Gateways to the Gavel: NJ Injury Lawyers Unraveling the Pre-Litigation Intake Process
Episode 10 of Jersey Justice™ Podcast: Gateways to the Gavel: NJ Injury Lawyers Unraveling the Pre-Litigation Intake Process
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Transcript
Welcome to Jersey Justice, a civil law podcast that shares
Speaker:practical tips and stories about personal and workplace injuries.
Speaker:Joined two of the brightest New Jersey injury attorneys, Gerald Clark
Speaker:and Mark Morris of Clark Law Firm.
Speaker:As they take you behind the scenes of.
Speaker:Justice and civil law.
Speaker:But first, a quick disclaimer.
Speaker:The information shared on this podcast is for general information purposes only.
Speaker:Nothing on this site should be taken as legal advice for any
Speaker:individual case or situation.
Speaker:This information is not intended to create and does not constitute
Speaker:an attorney client relationship.
Speaker:Hi everyone.
Speaker:Today we're gonna be talking about the litigation process, and we're
Speaker:gonna be talking about if someone gets injured on the job, what is the
Speaker:process that they have to go through.
Speaker:I know that they have so many questions.
Speaker:It is a time for them where they are wondering if they're gonna get paid,
Speaker:how they're gonna get compensated.
Speaker:How long the whole process takes.
Speaker:So we're gonna be talking to Mark and Jerry today about that whole
Speaker:litigation process and the process of when a client comes in, you know,
Speaker:what really happens behind the scenes.
Speaker:So I wanna welcome Mark and Jerry to the show today.
Speaker:Welcome.
Speaker:Thanks Dimple.
Speaker:Thanks Dimple.
Speaker:I'm glad to see that Mark got the jacket memo today.
Speaker:Yes, he, he sure didn't.
Speaker:Something different this time.
Speaker:You know what?
Speaker:You might even, you might even like put on a tie for the next episode.
Speaker:You guys have to like, you know, definitely subscribe and tune in.
Speaker:So, surprise, surprise.
Speaker:Yeah.
Speaker:You'll never get what color tie it will be.
Speaker:No, it's gonna be a fun one.
Speaker:So, so Jerry, let's say that someone comes to you, right?
Speaker:They work for a construction site, they work at a construction site.
Speaker:They were injured because they fell off of a scaffolding and
Speaker:they are really in bad shape.
Speaker:Their family is actually the one that's approached you because they
Speaker:are just, you know, not doing well enough to even talk at this point.
Speaker:What happens, like how can you help someone that has been injured at a
Speaker:construction site in a workplace injury?
Speaker:Okay, so thanks for asking that.
Speaker:That's a good question.
Speaker:We see this very frequently.
Speaker:In this situation, people come to us.
Speaker:This kind of thing happens all the time.
Speaker:So when someone is in, first of all, when someone's hurt at a construction
Speaker:site, when they come to us, it is usually a pretty bad injury.
Speaker:It's like if you fall from scaffolding over six feet,
Speaker:it's, it's often a bad injury.
Speaker:If a trench collapses on someone, it's usually a bad injury.
Speaker:If a big piece of construction debris falls on someone or they
Speaker:fall from a ladder, they're usually very, very bad injury.
Speaker:And usually those people are laborers working for a living, supporting a family.
Speaker:So, you know, after the initial kind of trauma, when they get around to
Speaker:coming to us to an attorney, their primary concern usually is, how
Speaker:am I gonna put food on the table?
Speaker:So when this happens, you know, because they can't work.
Speaker:So when this happens, there's two types of cases that are looked at.
Speaker:One is a worker's compensation case, and then the second type
Speaker:of case is a third party case.
Speaker:What's the difference for our audience?
Speaker:Because I know like they don't really understand how the legal system works.
Speaker:What is the difference between a worker's compensation case and a third party case?
Speaker:So let's take your example, dimple of like a scaffolding fall.
Speaker:Let's say it's a large construction site and there's a scaffolding fall.
Speaker:Let's say that.
Speaker:Construction is a new building.
