Litigating Brain Injuries Against Huge Insurance Companies

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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, Kimber Russell interviews a trial lawyer who runs her own personal injury practice focused on traumatic brain injuries.

Kimber Russell:

We're joined today by Ilya Lerma, a trial lawyer in Arizona who runs her own personal injury practice. After graduating from the University of Arizona College of Law in 1999, already with some personal injury experience during law school, you joined a plaintiffs' firm. Now, why did you choose to go to a plaintiffs' firm and not a defense firm?

Ilya Lerma:

Initially, I planned to practice medical malpractice defense. I was very interested in medical issues and defending doctors and I thought it would be wise to get some experience on the other side.

Kimber Russell:

Did you have any kind of interest in working for insurance companies at all?

Ilya Lerma:

I absolutely did. That was initially my greatest interest.

Kimber Russell:

What was it that changed your mind?

Ilya Lerma:

Honestly, it was three months in a plaintiffs' firm. I became very familiar with a lot of the claims-handling practices of insurance companies and their adjusters. I saw people who were very legitimately injured and not able to get the care that they needed. They were forced into litigation, oftentimes on claims because they were not able to get a reasonable settlement offer from the insurance companies in third-party cases, and sometimes against their own insurance companies, so after about three months of that and seeing my clients really struggle to recover from legitimate injuries, I decided that there was probably no way it could ever work for an insurance company after that.

Kimber Russell:

Can you tell our listeners more about what the practice of personal injury is like? Who's suing who and why?

Ilya Lerma:

Well, it's a broad range, and I would say it's becoming more and more specialized as time goes on, but the area of plaintiff's personal injury requires the practitioner to represent injured victims in a myriad of circumstances. If somebody's injured on a piece of property, if it's a commercial property or a home owned by a neighbor or something, those are premises liability type cases. There's also, of course, car crashes where the lawyer would represent the injured party in claims against another insurance carrier or against the claimant's own insurance company. There's also a myriad of other specialized types of personal injuries such as medical malpractice. There's brain injury-type cases, but in all instances, the practitioner is representing injured victims, typically against another person or entity for claims for injuries arising as a result of someone's negligence or gross negligence.

Kimber Russell:

Would you tell us a little bit more about how insurance companies get involved in this?

Ilya Lerma:

That's probably a podcast in and unto itself. There's a number of issues the insurance companies get involved typically once a claim is reported or made, and that can be done before the client comes into your office, or if the client has not yet reported it, once they're signed up and represented, the attorney or the attorney's office will make the claim on the injured party's behalf, and that gets the ball rolling in terms of advancing the claim forward. Then if the claim is able to be settled after the client has had some treatment and is able to cover their medical expenses and recover time for lost wages, pain and suffering, those types of injury damages, then the case is resolved. Otherwise, it then moves into litigation.

Kimber Russell:

Do you personally specialize in any particular types of cases?

Ilya Lerma:

I'm not a certified specialist. There's not a certified specialist for brain injury, although that is the focus of my particular practice. I have been very familiar with neurological issues. I have a brother with an intractable seizure disorder, which kind of spawned my interest in medicine. Initially, I had planned to attend medical school. I've always followed brain injury medicine, even back 20 years ago when nobody was trying concussion cases. The firm that I was with at the time was adamant that we make those claims on behalf of our clients and so that's something that I have continued to this day and most of my practice, even though the brain injuries arise in a myriad of circumstances such as car crashes, bike accidents, trucking accidents, and nursing homes, my focus tends to be on brain injury medicine.

Kimber Russell:

I have a personal question that I want to ask because I have issues with e-scooters. Have you seen any uptick in brain injuries related to personal use of these electronic scooters yet?

Ilya Lerma:

Not in my personal practice, but I train with lawyers all across the country and I have several colleagues that I know who are involved in the legislation to try to regulate helmet use because of the uptick in brain injuries, so I know it's a problem and a concern nationwide.

Kimber Russell:

I have my own personal issue with personal injury because my husband was involved in a case like this, and it can be very emotionally charged, so how do you manage the emotion that in is involved and just the psychological impact of these kinds of cases?

