Plaintiff's Personal Injury: A Radically Changed Business

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Derek Tokaz interviews a personal injury plaintiff lawyer who discusses how technology has changed the practice of law.

Derek Tokaz:

We're joined today by Dan Minc, a personal injury plaintiff's attorney in New York City with more than 35 years of experience. Dan, today you're the managing partner of the nine attorney firm, Rosenberg, Minc, Falkoff, and Wolff. What I find interesting about this is that you've actually never worked anywhere else since graduating from Seton Hall School of Law in 1977, and I'm curious to learn about how you ended up staying put at one job for so long.

Dan Minc:

Well, they don't know if you make your own luck or if you're just a recipient of good fortune, but I imagine there's a little bit of both involved. When I got out of law school, oddly enough, I thought, "Oh, well maybe I'll be a tax lawyer. That sounds good." I like business. I always had a big mouth. I like being an advocate. When I got here, there was a big difference, just as there is now, depending on what law school you graduated from. Seton Hall's a local law school in the tri-state area. I was not at the top of my class, and when I got out of law school, reality hit. It was very difficult to get a job, and I got exactly one interview. A few links of people doing me a favor, making a phone call, making a request. Started with my future brother-in-law, asking his former employer, who then without meeting me, made a phone call, extended himself to another lawyer that he worked with, Hank Glazer. Asked him, he was nice enough to get on the phone to Herb Horowitz, another lawyer, and ask him and get me an interview.

I got the job. I felt it was actually a good fit because I always felt like an advocate. I was arguing and fighting, and I was never shy and my best asset was my mouth, and so I fit in to the scheme of things, representing people and litigating and arguing in court. I really enjoyed the work. It was not academic. I instantly took to the field. I liked it. I became aggressive. I'm not a paper pusher by nature. I'm a hustler, I'm a marketer, and I'm always looking to gain clients and sell a product. In this case, the product was my services. I enjoy making money. I enjoy turning the deal.

Derek Tokaz:

Okay. That is something I wanted to hear a little more about because I know you're doing personal injury work now, but you had mentioned before you were thinking about tax law or business law. What did you actually start with when you went to that firm?

Dan Minc:

Well, they were a very well-regarded plaintiff's litigation firm, only doing plaintiff's personal injury and medical malpractice cases, and I'm still there. That's just what I'm doing. I was thrown into work far beyond my capabilities to begin with just because they weren't properly staffed for the volume of files that they had, and I never said no. Not even admitted a year, and I was trying in the southern district and federal court, a very, very serious products liabilities case, which I in no way should have been trying by myself. I just got through it because I had the ambition and the desire, and I just leapfrogged by taking on very difficult assignments. I figured if they were going to give it to me, I'm going to do it. Nobody wanted to do it. It's a tough case, federal court, a lot of work. I learned, and after six years, the partnership fractured. One of the partners had to retire and was forced to retire, and I was the beneficiary of that ill fortune. I was here, and I became part of a partnership that they sold the existing firm to. There were three other guys, and we all bought the firm together. It was an unusual situation. I just happened to be at the right place at the right time, and I went for it. I was very aggressive, I really wanted to do it, and I was very fortunate.

Derek Tokaz:

I'd like to hear a bit about the day-to-day aspects of the job. I think we've all seen in television shows or movies, images of attorneys in court, using what you described as your greatest asset, your mouth, to make arguments. I'd like to hear about what are the things in your field that perhaps people haven't seen or they wouldn't know are part of the job?

Dan Minc:

The evolution of personal injury law dramatically changed during my career. A lot of the steps are just much more complex, and one of the factors is the law has become far more technical. Actually, it's become much more difficult to have a viable claim. When I started out, you could get away with a lot by the seat of your pants. You could make arguments, and a lot of your adversaries didn't do the proper research. Research wasn't as easy to do back then. Now, you can just punch out legal research by computer, and it used to have to go to the law books and look it up and people were lazy and they just didn't have the time during litigation to do it. It was a much more laborious process.

