New York Times Speaks Out On Work Zone Car Wrecks and Accidents

One of the most dangerous parts of any drive — for both motorists and for construction workers — are highway work zones.  Unfortunately, the dangers posed by construction zones do not receive a lot of publicity.   Maybe that is changing.  Yesterday’s New York Times contained a feature article:  Efforts Lag at Making Highway Work Zones Safer.    Some early take-aways from the article:

1. Work zone wrecks are a huge problem in Texas.  Many of the example accidents that the article discussed occurred here.

2. Work zone dangers come in any number of forms. Some of the more popular problems that people need to look for are  improper pavement drop-offs, barricades set up the wrong way, improper traffic stops, parking construction vehicles too close to the roadway, improper marking of construction.

3. There is no nationwide standard for work zone safety, and most regulations are left to the states.  This poses a problem.  For example, the article mentions that in one state, pavement drop-offs need to be addressed when the drop-off is three inches or more while in another state, the drop-offs only need to be address if more than five feet.

4. The problem is only going to get worse.  As a result of the Obama Administration’s stimulus plan, billions of dollars are being pumped into roadway construction projects. 

I’m convinced that this is such a problem that I’m going to devote a few posts to it over the next week or so.  In the meantime, I’d love to hear comments or suggestions from any of you that have experienced close calls in construction zones.

I’m Still Hurt After A Personal Injury Settlement. What Do I Do?

In the last few days, a couple of people have found our website by making Google searches asking what to do if they’re still hurt after their personal injury settlement. 

The answer in Texas is that they are probably out of luck.  We continually warn prospective clients and injured persons that one of the biggest mistakes they can make in pursuing their personal injury claim is settling too soon.   You only get one shot at your case — once you settle a case and sign a release, the case is over, and you can’t recover any additional funds from the defendant even if it turns out you’re hurt worse than you thought.  As a result, you generally shouldn’t settle your case until you know the outcome of your injuries.  In other words, don’t settle until you know that you’re completely recovered or you’ve been told by your doctor that you have made as much progress as you’re going to make and that you have permanent injuries.  (The one big exception to this rule is when there is not enough insurance to go cover all of your injuries —- then you usually might as well settle for the proceeds available.)

The one instance when the injured person might not be out of luck is when an insurance adjuster has used fraudulent or false statements to settle the case.  It seems that many adjusters are now trying to settle cases within a few days of the incident, and in some of these cases, the adjusters are making false statements to induce the injured person into settling the case and signing the release.  In that situation, the injured person may be able to have the release voided, allowing the injured person to pursue the full value of the claim.

Injured? Avoid High-Volume Settlement Mill Attorneys

I’ve long warned injured persons about hiring lawyers who engaged in a high-volume mill practice. Now, a Stanford law professor has taken a hard look at settlement mill law firms. Professor Nora Engstrom has authored Run-of-the-Mill Justice in the Fall 2009 issue of the Georgetown Journal of Legal Ethics.

“Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.”

In her article, Professor Engstrom interviewed forty-nine past and current settlement mill attorneys and non-attorneys to find out how they worked.

First, what is a settlement mill? Professor Engstrom says they generally have ten characteristics:

(1) They are high-volume personal injury practices. Conventional personal injury attorneys have around seventy cases open at any one time and serve approximately 110 clients per year. Settlement mill attorneys often triple that — juggling 200 to 300 open files on any given day. (Our firm tries to limit ourselves to twenty to twenty-five open cases at any one time.)

(2) They engage in aggressive advertising from which they obtain a high proportion of their clients. Most conventional firms rely on referrals from other attorneys or prior clients, but in settlement mills, almost all cases come from advertising. For settlement mills, obtaining a client via an attorney referral is said to be somewhere between rare and unheard of.

(3) They epitomize “entrepreneurial legal practice.” At settlement mills, it is assumed that claims will be straightforward. Standardized and routinized procedures are then designed and employed in keeping with that assumption. Efficiency trumps process and quality. Important tasks are delegated to non-lawyers. Factual investigations are short-circuited or skipped altogether. And negotiating with insurance adjusters and brokering deals is prioritized over work that draws on specialized legal education.

(4) They take few — if any — cases to trial

(5) They charge tiered contingency fees, fees that increase once cases are filed. While  this sounds good in theory, many attorneys used these increased fees to bully clients into accepting settlements.

(6) They do not engage in rigorous case screening and thus primarily represent victims with low-dollar claims.

(7) They do not prioritize meaningful attorney-client interactions. Attorney-client interaction is minimal and, when it does occur, tends to be paternalistic rather than participative. Except for agreeing to accept the ultimate offer, clients play little role in the dispute resolution process.  Clients met with their lawyers when the retainer was signed at the beginning of the representation and when the settlement check was delivered at the end.

(8) They incentivize settlements via mandatory quotas or by offering negotiators awards or fee-based compensation. These requirements and rewards put the focus on the number of files closed or the aggregate returns, as opposed to obtaining a fair value for each individual client.

(9) They resolve cases quickly, usually within two-to-eight months of the accident. Studies suggest that, even if no lawsuit is filed, around one year elapses between the accident and the settlement if a claimant is represented by counsel. At settlement mills, in comparison, cases are sometimes resolved in little as two months and usually within eight.

(10) They rarely file lawsuits.

So what’s the problem with the mills? Professor Engstrom concluded that those with meritorious claims likely get less than they would if not for settlement mills. Why? First, fast settlements depress the value of the claims. Second, settlement mills rarely file lawsuits, and the acts of not filing is correlated with lower settlements. Third, settlement mills commonly impose quotas or incentives on negotiators, which put the emphasis on turning claims over, rather than maximizing their value. Fourth, attorney reputation for going to trial affects bargaining. Because settlement mills have a reputation for avoiding trial, they have less leverage in their dealings with insurers and are less likely to obtain top-dollar.

What did the attorneys say? Professor Engstrom quoted one defense lawyer as saying that he was personally aware of cases I think were settled for $10,000, $15,000, $20,000 less because the adjuster knew the attorney handling the case was a settlement mill.

Even the settlement mill lawyers confirmed they were leaving clients’ money on the table. Former settlement mill lawyers reported that offers they received for comparable cases improved upon departing the settlement mill and joining a more conventional law firm.

You need to learn from this study.  If you or a loved one is hiring an attorney following an accident, I urge you to consider what a settlement mill firm might do to the value of your case. I also encourage you to purchase Professor Engstrom’s article for the $3.50 purchase price. If it helps you make an informed decision on hiring an attorney, it will be money well spent.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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