Ilya Lerma:

I'm going to be honest and say it's really challenging. Most claims get resolved after the client has had some treatment and a demand letter is sent to the insurance company. A lot of times, those claims are resolved, but it's still an exhausting process. Anytime you're injured, there's a lot of strain on your life, you're not able to work, you're not able to do household chores, pick up kids. I've had clients with brain injuries who actually forgot to pick up their kids. Those difficulties end up becoming more compounded after there's a lawsuit, and once there's a lawsuit, it's incredibly stressful because the lawyers calling and depositions are getting set and more time has gone on, and so it can take an emotional toll on the client, but also on the attorney, and that's a tough place to be.

My advice to most attorneys, especially younger, is remember that you are your client's advocate, you're not their friend, because a lot of times I think as a younger attorney, I got into the role of trying to be emotional support for my clients, and that's not always making the best decision as an advocate in their lawsuit, and so that's sometimes a bit of a danger, but there's a lot to manage in terms of the emotional toll, for certain.

Kimber Russell:

You got really extensive practice and now you have your own firm and you've decided to take fewer cases than maybe you would be exposed to if you were in a larger practice. How did you decide to take fewer cases?

Ilya Lerma:

Well, I was partner in a firm that was a significantly larger plaintiffs' firm in terms of numbers of cases. We had anywhere from 400 to 500 cases, which for a small firm with two to three lawyers at a time is an enormous load, and we were set up well. We had very good teams in place. We had a pre-litigation team, we had a litigation team, and dividing the work made that possible.

I'm starting to see now some of the larger firms, a lot of the advertising firms have pods in place where they're able to navigate these significant figures. But as an attorney, your attention is divided when you have complex cases such as medical malpractice cases, wrongful death cases, perhaps 1983 claims, or government entity type claims, and when you are trying to manage those as well as 20 to 40 car crash cases, your attention is completely divided. There's really no good way to do that, at least in my experience and certainly talking with other plaintiff's attorneys, so what I did when I opened my own practice was I made the decision that I would refer out the smaller cases and I would concentrate on the more complex injury-type cases, and that's what I've continued to do for the last four and a half years.

Kimber Russell:

I want to drill down more into the business model of a personal injury firm because it's different than what many types of firms do with the hourly billing, or even a fixed fee type arrangement. How does a typical personal injury firm work?

Ilya Lerma:

I'm so glad that you asked because I really see the plaintiff's practice changing. Teams now have to be very well-organized. Back 20 years ago when I first started practicing, we weren't filing on quite so many cases. We were able to settle a lot of the smaller cases without having to file a lawsuit. We had good teams in place, but now you are seeing because of a result of a lot of insurance industry standards and the way that they evaluate claims, it's more and more difficult to settle, I would say, smaller cases. By that, I mean soft tissue type cases where there may be not a trip to the emergency room, there may be some chiropractic or physical therapy, but there's a several weeks of treatment.

Those cases are becoming increasingly more and more difficult for a practitioner who's not set up with a good support team to navigate, and so what I'm seeing, and this is mostly personal, I truly don't know what the research is showing, but from my own experience, and as I said, my exposure to attorney firms nationwide, what I am seeing are a lot of firms taking over that role of the small solos. A lot of those larger, I would say, mid-size to advertising firms are taking on some of those smaller cases because they have teams in place that can make those cost-effective. Most solos and small firms really can't afford that much litigation because the litigation is so time-consuming and expensive, and honestly, most lawyers, certainly in Arizona, on a mid-size to small case, they're almost losing money as soon as they file on it because the time commitment is no longer really worth the return, so a lot of those cases, I think, are being driven to firms that are better equipped through larger teams and pods that can do the work more efficiently than some of the smaller firms.

Kimber Russell:

Well, you mentioned how cost-prohibitive it can be to handle certain types of cases unless you can do it in volume. What type of capital did you need to start your own solo practice?

Ilya Lerma:

I needed a lot more than I had, I'll put it that way. I had left my partnership of 10 years and wasn't certain that I was going to continue practicing law. I went through a small phase of disillusionment and was really considering either changing fields, going into a different area of law, or abandoning the law altogether. It was just through a series of circumstances that I ended up opening my own firm. I had not planned on it, I had no savings.

