Learning as we go, and forgiving ourselves
By Judge David Langham
It is an honor to blog on the platform stared by David Depaolo. I was preparing an introduction for the Florida Association of Self-Insureds (FASI) last week, when I remembered I learned of David's passing on the drive home from last year's FASI conference. I cannot believe it has been a year. Thinking about David, he was always most interested in people. As I ruminated, I remembered a trial long ago and one of my favorite clients. It is just the kind of story David would tell.
I began my career representing insurance companies. By the time I left private practice I represented almost exclusively self-insured employers. Over the course of my career I was privileged to be trusted with the interests of some of the largest employers in the world. I met a great many interesting people, and still retain fond memories of many of them. To a person, the vast majority were concerned with doing the right thing.
I also came to represent a small parade of individuals whose injuries required compensation. Most of these were worker's compensation claimants, but also a handful of plaintiffs in malpractice, personal injury and employment claims. I can remember many of their faces, but have lost track of many names over the years.
I don't believe, however, that I will ever forget one particular client. I still remember her name, and believe I could probably still drive to her home. Most of the time that I knew her, she had difficulty visiting my office, and I would periodically drop by for her to sign things, and to discuss her claim with her. I even visited her a few times in the hospital to discuss documents and evidence.
She had been injured in an odd incidents, that simply was not obviously compensable. She was managing a retail facility. At the counter one day, a customer requested help with a dead battery. She was not a mechanic, but she accompanied the customer to the parking lot to see what could be done.
They stood together at the front of the car, and contemplated the contents of its open hood. They discussed the issue, and perhaps jump-starting the car. And, while embroiled in that conversation, neither noticed that they were standing in a bed of fire ants. Anyone who has ever done that can relate. By the time either noticed the ants, both had been bitten multiple times. I forget now the volume, but my client was bitten literally dozens of times.
The store customer was quite fortunate, although his bites were angry, inflamed, and painful. He did not require medical attention. My clients bites, on the other hand, became infected and swollen and infected. One of the challenges to the case was the insurance company's perceptions about causation, resulting from the far more severe reaction of my client compared to the store customer. My client's swelling became severe enough to warrant hospitalization. She suffered ongoing symptoms for years. I took over the case after her condition had become chronic, and filed a claim for permanent total disability. That my client could not work was fairly obvious. What was harder was the "why," because of the presence of several co-morbidities that each, alone, might well have likewise been totally disabling.
The case was defended by a legendary defense firm. I was a young associate attorney, minimally experienced in any regard, and headed to trial for the first time on the claimants side. The defense brought much experience, considerable resources, and a quiver full of defenses.
I wanted to win. Of course everyone wants to win, but this was different. I really liked my client. She was a nice lady, raising a high school aged daughter, with an older son periodically leaning on her as well. She was consistent, cordial, and patient. She was friendly and persistently upbeat. She was a good client.
As we neared trial, negotiations stalled; the defense knew I was green, and I think they expected us to fold and settle. I remember those medical depositions leading up to trial. I spent hours preparing, struggling to understand the complex medical situation. Sometimes, I wasted hours on tangents and misdirection thrown at me by crafty defense counsel. The defense was putting us to the test, and settlement looked appealing from time to time. But, my client was concerned about her future. Though the settlement offers were significant, they were not permanent total disability. Though she would have Social Security, she could not live on that alone and provide for her children.
We went to trial, and spent a full morning. I felt pretty good about the trial, but you just never know. In those days, Florida judges often delegated the task of preparing a final order. Letters were addressed jointly to the litigating counsel, with one attorney's name on the left margin and the other name spaced to the right. We became accustomed, upon receipt of such letters, to pay attention to which attorney's name was on the left margin; that placement often signified victory.
Another issue in those days was that a trial decision might wait for weeks or months. There were instances in the 1990s in which trial Florida orders were not entered within even a year of trial. I was therefore shocked to receive the judge's letter only a few weeks later. I was encouraged to find my name as the left-margin addressee. But I was ecstatic as I read the letter to find that the victory was complete. This sweet lady and her family had prevailed and would receive significant biweekly payments for the remainder of her life.
