Friday, April 19, 2013

Editorial: Why Do Comp Claimants Hire Attorneys?

 Every so often a pro se case comp case makes its way to the Commission or the court of appeals.  Invariably, the court dumps the unrepresented worker for not knowing the rules, for making incomprehensible arguments, and tosses the claimant into the streets.

 This brings to mind the question, what was the claimant thinking?
 Many attorneys concentrate their practice in comp.  There is no shortage of public information where to find  lawyers.   It’s hard to get through the morning news without some lawyer on the screen.

So why do some workers go it alone and others get attorneys? 
In the recent case Burchfield v Renard Paper Co., No. ED 995151 (Mo App. July 16, 2013), the court affirmed a denial of benefits noting the pro se claimant did not offer admissible medical records and that his asserted error that the ALJ was just being too "inappropriately" rigid did not constitute reversible error.  The court noted that the claimant had to follow the rules of evidence,  although it was "not unsympathetic" to claimant's plight.  The court made an unusual distinction that comp did not strictly apply "technical" rules of evidence but it characterized laying a foundation as something that just wasn't all that technical.

Toxic case

 Some workers  don’t get attorneys because attorneys don’t want the cases.  There is no constitutional right to have appointed counsel in a worker’s comp matter.  That issue was actually advanced at the court of appeals recently. 

 Some people go the dance alone, and they go home alone.  There’s nothing wrong with that.  Some people, frankly, are lousy dancers. 

  The idea of an "open court" system means something more than just an opportunity to use limited judicial  resources to rant.  That is what public parks are for.  People around Hyde Park learned that a long time ago.    It is an inherent procedural weakness of the comp system that pro se claimants can clog up the system without the deterrents of civil procedure such as summary judgment and taxed costs.  

 Seasoned attorneys recognize the early warning signs not to take such cases.   Life is too short. Attorneys should realize they can only help some workers only so much without a license to dispense medicine. 

Self-appointed expert

 Fans of Bullwinkle may remember Mr. Know It All.   The astute Moose had nothing in the Age of Wikipedia, when the truth is out there for anyone.   There is a difference between, for example, seeing an ice skate and knowing what to do with it.  Much of the same could be said of the do-it-yourself comp litigant who may underestimate the complexity of some cases involving arcane comp issues and complicated medical disputes that may arise even in an informal, summary and ‘no-fault’ system.  Sure, there are forms on-line for comp, just like do-it-yourself divorce kits.   You-Tube has a bunch of videos from the state  trying to make the system more user friendly.  It gives everything that warm and fuzzy feeling.  Consider the last exposure rule?   Pull that one out of your hat. 

Penny-pinching claimant

 In a bad economy some people may not obtain counsel because they fear it costs too much or may have some adverse consequences on their employment.   Comp isn’t criminal law.  There is no retainer.  Federal courts have just raised their filing fees again; comp still charges nothing.  Costs are not taxed.  Attorneys work on contingency.  We don’t get paid, unless you do.   It can’t get any cheaper, except by using double coupons.  Yet some workers won't bite.

The real issue in cost is not the  cost involved to start the process such as a filing fee but the time  to end the process.   This is the classic case of the new client who has two initial questions:  what is the case  worth, and how soon can I get my money?  Everyone knows which question is most important.  In a comp system where months can turn into years, a  lawyer who wants to fully work up a case is merely a roadblock to that type of claimant who wants a settlement check yesterday.

I don’t like lawyers

 There is the perception that some lawyers, simply,  do not add value to the case.  Others just look at lawyers like patients think about recommendations for colonoscopies: it might be a good idea in abstract for some people but they’d rather just not go there.           

The “litigant” personality
 The need to identify who litigates is important to redistribute resources to cases that require more attention. The truth is most cases don't end in litigation.  The other truth is most injured workers get better and don't litigate unlike the many medical journals of comp patients who over-utilize medical resources.   The other more challenging issue  is if claimants  fairly represent the broader population of all injured workers.   To this extent, there maybe  certain “red flags” important to attorneys trying to identify such people early in the process: 

1.        Financial distress from injuries.

2.       Perceptions of unequal bargaining power.

3.       Perceptions of being treated unfairly.

4.       Desire to pursue some abstract justice (“it’s not about the money”)

5.       It really is about the money.

6.       Prior experience with the litigation system

7.       Influence of relatives/peers/coworkers to 'lawyer-up.'

8.       Television commercials always direct their major life decisions.

9.       Distrust in doctors who didn’t make them perfect.

10.   See DSM-5.

The pro se comp worker is not per se incapable of competent self-representation. One could argue the risk of bad decisions in comp is less of a life risk that pro se litigants in criminal law or divorce law.    Many workers are satisfied with settlements and their ability to advocate their positions.    The danger is when the pro se claimant encounters something more difficult, and doesn't see it coming.