It was the absolute wrong way to go about opening a plaintiff's practice because contingent fee practitioners, we advance all the costs, so when a client comes in, they don't have any money to hire a lawyer, they can't pay you by the hour, and so you undertake to represent them for an exchange in the fee agreement that once the case is settled, any costs you've expended will be recovered at that time, and so you have to expect that you're going to be advancing money for depositions, court filing fees, expert witness fees, and that can be extremely expensive, so starting a plaintiff's practice the way I did it is extremely ill-advised. Fortunately, I managed through a lot of good fortune and some support, but I would definitely advise anyone who's considering starting their plaintiff's practice to look into backup funding be because increasingly, it is becoming more and more expensive to advance costs through litigation, especially if you're doing anything complex, such as brain injury or medical malpractice. Those expert costs can be killer.

Kimber Russell:

We've already spent time on the difficulty in general of starting a personal injury practice. Can you talk about any additional challenges you face as a Hispanic woman in this kind of practice?

Ilya Lerma:

I'm glad you asked that as well. It's probably something that I could give a two-day CLE course on, women who're getting more and more into non-traditional fields of practice, and I think plaintiff's personal injury really qualifies. I will be honest and say that as a younger attorney, I looked around and didn't see very many women at all. I could probably restrict the women I saw in my area personal injury to one hand at the occasional state gathering, so it was a little discouraging to not see women, certainly women of color among the ranks of attorneys.

However, I had a lot of mentorship outreach from older attorneys who recognized that we really needed more diversity and I was specifically targeted to join the trial lawyers organization here in Arizona. I will actually be their next president next year, the first woman in a really long time. I think it's around 20 years. Fortunately, I had the opportunity to have mentors who pulled me in, but a lot of them weren't able to give me the advice that I needed in terms of, how is our practice different? How do we try cases differently than men? And so the men were my role models and I had to learn the hard way that the things that worked for my male colleagues in trial weren't necessarily appreciated, welcome, or effective in the trial court setting, and it took me a number of years of beating my head against the wall, losing, and engaging tactics that I know were not effective for me.

Once I started becoming more comfortable with who I am, who I wanted to be in court with my understanding of the lawn, and I got just more comfortable in my own skin, really, I started having more success, not just in terms of cases that I was bringing into my firm, but in terms of resolution of cases. All of a sudden, I was able to resolve really difficult cases, cases that some of my colleagues said, "You're never going to get any money on that case," and we did. We did.

I would say that I learned the hard way in a lot of ways, but I also had good mentors who assisted me to the best way that they could, and certainly, being in a partnership for 10 years, I really learned how to run a practice. I think running a practice for a minority woman isn't necessarily that different from anyone else except perhaps that you have a different client base. There's a lot of times in my career that I've had referrals of Latino clients because I speak Spanish or because we share cultural heritage or something like that, but the actual operations day-to-day, I think, are pretty standard across the board.

Kimber Russell:

What would you say the biggest challenge was for you just as a solo practitioner when it comes to representing your clients, standing up in court, or just doing the day-to-day business of law?

Ilya Lerma:

Time management. The plaintiff's practice is a very demanding area of the law, not that the others aren't, but perhaps I'm biased because this is where I've spent the last 20 years of my life. My kids would even joke that there's no way they would be a lawyer because they'd come into the kitchen at 4:00 in the morning and there's 12 arbitration binders stacked up, I've got trial exhibits behind me for the case right after that, and I'm cramming my head full of facts and figures and numbers for the next arbitration. It's not always the kindest profession or area of the law in terms of interpersonal relationships. There's a lot of late nights, there's a lot of sleepless nights getting a bill in the mail for $25,000 for one expert that you weren't really expecting, those things are really stressful, and managing time, learning how to allocate time between family and personal obligations and some me time.

Most of my colleagues have absolutely no kind of dedicated practice in terms of nurturing themselves on a personal level. Fortunately, I've discovered yoga and meditation, and that helps manage a little bit of my crazy in the worst of times, but most of my colleagues don't, and it's really unfortunate because as much as I love what I do and I love representing the people that I represent, I have great clients, it's incredibly stressful, and taking away from time to exercise, time to meditate, time to do yoga, it takes a toll, an emotional toll. After years of that kind of neglect, I decided that I was through with that, and I needed to be able to manage my time better. But it's a daily practice to try to incorporate some kind of balance into my life.

