Making Injured Sea Workers Whole

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Keith Lee interviews a maritime lawyer who discusses the importance of a lawyer's reputation and what distinguishes maritime personal injury from other plaintiff's work.

Keith Lee:

Our guest today is Marissa Olsson. She's an associate at Kraft Palmer Davies, a small law firm in Seattle, Washington. Marissa is from the greater Seattle area and is a graduate of the University of Washington where she attended both undergrad and law school. She specializes in maritime personal injury. Marissa, can you tell us a little bit about your firm?

Marissa Olsson:

So my firm is four attorneys. There are three partners and I am the only associate. The majority of our cases are maritime personal injury cases, about 60%, and about 40% are general personal injury, anything from premises liability, construction, car accident. The three partners, the three of them have been practicing together for decades and I've been there, I guess I started in 2009, which was before I finished law school. I was an intern there, and then after law school, I kind of created a space for myself.

Keith Lee:

Those cases that you work on, how much of those cases are yours? How much are you working with a partner?

Marissa Olsson:

So it's about half and half. I would say half my time is spent on cases that are my own caseload. There's always a partner who is, I guess supervising me on a case, but on the ones that are mine primarily, I do all the work. They just will pop in every once in a while and ask, "Hey, how's it going on such and such case," and I'll update them on what I've done. So there's always someone else who knows what I'm doing, but on the ones that are mine, I really am responsible for moving the case forward, and then the other half of my time is spent assisting one of the partners on a larger, more complex case that they're working on.

Keith Lee:

That only makes sense given the larger the case, the larger the issue, the more people need to be on board. In terms of the cases that come in, you're a personal injury firm and you're on the plaintiff's side, so you're on the injured party side. For the people who aren't familiar with how the plaintiff's side of personal injury works, run through how you actually recover, how your firm makes money.

Marissa Olsson:

So almost everything we do is contingent fee, which means that we take a percentage of the gross recovery for the client. That makes it possible for people who don't have the money to pay a lawyer upfront to get quality representation and have someone put in the time necessary to really maximize their recovery and do everything that needs to be done to bring their case through to settlement or trial. It creates a situation where on some cases, you'll work yourself to the bone and not make quite as much per hour, but then on other cases, I don't want to say it's a windfall because it evens out over time, but some cases, the case will walk in the door and it doesn't take a whole lot of effort to get it through to settlement.

Keith Lee:

The standard contingency fee, if people aren't familiar with personal injury cases, is a third, so 33%. In terms of your recovery, does that include expenses or expenses off the top?

Marissa Olsson:

We take a third of the gross recovery and then the client remains responsible for payment of any costs that were incurred out of their recovery. For example, say it costs $1,000 to have an expert look at someone's medical records and say they're reasonable and customary. That comes out of the client's recovery. In Washington, there are ethical rules that prevent us from having the lawyer be responsible for any portion of the costs. We can front costs so that while the case is pending, we can pay things like the filing fee or the court reporter for a deposition.

Keith Lee:

How about you individually? Are you straight salary? Do you have any type of bonus structure dependent upon case outcome?

Marissa Olsson:

I am straight salary. However, obviously, the quality of the work I do and how much I'm contributing to the success of the firm is certainly taken into account when it comes to raises and bonuses. So it's not like there's not an incentive.

Keith Lee:

Getting into cases, let's talk a little bit about particularly the maritime cases you have. Do you have a prototypical maritime case?

Marissa Olsson:

People who work on boats. The majority of our maritime cases are employees suing their employer directly under the Jones Act and we'll represent ferry workers, we represent a lot of tug workers in the Puget Sound. There are a lot of different tug companies, a lot of fishermen. A lot of fishing companies are based in Washington, even though they'll do a lot of their fishing up in Alaska.

Keith Lee:

From the sound of that, these are people who, day in day out, they can't be away from work for a long period of time. They need recovery quickly, they need to get back to work, but then you also discussed the Jones Act. For people who aren't familiar with the Jones Act, can you give a quick synopsis of what that is for a layperson who's not familiar with it?