Speaker:There's gonna be an owner of the building, you know, they're
Speaker:kind of at the top of the chain.
Speaker:And then the owner usually will hire a general contractor and
Speaker:the general contractor will hire all the subcontractors.
Speaker:And we also call the general contractor like gc.
Speaker:So the GC will hire a subcontracting companies, say to install
Speaker:the siding on the building.
Speaker:And often what happens is that company that's hired to do the siding will
Speaker:then sub subcontract out the work to another company, and then that
Speaker:company will hire the actual workers.
Speaker:Okay?
Speaker:So OSHA has rules so that workers aren't needlessly injured on job sites,
Speaker:including fallen from scaffolding.
Speaker:Not to get into this in this podcast in in detail, but with regards to
Speaker:scaffolding, there has to be training on how the scaffolding is set up, how
Speaker:it's used properly, and probably most importantly, not only scaffolding,
Speaker:but any situation where a worker is at height on a construction site.
Speaker:Most importantly, if the worker is above six feet, they have to be
Speaker:protected by fall protection, and that's super important on scaffolding.
Speaker:So when they come, the difference between a worker's compensation and third party
Speaker:is that the workers' compensation case is, is brought against the direct employer.
Speaker:That's the company that's actually giving them a paycheck each day.
Speaker:And you, when you get hurt at work, generally speaking,
Speaker:it catch to your employer.
Speaker:You can only bring a worker's compensation case.
Speaker:And the workers' compensation case is limited to getting like
Speaker:your lost wages, medical bills.
Speaker:And a relatively small permanency award.
Speaker:Again, this is all generalities cuz each case is different.
Speaker:So that's the worker's compensation case.
Speaker:And then the third party case, let's assume you're on a job site
Speaker:and the general contractor is not enforcing those os osha safety rules
Speaker:because generally speaking, it's cheaper to not enforce the rules.
Speaker:And if it's cheaper, you can bid the job for less.
Speaker:More likely you might get the work because yours is the low bid because
Speaker:you're cutting coordinates on safety.
Speaker:So if that happens where the general contractor is permitting these
Speaker:subcontractors to not file the safety rules, say for example, in the
Speaker:scaffolding fall down case, then the worker can sue that interim subcontractor
Speaker:and the general contractor for failing to enforce the safety rules.
Speaker:And that's basically a negligence case.
Speaker:Also the difference between that and a worker's compensation case is that
Speaker:you can get compensation for like the permanent life changes, which
Speaker:is usually the worst harm in these cases, is how the person's life is
Speaker:forever changed because contractors decided to not file safety rules to
Speaker:maximize profits in a lot of cases.
Speaker:So that's the difference.
Speaker:You could also get punitive damages to deter that kind of conduct in
Speaker:the future, which is important.
Speaker:So that's kind of the difference between those two cases.
Speaker:Yeah.
Speaker:Thank you for, you know, thank you for sharing that.
Speaker:I think that's really important for our listeners to have a thorough understanding
Speaker:of how that works, what the differences are, and when it comes to someone
Speaker:being injured, especially through.
Speaker:You know, a devastating fall, falling off a, a scaffolding their family, they're
Speaker:probably the breadwinner for their family.
Speaker:Their family's not maybe working, doesn't have money coming in.
Speaker:They might have kids and, and all of that.
Speaker:And I think it is important for, you know, someone who has been injured, especially
Speaker:through the negligence of, you know, the construction company failing to.
Speaker:Really put proper safety measures in place.
Speaker:You know, I am sure you get this a lot, but can you go into a
Speaker:little bit more details about how their compensation is determined?
Speaker:Because you said something about punitive damages.
Speaker:I mean, how does that come into play and, and how as attorneys.
Speaker:Do you go to fight for justice for your clients when it comes to getting
Speaker:them the settlement that they truly deserve versus just a settlement?
Speaker:So Mark, maybe you can tell us a little bit more about the intake process and you
Speaker:know how all that works so our listeners can get a better understanding of that.
Speaker:Sure.
Speaker:Thanks Temple.