Kimber Russell:

Now, you just mentioned arbitration. Alternative dispute resolution isn't something that many people think about when they think about personal injury, so can you tell us a little bit more about how it works?

Ilya Lerma:

In Arizona, we have compulsory arbitration, so claims where the damages asserted are $50,000 or less by statute, they go to arbitration first. They can be appealed to a jury trial thereafter. But the arbitration proceedings for us are pretty common in the personal injury arena. But I'm also seeing more and more arbitration clauses that are contained within contracts and you'll see them quite frequently in nursing home litigation and in that context where the nursing homes and typically the parent companies that own the nursing homes are trying to restrict their liability and eliminate the right to a jury trial by having the patient agree to arbitration.

Kimber Russell:

Has this created more impediments for your clients in getting a good result for them?

Ilya Lerma:

I would say so far, not really. However, it creates an enormous procedural problem, and actually, there's substantive problems as well because a lot of these arbitration clauses don't specifically identify the terms in which the arbitration will proceed. They're very vague, and even if they refer to the Federal Arbitration Act or State Arbitration Act, those acts still don't always cover every circumstance, and because there's some ambiguity in terms of interpreting what they mean by this claim will be resolved by arbitration, that can sometimes be just an enormous headache.

For example, I have a case currently where there was an arbitration clause, but only covering certain claims, so the case has now been divided with half the claims in superior court and half the claims supposedly to be resolved by arbitration. However, at the end of this, we are anticipating enormous constitutional problems because our punitive damage claim, rather than following both types of claims, has been divided and sent to the arbitration, which we believe is not constitutional. There's a number of procedural and substantive problems that you can have with these clauses because they're just, they're so ambiguous, and it's unfortunate because it just drags on the litigation. These clauses are designed to supposedly streamline the claims and get to a resolution more promptly. But my experience is that it doesn't really do that at all. It just makes it a miserable process for the claimant.

Kimber Russell:

Speaking of procedural and substantive law problems, COVID-19 has caused a lot of problems for the legal profession in general, but definitely with respect to the ability to have cases go forward. What impact has the pandemic had on your practice, and what challenges have you faced?

Ilya Lerma:

Wow, there's quite a few. What I've not seen is plaintiffs just wanting to settle their cases. My clients, by and large, understand that once we get into a lawsuit, it's probably going to be several years. No one expected this delay, of course, but plaintiffs are prepared for delay. What I am seeing are more insurance companies being unwilling to make reasonable offers because they know that my clients aren't going to get a trial date anytime soon. They're less willing to engage, I think, in good faith in mediation efforts because they really have no incentive. They know that the backlog of courts created on the criminal calendar is going to push most civil trials out until the first part of next year at least.

If we dare chance a Zoom trial or something that I'm hearing in other jurisdictions, there's a myriad of other problems that can result in mistrials. I just read of one in, I think it was back east, maybe in New Jersey where there was a Zoom trial. But a lot of the jurors, they weren't actively participating. They were laying in bed, they were checking other emails, they had other open screens, and those create an enormous amount of difficulty, for the practitioner just wants to have their case heard, so the delay is really, really problematic.

In addition to the delay, there's also the challenge with how are jurors going to come back from COVID and how will they have been affected. Are they going to be more willing to hear of another person's injury and the difficult time they had given that the jurors themselves may have been out of work for some time, lost someone close to them through COVID? There's a lot of unknowns on the other side of this. I know that the national organization, the American Association for Justice, is proceeding with studies to try to study juror attitudes, but I think there's just a lot of unknowns that we're just going to have to work through a little bit at a time.

Kimber Russell:

In my own practice, I've had some issues with judges acting as if the pandemic weren't a thing. Have you had any run-ins with judges in your own practice?

Ilya Lerma:

I have, but not on that particular point. I think, at least in Arizona, my experience has been most of the judges are willing to accommodate courtroom appearances, which they weren't always willing to do. Even in trial, if you had a witness who was unavailable but could appear by phone, the judges were really reticent to permit that, but that has changed, and I'm seeing a lot of the judges being more willing to allow Zoom appearances and telephonic appearances deferring to those types of hearings rather than in person and my understanding is even the jury screening protocols are endeavoring to adhere to social distancing requirements.

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