Marissa Olsson:

So the Jones Act allows employees that work on vessels to sue their employer directly if you're a crew member. If I get hurt at work or if anyone else who's an employee on land gets hurt at work, we're covered under workers' compensation and in exchange for workers' compensation benefits, we do not have a cause of action in negligence against our employer, but in maritime, it is covered under federal law and the Jones Act allows crew members to sue their employer directly if they're injured due to their employer's negligence.

Keith Lee:

So why don't we talk a little bit about maritime suits versus regular personal injury suits. Is there anything that makes them distinct?

Marissa Olsson:

I think the timeline is very similar to any other personal injury case, which normally, the anatomy of a case, a person gets injured, you can't do much until they're done with treatment because it's very hard to assess the value of a claim if someone is still treating. We don't know if surgery is a possibility or not. Generally, not 100% of the time, but the general practice is to wait until someone is done with their medical treatment.

Then you put together a demand package based on your assessment of the value of the claim, send it to the defense, try and settle the case without having to file suit, and obviously, none of this is set in stone. Then if you can't settle, then you file suit and move forward through the court process and discovery and all that good stuff. Around here, we'll get a trial date usually about, I'd say 18 months out. It varies a little bit, but it's good if you are able to negotiate it early on. I think everyone's happier. The client's happier. You don't incur-

Keith Lee:

Absolutely.

Marissa Olsson:

Anywhere near the amount of costs that you incur if you bring a case through trial, but sometimes that's not a possibility. So it just varies quite a bit from case to case.

Keith Lee:

You mentioned earlier a lot of your clients are ferry employees. As you deal with maritime cases, especially as ships are offshore, are there ever jurisdiction problems that you run into?

Marissa Olsson:

Coverage under the Jones Act isn't generally an issue that we see. There are a lot of ways to come under the purview of the Jones Act, but if someone's hired in the US to work on a boat for a company that has connection to the US, which how else are you going to get hired in the US if the company doesn't have connection here. A great example are a lot of the fish processing vessels or fishing vessels up in Alaska, they are certainly beyond territorial waters for most of the time that they're doing work up there.

Most of our clients that are hurt on those boats are not hurt within the three miles of shore, but the issue that we do see is, so the Jones Act covers anyone who is a seamen injured in service of the vessel, and so we'll fight about whether or not someone is a seamen or fight about whether or not someone was injured in service of the vessel. Sometimes there's issues of if it's ingress or egress, at what point did they start service of the vessel? Was it when they got on the dock? Was it when they were on the boat, and so things like that'll come up.

Keith Lee:

Well, just listening to you, you were speaking with pretty firm authority. When did you begin to feel as though you had a handle on things, or do you feel you have a handle on things?

Marissa Olsson:

I do, and I'm probably at that point in my career where I know enough to feel pretty damn confident with the work that I have on my plate, but also probably enough to be dangerous if I could be, but I have really great mentorship, so I never feel at risk of being in over my head because I can always walk down the hall and there's someone there that's ready to talk to me and wants to talk through an issue. I guess gradually, I've noticed the circumstances where I feel like, oh no, I don't really know how to handle this, are fewer and fewer, but it's so gradual. It's not like one day, I all of a sudden knew how to handle a case from start to finish. You learn parts and then all of a sudden, you realize I did everything on that case and I did it all myself, and it's a bit fulfilling when that happens.

Keith Lee:

Yeah. It's a process by which you build and build and you mature and you accumulate knowledge, and I think it's one of those things people expect it to be a gradual curve upwards, but in speaking to lots of new lawyers, I feel people, it actually tends to be more of a plateau based. You're somewhere for a while. Then one day, you look around and you're like, wait a minute. I'm at this new level. If you had talked to me three months ago, I would've not been able to handle what I'm doing right now.

Marissa Olsson:

That is a great way of describing it, and I think a lot of the time, I don't realize that I know as much as I know until after something happens and then I realized, of course, I felt totally confident in that situation. Something will happen that draws attention to having made progress. It's usually that I'll do something and have some sort of success and then I think a year ago, I don't think I could have done that on my own, and I can't really pinpoint the moment that I became capable of it, but I can pinpoint that it's something I didn't used to be able to do.

