Screening a Medical Malpractice Case: A Practical Approach

This is the first article of a three part series focusing on case management through litigation and trial. In this article, the authors concentrate on the importance of the initial client interview and its use as a vehicle to successfully resolving a client's potential case or law suit. The authors have provided specific suggestions to strengthen the relationship between the attorney and client. The objective is to enhance the attorney's ability to evaluate and successfully resolve a client's case or law suit through the initial client interview.

INITIAL CLIENT INTERVIEW - OVERVIEW

The initial client interview is the most significant general meeting an attorney will have with his or her clients. This initial client meeting affords the attorney with the opportunity to evaluate a client, as well as their potential case, absent outside influences which may impede the development of communication between the attorney and prospective client. It is axiomatic a clients credibility plays a fundamental and often dramatic role in the attorney achieving the desired results. Thus, the initial client interview is invaluable to the attorney in terms of analyzing his or her intuitive responses and intellectual evaluation of a case including the client who presents it. An effective initial client interview will expedite the identification of a cases strengths and weaknesses, probable outcomes and offer insight into a client's motives and expectations. Ideally, the attorney will be able to establish this candid and fluent communication which is essential to a productive attorney-client relationship. The client, in turn, will gain confidence in an attorney who makes a sincere effort to explain and assist the client in making the transition into the complex legal environment and litigation. A client who has a working understanding of the legal process and, its rules and procedures, will be better prepared to aid the attorney in the handling of their case. The client will also have a more realistic perspective of the amount of time the attorney will require to obtain a just and equitable result.

The relationship established in the initial client interview should result in the client developing confidence in the attorney's skill and trust in his or her commitment to competently and consciously represent the client's best interests. It is essential for the attorney to impress upon the client the necessity of absolute candor regarding any potential information, problems or conflicts concerning their case. An attorney who allows a client to be evasive or secretive will be placed at a distinct disadvantage in his or her representation and will be unprepared to handle unexpected developments. Only if an attorney has complete and factual information will he or she be in the best position to evaluate a potential case or law suit and make effective recommendations. The attorney must be willing to demonstrate his or her competency to the client as well as a willingness to understand and evaluate the client's potential concerns. Although an attorney must defer to a client's ultimate wishes, it is important for the attorney, in these situations, to reinforce and emphasize to the client the benefit of relying on the attorney's experience, judgement and legal skills.

First impressions have a powerful and enduring impact. Therefore, it is incumbent upon the attorney to prepare for and diligently work toward forming a relationship with the client which will address unresolved issues and prevent misconceptions which may undermine the attorney's effectiveness in representing the prospective client.

PURPOSE AND FUNCTION OF INITIAL CLIENT INTERVIEW

The initial client interview serves the following purposes or functions:

1. Establishes the attorney-client relationship;
2. Affords the client, and to a greater extent, the attorney, the opportunity to understand and gain confidence in one another;
3. Provides the attorney the opportunity to educate and give instructions to the client;
4. Allows the attorney to gain intuitive as well as factual information from the client. This aids in the identification of potential problems and facilitates the attorney's evaluation of positive as well as negative aspects of the case;
5. Enables the attorney and client to develop parameters and goals for advancing the case;
6. Allows the attorney to gain insight into the client's expectations and evaluate whether they are realistic;
7. Facilitates communication through discussion, explanation and inquiry regarding issues related to the case; and
8. Enables the attorney and client to form an initial plan for case management which may include establishing time-lines, goals and expected outcomes.

THE EMPLOYMENT CONTRACT

The attorney must be prepared to explain and discuss the employment contract, in detail, with the prospective client at the time of the initial interview. This is true whether it is a personal injury case, contractual dispute or commercial matter. To have a productive discussion, it is imperative the attorney has a thorough understanding of the type of case presented, a realistic estimate of the time and effort the case will require, and the potential costs and expenses involved. One of the most sensitive aspects of the employment contract for the client is the issue of attorney's fees. To prevent future misunderstandings and conflicts, the attorney must ensure the client understands the attorney's fee when considering the issues involved in their case. The client must have a realistic understanding of these attorney's fees and how they are related to their claim. It is essential for the attorney to discuss the novelty of the case, the expected time to be expended by the attorney, and the realistic goals to be sought. When considering these issues, the attorney must consider the applicable case and statutory law of their state, or particular jurisdiction, along with the code of ethics established in the jurisdiction which governs costs, expenses, and attorney's fees. Although employment contracts differ and may vary from jurisdiction to jurisdiction, the structure and language of the employment contract must be succinct and clear. The attorney must thoroughly explain all aspects of the employment contract and ensure the client clearly understands the contract before being executed.

