Young lawyer tips and personal injury FAQs with Stephen Phillips

Stephen J. Phillips: In a question-and-answer format with a summer law clerk, he talks about how a small plaintiff’s firm works, discovery, trial preparation, mentorship, the effect of AI, and how juries and tort-reform arguments have changed.

Attorney Stephen J. Phillips · Personal Injury FAQs · 21-minute 49-second answer

Transcript

Automatically transcribed from the video’s audio and lightly edited.

Good morning. This is Stephen Phillips, one of the partners at Phillips Law Offices. This segment is called Questions with a Second-Year Law Student. We have Grafton, who is one of our awesome summer clerks here. It’s his last day, and he’s got some questions from a second-year law student that he’s going to ask, and hopefully I’m going to have answers to. How does Phillips Law Offices separate itself from bigger firms like those on a billboard? I think nimble, being nimble, being small is actually very beneficial. You get one-on-one time with each of your clients, and we do a very small volume or low volume of catastrophic injury cases. So we have a one-on-one relationship with all of our clients, and all of our clients have our personal emails and phone numbers. That’s something that big firms or medium-sized firms typically don’t do for each of their clients, and oftentimes they have clerks and paralegals working on a vast majority of their cases before a lawyer ever gets involved. We don’t do that. What is the most useful discovery device you use? Depositions, I think, are important. subpoenas, sending subpoenas out to third parties to get information that the defendants either can’t produce or won’t produce, and requests to admit, admission of facts, all very important discovery tools, production requests, a simple Rule 214 production request in Illinois. Very, very powerful tool. The defendants have an obligation to respond to that request within about a one-month period of time. What’s the biggest mistake you see young lawyers make in the office or in front of a jury? Biggest mistake, I think, is not knowing the law well enough. I think a lot of young people, you know, we come out of law school and we feel like we can conquer the world, and to a certain extent we can, but there has to be some humility in there and a willingness to learn and to accept the fact that even though you’re a hotshot, you just came out of law school, you know, the world is your oyster. You have a lot to learn. You’re just beginning your training, and school is a lot different than the real world. It just is. So I would say you have to know the law. A lot of young people, particularly with AI these days, I don’t think know the law well enough, and then when they’re in the courtroom in front of the judge and the judge asks them a legal principle or concept, they don’t really know the answer, and it can be very embarrassing and uncomfortable for the new lawyer. So I would say read the rules of civil procedure and stay up to date on appellate court and Supreme Court cases, and you’re going to be miles ahead of your classmates. And what’s the biggest mistake you see young lawyers make in front of a jury? Preparation and not being prepared enough. I think when you go in and you watch a trial and it looks good, it looks competent, things go smoothly, that’s actually pretty uncommon. A lot of trials you go and watch, there’s a lot of downtime, people aren’t prepared with exhibits, they’re fumbling around with their notes, the witness is unprepared. If you see a trial and watch a trial that looks pretty good, those lawyers put a lot of time into that. You have to have all of your questions, I personally believe, of your own witnesses and your cross-examinations written out weeks ahead of time. Don’t save it for the night or the day before. You’re not going to have enough time, you’re going to be unprepared. Your trial prep on a big case starts months, certainly weeks, but preferably months before you actually walk through the courthouse doors. What’s the most rewarding part of your job? Most rewarding part is the clients, and we have a very special relationship with our clients that a lot of areas of law don’t have. Other areas of law, business transaction, real estate transaction, corporate merger, it’s important. Those are definitely important areas of law, but our practice of law is helping somebody or a family that has experienced probably the worst tragedy or one of the worst tragedies they’re ever going to experience in their life. They lost a child, they lost a sibling, a parent, they lost a leg and arm, they’re paralyzed, they can’t walk, and they come to us in one of the lowest points of their life when they need help, and being able to go into a courtroom and level the playing field against a Fortune 500 company or against an insurance company that has a 50,000 square foot headquarters. It’s a big deal. You’re able to help right or wrong and take on a really, really, really powerful corporation or really powerful insurance company, and oftentimes you’re able to provide something, in this case money damages, that will hopefully allow the client to live as normal of a life as possible. Wheelchair van, accessible home, medications they need, physical therapy, that’s a very, very rewarding experience. What’s the most challenging part of trying a case? The most challenging part of trying a case are the ups and downs of the case. There’s going to be days where you score points and you’re going to feel like you absolutely kicked butt that day and your team did a great job and your witnesses did a great job, and then the next day there may be a witness who makes a mistake or, you know, you may say something and put your foot in your mouth, that’s embarrassing, and you just have to learn to roll with the punches and trust in your preparation and trust in the case and not get too high and not get too low throughout the case. That was something I did definitely as a young lawyer. I was too high and too low and didn’t emotionally regulate myself. You have to be even keeled throughout the trial and know that just like you scored points, sometimes the defendants are going to score points. That’s the nature of trying cases. What skill were you least prepared