Also, the courts have gotten far more sophisticated, and the subtleties in claims have been far more restrictive. One subfield after the next impersonal injury has become far more limiting. It's not become more liberal, it's become more conservative. The regulations, the statutes, the judiciary has created case law. We have to reject a lot of cases that in the past we would've accepted. The medical technology has in some ways, in many cases, reduce the value and the drama involved in an injury. Now, they have computerized hospital records. They used to be handwritten records. Handwritten records were fantastic for plaintiff's lawyers. Doctors used to write their stream of consciousness. You could find your case in the notes. Now, there's templates. A resident or surgeon is reminded of what to write or they're reminded of a stock answer, and they can press a button and things come out in a certain way. A hospital record can look pristine in terms of its writing and you know that the patient died, and you suspect that there was a medical error. It's very hard to figure out what happened.

When I started out, there was not a quarter of the paper. Consequently, someone has to review that paper, someone has to respond to it, and there's been less litigation and more discovery. When I say litigation, I meant actual trials. That's the change. I used to pick a jury on cases when I started out constantly, at least once a month I'd be in trial. Now, trials are far more limited. It's very hard for young people in New York, I'm talking about New York State, to get the kind of trial litigation experience that I was exposed to. So many things are mediated today with commercial mediations, or they call it alternative dispute resolutions. That's been a major change.

Derek Tokaz:

You mentioned when you first got started, there was a lot of pavement pounding to drum up business, and I'd like to hear how that has changed.

Dan Minc:

The personal injury practice, it's unique in the sense that you have to reinvent yourself constantly. If you have an accounting practice, you are lucky enough to land a client. Let's say you land a Burger Shack, and that Burger Shack grows and they need more and more accounting services. If you stay with that client and you service that client, you're going to grow with that client. That's just one example. In personal injury, you get a client, they've had a terrible accident, you get them a great recovery, and what happens? They grab the money, they go to Florida. They retire. It's not like they're coming back to you in two years for more accidents. They may recommend you, but if you do well enough, like I said, they're rich enough to leave.

Derek Tokaz:

Hopefully, they're not getting into more accidents.

Dan Minc:

Hopefully, they're not getting into more accidents. Look, it does happen that they recommend a family member, they recommend a friend, but that used to be the case when I started. People relied on recommendations. Now, clients are bombarded. Potential clients are bombarded with media, whether it's television, daytime TV ads. On all the soap operas. There's one running commercial for a lawyer, one after another. On the internet, if you Google personal injury lawyers, you're going to find literally hundreds. The media outlets have exploded just like cable TV. Now there's 500 channels at least. I mean, years ago there were seven channels, there was no internet, a lot of different opportunities to market. Now, I don't want to discourage anyone. We're still in business, but we're in business by marketing. I was an early adapter of advertising many years ago, but there was a time when I graduated law school that there was virtually no advertising for attorneys.

There were legal cases that established that you could do it, and the Supreme Court allowed it and they started advertising and it's just exploded. Now, you can't stay away from lawyer advertising. Currently, I spend a lot of my time thinking about and managing marketing. Marketing is very important for a firm. Word of mouth is one method, but even though we currently have 450 active pieces of litigation and active clients and their families, most of our new business does not come from existing clients. We've stayed healthy and active by marketing, and you have to embrace it.

Derek Tokaz:

You're getting a lot of clients who you haven't necessarily seen them before or have any connection through recommendations. These are people who are completely new, and I'm wondering if you've had to change the vetting process that you have for a case. I know you also said it's a lot harder to bring cases now that with the changes in the law.

Dan Minc:

Rule number one, show me the injury. That's the basic rule in personal injury. You need a huge, massive, juicy injury, and I'm going to spend a lot of time studying that case and trying to figure out if there's any liability. I mean, there's an expression in the field, another joke, but it's "Show me the injury, and I'll find the liability." If someone's seriously injured, we will have a meeting on it, we'll kick around several very experienced attorneys. Sometimes it's obvious, other times it's not. Some cases a far more complex. We have an intake now, guy in France that was run into by a New York skier on a slope who suffered terrible, terrible injuries. We have to figure out what choice of law, where to bring that case, what form. That's a really complex case. How's the federal judge in New York going to view that?