I had tried my first permanent total disability claim. I had tried it on a complex medical issue with multiple complications. And I had prevailed on behalf of a very genuine, good-natured, and honest client. It's fair to say that that was a good day.
I prepared the order as instructed, and it was entered reasonably rapidly. Opposing counsel contacted me to discuss resolution of the attorney's fee. I could have calculated the present value of that permanent total disability, and demanded a statutory attorneys fee. But instead I calculated the hours I had invested and demanded a reasonable hourly rate, slightly higher than what I earned defending cases. My fee demand was approximately 1/3 of the statutory fee. To this day, I am sure that my able opponent remains convinced that he put one over on me. But in truth, I was eager to put the litigation and the case behind my client.
In the midst of our discussions regarding the wording of the fee stipulation, we had several more conversations regarding the potential of settling the case. The offer amounts had improved markedly following the adjudication of permanent total disability. But I was persistently nagged by an occurrence several months before. In my defense practice, I had recently encountered an injured worker who had settled his case. He had been a very poor custodian of his funds, and had suffered criminal activity at the hands of a loved one who took some of his money. Having settled his Worker's Compensation claim, this gentleman found himself with no means of support, after what had seemed like a sufficient nest egg had evaporated.
As I discussed settlement with my client, I described that situation to her. We discussed at length the needs of her and her family. We discussed how long the settlement offer on the table would last, if she spent it at the same rate at which she was currently receiving biweekly permanent total checks. Though I was torn, I ultimately recommended against settlement. Whether because of that advice, or her own judgment, my client elected not to settle. My modest fee was paid, the file closed, and I moved on to the next challenge.
That is what lawyers do. They evaluate, research, prognosticate, and advise. It is sometimes frustrating, but lawyers don't really get to ever make many decisions. Sometimes we lament that, but often times that is also a blessing. But, I do remember being pleased that my client made the decision that I would have personally made. That made me feel proud of my advice.
It was about a year later that I heard from my client's daughter, a new high school graduate. She reported that her mother had passed quietly one recent evening. As we discussed her daughters situation, and the details of my clients demise, it became apparent that the death was unrelated to the worker's compensation accident. We talked about her situation and her future. She asked if there would be any further benefits from workers' compensation. The outcome was pretty obvious, there would be no further funds. This young lady was essentially on her own at 18, but lucky enough to inherit a small home.
I have always second-guessed that recommendation not to settle. As a result, the daughter was left in a financially precarious situation, dependent on an older sibling and some distant family. I suspected that with the short time between case closure and my client's death, there would have been significant funds remaining for this young lady had my client settled. I had given my best advice, and in the end I was wrong. That was difficult to accept.
That is the burden of the lawyer. We are charged with representing people's best interests. We are not infallible. Perhaps we are informed, experienced, and emotionally detached from decisions, but we are not infallible. The decision not to settle was not mine, but my client likely relied upon my advice, and that is a difficult burden for any lawyer to bear in retrospect. Having done our best to advise, to have predicted, it is still unfortunately likely that we are no more better suited to predicting the future than anyone else. We are not infallible.
And in that vein, we must remember a few things. First, humility is critical. We need people in our lives to remind us of our stumbles periodically to keep us grounded. Second, we will make mistakes despite our best efforts and intentions. We have to learn to accept that and to forgive ourselves. And as I sit here writing about this memorable client, having led in with a recollection of David, It occurs to me that he was just that kind of friend. David would cut to the chase, remind you of your stumbles or falls, and yet cheerlead you to get back on the horse. I can hear him in my mind responding to my statement above that "I have always second-guessed." David would have reassured me that we are not infallible, and that all we can realistically expect of ourselves is that we do our best. And, with that in mind, perhaps we can all be a little more forgiving in terms of our expectations of others?
