I’m now joining the rest of America in finally reading Malcolm Gladwell’s “Blink.” Gladwell’s theory is essentially that sometimes, split-second decisions are more accurate than drawn-out analysis with lots of different variables to consider.
I wondered how this best relates to personal injury lawyers. I think the “Blink” thesis that best applies to the plaintiff’s trial lawyers is the decision to take the case. Some cases are no-brainers. A rear-end truck accident where someone is killed or seriously injured is obviously a case. A red light/green light case with two independent witnesses against you is not a case. But there is a middle ground in between where reasonable minds can differ. We have recovered millions of dollars for clients who could not find a lawyer. And I’m sure our rejected cases have also recovered a million dollars. The old cliché “one man’s trash is another man’s treasure” fits snugly here.
Most of the cases I have taken that I regret taking were cases I talked myself into with additional facts. Right now I’m getting a medical malpractice case off my desk I knew from jump street was not a case. But I liked the client, and I roped myself into looking at the case and spending thousands of dollars in medical records before concluding that it is clearly a bad outcome case that does not involve malpractice.
When we get a good verdict or settlement in a case rejected by other lawyers, there is an overwhelming temptation to feel a little smug about it. If you handle personal injury cases, you know exactly the feeling I’m talking about. But it is misguided. The reality is if you had a top 10 list for personal injury lawyers in Maryland for “most cases rejected that ended successfully,” I’ll bet almost every personal injury lawyer on that list is a successful lawyer. This principle holds with greater force in medical malpractice and product liability cases because the risks of time and money are typically—not always, but typically—greater than in a typical car or truck accident case.