Speaker:Like Jerry just talked about there, there's typically two types of cases.
Speaker:It's a worker's compensation case.
Speaker:Then the third party case, and normally we would represent an injured
Speaker:worker in the third party case.
Speaker:, in New Jersey, you normally can't bring a third party case against your employer.
Speaker:The exclusive remedy is worker's comp.
Speaker:We'd normally set someone up with an attorney to help with the
Speaker:worker's comp case, and then we would investigate the third party.
Speaker:Like Jerry talked about the third party, that's when you
Speaker:go up the chain of command.
Speaker:You go up the ladder to the interim sub.
Speaker:And the general contractor, if those entities knew that there were safety
Speaker:rules that were being violated on the job site, or say they put in
Speaker:place circumstances that violated.
Speaker:Industry standards a lot of times which are, which are osha.
Speaker:So when an injured worker comes into our office, we'll sit down
Speaker:usually in a conference room.
Speaker:Obviously with Covid, we've done quite a bit of zoom intakes or things
Speaker:over teams, any of those, you know, video conferencing software that
Speaker:no one had heard of before 2020.
Speaker:But so we'll do a general intake with the client and it's kinda like, If
Speaker:you're talking about a newspaper article or any investigative work that someone
Speaker:does, we wanna know the who, what, why, when, where, all those kind of W words.
Speaker:And then I guess the how as well.
Speaker:So we wanna know who the potential players are in the case.
Speaker:Obviously, we'll start with who the worker was working for at the time, and
Speaker:ask if they know who was above them in the chain of command on the job site.
Speaker:A lot of times the.
Speaker:The worker may not know.
Speaker:So that's why what we talked about in one of the last episodes about doing the, the
Speaker:pre-suit investigation, kind of the early on investigation can be important cuz a
Speaker:lot of times the worker might not know who was giving their boss commands or who
Speaker:was the kind of top dog on the job site.
Speaker:So in the past we've had times where we've even taken at a client's cell
Speaker:phone, obviously with their permission and looked at some of the pictures
Speaker:that they have from a job site.
Speaker:Because they might not even realize they're just guys who are proud
Speaker:of the job they're doing, taking pictures of a job site and then
Speaker:there's a, a van with a company we know's a general contractor in it.
Speaker:So obviously we'll still do our investigation, but that
Speaker:sometimes is, is part of it.
Speaker:Mark, how long does the investigation process take?
Speaker:I'm sure it varies depending on the type of case it is, but
Speaker:can you give us some examples?
Speaker:Sure.
Speaker:So in New Jersey, we may have mentioned this, and if we haven't, this is.
Speaker:One of the most important things that any, you know, member of the public,
Speaker:any non-attorney that's listening to this podcast know is that you have two
Speaker:years in New Jersey to file a lawsuit.
Speaker:So if say, on January 19th, 2023, we'll use the example of, you
Speaker:know, falling off a scaffolding.
Speaker:If you fell off the scaffolding and got hurt on January 19th, 2023,
Speaker:you would have to file a lawsuit by January 19th, 2025, where you'd be
Speaker:forever barred from bringing a claim.
Speaker:So ideally someone would come to us kind of early on in that process if they were
Speaker:to have fallen on January 19th, 2023.
Speaker:Obviously there's a lot of things going on.
Speaker:Their first thought might not be, Hey, I'm gonna file a lawsuit.
Speaker:Like I think Jerry had talked about, or we talked about.
Speaker:It's, you know, your main concern oftentimes is, how
Speaker:am I gonna feed my family?
Speaker:How am I gonna go back to work if you're injured?
Speaker:So when someone comes to us, it could take, and there's no one size fits all.
Speaker:Each case is unique.
Speaker:But it can take, you know, months to a year.
Speaker:Our general kind of, what we like to do is file cases a year outside
Speaker:of the statute of limitations.
Speaker:So again, using that example, if a case came to us relatively early on,
Speaker:we'd do our investigation, say for anywhere from two to, you know, 12
Speaker:months, and then like to have the case filed a year out of the statute.
