Latest / Coopers' Code / Lifecycle of a Case, Phase 10 & 11: Liens & Case closing

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Lifecycle of a Case, Phase 10 & 11: Liens & Case closing · Coopers' Code

• 0:00
  Howdy, and welcome to another episode of Cooper's Code Life
• 0:03
  Cycle of a Case series where we provide tools and tactics for
• 0:08
  the different phases of a case. We're compiling all of these
• 0:11
  episodes into a playlist on our YouTube channel.
• 0:13
  So head on over there if you want to see them all.
• 0:20
  Once the case is resolved and by resolution, I mean it's either
• 0:25
  settled, one has a judgment that has been been made final, the
• 0:29
  the appeal is, is done. However it is is is completed.
• 0:33
  Then there are a few more steps that that one needs to go
• 0:37
  through in terms of the resolution process.
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  And there were different places we could have put this.
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  I feel it's most appropriate at the case closing the section
• 0:44
  because it's one of the final steps and and here we're talking
• 0:48
  about a minors compromise. So what is a minors compromise?
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  When one has a a minor or someone who is otherwise
• 0:58
  incapacitated, In essence, someone where a guardian of
• 1:02
  litem has been appointed, someone who is there to help
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  guide the the person who can't take care of themselves in all
• 1:09
  ways. That's what's known as a minors
• 1:12
  compromise. You have to have the court's
• 1:14
  approval of the resolution. So in settlement terms, the
• 1:20
  court is actually going to take a look at whether the settlement
• 1:23
  is OK and, and just some some public policy behind this.
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  There is a concern that someone, a minor or someone who is
• 1:31
  otherwise incapacitated can't take care of themselves.
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  And in that situation, those individuals need the court, a
• 1:41
  judicial officer to step in and make sure that everything is OK,
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  That family members aren't taking advantage of the person,
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  that the insurance company who resolved the cases and taking
• 1:50
  advantage of the person and say, you know, getting them to settle
• 1:53
  a case for cheap. That the lawyer who represented
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  the person isn't taking advantage of them in terms of
• 1:58
  the the fees that were charged or the costs that were incurred.
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  And judicial officers take their jobs very seriously, as they
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  should when they're going through this process.
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  So a minors compromise uses a judicial council form.
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  It is subjected to a high level of scrutiny.
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  And the court will go through and see how did this case
• 2:18
  resolve? What number did it resolve for?
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  Because most of these are settlements, If it's a verdict,
• 2:23
  it's they're not going to question the verdict because the
• 2:27
  jury did the verdict and, and that process has all been done.
• 2:30
  But because most of them are settlements, the court is going
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  to take a look and, and make its own assessment about whether
• 2:35
  this settlement is is is acceptable.
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  The court is also going to take a close look at where the money
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  is going. So that's making sure that the
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  fees are an appropriate amount of fees, that the costs are
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  handled appropriately and know that in a minor's compromise
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  that the attorneys are obligated to share in the costs to the
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  tune of their attorneys fees. What do I mean by that?
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  If you are charging a 25% fee for a minor, which is a a
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  relatively standard minor's fee, then if you expended $100 in
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  costs, 75 of of those dollars would be paid by the minor
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  associated with the minor. 25 of those would be paid by the
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  attorney. So that's that's the sharing in
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  the costs. So the court is going to take a
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  look at that to make sure that that is complied with.
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  The court is also going to take a look at where the money is
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  going. There are three ways in a minors
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  compromise that the money can be handled.
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  None of them are are great outcomes, but you need to
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  recognize that the court wants to make sure that it is the
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  minors money and the miner ultimately has the control over
• 3:48
  the money even if that miner can't control it in the moment.
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  So the old tiny initial way that this was handled is what's known
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  as a blocked account. So a blocked account, it means
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  the money goes to a bank, it gets deposited in a special kind
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  of account, and the only way that money can be withdrawn from
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  that account is by going to court and saying to a judicial
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  officer, hey, we need to withdraw money for X.
