the Rialto police department, and they said they knew about the accident but that they didn’t have a report, so I really don’t know what to do.”
So that was the dead end which led her to seek a lawyer, and which caused every other lawyer she’d seen to show her the door. Easy enough to see why: no defendant. No way to know if the driver has insurance, or even if it’s the driver’s fault. Sure, the injury was bad, but most lawyers will say so what? If you can’t collect, it’s worthless.
But it bothered me. There was a thread dangling there and I couldn’t help but paw at it.
“You say the police told you they knew about the accident but there was no report?”
“That doesn’t make sense. Anytime an ambulance rolls from an accident scene, there will be cops on scene as well, and there will be a report. There has to be.”
“But that’s what they told me.”
“It doesn’t make sense.”
She looked down at her hands in her lap, and it occurred to me that she thought I was criticizing her, like I didn’t believe her—but I did believe her, and that was the problem. There was no way I could show her the door like that. It would bother me forever. I had to know, and I had to let her know as well.
“OK, I’ll find out. We’d better take a trip out to Colton so I can meet your brother, and we’ll take it from there.”
Barry didn’t have much to add from what his sister told me, but it was good to meet him and get an impression of him as a person. He didn’t raise any other red flags is what I mean. Coming out of law school, I worked my first couple of years lawyering as a public defender—first in Tampa, Florida, and then in Riverside County, both places where you keep busy with drug offender clients, and you get to know how to recognize an addict. Which is not to say I wouldn’t take a case like that; in fact, I have on several occasions. A drug addict can get run over just like anyone else, and if the accident wasn’t his fault, then his addiction has nothing to do with it, and I wouldn’t even let it come into evidence. But they can make for very challenging clients, from a case management perspective, in that they’re very unreliable: missed doctor’s appointments, interrupted phone service, evictions, homelessness… Again, most lawyers wouldn’t take on such a client, but again, I probably would. That’s just me, I’m funny like that. Probably my time in the PD office, or maybe it goes further back, but my instincts are against the common-sense for my line of work in that regard. If they’re poor, drug addicted, mentally ill, and getting screwed over, it often counts for them in my book, not against. But I do like to know what I’m dealing with, because of the lies that come along with addiction. I can help you if you’re an addict, or if you’ve done something stupid, or whatever, as long as I have two things: something that the other guy did wrong; and no avoidable surprises. When the client lies to you, that’s a landmine just waiting to be stepped on later.
Barry was an ordinary guy, though. Very large and very friendly, even in that terrible condition, and almost apologetic for being so injured. All he could tell me was that the accident happened near his home in Rialto. “I went out, I forget what for, to the store or something? Next thing I know, here I am.” No lies in that.
“Yeah, there’s stores and stuff nearby, I go there all the time on foot. Don’t own a car anyway,” he laughed, “so it’s mostly on foot.” He looked at his shattered right leg where it was hanging in front of him. “Won’t be so easy now.”
“No,” I agreed. “Not for a while anyway. It’ll cut into your dance time too.” He laughed sardonically at that. I liked him. “There’s a service that can pick you up and take you where you need to go. Once you get discharged, I can help you set that up.” Once he finished signing the retainer agreement and authorizations, I gave him a pack of my cards and told him that if anyone asked him about the accident, to tell them he has a lawyer, and to give them my number.
My usual practice in cases like these is to meet the clients where they are—not like Barry could travel anyway—and on the way back to stop by the accident scene for a look around. In this case, I only had the vaguest idea where the accident scene was. To reach the shops he’d mentioned, Barry would’ve headed north on Sycamore to Baseline, where there is a commercial zone for two blocks west to Riverside and Willow avenues. Baseline is a busy road with two lanes in either direction and a center turning lane—often called the “suicide lane”—so it was good odds that’s where the accident happened. Rialto’s municipal code requires pedestrians to use crosswalks in business districts, so exactly where the accident happened would make a difference (although not the whole difference). There weren’t that many businesses with a good view of Baseline, so I made a quick canvass and got lucky on my third stop. The manager at the Wendy’s was there that night. She didn’t see the accident itself, but she remembered seeing the Fire Department ambulance and cop cars, and also a sedan pulled over; a new-looking silver car, maybe a Mercedes. That was enough for me to get started.
Personal injury cases get worked in stages, in between lots of other cases. Since you don’t get paid until the end of the case, there has to always be something settling—or otherwise paying out, but it’s usually settlement. So you juggle lots of balls in the air: touching one, putting it back in motion, catching another, and so on. The first thing I did after opening Barry’s file was to send a formal letter to the Rialto Police Department requesting any and all materials related to his accident, including reports, photographs, dispatch logs and audio recordings (like from 911 calls, or witness statements). I now knew for a fact that what they told Barry’s sister was not true, although I didn’t understand why. I also sent out medical record requests to Arrowhead Medical Center and Rialto Fire Department. After that, the file went on the shelf while I waited for replies and worked other cases. It’s not like on television where the detective only seems to ever have one case at a time and works it exclusively till it’s solved. Wouldn’t that be nice! No such luxury in the real world, not for the police and not for me either. It takes a good long while sometimes for government agencies to comply with records requests, because they get so many. In the meantime, I pull the file every week or so just to check in with the client and make sure he’s getting the care he needs, and of course I’ll pull the file to follow up on any contact that comes in, be it a call from the client, or—as happened with Barry’s case—a call from the City Attorney’s Office for the City of Rialto.
Next: Catching Breaks
In the next part, I start turning up evidence and bit by bit piece the story together. Below are some links related to this chapter.
- Many police departments make reports available online. https://policereports.lexisnexis.com/
- For brain injury cases, everyone should know about the Barrington Center. http://www.barringtoncenter.com/
- Have a case of you own? Let us know! https://thelionslaw.com/contact-us/
THIS IS A DRAMATIZATION OF A REAL CASE. NAMES AND CERTAIN DETAILS HAVE BEEN CHANGED, OMITTED OR ADDED