Especially for Lawyers – Why So Many Wheelchair Tipovers, Part 17: Leaving Money on the Table
Every profession has its lazy workers – although it is a lot harder to be one on, say, a whaling ship or in a fire department. But it is much easier, and far more common, in the legal profession.
As an expert in my field, I cease to be amazed at how much money is left on the table by attorneys’ failures to file against the most egregious parties in a case – parties for which one could find liability with the minimal examination of materials. An easy example to illustrate this is in cases involving private contractors. This is especially true with wheelchair tipovers on paratransit service. Here is the trio of culprits:
- A transit agency (which receives money from the Federal government whereas a private company cannot) does not understand three-dimensional, shared ride transportation. And it does not wish to take any responsibility for transporting disabled people (and often wishes to simply save money). So it hires a private contractor, which indemnifies it.
- Because the agency does not understand this form of transportation, it cannot schedule trips. Or it is hoodwinked into thinking that robots can do it better (they cannot). And when they hire a software developer to install scheduling software, this agency tells that developer to make the system “as efficient as possible” – which the developer does (by creating schedules that no driver could ever meet without committing multiple “safety compromises” (see safetycompromises.com).
- The transit agency then hired a private contractor that is stuck with these routes, impossible to meet without committing numerous safety compromises. The compromise that shaves the most time from a route is the failure to secure a wheelchair, and its passenger into the chair.
Tic-tac-toe. Yet why do so many attorneys file only against the contractor? After all, the transit agency (referred to as the “lead agency” in the ADA, and elsewhere, because it receives the funding) was responsible for creating the schedule – even if it hired yet another contractor to do this?
- Do they think that the lead agency has better attorneys?
- Do they not bother because the contractor has indemnified the lead agency?
- Do they think that this would make the case too complex for them to handle?
- Is it just easier for law firms to make money by volume?
In my experiences as an expert in more than 700 lawsuits, I have found that all four of these excuses have been the reason – although I rarely take a case (especially one involving a wheelchair tipover) where plaintiff’s attorney will not, or has not, filed against the lead agency – which, frankly, bears the largest share of the blame.
But more often, the last one of these themes has been the reason: A lawyer or law firm can make more money doing a skeletal job suing the easiest target and take a boatload of cases than it can by doing a handful correctly – and exhausting the money it can make from doing those cases thoroughly. In one wheelchair tipover I did, while driving me back to the airport after I examined the vehicle, the attorney told me he had 160 active cases! If you are an attorney reading this, you should be astonished. But, of course, all of you are not, because many of you do this. And the risks are slim that your sloth will be discovered. There is even less risk that a client who accepts a marginal settlement will file a malpractice suit against you. And there is an even lesser risk that the contractor’s counsel will engage me as its expert. But defending a private contractor in a case where the schedules were too tight is my favorite case. And while I have done only about 10 percent of my cases – or about 70 — on the defense side, I have never lost a case on the defense side.
More interesting – although only good experts believe this while most attorneys do not – I feel that the most money a plaintiff’s lawyer can make on a case is to exhaust it, and sue every party involved. I would not want to sue a software developer, because it was given marching orders. And not knowing the service area well, a software developer may not know how impossible certain things are. Yet in the middle of a class action suit (on the side of the plaintiffs) for late trips (which translate into clients “dropping out” of the system, and thus savings to the lead agency), the software develop took a deep dive into the software and added 30 percent more time to the schedules. 30 percent! Try to imagine how impossible it was to provide these trips on time before this change was made. You can’t.
But these are the dynamics that public transportation cases are made of. So all you plaintiffs’ attorneys out there – most of you Democrats – remember that even a broken clock is correct twice every day. So the Deep State actually does exist. But it is its deepest in the field of public transportation. And even if your firm places pressure on you to skate through as many cases as you can keep track of, it would do well to find excuses to push the envelope in the other direction – even when you have to fight for the funds to hire the best experts and set them loose. After all, if and when you win, what you paid these experts is only a loan, since it comes out of the 2/3rds of the settlement or verdict that your client receives. (Only your clients do not realize this. Every expert does.) And in a wheelchair tipover case, which is almost unlosable, what you pay your experts is nothing but a loan. So with the right help, you might find that pushing the envelop actually pays off.
Many attorneys fail to file against the parties most responsible for the incident because suing only the most obvious codefendant it the easiest path to take.
#wheelchairtipovers #wheelchairandpassengersecurement #seatbeltsandsecurement #transalt #publictransitexpert