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  Usually what ends up happening is that money sits there until
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  the minor turns 18 and then one goes to court and asked the
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  court to release that money. The downsides of a blocked
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  account are huge. I I would say it is the least
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  favorable option for resolving a case.
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  Why? Having been through this process
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  once with a client who, who insisted on using this, this
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  vehicle, I went with the client to the bank and we were there
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  for five hours and we were there for five hours because the
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  branches don't have anyone who really have any level of
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  sophistication, even at the, the larger downtown branches.
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  So they are having to reach out to their headquarters and to
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  legal to try and figure out just what the heck you're asking for.
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  And it scares them because they're not common, so they
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  don't know how to do it. And, and eventually we were able
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  to put it through, but then five years later I'm back in court
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  representing that client to have the money withdrawn.
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  And the interest rates for these blocked accounts are kind of
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  standard savings rates and well, interest rates have gone up over
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  the last year or so. Generally interest for these are
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  pretty poor relative to other investment vehicles.
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  So I, I would say if you have to do a minors compromise, just
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  recognize that a blocked account is, is really not the best way
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  to go with them. The other vehicles that that are
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  what I would suggest is, is good potential vehicles is a cut in a
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  529. So what is a cut in a 529?
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  That's, that's California uniform transfer to minors Act
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  529. How is that different than a
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  standard 529? And what is a 529?
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  A 529 is a tax deferred vehicle for providing money to a child
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  where in essence when the money comes out, you don't have to pay
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  taxes on it, but when the money comes out you can only use it
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  for specific purposes. So 520 nines are are a common
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  investment vehicle for parents saving for their kids college.
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  So you get the benefit of it going into the market, you get
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  the benefit of the the the tax profile reduction and you're
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  able to withdraw it for tuition payments for college or other
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  college associated costs, books, living expenses, They're spelled
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  out specifically under under the the rules in under 529.
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  So how's it cutting a 529 different than a 529 a 529, even
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  if you make it in the name of your child is owned by the
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  parent. So give you an example.
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  Our son Bennett, we opened up a 529 for him.
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  If I suddenly decided that I didn't like Bennett anymore and
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  I was going to want to use that money for my niece, bad joke.
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  But I could in theory say, well, we're not going to use that for
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  Bennett. We're going to use it for, for,
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  for my niece. Bennett does not own the 529,
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  even though I originally opened it in his name.
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  A cut in a 529 is different. A cut in a 529 is owned by the
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  minor. So when you go to court with the
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  minors compromise if a 529 is is considered to be a good vehicle.
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  So most kids are going to do some form of of education post
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  high school. If that's the case, a couple of
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  529 can be a very good vehicle for parking this money.
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  The other vehicle that that is tends to be a very good one that
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  it needs for most structure brokers, they're going to want
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  to work with a dollar figure typically over I, I think it's
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  $50,000 at this point. So if you have an amount of
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  money and a 529 may not be the the right vehicle, then a
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  structure is another good way to to do that.
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  Why is the structure useful? Structure allows you to get the
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  benefit of market returns. So you can put the money into
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  that that taxed free annuity and then the money comes out when
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  the kid is, you know, at some point past the age of 18.
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  So there are an infinite ways to structure funds, but a a common
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  way of doing that is is having them come out as lump sum
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  payments, almost like a 529 to pay for for college or pay for a
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  deposit on a house or, or some other way of of having that
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  money come out in chunks. Sometimes parents like to make
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  sure that kids don't have too much access to too much money
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  right away. So it may not all come out when
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  they're 18. Some of it may come out
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  depending on how much money they're receiving when they are
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  closer to 25. Also, if if you have a very high
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  value case where you've got an incapacitated minor and their
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  expenses are going to need to be taken care of above and beyond
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  what the parents can afford and above and beyond what government
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  services provide, then you, you may end up with a situation
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  where that structure is starting to pay earlier in the process.