Speaker:It doesn't always work that way.
Speaker:When I say statute, I'm talking about that two year time limitation cuz it all
Speaker:depends on when the case comes to us, how, I guess, cooperative some of the different
Speaker:agencies we might need to work with.
Speaker:Be it the towns, the other defendants in the case are in getting us some
Speaker:of that investigative material that we can get early on in the case.
Speaker:Because a lot of times we're not gonna get the full picture until we've filed
Speaker:a lawsuit, but we want to have enough of an image of what's going on to make sure
Speaker:that we have the right people in the case.
Speaker:And that we understand the facts as they've been presented to us.
Speaker:It's also important, like we talked about, the early investigation
Speaker:and what can the client do.
Speaker:So I'm gonna read to you, this is an email I got just today.
Speaker:Person was on a job site, had a pretty bad laceration to their hand.
Speaker:And because the client didn't even have basic information about the job, the case
Speaker:got rejected by the workers' compensation lawyer that we referred the case to.
Speaker:So I'll just read part.
Speaker:I'll read part of this email to you without revealing any names.
Speaker:It says, in light of clients' inability to provide us the address of the job site
Speaker:where he was injured, the name of the general contractor, or anything more than
Speaker:a name and phone number for his boss.
Speaker:I am disinclined to file a claim petition in workers' compensation court.
Speaker:So it's kind of funny, the client just not even having basic information
Speaker:because maybe the person there, they just got picked up for work, they
Speaker:set 'em to a job site and often these clients are intentionally kept in the
Speaker:dark as to wait, who's even hiring me?
Speaker:Where am I?
Speaker:They'll just get picked up in a van.
Speaker:They'll be put in the back of the van with like probably no windows, whatever.
Speaker:They're keep, they don't even know where they are.
Speaker:Often they get dropped off and say Go work, and a lot of times we find that
Speaker:that seems almost to be intentional because then they can't bring a case
Speaker:if they don't know who it is or where it happened or who's on the site.
Speaker:So that's some basic information that.
Speaker:These workers should, should get and should know where they're working.
Speaker:So Jerry, it sounds like Jerry, it sounds like, I mean, they're getting
Speaker:taken, obviously they're getting taken advantage of right by, by people who
Speaker:are just trying to make money because they know that these workers need money.
Speaker:They're not gonna say anything cuz they don't know maybe how to handle
Speaker:the situation or they don't know that they're being taken advantage of.
Speaker:So that's, that's very disheartening to hear though.
Speaker:Yeah, there's, I guess this is somewhat related to the intake
Speaker:process of a case in these cases.
Speaker:There is definitely, we often, in our opinion, see an exploitation
Speaker:factor, no doubt about it.
Speaker:If they hire non-English speaking migrant workers, they're
Speaker:paying them less refining.
Speaker:This isn't in all cases, but it's frequent from what, in our
Speaker:experience, we see it a lot.
Speaker:They're not following the wage and hour laws.
Speaker:They often don't have workers' compensation insurance.
Speaker:Like the case that I just read to you that I just got today, we heard back from
Speaker:the workers' compensation lawyer, there's really no workers' compensation insurance.
Speaker:I.
Speaker:And the wages are lower.
Speaker:Payroll taxes aren't being paid often they're not paying workers'
Speaker:compensation and for our purposes, they're not enforcing the safety rules.
Speaker:So there's definitely an exploitation factor to this, and it's not just ripping
Speaker:off a few bucks from people, it's, it's life-changing, catastrophic injuries and
Speaker:more often, and sometimes people, you know, die as well on these job sites.
Speaker:So, mark, what else can you tell us about the intake process?
Speaker:What does our audience need to know about.
Speaker:That whole intake process.
Speaker:Yeah, sure.
Speaker:So it, it's tough not to go off on tangents talking about
Speaker:these construction cases.
Speaker:You can tell, I mean, we've both litigated them with them and I guess I would have
Speaker:to say you can kind of see the passion about seeing what happens a lot of
Speaker:the times from the moment that person walks in your door till the litigation
Speaker:phase when you're kind of fighting these guys that are doing things like
Speaker:putting a guy up on the scaffolding who doesn't know who he's working for.
