a-z indexroundtableArticles & Editorialsmarketplacemeet the publisherscontactsearch
home
Advance Your Case Effectively with the Strategy Analyzer
Distinction between Rating Methodology and Diagnostic Protocol
Getting to YES with UR & IMR
The Client Game: Five Successful Ways to Market Your Firm
Computer Corner: The ABCs of Backing Up
sp2

 

Advance Your Case Effectively with the Strategy Analyzer

By Marjory Harris, Applicants' Attorney and Dylan F. Golden & Michael G. McDonald, Defense Attorneys

Attorneys often do the same thing year in and year out, no matter the changes in the law that make the old knee-jerk reactions ineffective or even dangerous. This article discusses the need for reviewing strategy considerations in every case and throughout every case. The downloadable Strategy Analyzer spreadsheet has applicant and defense considerations of topics with links. These topics and the Strategy Analyzer spreadsheet are a joint venture with Dylan F. Golden, and longtime Defense Perspective contributor, Michael G. McDonald.

     

 

 
Download the Strategy Analyzer
 
Why Change?

It is easier to do what you have done. Just as many attorneys persist in using yellow pads and paper files, they continue with old approaches to litigation which may now be ineffective, useless and even dangerous.

Change is hard but necessary. Besides knowing the new law, we need to know new ways to practice effectively and economically. SB 863 made massive changes in statutes, resulting in reams of new regulations. New case law will further change the litigation landscape.

Should you do what you always did, because it worked in the past? Or rethink what you need to do now? In this article attorneys from different sides of the bar debate how to respond to common issues and problems.


Old approaches to litigation may now be ineffective, useless and even dangerous.
 

Reasons to individualize strategy

The best legal practices and due diligence require that each action or non-action be documented. Remember “acts of omission or commission” from law school? This applies to representation in workers' compensation cases, too. Sometimes not doing something is better, sometimes worse -- that is why we need to think carefully at different points in a case's evolution.

Our clients want to know what we are doing and why we are doing it. We need to consider the client's goals and interests and also our own liability. The best way to avoid and defend against malpractice claims is to have notes documenting strategy decisions. You can use the downloadable spreadsheet to document why you did what you did when you did it. Just downlaod it, save it to the client's folder, make some notes, and date your entries. You can use the Strategy Analyzer notes when you need to prepare a memorandum for the client to review and acknowledge, or to answer the client's questions about why you did or did not do something, or to support your recommendations.

The best outcomes do not come from blindly following old protocols (e.g., file Applications for Adjudication of Claim for everything that ever happened to the client, then watch permanent disability get Bensonized into smithereens; a self-insured client may not want further applications filed, since they could result in further costs before re-insurance could begin; get a report you do not like, schedule a deposition, and see the evidence get even worse for your client; or file a Declaration of Readiness to Proceed for a Mandatory Settlement Conference after getting a ratable QME or AME report, then read the report the day before the MSC and realize it is not substantial evidence).


Sometimes not doing something is better, sometimes worse -- that is why we need to think carefully at different points in a case's evolution.
 

The Starting Point

The first consideration should always be, what is your client's goal? See Litigating a Comp Case: Some Lessons from The Art of War.

As long as the goal is reasonable in light of the circumstances, and does not require unacceptable attorney conduct (illegal, unethical, or poor legal practice), we should try to achieve it. There are other options, such as persuading the client to have a different goal, educating them to the realities of workers' compensation law and practice, or declining representation.

The second consideration is, what is the most practical way to reach that goal, consistent with good legal practice?

Where once the paths were clear, certain and well-worn, leading to good results, now they appear twisted and dark, and we are uncertain how to proceed. This is where it really helps to have thought out the tangled paths through the dark woods of current workers' compensation practice.


The first consideration should always be, what is your client's goal? The second consideration is, what is the most practical way to reach that goal, consistent with good legal practice?
 

How to Use the Downloadable Spreadsheet

Download the Strategy Analyzer and keep a clean copy or a link to the online copy on your taskbar or Favorites bar. When you need to think through an issue, save a copy to the client's folder, make notes, and date the saved file. As needed, use your notes to prepare a memorandum for the client to review and acknowledge.

As issues arise on your caseload, add them to your main copy. Keep track of which approaches work well and which do not. The idea is to make it easier with each succeeding case to figure out the most effective course of action.

The Strategy Analyzer is a work in progress, for the authors and those who use it. Feel free to send your comments and suggestions to the Editor at mharrislaw@verizon.net. In the second segment we will include any updates to the first issue of this spreadsheet.


The idea is to make it easier with each succeeding case to figure out the most effective course of action.

CAVEAT

The Strategy Analyzer contains issues to consider and suggestions. These are considerations the authors currently think are important. It is not an exhaustive checklist and not meant to be a step-by-step guide for handling a workers' compensation case The spreadsheet should be used in conjunction with the article "Advance Your Case Effectively with the Strategy Analyzer" and current law. Always research and rethink your strategy consistent with changes in the law.

 


 
Marjory Harris, Esq.

Marjory Harris began practicing law in 1974 as a defense attorney and later became an applicants' attorney and a certified specialist. She continues to represent injured workers and mentors attorneys on big cases.

Reach Marjory at (888) 858-9882 or email: MHarrisLaw@verizon.net

www.workerscompensationcalifornia.com

Dylan F. Golden, Esq. is an associate at McDonald Law Corporation in Concord, California.

Dylan F. Golden, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 300
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352
dylan@mcdonaldlawcorp.com
Other locations: Sacramento, San Jose and Fresno

 


 
Quick A-Z Index Search: A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y |
Like to contribute? Please send your tips, ideas, A-Z topics or corrections to the editor.