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  All of this is very nuanced. All of this gets a close court
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  review as you prepare for a minors compromise hearing.
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  Recognize that because of the nuance with these and because of
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  the questions that the court can ask that it's, it's not unusual
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  to end up having to go to a hearing more than once for a
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  minors compromise. They might want more
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  information. There often times are things
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  that they want in terms of we want to see proof that the money
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  was deposited, so submit that within 90 days and then we'll
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  have an order show cause for the deposit that comes off so long
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  as you submit the proof of that with the court.
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  A parallel piece to the minors compromise in resolving cases
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  are what are known as special needs trusts.
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  So if you have an individual who is receiving a lot of
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  governmental benefits, one of the things to consider is
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  whether a special needs trust is something that is going to be
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  appropriate. Now, recognizing that
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  governmental benefits programs and thresholds can change, what
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  I'm going to do is, is just talk in very general terms about a
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  special needs trust, what it is and, and generally how it's
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  done. This is a specialized vehicle
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  and it is best to get a specialized lawyer who who does
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  special needs trusts if that's something that you're going to
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  need in your case. So, and I'm bringing it up
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  shortly after talking about minors compromises because often
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  times it's an incapacitated minor, somebody who's had very
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  traumatic injuries, who may be receiving some form of, of
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  medical, who may be receiving some form of other support
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  services. Often times you you might need
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  to do a special needs trust in association with a minors
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  compromise. The the other place where you
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  see it is somebody who has such profound injuries that they may
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  not be working again, whether that's the the way the person
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  came to you with their their case or whether it is a result
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  of the injury, you're going to want to make sure that they are
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  able to continue to receive benefits.
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  So what is a special needs trust?
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  A special needs trust is a specialized vehicle.
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  Again, best to hire the an attorney who who does use on a
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  regular basis where the money that the injured party receives
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  goes into this trust and can only be used for very specific
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  things. Now, the benefit is that it
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  allows them to, to maintain their governmental benefits.
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  So if they're on SSDI, if they're on medical, if they have
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  other benefits that they're receiving, they're able to keep
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  receiving those. The, the special needs trust
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  though, can only be used for very specific things.
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  So they can't just get that money parked there and go out
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  and, you know, buy a Mercedes. That said, if they need a
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  specialized transportation vehicle because they are
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  disabled, arguably you could use that money to buy a specialized
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  transportation van to, to move from point A to point B.
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  So these are things that that will benefit them that aren't
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  going to be covered by their governmental benefits programs.
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  They're also very specific reporting requirements for
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  special needs trusts. So really the take away here is
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  if you have a client who's dependent upon governmental
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  benefits, just have a bell go off in your head that I might
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  want to look up special needs trusts and, and see about
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  consulting with a special needs trust lawyer about whether this
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  is the right vehicle for the client.
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  One additional piece on this, because it's specialized and
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  because it's outside of the scope of the representation of
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  most personal injury lawyers that that is typically a case
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  cost. You know, so if it costs 4 to
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  $7000 to set one of these up and, and my, my pricing might be
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  off. It's been a while since I've,
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  I've, I've had to do one of these.
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  That's a cost that is usually absorbed by the client and
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  typically approved by the court if it is built into the minors
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  compromise. If there's a minors comp
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  associated with a special needs trust.
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  So that's minors compromises that special needs trusts.
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  The other part that is part of the the case closing process are
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  liens. Now I I want to stop here and
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  say this is a cursory overview of liens.
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  It is not a deep dive into liens and strategies for lien
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  resolution. For that.
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  I recommend people, if that's really what what you want to
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  hear about, pause here, go to one of our first episodes.
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  I have the wonderful Hendrick White who was with us and and
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  the lean specialist. He he does a deep dive into how
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  we address the various types of leans and and and the pros,
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  cons, benefits and and that negotiating strategies.
