Inscribed on the southeast portico of the Jefferson Memorial is an excerpt from Thomas Jefferson’s letter to Samuel Kercheval dated July 12, 1816:
“I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”1
Likewise, attorneys’ best practices constantly evolve. New court decisions; changes in statutes, ordinances, and regulations; societal changes; and changing technology all have an impact.
This article is based upon the way in which I engage in the ever-changing, highly specialized practice of plaintiff’s workers’ compensation law in Michigan.2 There’s something in here for everyone, but my comments about technology are directed mostly to baby boomers. And I wouldn’t hazard a guess at best practices for workers’ compensation defense attorneys.
CONTINUING LEGAL EDUCATION
Michigan is one of four states and the District of Columbia that does not require continuing legal education. However, comments to the Michigan Rules of Professional Conduct (MRPC) 1.1 reference the need to maintain competence by engaging in continuing study and education — including the use of existing technology.
To be able to properly present your case, continuous study of the law is necessary. For instance, in 1993, the Michigan Supreme Court ruled that a return to “favored work” for less than 250 weeks does not establish a wage-earning capacity. This eased the burden required to prove disability.3 In 2007, the Court ruled that a worker shot while sitting in his car in a parking lot waiting to return to work after lunch is in the course and scope of his employment4, easing the burden of proving the nature of the activities leading to injury on the employer’s premises. In 2008, Stokes v. Chrysler LLC was decided, increasing the burden of proving disability.5
Then, in 2011, extensive amendments to the Worker’s Disability Compensation Act, in essence codifying Stokes, were enacted.6 In Omer v. Steel Technologies, Inc., a 2021 case regarding pre-December 19, 2011, injury dates, the Court held that credible medical testimony of physical limitations, combined with credible vocational testimony that there are no jobs paying maximum wage, can satisfy the injured worker’s burden of proof of disability — even if he/she did not look for work.7 This eased the injured worker’s burden regarding job searches and proving disability. Since the statute has since changed,8 how will Omer apply to post-2021 cases?
Gov. Gretchen Whitmer’s executive orders regarding COVID-19 presumptions have now been invalidated.9 Are they valid for any purpose? Are they valid if someone relied upon them? These and other issues remain to be decided.
The Medicare Secondary Payer Act (MSP)10 has thrust new, uncertain, and constantly changing requirements into every case. One court described the MSP as one of “the most completely impenetrable texts within human experience.”11 In 2012, the U.S. Third Circuit Court of Appeals held that under the MSP, a Medicare advantage organization (MAO) has a private cause of action against primary payers and the same double recovery rights against primary payers as allowed to original Medicare.12 This compounded the complexity of resolving workers’ compensation cases. Court decisions regarding the MSP continue to be issued. It’s hard to stay current.
Attorneys’ best practices can change due to changes in our society. If an employee is working remotely from home and is injured, is the injury compensable? Are Uber drivers employees or independent contractors? Proposition 22, a recent California ballot initiative defining app-based transportation and delivery drivers as independent contractors, was passed; then, a court ruled that it is unconstitutional. That case is on appeal.13 The final disposition of that case could have a ripple effect across the country. How could you approach these and similar issues?
Attorneys’ best practices can change due to advances in technology. Is 2020 PA 246 regarding remote notarization retroactive? When you can’t meet face-to-face with your clients, is DocuSign valid? Are Zoom depositions effective? Zoom trials? We can only guess what the future will hold.
To be proficient in this area of the law and avoid mistakes, participation in voluntary continuing legal education is a best practice even though formal participation is not required to maintain your license to practice law. The Michigan Association for Justice, Workers’ Injury Law and Advocacy Group, State Bar of Michigan Workers’ Compensation Section, and many other workers’ comp-specific organizations provide educational programs for practitioners.
PREPARATION IS KEY TO FAVORABLE OUTCOMES
Preparation begins before the initial client interview. Although MCL 418.853 provides that process and procedure under the Workers’ Compensation Act “shall be as summary as reasonably may be,” that’s no longer how it works. With the need for vocational proofs, objective evidence of injury, Medicare, Medicaid, Friend of the Court, offsets, coordination of benefits, and medical liens, workers’ comp claims are now extremely complex and time consuming. The statute and rules limit plaintiff attorneys’ contingent fees, resulting in high-volume law practices. As a result, it is not feasible to pursue every injured worker’s case.
It may not be a best practice, but the first question I ask any potential client is, “Do you have an attorney, or have you had an attorney representing you in the past regarding this case?” If the answer is yes, unless that attorney is deceased, I will automatically reject the case. Best practice: To maintain a viable practice, be selective in the cases you choose to handle.
As a full-time workers’ comp practitioner, I was aware of the former Appellate Commission’s constantly changing and almost Sisyphean burden of complying with the mandates of Stokes. Shortly after Stokes was issued — and years before my trial in Omer — I refined my game plan for my trials. I studied Stokes and created a list of questions that, step-by-step and almost verbatim, followed the Supreme Court’s new multifactor test required to establish disability. I always read these questions during direct examination of my vocational expert so when the expert’s testimony is considered by the court, it precisely lines up with the requirements laid out in Stokes. Regarding the subject of preparation, the Omer Court in its per curiam opinion in support of affirming the award of benefits pointed to specific testimony in the trial record. The Omer Court stated:
“We find the deposition testimony of the claimant’s vocational expert [Feldman] particularly significant. ... Indeed, Feldman’s testimony traced, step-by-step, the multifactor test required to establish disability that this court laid out in Stokes.”14
Had I not been prepared to ask the proper questions, the outcome in Omer and its impact on pending and future cases may have been different.
Whether it’s alternative methods of proving your case or running your practice, always have a backup plan. No matter how well you prep a witness, you never really know what their testimony will be. Don’t ask questions you haven’t previously discussed with the witness, have a second line of questioning, an exhibit to help rehabilitate the witness, or have another witness ready to clarify any inconsistency created by a witness’s damaging statement.
You never know when a staff member will leave you in a lurch. In the late 1980s when we purchased our first personal computer, my legal assistant and I took classes to learn how to operate it. I wanted to make sure that I knew how to do every job in my office. In 1993, while I was working on a Supreme Court brief, she gave me two weeks’ notice and left before the brief was finished. I was much less adept but using the knowledge of WordPerfect I had learned in the classes, I did my own keyboarding, worked late into the evenings, and the filed the brief on time. Anticipate hurdles and prepare for them.
There is a commonality of issues in our cases so standardized intake, correspondence, pleading, deposition, and trial outlines should be used and constantly refined. This will help you avoid lapses and errors. Although we are competitors for business, most of us are committed to our cause. In the spirit of helping all injured workers, many of our fellow practitioners are happy to share their forms, deposition and trial outlines, and expertise. For instance, my contingent fee agreement can be found in the ICLE publication, Attorney Fee Agreements in Michigan.15 I’ve already shared them, and I’ll gladly continue to make my Stokes questions available.
Following my own advice to be prepared — while keeping my fingers crossed and clearing this through the State Bar of Michigan Ethics Helpline — for the past 11-plus years, my contingent fee agreement form has provided:
“Attorney is entitled to charge the greater of the maximum fee allowable by the Rules of the Workers’ Compensation Agency at the time of the redemption hearing or the maximum fee allowable at the time this agreement is signed.”
I hope I’m prescient. Just ask around and you’ll find the forms you need. Best practice: Be prepared.
These may sound trite, but:
Learn. Stay current. Prepare. Be honorable. Be respectful. Have integrity. Get involved.