PROBLEMS WHICH MAY AFFECT THE ATTORNEY-CLIENT RELATIONSHIP

In addition to the complexities of handling a case to a successful resolution, there are many problems which may arise during the attorney-client relationship which, if they are not immediately confronted, may have potentially destructive consequences. The following are the most common examples:

1. RETURNING TELEPHONE CALLS PROMPTLY
   The attorney must explain to the client he or she is involved in many important matters in addition to handling their case. If a telephone call cannot be returned immediately, the attorney should establish specific time parameters when a client's telephone call will be returned. It is important, when practical, to return a client's telephone call within twenty-four (24) hours, absent exigent circumstances.
2. SCHEDULING CLIENT MEETINGS
   It is imperative the attorney explain and establish with the client, in advance, all meetings must be scheduled through the attorney or their staff to prevent a client from appearing at the attorney's office unannounced. The attorney should impress upon the client scheduled appointment times will be devoted exclusively to them and will be honored, unless there is an emergency. In this way, the attorney will maintain order in his or her practice by establishing a reliable schedule and, as a result, be able to prepare for and conduct productive client meetings.
3. REALISTIC EXPECTATIONS
   The attorney must conduct a frank discussion with the client at the time of the initial interview regarding the possible results of the case. This includes an explanation of the best and worst case scenarios. In this manner, unrealistic expectations are discussed and the potential for future misunderstandings significantly reduced.
4. SPECIALIZATION
   The attorney must make it clear to the client his or her specialization is the law. While an attorney may be a physician, engineer or accountant, it is essential for the client to realize an attorney can only wear one "hat" at one time. If a client has sustained injuries and is bringing a personal injury action, they must understand their physician is the individual who will attempt to relieve their symptoms. An attorney is not in a position to evaluate and treat injuries or address day to day complaints. Technical issues which are outside of an attorney's scope of knowledge should be deferred by the attorney to the respective expert in that field.
5. EXPERTS AND TRIAL STRATEGY
   During the initial client interview the attorney should discuss decisions regarding the retention of experts and trial strategy with the client. Final decisions in these areas must generally be deferred to the attorney.
6. ASSISTANCE
   The attorney should explain to the client at the initial client interview there may be times when another attorney in the law firm will represent them at a particular hearing or deposition. If informed, clients will usually accept and understand another attorneys involvement in their case.

CLIENT INSTRUCTION SHEET - SAMPLE FORM

Taken from the book Handling Soft Tissue Injury Cases authored by Stanley E. Preiser and Monty L. Preiser, and reprinted here with the permission of the authors.

"YOUR CASE"