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  But as a case closing piece, one of the things that one needs to
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  do is, is go through and make sure that all of the liens are
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  addressed. Why is this usually done at the
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  end? Well, you can come up with
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  strategies and you can sometimes negotiate with lien claimants
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  earlier on in the case. Almost all the time they want to
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  know how much money did you get and what are your fees going to
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  be? And then they'll start talking
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  with you about negotiating those resolutions.
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  So there are standard liens, almost all of these are are
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  going to be some form of, of medical lien.
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  The standard liens are are typically resolved under the
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  common fund doctrine where you are able to say, look, you would
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  have not gotten a dollar unless we did our work.
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  Our fees are 1/3 or 40% and we spent $10,000 and you're on the
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  hook on a pro rata share of that.
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  And, and so you start there and start trying to negotiate them
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  down. If there's not a lot of money,
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  if, if this is a, a minimum policy, you know, a $30,000
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  policy, then sometimes what you'll end up with is rule of
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  thirds and that. And that is, look, everyone's
• 15:29
  going to have to take a bath on this.
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  So, you know, our, our fees are 1/3, the client's getting a
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  third, you get a third. Different carriers respond
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  differently to fee reductions. Just just know that going in.
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  And, and the reason I say this is because sometimes we will
• 15:45
  reduce in cases where there's not a lot of insurance, there's
• 15:48
  a significant injury and the, the client probably would have
• 15:53
  gotten the policy even if we weren't there, we will reduce
• 15:57
  our fee. We want to make sure that the
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  fee is commiserate with the work that was being done on the case.
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  And that can sometimes be beneficial with some carriers to
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  say, look, we're not taking a fee in this case.
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  We'd ask you to waive your lien. Sometimes I'll do it, but on
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  occasion you'll come across a carrier who will say, oh, you're
• 16:16
  not taking a fee. Well, jeez, that just means the
• 16:19
  clients get more money so we don't need to reduce our our
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  lien as much. Or if you're not taking a fee,
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  then the common fund is not applicable here.
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  So just get a sense as to who you're dealing with before you
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  start indicating that there's going to be a few reduction.
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  You can sound sound them out on how they respond to few
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  reductions. The other awful, awful lien that
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  that people come across on occasion are are one is known as
• 16:46
  self funded ERISA liens. Those self funded ERISA liens
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  are are just terrible. I mean, there's there's no way
• 16:53
  around it. Usually they've contracted
• 16:55
  around all of the tools that we have in state court to reduce
• 17:00
  liens and they're subject to to federal law.
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  So they can do that. The only thing I think there are
• 17:04
  worse than self funded ERISA liens are union pension fund
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  liens, Costco liens. Those have come up recently for
• 17:13
  us. Those entities typically will
• 17:16
  reach out to the the member that the person who's insured and say
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  we aren't going to cover any of your, it looks like you were
• 17:22
  involved in something awful. We're not going to cover any of
• 17:25
  your medical expenses going forward unless you sign off on
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  this thing that in essence, the payments you're receiving are a
• 17:32
  loan against any resolution that you have.
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  Some of these will even say that if you receive money, we won't
• 17:39
  pay for any of your medical care going forward from the incident
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  once the lien is resolved. So just just know that there are
• 17:47
  some of these awful, awful ones out there and they're a pain in
• 17:50
  the ass to deal with. Medicare and and medical require
• 17:55
  one to go through the CMS portal.
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  Those can be negotiated and there are other tactics, all
• 18:00
  born being one of them. I'm just going to say the case
• 18:03
  Auburn, Google it, AI it and and and if you have a case where
• 18:09
  that might be the right strategy, consider using some of
• 18:11
  the tools available there. But just know that you need to
• 18:14
  go through that process and, and generally though they are
• 18:20
  willing to negotiate and, and get better outcomes on liens.
• 18:24
  So one final piece on liens. Why are liens so important to
• 18:28
  fight on? It's because every dollar you
• 18:31
  save a client on the lien side is, is an actual dollar in their
• 18:35
  pocket. These are not subject to fees.
