Something You Can (and Should) Do That Your Lawyer Cannot

There are few things that you, as a plaintiff, can do that your lawyer cannot. One notable exception is directly communicating with a defendant who is represented by counsel. Your lawyer is prohibited from this form of communication by ethics rules, and I absolutely do not recommend you engage in this form of communication, either. However, the ethics rules also prohibit another type of communication by lawyers which I highly recommend that you, as a plaintiff, engage in. That is the subject of this article.

Tell Your Friends and Co-Workers Not to Talk To the Defense Lawyer

Even though they may know nothing about your accident, your friends, family and co-workers can be witnesses to your lawsuit due to their knowledge of how you were both before and after the accident. They will usually know of prior medical issues and accidents, pre-existing conditions, and how the accident has affected your life.

Lawyers are generally prohibited by their ethics rules from telling witnesses not to speak to opposing counsel. The model ethics rule (upon which most state bar ethics rules are based) states, in pertinent part, as follows:

Rule 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

****************

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

So, while your lawyer can tell your family and employees not to talk to opposing counsel (as long as it doesn’t adversely affect them), he cannot give that same advice to your friends or co-workers. In fact, ethically he shouldn’t tell you to pass this advice along to them, as you would then become his agent in making this unethical communication (landing your lawyer, not you, in hot water).

Settlement tip

Luckily, as a party (not a lawyer) you are not bound by this ethics rule and you won’t get yourself or your lawyer into any trouble if you, all on your own, tell your friends and co-workers not to talk to the defense lawyer. Even though I’m a lawyer, I can tell you this is a smart thing to do because I’m not your lawyer (you’ve got to love those technicalities). In addition to warning your friends and co-workers not to talk to opposing counsel, you should probably also take it upon yourself to give this advice to family and, if you have any, employees, just in case your lawyer doesn’t.

Keep in mind that you should not ask your lawyer if you should do this, and you should not tell him in advance that you’re going to do it. This is not to be sneaky or underhanded (or because your lawyer wouldn’t want you to do it). It is to protect your own lawyer from a possible ethics complaint. Again, there is no way that you, as a party, will get in any trouble for passing this advice to friends and co-workers. However, your lawyer could possibly get in trouble if he knows that you’re going to do it and doesn’t try to stop you. So, protect your lawyer by keeping him in the dark on this one thing (I advise full disclosure on everything else).

Settlement tip

Why Should I Tell Witnesses Not to Talk to the Defense Lawyer?

Why would you want to tell people who like you, and in some cases, love you, not to talk to opposing counsel? They’ll just help your case and back you up, right? Wrong. They will intend to help your case and back you up, but if they make a mistake (either through confusion, faulty memory or being tricked) they may accidentally contradict you and badly hurt your case.

The last thing you want is opposing counsel (or his investigator) to have unfettered access to your friendly witnesses. Why make the defendant’s job cheaper and easier, when you can make it more expensive and harder? This is litigation — not a friendly game of checkers.

How the Defense Will React to Your Witnesses Refusing to Speak to Them

Let your witnesses know that, in all likelihood, the defense will threaten to subpoena them for a deposition if they don’t talk voluntarily. A majority of the time, this will merely be a bluff. The defense does not want to incur the costs (don’t forget that they pay their lawyers by the hour) of numerous depositions of people who will almost always support your case, on the off chance that one will be unprepared and may hurt you.

Even if they do choose to depose some of these witnesses, you’ll know (1) exactly who will be deposed, (2) where and when the deposition will take place and (3) exactly what your witnesses are telling the other side. Plus, your lawyer will be there to prevent improper or misleading questions. Most importantly, your lawyer can speak with these witnesses right before their depositions and make sure everybody is on the same page. This is far preferable to not knowing with whom the defense plans to speak, how the questions were asked, and what your witnesses said.

The defense usually decides which of your friendly witnesses it wants to depose through this process of informal investigation and interviews — of course they will pick anyone who may hurt your case. If you take away their ability to investigate before the depositions, they are left in the dark and have no idea who to depose. So, they can either (1) spend a lot of time and money deposing a bunch of people who will probably help your case, (2) pick randomly in the hopes of finding a witness who will hurt you, or (3) just leave your friendly witnesses alone. No matter which option they choose, you win.

To avoid one or more of your witnesses speaking to opposing counsel due to a threatened deposition, be sure to pre-emptively inform them of this threat and the fact that it is likely hollow. Also, let them know that even if they speak to the defense, they can still be deposed. In fact, it is more likely that they will be deposed if they speak to the defense. Most lawyers will assume that witnesses who don’t want to talk to them are planning to help the other side. By not talking to the defense, your witnesses can conceal who among them might not be the best witness.