Speaker:If he were to complain about not having fault protection, he might risk losing his
Speaker:job and not being able to feed his family.
Speaker:So when that person comes into our office, like I talked about, we'll sit down
Speaker:with them, be at conference room, zoom, however it is, it's gathering facts like
Speaker:the what happened, how'd you get hurt?
Speaker:How bad are you hurt, where'd you go when you got hurt.
Speaker:And a big part of it, you kind of, you split it into, I guess
Speaker:you could say three parts.
Speaker:Like what's the liability?
Speaker:Like who did something wrong?
Speaker:What are the injuries like?
Speaker:What are the damages?
Speaker:Are you still treating?
Speaker:Because a lot of times that will impact when we're able to file a case as well.
Speaker:If there's ongoing treatment, we don't want to just go ahead and file
Speaker:a complaint because we wanna make sure that that treatment's part of the case.
Speaker:But again, each thing's unique.
Speaker:It's all, it's kind of a moving target that varies based on a
Speaker:combination of investigation and the medical treatment as well.
Speaker:So we want to have an idea of what the injuries are, what the treatment
Speaker:status is, and then I think, like I'd mentioned, who the players are.
Speaker:Is there a general contractor that's available to go after?
Speaker:Did they do something wrong?
Speaker:Were there safety rules that weren't enforced?
Speaker:Or is it a job site where it was just the client's employer?
Speaker:And maybe it's just a worker's compensation case, but it's rare.
Speaker:That ends up being the, , the scenario A lot of times, like we've talked about.
Speaker:Someone might not realize that there was someone above them in the chain of command
Speaker:or someone else that was running the job.
Speaker:Because, you know, and I've got cases, plenty of 'em where it's, you know, my
Speaker:uncle's friend got me this job, and I think the company had these initials,
Speaker:but maybe it was these initials.
Speaker:They just, these guys don't know.
Speaker:A lot of time people don't know who they're working for.
Speaker:So it's a lot of fact gathering.
Speaker:And then I guess just from a practical standpoint as well.
Speaker:We have the, the client sign HIPAA authorizations, which allow us to
Speaker:get medical records so they don't need to sign anything for us to start
Speaker:investigating, you know, what happened to them, how they got hurt, but
Speaker:obviously under, you know, privacy laws.
Speaker:We can't just go to their doctor's office and say, Hey, give us medical records.
Speaker:So we'll sit down and we'll have the client sign HIPAA forms as well
Speaker:so that as they treat, as they see different providers, we can get their
Speaker:records and keep the case moving.
Speaker:Cuz that's a big part of building the case, is having the medical.
Speaker:Great.
Speaker:Thank you for sharing that.
Speaker:So Mark, thank you so much for sharing that.
Speaker:I think, you know, the intake is obviously the first step when you
Speaker:know a client comes to the firm and they, you know, have a case that
Speaker:they wanna discuss and someone's been injured on the job and you know, what
Speaker:happens after the intake process is completed, what are the next steps?
Speaker:So at that intake process as well, we'll, we'll have a retainer
Speaker:agreement, investigative retainer, and a lot of times when people hear.
Speaker:The phrase retainer as it relates to an attorney.
Speaker:Maybe their only experience with, with an attorney was buying a house or
Speaker:unfortunately going through a divorce.
Speaker:So their first thought is, oh my gosh, how much?
Speaker:How much money upfront?
Speaker:And the way that we work as personal injury attorneys is it's on a contingency
Speaker:fee basis, which means that we don't get paid, we don't make any money
Speaker:unless we win the case, be it through a settlement or a verdict at at trial.
Speaker:It's a good incentive process for us to be honest, straightforward
Speaker:about the cases that we take on.
Speaker:If we don't believe in a case, we're not really incentivized to take it on
Speaker:and just, and just spin our wheels.
Speaker:And then also, just frankly from a business standpoint, the more money
Speaker:that we can get the client, the bigger our contingency fee would be.