It is an honor to blog on the platform stared by David Depaolo. I was preparing an introduction for the Florida Association of Self-Insureds (FASI) last week, when I remembered I learned of David's passing on the drive home from last year's FASI conference. I cannot believe it has been a year. Thinking about David, he was always most interested in people. As I ruminated, I remembered a trial long ago and one of my favorite clients. It is just the kind of story David would tell.
I began my career representing insurance companies. By the time I left private practice I represented almost exclusively self-insured employers. Over the course of my career I was privileged to be trusted with the interests of some of the largest employers in the world. I met a great many interesting people, and still retain fond memories of many of them. To a person, the vast majority were concerned with doing the right thing.
I also came to represent a small parade of individuals whose injuries required compensation. Most of these were worker's compensation claimants, but also a handful of plaintiffs in malpractice, personal injury and employment claims. I can remember many of their faces, but have lost track of many names over the years.
I don't believe, however, that I will ever forget one particular client. I still remember her name, and believe I could probably still drive to her home. Most of the time that I knew her, she had difficulty visiting my office, and I would periodically drop by for her to sign things, and to discuss her claim with her. I even visited her a few times in the hospital to discuss documents and evidence.
She had been injured in an odd incidents, that simply was not obviously compensable. She was managing a retail facility. At the counter one day, a customer requested help with a dead battery. She was not a mechanic, but she accompanied the customer to the parking lot to see what could be done.
They stood together at the front of the car, and contemplated the contents of its open hood. They discussed the issue, and perhaps jump-starting the car. And, while embroiled in that conversation, neither noticed that they were standing in a bed of fire ants. Anyone who has ever done that can relate. By the time either noticed the ants, both had been bitten multiple times. I forget now the volume, but my client was bitten literally dozens of times.
The store customer was quite fortunate, although his bites were angry, inflamed, and painful. He did not require medical attention. My clients bites, on the other hand, became infected and swollen and infected. One of the challenges to the case was the insurance company's perceptions about causation, resulting from the far more severe reaction of my client compared to the store customer. My client's swelling became severe enough to warrant hospitalization. She suffered ongoing symptoms for years. I took over the case after her condition had become chronic, and filed a claim for permanent total disability. That my client could not work was fairly obvious. What was harder was the "why," because of the presence of several co-morbidities that each, alone, might well have likewise been totally disabling.
The case was defended by a legendary defense firm. I was a young associate attorney, minimally experienced in any regard, and headed to trial for the first time on the claimants side. The defense brought much experience, considerable resources, and a quiver full of defenses.
I wanted to win. Of course everyone wants to win, but this was different. I really liked my client. She was a nice lady, raising a high school aged daughter, with an older son periodically leaning on her as well. She was consistent, cordial, and patient. She was friendly and persistently upbeat. She was a good client.
As we neared trial, negotiations stalled; the defense knew I was green, and I think they expected us to fold and settle. I remember those medical depositions leading up to trial. I spent hours preparing, struggling to understand the complex medical situation. Sometimes, I wasted hours on tangents and misdirection thrown at me by crafty defense counsel. The defense was putting us to the test, and settlement looked appealing from time to time. But, my client was concerned about her future. Though the settlement offers were significant, they were not permanent total disability. Though she would have Social Security, she could not live on that alone and provide for her children.
We went to trial, and spent a full morning. I felt pretty good about the trial, but you just never know. In those days, Florida judges often delegated the task of preparing a final order. Letters were addressed jointly to the litigating counsel, with one attorney's name on the left margin and the other name spaced to the right. We became accustomed, upon receipt of such letters, to pay attention to which attorney's name was on the left margin; that placement often signified victory.
Another issue in those days was that a trial decision might wait for weeks or months. There were instances in the 1990s in which trial Florida orders were not entered within even a year of trial. I was therefore shocked to receive the judge's letter only a few weeks later. I was encouraged to find my name as the left-margin addressee. But I was ecstatic as I read the letter to find that the victory was complete. This sweet lady and her family had prevailed and would receive significant biweekly payments for the remainder of her life.
