Action Plans: A Powerful Tool for Personal Injury ClaimsAuthor: Tim Bradley | Published: 9 July 2016
Having a Clear Action Plan for your personal injury claim can literally save you thousands of dollars, years of stress, and get you better results. Let’s talk about why, and how to get your personal injury lawyer to make and stick to it.
When Injury Cases Go Wrong
Most people have heard stories of compensation claims that have gone wrong. Lawyers have taken all the money. The case took 5 years to resolve. Things weren’t done when they should have been. The lawyer was never available. The list goes on.
Typically, these complaints can generally be categorised into one of two areas, massive legal bills or a terrible legal service experience - often both because they go hand in hand in some ways, as we will see.
As someone who has worked in the industry for nearly 20 years now, I can say with some confidence that the underlying cause for these horrible experiences ultimately lie in the fact that the personal injury lawyer did not have a clear plan of action.
Lawyers tend to be busy. It is the nature of the industry. Firms tend to overwork lawyers to get the most bang for their buck - there is reason why it is one of the most stressful professions with among the highest rates of depression and alcoholism.
But there can be other factors too. Poor matter scheduling, or just bad luck, means that when one case “blows up” the lawyer’s time, energy and effort are directed to it and often to the detriment of their other cases.
Whatever the cause, or even when the lawyer isn’t busy, when there is no clear plan of action several things happen:
- Work is not done in a timely fashion
- Work is not done efficiently
- The other parties take control of your case
These in turn lead to higher costs, longer delays, and poorer outcomes.
Moreover, if there is a good plan of action this will not happen. You want your personal injury lawyer to work with a clear plan of action.
What Makes A Good Action Plan
Effective personal injury Action Plans are not complicated. They do not need to be book-sized in length, with detailed analysis of all possible eventualities and with contingency plans for each. They are not a manual nor exposition of law.
Effective personal injury Action Plans focus on what you can change, not what you can’t. They should NOT focus on the other party(s) and their case(s) at all. That is a common mistake I see often. Don’t get distracted. Your job is to develop your case. A good Action Plan will focus only on what is needed to move your case forward. That’s it.
Effective personal injury Action Plans are simple and clear. An action plan is not a goal. It is a tool to help us use resources (time, money and effort) effectively on the case, and should be meaningful so everyone clearly knows what is what and why. If a six-year-old can’t understand it, then it probably needs to be reviewed.
Effective personal injury Action Plans are flexible. Like a ship’s navigation chart, the Goal of action plan is to have clear port to steer toward taking into account that conditions may change along the way effecting how you get there.
You want your action plan to be simple, flexible road map for your case.
My 4-Question Action Plans
After nearly 20 years of working on personal injury claims, I have refined my Action Plans down to asking myself a few simple questions:
- Where are we going?
- What steps do we to take to get there?
- What step are we working on now?
- When can we move to the next step?
The first two set goals, the latter two create achievable actions. I ask these questions every time I work on the matter, from the very beginning to the very end. I incorporate them into my case management system, and at least the final two in my reporting letters to the clients I serve. In my experience I have found that asking these questions are a powerful and simply way to stay focused and keep the matter moving forward.
1. Where are we going?
For me, there is only ever one of three goals:
Get the case to meaningful settlement negotiations before Court;
Get the case to meaningful settlement negotiations at the Pre-Trial Conference (a court-assisted settlement process);
Get the case to a trial.
These vary from case to case. For some cases, I know that it will be a waste of time to try settle before Court. In those cases, I will set the Pre-Trial Conference as the goal - perhaps with a strategic pre-Court offer made along the way. All cases will at least begin with the second goal if not the first, and the third is there if the matter can’t resolve by agreement.
TO BE CLEAR: I will listen to any offers along the way. If my goal for a case is to head to a Pre-Trial Conference, of course I will still recommend a good offer made before Court. But I have found that things need to change before offers substantially improve and it is better to make the change rather than sit and hope.