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  And so while it takes all of us a little bit of extra work,
• 18:40
  sometimes a lot of extra work to engage in lean fights, know that
• 18:44
  that it's highly beneficial for the client and and it's just,
• 18:47
  it's part of the service that we offer.
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  We're the here to fight to get the most money we possible can
• 18:52
  for our clients, both from the settlement or verdict side, we
• 18:56
  want to get that number really high.
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  And then on the lean side, we want to get that number really
• 18:59
  low so that you get that nice big differential in between the
• 19:02
  two. And that's the client's money.
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  When one is is, is finally done with the case, one will have
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  what is known as a distribution report.
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  That's what we refer to it as internally distribution report
• 19:17
  will list the money that is coming in, the attorney's fees,
• 19:22
  the costs and and then how that money is being distributed.
• 19:27
  So in essence the the net to the client, we will usually do at
• 19:33
  least two distributions. So distribution number one will
• 19:36
  reserve money for the lien, meaning the full amount of
• 19:40
  whatever the lien is. If the lien is $50,000 or
• 19:43
  reserve 50, go ahead and pay the client and then that 50 will
• 19:48
  hold and and do the lien negotiation.
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  And when we're finally done with the lien negotiation, we will do
• 19:53
  a second distribution report. The learning all share going
• 19:58
  forward is that lawyers tends to not be great at math.
• 20:03
  Lawyers tend to be eager to get cases, get the money to the
• 20:07
  clients. I recommend that if you have a
• 20:11
  bookkeeper, that your bookkeeper do the distribution report.
• 20:13
  And then if you have another smart person in your office who
• 20:17
  knows how to do math, have that person go through and double
• 20:20
  check things. The reason for that is the
• 20:23
  distribution report is going to be one of the last moments you
• 20:25
  have to engage with your client. And if there is a math error,
• 20:28
  and particularly if there's a math error that is
• 20:32
  disadvantageous to your client, while you can can redo it, it's
• 20:37
  it's really embarrassing and it leaves a bad taste in the
• 20:39
  client's mouth. So having a a second set of eyes
• 20:43
  on that is a good way to reduce the chances of errors.
• 20:47
  The other piece on that is on your cost side.
• 20:50
  It's a good opportunity for you to go through and make sure that
• 20:53
  all the costs were properly entered in the case.
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  So in any environment there is the chance of an error being
• 21:01
  made in terms of things being flagged wrong in bookkeeping.
• 21:04
  So as the lawyer who's handled the case, going through and, and
• 21:09
  seeing, you know, all the expert costs, all the deposition costs,
• 21:15
  any travel fees or hotel fees, if you see things where like, Oh
• 21:19
  yeah, you know, I ended up standing an extra night to do X
• 21:22
  that should not have been included on my client's behalf.
• 21:24
  That's your opportunity to go through and strike those so that
• 21:27
  the client is not the one going through and questioning you.
• 21:29
  You just want to make sure that you're as above board as
• 21:32
  possible and, and, and do the right thing as far as that's
• 21:35
  concerned. An additional piece that we like
• 21:38
  to do is on our distribution report we will usually have a
• 21:42
  second page that tells us exactly where the money is going
• 21:47
  and how the money is going. So what do I mean by that?
• 21:50
  If we're receiving fees that no, the dollar figure that we're
• 21:54
  receiving and how it's transferring from the client
• 21:57
  trust account to our account, usually by wire.
• 22:01
  Is it the same with costs? Because costs are going to be a
• 22:02
  second line item. If there's a referral fee, what
• 22:05
  that referral fee is or Co counsel fee is?
• 22:08
  And again, is that going by check?
• 22:09
  Is it going by wire? If it's going by wire to what
• 22:11
  account? Same with the client money, same
• 22:14
  with lean money. The reason for this is so that
• 22:17
  you have a one stop shopping. Should anything come up down the
• 22:21
  road to say odd, this is this is how all the money got handled.
