Sometimes making the decision to decline a case is just as important as the decision to take a case. Taking a problematic case takes away important time and financial resources that could be dedicated to more worthwhile matters. Derrick Walker, a personal injury attorney with Allen and Allen in Richmond, Virginia talks about his thoughts on how to make the right decision.
Lawyer Minds: Tell me about your practice and your law firm there in Virginia.
Derrick Walker: I’m a managing shareholder with Allen and Allen in Richmond, Virginia. With 38 attorneys, our firm is the largest personal injury firm in Virginia. We have eight offices throughout the state. We’re a full-service personal injury firm so we handle the full spectrum of injury cases. We handle motor vehicle, trucking, premises, medical malpractice, defective products, nursing home cases, food allergy and food borne illness cases, and sex abuse cases.
I know it’s taboo to refer to yourself as a generalist, but I really enjoy handling a wide array of personal injury cases. I like to see a variety of cases and issues. I have always enjoyed learning new things. I think it keeps me sharp. For example, last year I litigated a wrongful death trucking case where both my client’s husband’s vehicle and the defendant’s vehicle were completely destroyed in a terrible fire following the crash. Neither occupant survived. Witnesses saw the defendant’s vehicle suddenly blow a steer tire which caused him to cross the grassy median on the highway and hit my client’s husband head on. By the time that case was over I knew more about steer tires, speed ratings, and blowouts than you can imagine.
Last year, I also handled a nursing home choking death case, a premises case involving inadequate snow removal, and perhaps the most profound traumatic brain injury case of my career. I really enjoy the challenge and the excitement of shifting gears to learn new things. I never wanted to have a color by numbers sort of practice where I was doing the same type of case over and over again with different parties. While I can see how that consistency might appeal to some, I know I would get bored with that.
Lawyer Minds: Working in the area of medical malpractice and nursing home litigation, one of the things that I think lawyers most need to know is what cases not to take. It seems like we spend a lot of time, effort, and money on cases that aren’t cases and so screening at the very beginning is so very important. Talk to me about your process for deciding what cases you’re going to take versus what cases you’re going to decline.
Derrick Walker: I agree with you there. There are so many factors that have to come together to make a medical malpractice case worth pursuing. Medical malpractice is an injury driven practice. The cost of litigating a medical malpractice case can be unbelievably high.
These cases are also among the most hotly contested. You have to go into them with the mindset that you are going to have to try these cases. So, before I even start thinking about spotting standard of care violations or identifying causation issues, I ask myself if the harms and losses stemming from the negligence are substantial enough to even warrant the expense of working up this case and presenting it to the jury. Often that answer is no.
It’s not going to be a winning proposition for the client to move forward. I tend to evaluate nursing home cases a bit differently. In nursing home case we are largely dealing with nursing standards of care and therefore we are relying more often on nursing experts, and they are far less expensive than the experts we use in traditional medical malpractice.
This allows me to be more aggressive with these cases. I also find that unlike in traditional medical malpractice cases, there is less juror bias to cut through at trial. In traditional medical malpractices cases jurors often look for ways to exonerate the health care provider because he or she was doing the best they can, or merely because they didn’t intend to cause harm. They worry what a verdict against a physician will mean for the physician and his or her practice and career. That can be very difficult for us to overcome.
Conversely, I find it’s easier to expose long term care facilities as large corporations often cutting corners – trying to do more with less – just to be more profitable. When we pull back the curtain on these practices and systemic staff shortages it really angers juries. It is much easier for them to see how the bad outcomes in nursing facilities are entirely preventable. And I think each of us knows that at some point in life we are going to have to make a long-term care decision for ourselves personally or someone we care about.
I also try to assess the personality dynamics at intake. During the intake process I know my potential clients are evaluating me to see if they think I am the right person to represent them, but for me it’s a two-way street.
I am also evaluating my potential clients to see if the personality dynamics make for a strong, sustainable attorney-client relationship that can last through trial – which as you know, can be years away.
Invariably, there comes a time in every case where you are going to give your client some very important instructions or recommendations and it will be absolutely critical that they follow your advice. I am looking to see if my potential client listens to the advice I am giving them on day one.
Are they interested in what I have to say about how we can navigate their case successfully from point A to point B? Or, is this a person who knows better than I do? I want to make sure the people I agree to represent follow my instructions and heed my advice. If they know better than I do or if I get any indication that they are not going to be responsive to the needs of the case, do not appreciate the active role they must have in the case, or are going to be serially abusive to my staff, then in my experience, it is just not going to make for a productive relationship and the case will suffer. As I get older I just find it is not worth the aggravation.
On the other hand, over the years I have helped many people whose cases may not have been serious injury cases, but they were wonderful people who valued my advice and my willingness to help them. Those people are usually clients and boosters for life and some of my most rewarding cases have been referrals from a former client that had a smaller case but appreciated the help and the customer service my firm and I were able to provide.
