Choose carefully when signing an attorney
Planning ahead counts
When it comes time to defend your organization against a malpractice claim or other legal action, you will want to know you have the best lawyer working on your case. But how do you choose that attorney from the hundreds who might be available in your community?
Choosing an attorney can be a difficult, time-consuming task. You don’t want to tackle this decision when you actually need an attorney. Rather, a risk manager should take the time to carefully investigate the available legal counsel upfront and have the attorney lined up when trouble strikes, says R. Stephen Trosty, JD, MA, director of risk management at Mutual Insurance Corporation of America in East Lansing, MI.
Through different positions he has held in his career, Trosty has gained experience from both sides of the issue, hiring attorneys to represent his employers and being hired as legal counsel. The most important strategy, he says, is to choose your legal counsel upfront, without any specific case in mind. That might not be possible if you find yourself without adequate counsel for a pending case, but Trosty warns that the decision must be made with the goal of finding an attorney who is a good fit overall and not just for one particular case.
A risk manager’s guide
Hospitals or health systems with their own in-house legal counsel can avoid much of the task, but even those organizations will need to ally with local attorneys in the community. In-house counsel likely will choose the attorneys on their own, but in smaller organizations, the risk manager may be responsible for obtaining legal representation. For those risk managers, Trosty offers this advice:
1. Choose a firm with attorneys experienced in, and specializing in, medical malpractice.
"Recognize that every lawyer is not the same," Trosty says. "Choose the lawyer who has the knowledge and expertise required to represent you properly. If the firm does not have attorneys specializing in medical malpractice, they are not the right firm for you no matter how good their other credentials are."
When considering a firm, go a step further and identify the individual attorneys who specialize in medical malpractice and see if they further specialize in a particular type. It is a plus if the firm has attorneys specializing in obstetrical malpractice, for instance, because those cases require advanced knowledge of both medical and legal issues.
2. Find out if the firm has a good record of taking cases to trial.
Some firms and attorneys are more experienced and skilled in settling cases than in taking them to trial. That is not necessarily a bad trait, but you do not want to select legal counsel that has insufficient experience in trials. Inevitably, some cases will warrant a trial, and you want to be sure your attorneys are ready.
"If a law firm tends to settle everything, especially at the last minute, that means they don’t have attorneys who are seasoned and hardened in trials. That’s a special skill," he says. "You also don’t want a firm that has a reputation for caving in at the last minute. Being able to assess, evaluate, and prepare a case is a different set of skills than trial expertise. You want a firm that has both."
3. Choose a firm that is well-respected in the legal community.
The risk manager may have to ask around the community to determine the reputation of a particular firm or attorney. That information will be subjective, but it is important, Trosty says.
"It is important that others recognize the people representing you as strong, heavy-hitting in the legal profession," he says. "When it comes time to negotiate a settlement or face someone at trial, you want to be represented by someone who already has a good reputation as someone formidable and tough."
4. Investigate how the firm’s attorneys are structured, along with the billing system.
Firms are structured differently, with varying numbers of partners, associates, junior associates, and paralegals. When choosing a firm, it is important to know how those different attorneys will work on your cases. How are cases assigned to associates vs. partners, for instance? When do partners get involved in particular cases?
"Senior partners will charge more, so you don’t want them involved in a lot of the legwork that more junior associates can do," Trosty says. "But you want them involved in key depositions, particularly if it’s a difficult case, and you want them to provide oversight of the associates’ work."
Be sure to ask about the billing structure for the work of different attorneys within the firm. That information will be helpful when compar-ing rates among firms because the differential between the partners and associates may be greater or smaller.
5. Choose a firm large enough to provide flexibility.
If you choose a firm that is too small, you may be stuck with an attorney who is not quite right for the case at hand. With a larger firm, you should have the opportunity to switch your case to another attorney within the firm who is a better match.
"The firm needs to commit to that upfront," Trosty says. "If you are working with an attorney who just isn’t right for some reason, despite what you thought beforehand, the firm should be willing able to reassign the case without a major fuss."
Ensure the firm meets your expectations
6. Insist on a detailed breakdown of bills.
Billing reports should be "very detailed and very comprehensive," Trosty says. Otherwise, you will not know what you’re paying for and what charges might not be legitimate.
"You need a breakdown of what case every phone call was for," he says. "Don’t accept a firm that provides a more general billing system that doesn’t make them accountable for each and every charge."
7. Establish certain expectations at the start.
Before agreeing to work with a particular law firm, the risk manager should establish that the firm must meet specific requirements. The firm’s willingness to comply will be a good indication of how much it wants your business and how confident it is that the attorneys are capable.
"Establish time frames for when you expect the attorney to at least take the depositions of the plaintiff and key witnesses, a time frame for getting expert opinions from physicians, and so on," Trosty says. "Otherwise, the case can drag on without any definite points at which you can say the attorney should have done something by now."
8. Never put all your eggs in one basket.
No matter how confident you are in one law firm’s ability to represent your organization, do not stop with choosing that one firm. You should always have relationships with several law firms in your community.
"That helps you get fair and competitive prices. If you only have one law firm, you probably are not going to get the best prices," Trosty says. "And if you’re in a small community, it’s possible that the plaintiff or a physician co-defendant could end up at the same firm. If it turns out the firm has a conflict of interest, you don’t want to scramble at the last minute to find representation."
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