I had tried my first permanent total disability claim. I had tried it on a complex medical issue with multiple complications. And I had prevailed on behalf of a very genuine, good-natured, and honest client. It's fair to say that that was a good day.
I prepared the order as instructed, and it was entered reasonably rapidly. Opposing counsel contacted me to discuss resolution of the attorney's fee. I could have calculated the present value of that permanent total disability, and demanded a statutory attorneys fee. But instead I calculated the hours I had invested and demanded a reasonable hourly rate, slightly higher than what I earned defending cases. My fee demand was approximately 1/3 of the statutory fee. To this day, I am sure that my able opponent remains convinced that he put one over on me. But in truth, I was eager to put the litigation and the case behind my client.
In the midst of our discussions regarding the wording of the fee stipulation, we had several more conversations regarding the potential of settling the case. The offer amounts had improved markedly following the adjudication of permanent total disability. But I was persistently nagged by an occurrence several months before. In my defense practice, I had recently encountered an injured worker who had settled his case. He had been a very poor custodian of his funds, and had suffered criminal activity at the hands of a loved one who took some of his money. Having settled his Worker's Compensation claim, this gentleman found himself with no means of support, after what had seemed like a sufficient nest egg had evaporated.
As I discussed settlement with my client, I described that situation to her. We discussed at length the needs of her and her family. We discussed how long the settlement offer on the table would last, if she spent it at the same rate at which she was currently receiving biweekly permanent total checks. Though I was torn, I ultimately recommended against settlement. Whether because of that advice, or her own judgment, my client elected not to settle. My modest fee was paid, the file closed, and I moved on to the next challenge.
That is what lawyers do. They evaluate, research, prognosticate, and advise. It is sometimes frustrating, but lawyers don't really get to ever make many decisions. Sometimes we lament that, but often times that is also a blessing. But, I do remember being pleased that my client made the decision that I would have personally made. That made me feel proud of my advice.
It was about a year later that I heard from my client's daughter, a new high school graduate. She reported that her mother had passed quietly one recent evening. As we discussed her daughters situation, and the details of my clients demise, it became apparent that the death was unrelated to the worker's compensation accident. We talked about her situation and her future. She asked if there would be any further benefits from workers' compensation. The outcome was pretty obvious, there would be no further funds. This young lady was essentially on her own at 18, but lucky enough to inherit a small home.
I have always second-guessed that recommendation not to settle. As a result, the daughter was left in a financially precarious situation, dependent on an older sibling and some distant family. I suspected that with the short time between case closure and my client's death, there would have been significant funds remaining for this young lady had my client settled. I had given my best advice, and in the end I was wrong. That was difficult to accept.
That is the burden of the lawyer. We are charged with representing people's best interests. We are not infallible. Perhaps we are informed, experienced, and emotionally detached from decisions, but we are not infallible. The decision not to settle was not mine, but my client likely relied upon my advice, and that is a difficult burden for any lawyer to bear in retrospect. Having done our best to advise, to have predicted, it is still unfortunately likely that we are no more better suited to predicting the future than anyone else. We are not infallible.
And in that vein, we must remember a few things. First, humility is critical. We need people in our lives to remind us of our stumbles periodically to keep us grounded. Second, we will make mistakes despite our best efforts and intentions. We have to learn to accept that and to forgive ourselves. And as I sit here writing about this memorable client, having led in with a recollection of David, It occurs to me that he was just that kind of friend. David would cut to the chase, remind you of your stumbles or falls, and yet cheerlead you to get back on the horse. I can hear him in my mind responding to my statement above that "I have always second-guessed." David would have reassured me that we are not infallible, and that all we can realistically expect of ourselves is that we do our best. And, with that in mind, perhaps we can all be a little more forgiving in terms of our expectations of others?
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