Keith Lee:

Sounds like you have a very supportive environment in terms of your workplace and oftentimes, that's not the case. Sometimes that can be doubly not the case for a woman in the profession. From my perspective, as a lawyer in the southeast and speaking to women lawyers, they still run into gender issues either with judges or with opposing counsels, or even within their firm, and that doesn't sound like you've had that issue or have you had those experiences?

Marissa Olsson:

Well, I would say within my firm, I have wonderful, supportive mentorship. The three partners, they are all male, they're all older than me, they've all been practicing together for decades, but I don't have that issue within my firm so I can't speak to that as much. However, since becoming a lawyer, I have become really passionate about gender equality in a way I never was before. It's not like I didn't think it mattered before or didn't think it was an issue. I just thought there were bigger issues that were more important to put my effort towards addressing. It seemed to me like it was a battle that had already been won.

Keith Lee:

And now you got into it and that's not the case.

Marissa Olsson:

Well, and my theory now is that before becoming a lawyer, I never did anything that challenged gender roles. When I was in college, I worked at Nordstrom and if I was selling someone clothes and upselling them by convincing them how fabulous they looked in a certain dress and they needed it in three colors instead of just one, I wasn't doing anything where I stepped outside of expectations for a 20 something female, but once becoming a lawyer, I really joined an old boys' club. It's not every day, but it's often enough that I feel like my antennas are up about it, and there are frequently situations where someone will use a pet name and I think it's totally inappropriate to call opposing counsel sweetheart or honey or something like that, which part of it is a cultural thing, but I just think it's demeaning. That language does not belong in a discovery conference.

Keith Lee:

If I'm across from opposing council and no one's going to call me sugar or honey or anything like that, but you, as a woman, that's something you're going to run into.

Marissa Olsson:

A person calling me sweetheart on a phone call, that doesn't change the outcome of the case necessarily, but it definitely just grates at me. I don't think it is intended to keep me in a box or something like that, but it's the kind of thing where it would never happen to a man. It just wouldn't, and I think that anytime someone is being treated differently, even if it's not negative or trying to prevent them from achieving some sort of success, but they're being treated differently because of their gender, it's just frustrating.

Keith Lee:

There probably is, whether they're cognizant of it or not, there is some positional power dynamic going on there with the gender roles, especially in adversarial setting, and if suddenly, I'm a man and you're a woman and I'm referring to you as sweetheart, that's a really subtle means of positioning you in a lower status and I'm advertising that power relationship by my language.

Marissa Olsson:

I had a settlement conference, it was me, one of the partners in my firm, and then opposing counsel and then an associate from his firm, and at the end of the meeting where the four of us were in a room in person trying to work towards some sort of settlement agreement for our clients, and at the end of it, I reached out to shake his hand and he said, "I don't shake women's hands," and I was just like, "Are you kidding me?"

Keith Lee:

Yeah, that's ridiculous.

Marissa Olsson:

And I don't necessarily feel like I am held back because when something like that happens, it just gives me more motivation to push the case forward and corner the other side in a way where they have to put an offer on the table that really compensates my client well. It gives me the motivation to do well for my client.

Keith Lee:

If you can, why don't you give us a general overview of what it's like when a client walks in the door and they say I need a lawyer, and from that point, until they, however long down the road, months, years down the road, they walk out your door and they've ended that client attorney relationship, what does it look like start to finish?

Marissa Olsson:

Well, I think the first rule is there is no such thing as an average case. Every case is different, every client is different, and you handle each one differently. Someone calls up and they first, usually, they would call on the phone and we'd try and figure out on the phone if they have an injury where there's a claim against someone. A lot of people will call who don't necessarily, there's no one that caused their injury, but they're upset that they're injured and an important thing to do is to figure out, before scheduling a meeting with them as best we can, whether or not there's anyone that would potentially be liable because it's a waste of everyone's time if you have someone come into the office.

And maybe they don't live that close to the city and they drive an hour to come in and realize it was just an accident, nobody caused their injury, and so the first thing is to figure out is there a case here? Initially, we need to figure out what we need to prove, what kind of evidence might disappear if we don't collect it right away, and so there's a lot you do right away when you take the case in. Once a case is set up, then you hold back and cruise for a while while the client is in treatment for their injuries because there's not much you can do before someone is done with their medical treatment.