Then you have a simple case, car crash, victim comes in, you have to do a quick analysis. How serious are they? Is there any insurance? What kind of vehicle were they hit by? You always, always start with whether there's a permanent injury. The problem is you could have the best liability in the world, but if you don't have a serious enough injury, you won't be taken seriously. I call those cases that are very complex with relatively minor injuries defendant's dreams, because there's no exposure. All the defense firms can do discovery forever and deposition after. It cost you a fortune, and in the end they don't care, they're not concerned, they're not worried. Take a person that has grave injuries, they're worried from the get-go. All eyes are on that file. They're thinking about a way to get rid of that file, whether it has merit or not. The exposure makes them pay attention. You're not going to get respect without a permanent injury.

Derek Tokaz:

Does that mean there's potentially cases where legally it would look like a fairly good claim, but where the injury's just small enough that it's not worth taking on in terms of the resources it would take to prosecute that case?

Dan Minc:

You've hit the nail in the head. We market, right? We spend a lot of money marketing, I mean hundreds of thousands of dollars a year marketing, many, many hundreds of thousands dollars a year marketing. We get calls every day, perhaps 10 calls a day. Okay? We reject nine. The reason we reject these cases a lot of times has to do with the severity of the injury, at least half the time. Person is too elderly, there are too many liens. I personally rejected two today because of complications with damages, even though they may have been good cases in terms of liability. As I said, we start with the damages. I'm not going to take a case that doesn't have personal injury, and that's really the way it sits.

Derek Tokaz:

When talking about which cases you take, I believe you mentioned that you're getting a portion of the settlement. Could you explain for the listeners what that is, the contingency fee, not just how it works, but why that's the model that personal injury cases tend to use?

Dan Minc:

Well, the contingency fee is the heart and soul of personal injury litigation. If they cut out the contingency fee, and believe me, the insurance companies and corporations would love to eliminate the contingency fee, you would eliminate the motive, and you would eliminate the fight, and you would eliminate the lawyers. If you eliminate the representatives, the talented representatives, you're going to have no recovery and it's going to be like corporations swatting flies. Why? Because I'm a partner with each of my clients in their recovery, and I'm on a commission, and it's a third. I lay out 100% of the expenses. Most of these clients are working people. Working people are the ones that get into accidents. The executive driving a Mercedes S class with 12 airbags, ABS, side view mirrors, cameras, and everything else, even if he gets into a crash, the likelihood of getting hurt is not as high as the cement truck operator that's standing in the back of his cement truck when the boom unhinges and hits him on the shoulder and tears up his shoulder.

Working class people are the soldiers out there on the front line that are taking the hits. The generals in the back, they don't need personal injury lawyers, and the soldiers don't have the means to hire attorneys. They're not used to it. They usually don't have much money in the bank. They could never pay the expenses of litigation, so we represent working class people. Those are the majority of people that are injured. If you're looking for clients that are going to pay the expenses, you're not going to find them. If you're looking for clients that are going to fund their case, you are not going to have a practice. The only way, and the heart and soul of this practice is to fund the cases on behalf of your clients. We fund 450 pieces of litigation. Every dollar that's spent on a doctor's report, on an expert analysis, on an index number of charge.

If we were not permitted to do that, none of these clients would ever, ever have an opportunity to get a day in court because litigation has become expensive, and insurance companies have unlimited funds to hire any attorney they want. There's no way you could go against a McDonald's Corporation, or Hertz Corporation, or any of them without a well-funded legal team. Contingency allows us to fight because if we don't win, we're not getting paid. We get paid nothing, and we have invested thousands of dollars in each case. We're going to fight for that client, and that's the equalizer. That's the David and Goliath, that's that's the heart and soul of why people have remedies for injuries in America and no remedies elsewhere.

Host:

I Am The Law is a LawHub production. Don't forget to subscribe and rate this show on your favorite podcast app.