• March 26, 2014

CrossingInjured railroad workers comprise a relatively obscure niche litigation practice. Unlike most workers in America, these workers are not subject to state workers compensation programs (along with a few others like maritime (ocean-faring) workers). Because of the obvious interstate (or extra-state) intersecting natures of their work, in the early 1900’s, the federal government established a federal, rather than a state law, process to address workplace injury compensation (“FELA” and the Jones Act).

As described in the original post below, some might view this as a gruesome way to make a living as practitioners may become desensitized to human injury and pain, referring to clients (or adversaries) as an “arm-off” or other callous shorthand terms.

But it is not all blood and guts. The federal statutory regime and its interplay with state court systems also affords the railroad bar a momentary respite from the gruesome valuation of lost, crushed, or damaged body parts (or lives) to the sanitary and more scholarly subject of federalism and the interplay between state vs. federal law.

 Congratulations, then, to Mr. Dennis Kinworthy and his formidable lawyers from the nationally recognized FELA plaintiffs’ firm, Hunegs LeNeave & Kvas, not only for successfully petitioning the Minnesota Supreme Court review for the denial of post-verdict interest to their client Mr. Kinworthy (a jury awarded Mr. Kinworthy $340,000 for his injury, which the Court of Appeals decision does not describe) but also for getting a break from day-to-day gore that constitutes much of your practice.

No doubt the adversaries at the St. Paul law firm of Sweeney & Masterson, P.A. would rather that the Minnesota Supreme Court had not granted plaintiff’s petition for review.  On the other hand, on the bright side, it is presumably billable work (assuming there was no capped fixed fee arrangement). Also, this is hardly the kind of alleged legal error that the Soo Line Railroad, the defendant, could ever pin on its lawyers.

Update (July 3, 2013): The original post, below, concerns an “unsightly” aspect of personal injury law practice, the fact that a brain-damaged person’s legal claim can be fought over by competing plaintiff’s lawyers as if it were a big bag of money rather than part of a recovery from a terrible misfortune for a person and her family.  But it can be no other way, really.  For personal injury lawyers, no matter how big and altruistic their hearts, their work must be about the monetization of misfortune.  In the Lester-Young case described here, from a $1.2 million settlement, the lawyers from the PI Powerhouse of Schwebel Goetz & Sieben, P.A. agreed to take $270,000.00.  

Plaintiff/attorney Robert M. Gardner, who had originally signed the client up but then was let go in favor the the Schwebel firm, fought for a 25% cut of the Lester-Young recover.  He figured he should get half of the Schwebel fee.  But he “repeatedly testified” in his deposition that he had spent “minimal time” on the matter.  Hennepin County District Court Judge Tanya M. Bransford found Gardner’s work to have been “minimal” and also “additional time was unnecessarily spent by [Gardner] because of his antagonistic behavior towards Defendants” (Opinion at p. 6).  See, also, Opinion, pp. 10-11 on the quality of representation for some pointers on the proper way to litigate personal injury claims.  Judge Bransford found the Schwebel firm deserved 90% of the recovery and Garner 10%.  But the Schwebel firm hired Barry O’Neil and Bryan Feldhaus of the Lommen Abdo firm to represent the Schebel firm in the case.  Presumably, this was not a pro bono case so the Schwebel firm lost a chunk of its Lester-Young recovery having to fight with Gardner, in addition to the 10% of the contingent fee that the firm had to pay Gardner.

Update (June 28, 2012):  Minnesota Litigator Practice Pointer:  If you are going to be sleazy, go all the way, be sure to include a visit to a strip club. (See Linked Complaint, Para. 3, 57-58).   Note: these are only allegations. But Super Lawyer, Timothy G. Bailey, counsel for Defendant Michael Riehm, has some explaining to do if the sworn allegations are truthful.  

Seriously, the complaint gives a good primer on the nature of contingent fee work, ethics with regard to referral fees‘n’sleaze.  Reading between the lines of the complaint, the defense would appear to be that Attorney Riehm assumed that all referrals to him were matters that TSR did not wish to handle, rather than TSR “assets,” in a sense, wrongfully diverted to Riehm by corrupted TSR associates. (And strip clubs, while sleazy, are legal.)  The case has been assigned to Hennepin County District Judge Susan Robiner.