1. TALK TO NO ONE -- Do not talk to anyone about your accident except one of the lawyers or investigators in our office. You should always require identification so that you are sure who you are talking to. Don't even talk to your own insurance company or to any lawyers hired by your own insurance company without notifying us so that we may be present if we desire. We will generally want these statements taken in our office.
2. YOUR DOCTOR -- You should return to each of your doctors as often as necessary and should always tell them about all your complaints. You should not minimize your ailments to your doctors as it is one of the best ways for them to know how to treat you. If you see any additional doctors, be sure we are advised immediately of their names and addresses.
3. RECORD OF COMPLAINTS -- Please keep a daily or weekly record of your complaints and progress. This can be very helpful because, a year later, you will be able to recall your pain and difficulties more vividly.
4. REGULAR CONTACT WITH OUR OFFICE -- Someone from our office may call you regularly to find out how you're doing. You will recognize her voice. Please cooperate with her fully.
5. WAGES AND EARNINGS LOST -- Please keep an accurate record of all days lost from work because of your injuries.
6. MEDICAL BILLS -- Obtain and duplicate copies of all medical, hospital, and drug bills. You should periodically send these bills to us for our files. Also keep a record of any other expenses you may have in connection with your accident, such as the hiring of extra help. All your bills should be paid by check, and you should obtain and keep receipts. You should make and keep a list of all your medical bills and the costs incurred in going to the doctor.
7. CAR REPAIR -- Do not have your automobile repaired until you are sure that we have obtained pictures of it. After pictures are taken by this office, have your collision insurance carrier repair your car. Call us if you don't have pictures, so we may have them made. If you need help against your own insurance company, call us and we will be glad to help.
8. TRAFFIC OFFENSES -- Never plead guilty to any traffic offense and if you are arrested in connection with this accident, call one of the lawyers in the office immediately and we will see that someone represents or advises you. In the event of a coroner's inquest or other type of hearing, be sure to notify this office so that we will be able to represent you in connection with this inquest.
9. WITNESSES -- Furnish to us immediately the correct names, addresses, and telephone numbers of any and all witnesses you may learn of.
10. SAVE YOUR CAST -- If your injury requires a cast, brace, traction, or other appliance, save it for evidence at trial. You should notify us that you are keeping these things and when the case is set for hearing, you should bring these items with you.
11. PHOTOGRAPHS -- Send us the negatives and prints of any photographs pertaining to your case which you or any of your friends have taken. If you are required to be in the hospital and are receiving any type of treatment, like traction or physical therapy, please notify our office so that we can have our investigator photograph you.
12. HOSPITAL AND DOCTOR BILLS -- Have your own insurance carrier pay as many hospital and doctor bills under the payment provisions of your policy as possible. You should also have your hospitalization insurance, such as Blue Cross and Blue Shield, pay as much of your bills as possible. Doctors and hospitals are more cooperative when their bills are paid. You should not expect them to wait until your case is tried or settled to receive payment. You should, therefore, pay any balance as soon as possible.
13. QUESTIONS -- We will probably not contact you until we have something definite to report. We will be contacting you for depositions, answers to interrogatories, and when your case goes to trial, which may be in excess of one year from the time the suit is filed. If you have any specific questions with regard to these instructions or any other matters with regard to your case, please feel free to call or write us.
14. YOUR ADDRESS -- Be sure to keep us advised of any change in your address or telephone number. Please do not come in expecting to see one of the attorneys without an appointment. We will be happy to see you, but we can't see all of our clients at the same time. So, as we said, call us for an appointment if you want to see us -- that way we will not keep you waiting."

Many clients find the legal process confusing and often intimidating. By providing written guidelines and instructions at the time of the initial interview, the client will better understand the legal process which governs their case. Although the client instructions listed above are primarily for a personal injury case, the attorney who handles cases in other areas of the law may easily adapt and utilize some or all of these instructions to their cases.

COMMUNICATING WITH YOUR ATTORNEY

During the initial interview, it is essential for the attorney to establish a foundation of communication which will govern the case or law suit. In the interest of building mutual respect, the attorney must help the client to gain an appreciation for the responsibilities entrusted to the attorney in protecting their interests, as well as the responsibilities imposed by law. In addition, the attorney must listen to and feel the client's story. What seems to the attorney as a routine case may threaten to consume the client's life. Sensitivity and objectivity will assist the attorney in achieving effective and beneficial communication. The attorney-client relationship is a cooperative partnership. The attorney's efforts will only be effective if the client is willing to cooperate and has confidence in his or her counsel's abilities. Failures in the communication process are ultimately destructive and the attorney must take the initiative to expeditiously confront and resolve potential communication problems.

Communication is an ongoing and reciprocal process. A client has the right to be informed of the progress of their case. A client also has the right to participate in the decision making process. However, a client must have confidence in their attorney and believe in their attorney's ability to ultimately protect their best interests. The attorney and client should be committed to invest in a mutual effort which will result in the client's willingness to trust and follow the advice of their attorney.

Moreover, the client should be aware communications with their attorney or their attorney's office staff are generally privileged. Whatever the potential client tells the attorney relating to their legal representation is confidential (except under limited circumstances such as perpetuating a fraud or crime) which the attorney is legally and ethically bound to protect. The attorney must fully explain this attorney-client privilege during the initial interview. This privileged communication should allow the client to maintain an open and honest relationship with their attorney which will ultimately best serve their interests.

CONCLUSION

The attorney should never underestimate the significance and lasting impact of the initial client interview. This article has provided an overview of this meeting and discussed specific critical elements which will help establish and maintain an the attorney-client relationship through effective communication. Regardless of the nature of the case, this initial encounter and interaction between the attorney and his or her prospective client is integral to the management and successful resolution of a case or lawsuit.

The initial client interview sets the stage for all future developments in the case. Preparation by the attorney and their office staff is essential. First impressions are critical to earning a client's trust. Taking the necessary time with a client during the initial interview will go a long way to assuring justice is served.