COLLIN KENNEDY ON THE BUSINESS LEADER SPOTLIGHT SHOW
Collin Kennedy was recently a featured guest on the Business Leader Spotlight radio show “Legal Issues”. Collin outlined some of the issues clients need to better understand related to Personal Injury legal matters and interacting with insurrance companies related to personal injury matters.
Enjoy the Archived Audio Interview online or the transcribed version that follows.
Welcome to the Business Leader Spotlight Show
R: I want to welcome everyone to the Business Leader Spotlight Show; this is Randy Van Ittersum, your host for today.
R: Today we have with us Collin Kennedy, a leading personal injury attorney in the Dallas area of Texas. He is here today to talk to us about some of the legal issues that you can encounter in a personal injury case. Collin, welcome to the show.
C: Thanks Randy. Thanks for having me.
R: Collin, tell us a little bit about yourself and your law firm.
C: Randy, I’ve been practicing law for about 15 years. I started my firm with my business partner here about 10 years ago and we have three big practice areas and I kind of head the personal injury section. We also do commercial litigation and we have three lawyers that do exclusively family law. But I got into personal injury because I enjoyed when I got out of law school, I was a prosecutor actually down in Houston and enjoyed representing victims and that’s essentially what I do as a personal injury attorney. So I kind of enjoy the relationship that I develop with many of my clients and the investigation of the case and then ultimately bringing it to a positive result for the client.
R: Very good and tell us why should somebody hire a personal injury attorney?
C: You know Randy I don’t think it’s necessary 100% of the time but most of the time it is and here’s why. When someone is injured, it is a very personal event for them. I think that you know in many instances it turns their life upside down. That’s the perspective they bring. The insurance company on the other hand is a business and it’s strictly a business decision for them on how they handle the claim and so that naturally creates kind of an adversarial relationship and I think when you are in a adversarial relationship you must know that the insurance companies are going to have attorneys advising their adjustors every step of the way and if it ultimately becomes a lawsuit than obviously they’re going to have lawyers handling the case and so I just think it’s smart and only fair that the injured party is represented by counsel as well.
R: Tell us, you bring up the fact that there is an adversarial position between the injured party and the insurance company. Could you provide some additional insights into that area?
C: Sure, this is the perfect example. I got a letter this morning from one of the largest insurance companies in the world about one of my cases and if you don’t think it’s just a business decision for them just listen to some of the language. Now they already know that I represent my client, here’s how they address the letter “To Whom It May Concern” ok that’s red flag number one. This is not personal to them at all. This is simply, basically a formula on their spreadsheet on how they’re going to evaluate the case. Now in this case my client is about to get his leg amputated in a hospital in Texas and the insurance company has no knowledge of anything and they’re demanding that he immediately give them a recorded statement and unless he cooperates they’re not going to adjust the claim so that is a perfect illustration of why this is an adversarial relationship. Again they’re trying to dot their I’s and cross their T’s and simply just input data into I envision a giant spreadsheet and then I understand that’s the way it actually works and it spits out a number either they cover the claim or they don’t and if they do it’s a number between 0 and whatever the limits of the policy are. But you know it’s “to whom it may concern” and I think that’s a little bit offensive in situations like this when you take into account what my client is going through and how they are demanding that he hop on the phone with them and give them a recorded statement. Well he’s got other fish to fry right now.
R: Very good insight. I think that said it all. I agree with you. Tell us now, you’ve been around now for 15 years working in this area. Has the complexity of navigating a personal injury claim become harder for the injured party than it has in the past?
C: I think there’s two things that, I would say yes, particularly in Texas and in a lot of the other what I call conservative jurisdictions in the United States and Texas would certainly fall under that category. It’s just a function of the law has evolved in such a way that it protects insurance companies more so than it has in the past. Texas went through it about ten years ago, the Texas Legislature changed personal injury law dramatically and it tilted in favor of the insurance companies and so that’s definitely made it more complex because you better have a good factual case if you’re going to file a lawsuit in Texas in almost every one of our jurisdictions and the same rings true for as I said many of the other, what I would could call the more conservative jurisdictions in the United States. and so that’s part of it, the other part is and this I think we’ll talk about this later in the call but liens and subrogations, those are two concepts that I think have made personal injury claims more complex simply because the laws evolved in those two areas too. What I mean by lien and subrogation. If one of my clients goes and gets treated by a hospital as a result of the accident and he or she does not have insurance, then the hospital is gonna file a lien and you cannot resolve your personal injury claim with the third party insurance carrier unless that lien is resolved in fact in many states it’s criminal to do so and the attorneys can get in trouble as well. If funds are received from the insurance company and disbursed to the client without resolving the lien then there’s all kinds of problems and the same goes for what I call kind of a general concept of subrogation and that simply means if my client does have health insurance, his health insurance company at the end of the day is gonna want to be reimbursed every penny they paid for the provision of care to that injured party and so the attorney, an important role that an attorney plays that clients don’t necessarily see on the front end, is that we negotiate those things and so that really has nothing to do with the underlying facts of the case but it’s a very important component of the case, none the less. So I would call the hospital and I would say look my client’s trying to settle this case for X amount of dollars. Here’s what he’s got in terms of future medical expenses and most of the time the hospitals will negotiate with you for a fraction of what their total bill is and the same goes for the health insurance carriers for the clients too so, so kind of summarizing up that point, Randy, is that the law has become I think more favorable in most places to insurance companies and then we’ve got to deal with these liens and subrogation issues and so that can make it a lot more complex than the client might have understood before they walked in the door.