Is This Advice Unethical or Immoral?

This advice is neither unethical nor immoral. The lawyers’ ethics rules don’t apply to the parties (plaintiff or defendant). Also, the ethics rules are not a code of morality. There is nothing morally wrong with making the defense’s job harder, or protecting your friends — and your lawsuit. It is simply good strategy. If the defense really wants to talk to your witnesses, it can depose them (and eat those costs). Do you think the defense would balk at an opportunity to make your lawyer’s job more difficult?

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11 Responses to Something You Can (and Should) Do That Your Lawyer Cannot

  1. OhTed says:

    I would like to first thank you very much for the most informational website pertaining to personal injury that I have ever found on the internet, I am sure I speak for many people out there that you have helped a great deal with your generous amount of information that a litigant/person would normally have to either pay for or do the time consuming way of Law Library research. I realise your time as a Lawyer is very valuable so before I go into any specifics about my questions I would like to know if the information on this site is typically ok to apply to my state (Ohio). I understand that the specific laws vary by state and sometimes county as well. Your site has answered numerous questions and concerns I had but beings most circumstances for each persons case is different there are just a few things I was hoping you could answer for me upon your reply. I am sure my Lawyer also is thankful without even knowing it because you saved him time answering many things and most likely saved me money! I hope you know that whoever retains your services are truly getting something special as a Lawyer, by just reading all the great info on this site you have changed my overall perception of the bad rap generally given to the legal field out there and have given me confidence in knowing that there are Lawyers out there that actually care. I wish you could represent me but since you can’t I would love your knoweledge about my circumstances as your opinion will be highly respected by me just because of the free valuable information you have provided for the general public to view. I bet your family is proud…I know I would be!

    • fl_litig8r says:

      Wow, any more praise and I wouldn’t be able to lift my swelled head off the keyboard. :) As to your question, because I get visitors from across the country, I try to limit the information in my articles to legal principles which are true in every state. If I touch on a subject that varies from state to state, I’ll say so in the article. If you are concerned about whether a particular issue in a particular article applies in Ohio, just ask in a comment to the article and I’ll do my best to find out.

  2. Tina566 says:

    I have a personal injury case in new york state for the last two years. My atty took the case because he said it is a good case. Now he said that he wants to bring in some experts to help my case but, he’s low on cash so he needs to get a loan. The problem is he want me to sign for the loan, and I will be responsible for paying it back with whatever interest it incurs. He said if he wins the loan is paid first then he gets his 1/3 and then I get what is left. I don’t want to sign for any loan, my case is schedule to go to trial in less than a month. I am confused and don’t know what to do. Any advise?

    • fl_litig8r says:

      Let me tell you how hiring experts typically works before getting into possible explanations for this unusual request by your lawyer. In most personal injury cases, the lawyer fronts the costs in the case, which includes expert witness fees. If you win your case, these costs are deducted from the settlement after attorney fees (meaning that they come out of your share of the settlement). If you lose your case, the lawyer eats his costs (you don’t pay them back). This is the most common arrangement, but it is not the only one possible.

      If a lawyer has doubts about the case, he may want to minimize his own risk by asking the client to start paying some of the costs. Usually, this modification to the fee agreement is achieved by the lawyer threatening to withdraw from the case if you choose not to pay. In your case, it may just be that your lawyer can’t afford the experts (things are tough all over), and not that he has doubts about the case.

      What seems odd to me is that he would make arrangements for you to sign a loan to hire these experts. Did he even ask you if you could pay out-of-pocket for the experts or obtain your own loan? Is the loan he is asking you to sign a lawsuit loan, which you wouldn’t have to pay back if you lose? Or is it a regular loan that you’ll owe no matter how the case turns out? If it is a lawsuit loan, I can see why he might have taken the initiative in getting the paperwork started, as your lawyer needs to provide a lot of information about the case to the loan provider.

      I have a big problem with him trying to hire experts less than a month before trial. Is the court even going to allow him to add witnesses so late? Why did he not see the need for them sooner? I’m sure that there are some extreme cases where such a situation may be unavoidable, but I’d want to know why your case is one of them before agreeing to spend a lot of money on experts at the last minute.

