I’m now joining the rest of America in finally reading Malcolm Gladwell’s “Blink.” Gladwell’s theory is essentially that in some cases, split second decisions are more accurate than drawn out analysis with lots of different variables to consider.
Of course, I wondered how this best relates to personal injury lawyers. I think the “Blink” thesis that best applies to plaintiff’s trial lawyers is the decision to take the case in the first place. 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 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 that 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 that has been 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.