R: Well it certainly will and your insights in that area I think are very helpful to our listening audience. I don’t think a lot of them even begin to think that there is going to be another party that has to be paid out at the end of when they collect their money.
R: So, tell us, what are some of the hidden landmines that you see in a personal injury case? You know somebody gets hurt and obviously you know they’re reacting to adjusters contacting them just you know the immediate situation. What are some of the things that they might do that actually is hurting their case unbeknownst to them.
C: I think if it’s a serious case an adjustor is going to expect to hear from an attorney on behalf of the injured party and so when an adjustor doesn’t hear from an attorney naturally there’s going to be some element of the adjustor taking advantage of that situation. That’s just human nature. They know that they’re dealing probably with someone that’s unsophisticated at least in terms of dealing with a personal injury claim and so in terms of hidden landmines the adjustors are going to try to elicit information from the injured party that shifts responsibility, from their insured to the injured party and it may be subtly the way they word a question, that the injured party is having a conversation with the adjustor and doesn’t really realize the importance of a particular word in the question. Those conversations are a lot of times recorded and you can’t really go back and change it after it happens. So, that’s why I think in answering your question earlier most of the time you really need to have an attorney so that you avoid that type of landmine. And again, not to ___ the point, but one of the big landmines are liens and subrogation issues too because again the unsophisticated client who hasn’t been in this situation before may overlook those things and it can just cause lots of problems down the road, so those are two of the big things.
R: So, what I hear you saying is in spite of what we see on TV, where people talk about how friendly we are to settle your claim and everything. Is the adjustor really your friend and your advocate?
C: You know Randy, I don’t mean to disparage insurance adjustors too much and I would say there is a distinction. If you are filing a claim against your own insurance policy, so you get into a fender bender, maybe the other party doesn’t have insurance. I have found that first party insurance adjustors are typically more friendly and reasonable. However, in the personal injury world most of the times I’m dealing with a third party insurance adjustor. That means I’m dealing with somebody else’s insurance company. The person at fault and they’re not bad people. They’re simply doing their job but no, they’re not your friends. I mean, they’re judged by their company on how efficiently they can adjust a claim and frankly what does that mean? It means and I hate to sound like such a skeptic but just having been in this business for long enough to know, it means that they need to try to pay as little as they can on each claim. I mean, that’s really the name of the game for them. So no, to answer your question directly, they’re not your friend; they’re certainly not your advocate. I mean, they are an advocate for their insured. I mean that’s obviously the way that dynamic works. So not bad people and I’ve certainly had some good experiences with even third party adjustors but circling back to the letter I read excerpts from this morning, I don’t think that adjustor is going to be one that is going to be our friend and advocate.
R: That’s true. Tell us, in managing our clients expectations, you know, what’s the most frequent problem that you encounter?
C: Speed of the resolution of the case. I can unequivocally say that’s it. As much as I try to set their expectations about that early on, it’s just very difficult to keep a client from becoming very frustrated. So, speed of the resolution. What am I talking about? The wheels of justice are slow and you know dealing with an insurance company on the front end of a claim before you even file suit can make you wanna kinda pull your teeth out. I write a letter, they won’t let me email it to them. and it has to be, Some companies won’t even except faxes and if they do it usually doesn’t actually hit the adjustors desk until several days after you fax it, it’s just dealing with giant bureaucracies and so couple weeks later I’ll get a response letter and you can see how that really makes the case drag along and then once you file suit not only are you at the mercy of the insurance company but you’re at the mercy of the courts. That’s just everywhere, not just Texas, but everywhere. It’s very difficult to get a case to trial in a reasonable amount of time. I think I pretty much will tell my clients, that if you can get to trial in 1 ½ or 2 years from the day you’re meeting with me for the first time, well then we’ve done something. But the problem with that is and I completely understand my client’s perspective is, they’ve been hurt, they’ve got medical bills to pay, collection letters they’re receiving everyday because they can’t pay the bills, yet there’s a dispute that has to be ultimately resolved between the insurance company and the injured party and that just takes a long time. So it’s frustrating for the attorneys, and it’s certainly frustrating for the clients and it can be something that can create a rift between the attorney and client if that expectation isn’t properly managed on the front end.