      My bottom line thoughts:

      • What your lawyer is asking for is pretty unusual, but not unheard of;
      • You need to know whether this is a loan you will have to pay back if you lose your case — if it is, are you willing to risk losing money on the lawsuit;
      • If it is a lawsuit loan (meaning you don’t pay it back if you lose), it may not be that bad. There will be up-front fees that they’ll add to the loan amount, but even at a huge interest rate it shouldn’t be too bad if your case is going to trial in less than a month. Your lawyer may be trying to shift the risk of losing the money for the expert fees from himself to the lawsuit loan company — not a horrible idea;
      • If he will deduct the loan amount before he takes out his fee percentage, it will likely wind up costing you less than if he paid for the expert out of his own pocket and deducted the cost after his fee percentage. At a 40% fee, with a pre-fee deduction, your lawyer pays 40% of the expert costs after settlement. With a post-fee deduction, he pays 0% of the expert fee after settlement (because you pay him back 100% out of your share of the settlement);
      • How has your attorney handled your case so far? If he’s seemed competent so far, it may just be a weird set of circumstances that led to this request. If you’ve had doubts about him, you may want to consult with another lawyer before signing his proposed loan agreement.
  3. Margaret says:

    Sorry this may be long but I will shorten as much as I can. I had a personal injury lawsuit and during the discovery deposition of my neurosurgeon he gave causation based on symptoms following the accident. He was then presented with a medical record as evidence for basing the time line on and he then withdrew causation for my neck injury but giving for my back injury. stating that based on the record and what the attorney was telling him did not match with what I told him so he could not give causation if the record was correct.
    The problem was the nurse practitioner didn’t document my neck injury but right in the record is the copy of the prescription for physical therapy for neck and back injury she wrote during that very appointment. Both attorneys had that record and it was also amended based on the prescription showing there was a neck injury noted in the prescription. (my opinion by the line of questioning the atty was leading the neuro to believe I had lied to him when I told the truth the record was incorrect)
    During the taped evidence deposition the neurosurgeon testified that when I seen him the first time he didn’t treat my neck injury because I wasn’t referred for it, and that I didn’t even tell him I had a neck injury on that date. But during the discovery dep He stated I told him I was in physical therapy for my neck and was taking pain medication. Also in his records on a chart I had to fill out where I was having pain, the neck is marked with pain and numbness and tingling in my hand. My attorney at the time never impeached. I was left falling all over, in severe pain and electric shocks going through my body that would bring me to my knees for 18 months, the neurosurgeon and nurse practitioner were saying anxiety was the issue and the neuro surgeon wrote in record he thought i was bipolar even though symptoms of myelopathy were present. It was an er doctor that saw a light and finally ordered an mri of my neck. I had 2 cervical herniations the largest one was 6 mm by 20 mm compressing my spinal chord to 5 mm. I was then sent back to the neuro he saw me at 6 at night and wanted to put me in traction in the hospital until surgery and have had 2 cervical fusion surgeries.The 2nd attorney i had went to the neuro with everything and he wrote a statement giving causation and explained my injury. During the deposition right before trial the neuro flipped again leaving it with I don’t have an opinion and I’m not testifying for either side. So my attorney said had to settle. How can the neurosurgeon lie to cover him not treating my injury, even against his own records with no recourse and because the attorney didn’t impeach him at the time my last attorney said nothing can be done. Now i need back surgery and the insurance wont cover because i settled. The attorney I had last said there was malpractice he even thought the first attorney threw my case deliberately and allowed the neurosurgeon to lie to cover him not treating my injury but time has probably ran out and at least you got a little money in your pocket. Any information you would share would be wonderful as I could hope this would not have to happen to anyone else.

    • fl_litig8r says:

      A flip-flopping treating physician is a plaintiff’s worst nightmare. I’ve seen a number of cases where one mistake in an early medical record will be copied into subsequent records for multiple doctors, most often with some nurse incorrectly documenting at the outset that the plaintiff was an “unrestrained passenger” when he really was wearing a seatbelt. Trying to correct mistakes like this after the fact is usually only partly effective, if at all. Once a doctor commits something to writing (or in a depo) he’s unlikely to admit that it was an error.

      In your case, I’m not so sure that the first lawyer has malicious intent at the depo, or that him not immediately impeaching your own doctor was malpractice. More likely than not, he was surprised by the doctor stating that he couldn’t claim that the neck was related to the accident — the doctor had probably told him up until that point that it was related. Now, the doctor did leave the door open to fix this by basing his opinion on whether the document he was shown was true, but some damage was already done by the doctor undermining his initial opinion. I don’t think it really would have made any difference if the doctor corrected that at the depo or later on at trial, as long as he had a reasonable basis for changing his opinion. So, the whole argument that not correcting it immediately tanked your case is pretty weak.

      The fact that the doctor, even when presented with sufficient information to support causation, wouldn’t commit to it, leads me to put the lion’s share of the blame on the doctor for losing his backbone. I’m not saying you have any kind of claim against the doctor for flip-flopping like he did. Sometimes witnesses just screw up your case beyond repair and there is no recourse.