Speaker:So it, you know, it incentivizes us to go to bat for the client
Speaker:and not to try and settle a case.
Speaker:The cheap, and there's a whole inner working of essentially how
Speaker:the contingency fee works out.
Speaker:That I'm not sure I quite need to get into detail, but the big thing is, is
Speaker:that it's not a money upfront thing.
Speaker:It's not like someone needs to bring five grand, 10 grand before
Speaker:we start working on their case.
Speaker:We typically, once they leave, we'll send an email opening up their file.
Speaker:As long as we have the sign retainer, we'll open up the file, start putting.
Speaker:Together, and then probably the next time that we'll meet face to face, they'll
Speaker:have, you know, a stack of papers this big or multiple red wells at that point.
Speaker:But again, each case is, is kind of unique.
Speaker:So, so Jerry, after the intake process, what happens in terms
Speaker:of, you know, communication?
Speaker:How do you know you communicate with the clients To keep them
Speaker:up to date on their case?
Speaker:So as, as Mark said, there'll be an intake meeting.
Speaker:A lot of times it's virtual these days and the, the length of the meeting can vary.
Speaker:If at the meeting we decide to take the case, then the client will
Speaker:sign a formal retainer agreement, which is, it's basically a written
Speaker:agreement that talks that lays out the terms of the representation.
Speaker:In short, the way we do things, usually in cases, it's not all cases,
Speaker:but most cases, is it's a contingency agreement, which basically means
Speaker:there's no attorney fee to be paid if there's no recovery in the case.
Speaker:So if we don't get any money in the case, the client does not have to
Speaker:pay an attorney fee, then that, that, that works to give people access
Speaker:to the courts that can't afford to hire attorneys on an hourly basis.
Speaker:And as a footnote, as a side note, that that's important because
Speaker:it gives people access to court.
Speaker:So a lot of times when we, we find that, like when large corporations,
Speaker:they'll do these things called tort reform, which is limiting
Speaker:people's ability when they get hurt.
Speaker:To get recoveries against corporations and insurance companies and corporations
Speaker:are generally in favor of tort reform because, Then they can go about doing
Speaker:their business without fear of lawsuits if they injure or kill someone by a
Speaker:defective product or negligent conduct.
Speaker:And one of the ways that they'll often do tort reform to make people think
Speaker:it's good for people is to say, these attorneys, these contingency fees,
Speaker:you know, we gotta get rid of these contingency fees where these lawyers
Speaker:are getting money on these cases.
Speaker:That's the only way where many, and I dare say most people can't even afford an
Speaker:attorney, is by contingency relationship.
Speaker:So if you're gonna cut contingency relationships or cut contingency fee
Speaker:percentages, you're hurting people.
Speaker:You're hurting real people and getting their access, access to the courts.
Speaker:But the way, so after the intake meeting, if we do a contingency
Speaker:agreement, we then, uh, move forward.
Speaker:Sometimes the contingency agreement is we agree to continue and investigate the
Speaker:case, and sometimes the agreement will talk about, we'll actually file a case.
Speaker:So after the intake, assuming we're gonna file the case, kind of,
Speaker:that's when the, the case starts.
Speaker:There'll be like a claim letter.
Speaker:Then down the road, a case may be put into court, and I think in another episode we
Speaker:can pick it up from there and talk about what actually happens, what actually
Speaker:starts a formal case in court, and what kind of things can a client expect when
Speaker:that happens, how long is that process?
Speaker:We can talk all about that in the next episode.
Speaker:All right, wonderful.
Speaker:Thank you Again, we keep saying, you know, it's not a one size fits all.
Speaker:Each case is unique, but Jerry's right, that's, that's how it works.
Speaker:Client comes in and then hopefully we can help them.
Speaker:We'll talk about what we do next.
Speaker:All right, everyone.
Speaker:This is a wrap.
Speaker:Then we'll see you guys on the next episode, and thanks for tuning in.
Speaker:And there you have it, folks.
Speaker:Another episode of Jersey Justice Podcast.
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