Update (June 27, 2012):  It is an overstatement and slightly unfair to personal injury (“PI”) lawyers to suggest that the mere signing up of a large volume of injured clients distinguishes the successful personal injury law firm from the less successful ones.  On the other hand, in light of the amount of money spent on PI Lawyer advertising with which we are all very familiar, no one can deny (1) that it is a volume business, and (2) it is very lucrative (those are NOT public service announcements on late night TV and on the backs of buses (ask Gary)).  

Here’s a strategy — rather than plunking down big bux for tv/radio or bus ads, why not just bribe some underpaid associates at a PI litigation mill — a large volume shop — to send some treats your way?

These are the allegations made against Michael Riehm in a newly filed lawsuit by TSR Injury Law.  Riehm vehemently denies the allegations, which were set out in a Star Tribune article published late yesterday.

[Following up on the editorial aside, below, Minnesota Litigator has been unable to obtain a copy of the complaint even though the Star Tribune reports the complaint was filed in Hennepin County District Court.  It is a failing of our state judicial system (and the Star Tribune) that such documents are not more easily accessible given today’s technology allowing for nearly costless distribution.)

Original Post (January 23, 2012):  Arriving in a cheap hotel at the edge of a cold desolate western town late at night, an experienced railroad defense lawyer found herself checking in next to her adversary, the lawyer for an injured railroad worker.

Such lawyers criss-cross the country, inspecting gruesome accident sites, deposing accident victims, witnesses, doctors, family members, and so on.  These lawyers are cogs in a system designed to transform (or, when appropriate, to reject the proposed transformation of) personal injuries into money as fairly and efficiently as possible.

“Where you coming from?” one might say to the other.  “Spokane.  Arm-off,” the other might reply.  By their professional roles, they are desensitized.  A catastrophic event in some person’s life is summed up in this succinct, if insensitive, professional jargon.

The monetization of “pain and suffering” has to take its toll (immeasurable though it may be) on these people, that is, those for whom the gruesome alchemy is a fixture of their professional lives.

The public sees such figures from a distance, and labels them vultures, “ambulance-chasers,” and the like.  The personal injury plaintiffs’ bar, on the other hand, trying to counter-act this perception, goes to the opposite extreme, casting themselves as motivated by a thirst for “JUSTICE.”  The money, it is suggested, is incidental.

(This tension between the value of life vs. money is also expressed in Minnesota’s prohibition of “the golden rule,” a rule prohibiting injured plaintiffs’ lawyers from asking a jury to imagine how much money they would demand, in exchange, for say, losing an eye, losing their hands, or whatever terrible injury has befallen the personal injury plaintiff.  If you ask jurors to monetize their own health or well-being, their job of cash calculation gives way to contemplation of the value of bodily integrity, to autonomy, to one’s very existence which, of course, is priceless.)

But make no mistake, it is almost always all about money.

The unsightly underbelly is exposed in a bitter dispute between a Twin Cities lawyer, Robert Gardner and the Minnesota personal injury powerhouse, Schwebel, Goetz & Sieben.

At the epicenter was a devastating motorcycle accident in July, 2010 in Elk River, Minnesota.

The reverberating shock waves, however, stretch into allegations of sharp-elbowed tactics as plaintiffs’ lawyers appear to have struggled for control of representation of an injured person who is, for them, a treasured asset to be closely guarded.

One of the many strange aspects of this pending mess of a lawsuit (the exact number of different lawsuits is hard to tally) is the bind of a personal injury plaintiff’s lawyer hiring a physician to opine that the accident victim has suffered a traumatic brain injury but not so severe as to render her incompetent to pick her own lawyer. (Complaint, Para. 62.)

A defendant’s brief in support of his motion to dismiss is here.  Plaintiff’s response: here.

[Editorial aside:  This Gardner v. Goetz case might raise many important legal and policy issues.  It is unfortunate from the public’s perspective that access to court records for civil litigation in Minnesota state courts is literally about 15-20 times the cost (in actual dollars and in time) compared to federal civil litigation in Minnesota  ($0.10/page capped at $3.00 for federal filings, available to everyone with an internet connection, vs. $8.00/document, accessible only in the basement of the Hennepin County Government Center (for cases filed in Hennepin County, of course) (and, if you are researching a case where you are neither counsel nor a party, be ready for a lengthy wait while the file is retrieved and copied (notwithstanding the fact that it is available  online (to authorized personnel only and not the public)).]

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