      Should your original lawyer have anticipated the doctor changing his opinion in the first depo, or should he have been more ready to dispute the document shown to him? I can’t say. Lawyers can diligently prepare a case and still get caught by surprise on occasion. If he thought the doctor was firmly in your camp regarding causation, he probably assumed that the doctor had seen all of your prior records already, and that the defendant showing him one of those records wouldn’t change his opinion.

      I won’t tell you that you don’t have a malpractice case against lawyer #1. Know that except in cases of blatant malpractice, like missing a statute of limitations, legal malpractice claims are incredibly hard to prove. Add to that the difficulty of proving that your case would have had a different outcome even if your first lawyer was able to rehabilitate the doctor at the first depo — I’m not convinced — and I think such a case would be a longshot at best.

  4. Laura says:

    Can I ask about filing a protective order. Can I file one if the person followed me to a residence in 2010? Is there a time limit?

    • fl_litig8r says:

      A protective order in civil cases is an order limiting or prohibiting a certain kind of discovery. What you’re asking about is a temporary restraining order (TRO), which is something lawyers such as myself really don’t deal with. Criminal and family lawyers handle TROs all the time, so you’d be better served directing your question to one of them. As a matter of general knowledge, though, you would have to show some reason why the TRO is currently necessary, so some kind of more recent activity would probably be required (although the 2010 event, coupled with recent cause to be in fear of this person, could suffice).

  5. Debbie says:

    I had a medical malpractice claim going on for 2 and a half years now and my lawyer only tried to get one expert witness and failed and now he is withdrawing. I am in South Carolina. The doctor wrote a prescription in my name for digoxin without my knowledge for assisting my husband with suicide..I was and never have been this doctor’s patient. I have an affidavit from my husband stating that the doctor did this and after this attempt of suicide did not work the doctor gave him 48 pills to kill himself..he was wanting to die for financial difficulties…I also have a copy of the prescription the doctor called in to the small town pharmacy I had never heard of. My husband survived after me finding him in a coma and putting him in a mental hospital. I developed PTSD and have been in treatment for two years. I have also developed high blood pressure and a heart condition PVC. I could not go back to the house without my blood pressure going so high as to lose my vision. We are seperated now because he constantly tells me he tried to kill himself for me because of finances and if I ever talk negative he accuses me of trying to make him kill himself again. My lawyer has pretty much given up. The doctor never responds to any letters, I do not know how to get an expert witness, my husband shares the fault…What can I do ? I have shrink bills, prescription bills, had to leave my husband…can I approach the doctor myself with the affidavit and prescription copy and try to mediate myself?

    • fl_litig8r says:

      I don’t think approaching the doctor would be helpful or wise. He’s unlikely to do or say anything to admit that he tried to assist in your husband’s suicide attempt. The consequences for him, including potentially losing his medical license and facing criminal charges, are far too great to expect him to even talk to you about this. If you can’t find another medical malpractice lawyer (and soon, as I believe South Carolina’s med mal statute of limitations is 3 years), I am not optimistic about your chances of recovering any compensation.

      Expect to have a hard time finding a lawyer to take this case. Aside from the obvious problem of your husband contributing to your injuries, there are many other issues which make this case unattractive. First, this isn’t a medical accident — it’s an intentional act. Because of this, the doctor’s medical malpractice insurer may deny coverage, making the case nearly impossible to settle (as the doctor himself may insist on a trial to try to avoid the above-mentioned severe consequences from admitting to his actions). Second, for some reason your first lawyer’s expert wouldn’t sign an affidavit stating that malpractice occurred, which is a requirement before you can sue under South Carolina’s medical malpractice laws — there may be liability problems with the case of which you are not aware. Third, I assume (I could be wrong) that this doctor issued the digoxin prescription in your name because you have a pre-existing heart condition, which would impact your damages claim. Fourth, you’re running out of time on the statute of limitations, and most lawyers don’t like to take med mal cases with so little time left to find an expert.

      If you can’t find a lawyer (it will probably require calling many firms), I doubt that you’ll be able to make a recovery on your own. While you could still report this doctor’s conduct to the state licensing board, which could result in him being disciplined or having his license revoked, that won’t get you any money.

      • Debra says:

        Thank you..such a shame that a doctor can get away with this. And yes, I do have a heart condition but was never his patient and the prescription was for .25 digoxin and I take 0.125. I suppose my only justice is to turn over my file to the medical licensing board and end my medical treatments for PTSD that my insurance does not cover and I cannot afford to pay anymore. My husband’s depression keeps him in a lazy boy most of the time…no income..lost our home…living separately now. I so much appreciate your honesty. God bless you for what you do to help people.

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