Because it's so challenging to assess the value of a case when you don't know how bad the injuries are. You don't know their prognosis, you don't know if they're going to make a full recovery or if their injuries are going to have permanent residuals. From that point, you try and move the case towards settlement as quickly as possible because at that point, there's nothing else that the client's doing. They're just waiting on you, and there are always things that'll come up that make it take time after that point, but my goal is always to move the case forward as quickly as I can once the client is done treating.

Keith Lee:

Just to step it back for a minute, talk about for a second valuation because that's something that I think is probably pretty opaque to your average person. They're not familiar with that, and even as people begin their careers, it's part science, part art. How do you look at that and how did you learn about valuing cases?

Marissa Olsson:

I would say it's pretty opaque to lawyers who practice in this area too. I certainly look at jury verdicts in similar cases, but like I said earlier, no two cases are the same, and so if I go on Lexus and do a search on jury verdicts northwest and see what juries have awarded in similar cases, I don't know if what the client was like in that other case. It'll have a quick blurb that maybe will tell me the injuries were similar, but I don't know how that person's residual symptoms compared to my client's.

I don't know how that other plaintiff presented. Some people make a really great impression on a jury and honestly, that drives up the award and other people don't make a good impression, and awards aren't consistent. They seem frequently based on does the jury like the plaintiff. There's no going rate for a L4 or L5 disk protrusion. It varies so much and some people will have a good recovery, some people don't, and then there's everything in between.

Keith Lee:

So they've come in, you do the valuation, you're filing suit, you're entering negotiations, what happens next?

Marissa Olsson:

The goal is to, if possible, settle cases before filing suit because once you file suit, you enter into discovery and then you start spending a bunch of money. If we can settle a case without litigating, we do, and there are certain firms that I'll see on the other side really frequently, and some of them we have a really good rapport with and so we can do informal discovery and we'll just agree to send them everything we have so that way, we're working off the same documents.

And there are certainly other lawyers that I would not feel totally comfortable with relying on them saying they provided me with everything, but then other ones, I do feel good about that because I have a good ongoing relationship with them, but there are people who I have as opposing counsel frequently and I just don't trust, and that doesn't mean I'm going to get in a big back and forth about it. I'd just rather file suit and have formal discovery because that way, there's a mechanism to compel documents if I don't think I'm getting them.

Keith Lee:

Talk a little bit about reputation. That's something that is so precious to practicing attorneys who have some well regarded standing in the community, or if you talk to judges, from my interaction with judges, judges are always like, look, you have one chance to make your reputation with all judges because you cross one judge, you lie, you misrepresent in some sense, there's only so many judges and they talk.

Marissa Olsson:

Honestly, developing my own reputation is something that seems so challenging to consciously make a choice to do something to develop reputation. I guess the way I approach that is first and foremost, be a good person and well, obviously, follow all the ethical rules, and hopefully, following ethical rules never conflicts with being a good person. I guess I genuinely care about my clients and care about them succeeding and getting a recovery, and I think one of the beauties of being on the plaintiff's side in personal injury is you do get to choose your cases. You don't have to take cases if you don't want them.

My own caseload, they're all people that I spoke to and I decided to have them retain us. That way, everything I'm doing, I believe in and I think that allows me to, I guess, have a genuine passion for my work, not a I'm doing this because I want the professional success that comes with it, and I'm only five years into practice so I don't have this longstanding reputation. I'm not some huge player in the Seattle legal market or anything like that. You don't one day, all of a sudden have a reputation, or if you do, it's probably because you did something terrible and people gossip.

I hope to never be that person, but I feel like it's the kind of thing where I feel like a small fish and then someone will say, "Yeah, I heard you did this thing, or I saw that you did that," and I'm like, "Huh, someone actually noticed me," and then so it's another thing where it's just gradual. You have to build it up. It's like slow and steady wins the race. It's not about doing things for the purpose of building your reputation. Do things because you care about them and people will see. I think if you don't care about your work, I can't imagine how anyone could build a strong reputation as a good advocate for their clients if they don't actually care about what they're doing.

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