R: Interesting insight and tell us if somebody came to you for a consultation what’s the process that they can expect to go through?
C: Randy, the last thing I want to have to do is a fire a client. That may sound like a funny thing to say. I mean, clients are typically the ones firing their lawyers but and why I say that is when I go through a consultation with a client I almost never commit to the case at the end of the consultation. There’s just more to the story usually, I need to see medical bills, I need to see billing records, I need to see the police report and most of the time at the initial consultation I’m not going to have all that information. So I’m very frank with the clients and I tell them look I’m going to investigate this for a period of a couple weeks. It’s not going to cost you anything for me to do that but we’ll both be better off if I can have a good look at the underlying facts of the case and what were up against before I commit to it and I can certainly give them better advice and set their expectations at a more appropriate level if I’ve done that. Rather than they walk into my office, they tell me for 10 minutes about their accident and I’m shoving a contract across the table. I just don’t do business that way and I’ve found that it makes it more infrequent that you know six months down the road I have to call and say you know here’s a fact I didn’t know and that kind of changes the name of the game for you and I need to withdrawal. I don’t like doing that and so I think it’s better that I’ll give them a thorough consultation and a thorough investigation before they’ll have to sign on the dotted line. I just think that’s the way you should do business.
R: Very good and you know one of the issues that I’m sure comes up all the time is everybody wants to know the cost of hiring a personal injury attorney. What can they expect to pay and who’s expected to pay for these costs.
C: There’s not a boiler plate answer for that question, Randy. It really depends on the case and the complexity of the case. You know, I would say that if it’s a very black and white case in terms of liability and that is almost never the case but if it is and it looks like that my job is simply going to be to negotiate the best deal for my client and handle the liens and subrogation issues at the end of the dispute and it’s a case that may not have to go to trial, then the standard rate is 33% and the client will typically pay the expenses but we always front them in that situation. So that if I have to pay a stenographer for a deposition or an expert witness fee I’ll do that and take those costs out of the client’s recovery at the end of the case. But I should say that there have been plenty of cases where the rate is even higher than that. I mean it’s all about shifting the risk and you know the greater the risk for the lawyer, I think the more justifiable that the fee be a little bit higher, so sometimes we’ve gone up as high as 40% if there’s a real liability issue and a lot of dollars at stake and I’m gonna have to spend a lot of money out of our pocket on the way to getting a resolution and usually I don’t have any problems with the clients, they understand that you know at the end of the day when they sign a contingency fee agreement, it shifts the risk entirely from them to the lawyer. That is, at the end of the day if they don’t get any money, well there in no worse financial position then they were when they walked in our door but if I spend two years on a case and hundred, several hundreds of hours and tens or hundreds of thousands of dollars and we don’t win or we can’t get a resolution or the case just wasn’t a winner in the first place, then the only loser financially there is the lawyer and so I think the clients understand there’s a shifting of the risk and sometimes it’s appropriate to have one fee and sometimes it’s appropriate to have a higher one.
R: Very good and so what I hear you saying is, it doesn’t matter what the financial position of the injured party is, whether they’re rich or poor, they have access to the system because there is no direct cost to them initially compared to for example if they wanted to get a divorce.
C: Sure. That’s exactly right. Now, almost all personal injury cases, in fact I’ve never handled one that wasn’t, is a contingency fee arrangement and I’ve had wealthy clients and very poor clients and I would probably entertain the idea of handling a personal injury case on an hourly arrangement if somebody wanted to do that in the right circumstance but I’ve just never had anyone request that to happen, so yes, you’re right, everyone has access to it because it’s one of those situations where the clients just don’t have to pay a dime unless there’s a recovery.
R: And tell us, you know we’re getting to the end of the interview and I do have one last question I’d like to ask you and that is, if somebody were to be looking for a personal injury attorney, what should they look for and how should they go about selecting the right attorney for their situation?
C: Results and I think that applies across many industries but it certainly applies in the legal industry as well. Don’t accept just fluff talk and big promises, dig down deep and ask the lawyer to show you examples of the results they’ve gotten and I think the best predictor of the future is past results, right and I think that certainly applies in the realm of hiring a lawyer too so don’t just take all their blustery marketing legalese that they use, challenge them to show you what their results are and if they can do that and it looks like those are favorable results than you know, consider hiring that attorney.
R: Very good insights. Thank you. Collin, I want to thank you for sharing all your insights with us today. I know our listening audience is going to gain a lot of really good information from it and if you want to learn more about Collin Kennedy you can go to www.hanshawkennedy.com or call 972-731-6500. Again, Collin, thank you very much for your insights.
C: Ok, thanks, Randy.