• 22:24
  In this particular case, it's it's nice to have that all in
• 22:26
  one place. Finally, with the distribution
• 22:29
  report, we usually like to do and and and recommend all
• 22:34
  lawyers do a client exit interview.
• 22:38
  And that exit interview is is twofold.
• 22:41
  It's to help make sure that the client feels like everything is
• 22:47
  is done and the IDOT and T cross and make sure any sort of final
• 22:51
  instructions are, are are covered with a client.
• 22:54
  And then also to learn where one excelled and where one can
• 22:58
  improve. So when I say confirm everything
• 23:02
  is done, you want to make sure like you've received your funds.
• 23:06
  Do you have any questions about what we've done?
• 23:08
  Do you have any questions about what we're doing with your case
• 23:10
  file? For example, we can make a, a
• 23:12
  digital copy of the case file available to the client.
• 23:15
  We will tell the clients typically that we, we will
• 23:19
  maintain your digital file for a minimum of five years.
• 23:22
  And, and realistically, we often times don't do more thorough
• 23:26
  purges absent your request that we do purge it.
• 23:29
  So we told them that, so that if something comes up down the
• 23:33
  road, a medical record that they want, they perhaps didn't save
• 23:36
  in the right place or or didn't ask us for, we have that and we
• 23:39
  can give it to them. We also will typically answer
• 23:43
  any client questions. We want to make sure that they
• 23:46
  know that that typically personal injury resolutions are,
• 23:50
  are a not taxable in terms of what they received as far as
• 23:53
  those dollars are concerned. And that if that question comes
• 23:56
  up with their accountant, they or their accountant should feel
• 24:00
  free to reach out to us and we can point them to IRS
• 24:02
  periodicals as far as that's concerned.
• 24:05
  We want to be encouraged as much feedback as possible.
• 24:09
  And so you want to create and, and invite opportunities to
• 24:13
  provide feedback where one can improve.
• 24:15
  Are there ways in which you feel we could have done better in
• 24:20
  terms of how, how we're handling the case, how, how responsive
• 24:24
  were we? Would you have liked more
• 24:26
  communication, less communication?
• 24:28
  Those are all ways where, where one can learn what's beneficial
• 24:32
  in terms of, of, of how to help people going forward.
• 24:35
  We always encourage them to call with any sort of future
• 24:39
  questions that they have. One of the things you you want
• 24:42
  to do is is you are working with your clients is remember that
• 24:45
  your clients often times become future referral sources.
• 24:48
  So to keep that door open. Hey, you know if anything comes
• 24:52
  up with you or a loved one or a friend, consider us your your
• 24:56
  first line of offence even if it's outside or our practice
• 25:00
  area reaching out to us. We often times know somebody in
• 25:02
  the area we can help point you in the right direction as far as
• 25:05
  that's concerned. Then when you are are totally
• 25:09
  done. You want to make sure that you
• 25:11
  you formalize that that we thanks for being a client.
• 25:14
  We've resolved your case. The representation is formally
• 25:19
  ending at this point. You continue to be a friend of
• 25:21
  the firm forever going forward. And then if you've had a good
• 25:26
  relationship with the client and you feel that a review is
• 25:29
  appropriate, you want to see if they're going to be willing to
• 25:32
  review you. Google reviews and and other
• 25:35
  reviews tend to be very helpful in that client development
• 25:38
  process, getting future referrals, getting future
• 25:40
  business. So that's the case closing
• 25:43
  process in a in a nutshell. Thank you for tuning in.
• 25:46
  If you enjoyed this, We're compiling all of these episodes
• 25:49
  into a playlist on our YouTube channel.
• 25:51
  So head on over there if you want to see them all.
• 25:54
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• 25:56
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• 25:59
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  friend. Please e-mail us at podcast at
• 26:04
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• 26:06
  suggestions you have for who you'd like to see on the show.
• 26:10
  To all of you doing justice out there, happy hunting.