Lawyer Minds: Talk to me about the difference between selecting cases to accept versus what cases you want to try.
Derrick Walker: My advice to lawyers is to always remember why you became a trial lawyer. Sure, we all got into this business to help people. But we shouldn’t ignore the fact that we became trial lawyers to actually try cases.
Lawyers who are not looking forward to trying cases are often those who are too busy to prepare their cases properly and those who are not picking the right cases to try.
A fantastic lawyer in our firm once told a group of young lawyers, “pick the cases you want to try – don’t let the cases pick you.” I think what he meant by that was be selective about the cases you choose to spend your time on and do the best you can to settle the cases that shouldn’t be tried. Devote yourself to those cases that you know in your gut you want to try.
For me, there are certain cases in my docket that I just find myself thinking about constantly even in my spare time. I am thinking about those cases laying awake in bed. They are on my mind first thing in the morning. I find myself developing themes very early on in the case. I am talking to my family about them all the time. I am walking into my partners’ offices and I am saying, let me tell you about this case. Each time I know what I am doing – I am practicing an opening statement. I am working on an analogy to see if it works. I am developing the trial story. This kind of gravitational pull towards a case is a glaring sign for me. “Derrick, go try the case!”
Another thing I tend to look for are those intangible elements that I know really enhance value but will not be apparent to defense counsel’s typical color-by-number approach. In a case I tried a couple of years ago with my partner, Mic McConnell, we had a client who had a bad abdominal infection following a retained surgical object. She had this really smart and amazing high school daughter who really stepped up and took the lead in her mother’s wound care which required constant time and attention. She knew all the different wound management protocols, the dressings – Aquacel, Algainates – you name it. This is a young person who should have been enjoying her last year of high school – spending time at football games, and being with her friends – instead, she was tethered to the house so that she could perform serial wound dressings for her mother. She became a de facto wound care nurse and although it was such a wonderful thing seeing a daughter care for her mother that way, it was also very painful for our client to feel like she was such a disruption into her daughter’s life that way.
That theme really resonated with the jury and it was something we knew defense counsel would underestimate because the daughter technically did not have a cognizable claim for damages under Virginia law. Of course, we knew there was no way a jury could ignore the toll this injury had on the entire family.
The bottom line for me is that when I am holding all the cards, I try to focus on being aggressive in every aspect of the case. For example, if I have the upper on liability and damages with an amazing trial story with an A+ client, I’m not going to agree to mediate the case unless the defense makes a substantial offer prior to mediation. I’m just not going to do that. I have no interest in going into a mediation to sit around for eight hours so that the other side has the opportunity to lowball me, frustrate my client, and learn my trial strategy. And I have never in my life mediated a case twice and never will.
Lawyer Minds: What is something you have learned in your years of practicing law that you think new lawyers need to know?
Derrick Walker: I think the most valuable thing I can tell young trial lawyers is that your opportunities to try cases today is much more limited than it used to be 20 – 30 years ago. The days where people can talk about a trial record that involves a thousand cases or 500 jury trials are really a thing of the past. We just aren’t going to see that anymore. With skyrocketing litigation expenses, higher stakes hinging on potential outcomes, and the proliferation of mediation and arbitration, we are just not going to see lawyers amassing those incredibly high number of jury trials. So, the import of that is that we have to expect that in our careers each of us will have a finite number of opportunities to get into court and try cases. So, we have to find the cases in our dockets that represent meaningful opportunities for trials and take advantage of them. I would also suggest set one or two cases a month that could possibly go to trial. While I’m not trying one to two cases a month, I certainly try to give myself the opportunity to do so.
I would also encourage younger lawyers to think about the concept of opportunity costs.
Every case you take diminishes your capacity to do something else – whether it is taking on another case, or to engage in personal marketing or some other important professional endeavor.
Try the best you can to manage your docket in a way that doesn’t deprive you of enough capacity and bandwidth for a different, better, or more enriching opportunity – or to develop the cases you really want to try and to do high quality work with. This means learning to do what we all have trouble doing sometimes – learning to say no or to ask for help if you need it.
Finally, I would encourage young lawyers to develop a positive framework for a work/life balance and stick to it. And once you find that equilibrium that works for you and your family, guard it with your life. It is so easy to let the stress of our work dictate when we eat, sleep, and exercise. But the reality is that your physical and mental health are indispensable to your success. The demands of our careers and our bar organizational involvement can be relentless. If I were talking to myself at the very beginning of my career, I would tell a younger me to treat myself better. I don’t regret how hard I work, but I have not always sought the best balance. I would tell a younger Derrick to be kinder to himself.
We’d like to thank Derrick for speaking with us and departing his wisdom to all of us who are looking to continually improve. To learn more about him or reach out, you can do so here.