2. What Steps do We Need to Take to get there?
This depends on the particular case, though typical steps for District Court personal injury cases (motor vehicle accidents, medical negligence, occupier liability, public liability claims) are something like the following:
Wait for the client to medically stabilise. For personal injury claims, medical evidence is key. If the client is still undergoing treatment, why request the doctor’s records after the first visit when you know the client will be needing 20 visits? You will only have to go back and request them again later - effectively doing the same thing twice or thrice or more.
Get initial primary evidence. This is evidence that will be produced without our involvement, and needed to get effective secondary evidence. They include client instructions and relevant documents like doctors records, hospital notes, photographs, etc. Some can be sought from the beginning while others, as related above, we need to wait for.
Get secondary evidence. This is evidence we “create” for the case and using the initial primary evidence. This is usually medical reports but can also include other expert evidence such as engineering reports, specialist reports and more. Hopefully this can all be created simultaneously in one “round of gathering”, but sometimes we need one piece of evidence before we can get another piece of evidence - so several “rounds” are required.
Prepare Draft Court Documents. Even if you are going to try to resolve the case before Court, drafting these documents will (a.) prepare you for the negotiations, (b.) show the other party you are serious, and (c.) if the negotiations fails enable you to move on toward a Pre-Trial Conference quickly. If you are going straight to Court, it is handy to draft these all in one go because you do not need to re-familiarise yourself with the file and because it helps to comply with the Court’s time lines if the documents are done in draft form.
File Pleadings & Exchange Discovery. This is where the parties formally outline their case and the evidence they are relying on. It is done by
Go to the Pre-Trial Conference. Most matters should resolve here.
Have the Matter Listed. Finalisation of outstanding evidence, Witness Lists Evidence, Counsel and preparation for the listing conference.
Prepare and attend Trial.
Post Trial Wrap Up.
For cases in other Courts (read: Workers Compensation), the process isn’t too different in principle. Perhaps the only exception is Victims of Crime or Criminal Injuries Compensation (CIC) because that is an application and not a dispute. That still involves steps 1 through to 3, but after that is the filing of the application and responding to the Assessors objections, if any.
You may have realised that the timing of the above can change from case to case. Sometimes it is necessary, for example, to start in Court straight away because of statutory time limits or because it is appropriate to get the Court-side moving while the Evidence-side is developed. So, unlike the first question, these steps will change from case to case and may evolve depending upon how things develop.
3. Where are we at?
This is the “action” level and not the goal level. It simply requires looking at which step (from above) we are at and what needs to be done to complete that step. It shouldn’t be something we need to do, that should just be done. It should be something we waiting on to move forward. For example, perhaps it requires chasing a doctor for a report, chasing the defendant for their defence, waiting for the specialist’s views following a surgery, or other such action.
4. When can we move to the next step?
This question is at the action level too, but it has the dual function of reminding us to keep moving forward as well as that everyone is understands how the injury claim is progressing.
When Does YOUR Case Need An Action Plan?
From the beginning. All cases should have an action plan. Your personal injury lawyer may already be working by one - even if it is different from my own.
You will know if one is needed because you will NOT have a good idea about where your matter is at or you will NOT have a good idea about where you are going. If you are not sure about of these two things, you probably want an Action Plan.
How To Get An Action Plan?
Easy. Ask for one. Your personal injury lawyer works for you. It is entirely within your right to instruct your personal injury lawyer to give you one. Ask for a report addressing (perhaps using the four questions method I use) and then have them report to you as the matter progresses as appropriate. Your personal injury is obliged to comply.
My view is that reporting should be done at the end of each step or at appropriate intervals if a step is going to take some time - which is common when we are waiting for treatment to finalise. During those times, I would expect a lawyer should be reporting about once a month on average - though it ultimately is down to your preference and your lawyer.
Whatever the status for you, there is no doubt in my mind that a Clear Action Plan will greatly improve the outcome of your personal injury claim. Good luck!