for coming out of law school? The ability to listen to a witness’s answers and be able to think on the fly and fence with that witness on the fly. That is really, really hard to do. As a young lawyer, it’s much easier and comfortable to just stick to your outline or stick to your written prepared questions, but you have to learn, and this is something that just takes time. I don’t think people have this, and I certainly didn’t, and I’m still working on it, but I don’t think that people have this innate ability to do this until you experience it over and over again, but listening to the witness you’re cross-examining give you an answer. What are they saying? What nuggets are they giving you? How are they trying to mess with you? Then being able to listen to that and follow up with the right questions and not just go back to your outline and move on when you get a gem or you get an answer you didn’t expect. You have to know how to kind of roll with the punches. What is a class or experience you’d recommend to a law student interested in personal injury? Two things. In terms of a class, I would say civil procedure. Certain schools offer it, some don’t. I think when my dad went to Loyola, they had an Illinois civil procedure class. They didn’t when I was there. I wish they did. If you can take a civil procedure class, particularly Illinois civil procedure, I think you’re going to be miles ahead of your peers. Illinois law is similar to federal law, but you know a one semester federal law civil procedure class your first or second year is decent, but it’s not going to give you that granular detail practicing here in Illinois that you need to know. So what’s an experience you’d recommend to a law student interested in personal injury? Let’s say work. Work, work, work. Go clerk for a plaintiff’s firm. Spend as much time as you reasonably can working, sitting in on depositions, writing briefs, talking to potential new clients. I think that there’s merit to and there’s benefits to journal and moot and mock and all sorts of stuff like that. But I think ultimately at the end of the day, those can only take you so far. Having the real world experience of seeing how the business operates, seeing how new case intake works, talking to new clients, watching cases over at the Daley Center, watching other lawyers try cases, looking at what they do well, what they don’t do well. Those are all incredibly beneficial to do outside of classes. What separates a good associate from a great one in a plaintiff’s firm? Critical thinking and a willingness to make mistakes or to not need constant reaffirmation that you’re doing the right thing. One thing that we always say here is fall forward. It’s okay to make mistakes. If you’re going to make a mistake though, fall forward. Take the risk of not having to come back to the partner who gave you the assignment four or five or six times and ask them what to do at each step of the way. They’re going to give you the project and of course they’re available to talk with you, to guide you. Mentorship is a big part of what we do here, but once twice so be it. Don’t be the person who has to come back six, seven, eight times asking the partner for help on one project. I think it’s much better. Tackle it yourself. Wrestle with the issues yourself and then bring what you think is a good quality, really good quality final product back to the partner and then he or she will review it and let you know what needs to be changed. Looking forward, what effect are you seeing from AI on the practice? I think AI is a really good supplement. I think that AI is very important to catch things that you might not have caught yourself. For example, if you’re looking into a trucking case or a medical negligence case and you know pretty darn well what the theories should be. You have your three or four theories of negligence based on the facts. You can put that into AI and AI is going to give you pretty much what you thought of, but there might be one or two other facts or one or two other theories that you really didn’t consider and that’s what I found. It’s a really good supplement. It’s certainly not a replacement, but it’s a good way to catch little things that you may not have caught the first time around and it’s also pretty good at telling you what you might be missing. How have jury attitudes changed toward injury plaintiffs over time? I can only really speak to what I’ve seen myself, what I’ve read and researched and then obviously things that come from you know the older partners in our office, but one of the biggest things I can say is that COVID created a monumental shift I think in the way people think about these types of cases. Jury verdicts are significantly higher. Settlements are significantly higher than they were even 10 years ago and I think in large part that’s due to the fact that when a lot of us were we felt locked in our houses during COVID struggling financially not knowing how to make ends meet a lot of these corporations including insurance companies had record profitability and they went on business as usual and got bailouts and got subsidies and stimulus while the rest of us had to fend for ourselves and I think that a lot of people regardless of if they’re right leaning or left leaning or moderate a lot of people in this country are now starting to realize that there’s a lot of corporations that really do put profits and shareholders over the safety of their own workers and their consumers and that’s recognized in the significant number of big jury verdicts that we’re seeing since COVID. What do you wish more law students understood about being a plaintiff’s attorney? Good question. It is a lot of work and it’s a lot of late nights and early mornings and sitting up at night thinking about your clients. I think a lot of people and this is in part based on some of the billboard lawyers advertising of this idea you know are you hurting a wreck get a check that’s not how it works and I would prefer if those billboard people knock that message off because that is really not how it works. It’s a lot of work there’s no hourly fee in our business there is no retainer fee we don’t get paid until the client gets paid at the end of the case and oftentimes we are fronting hundreds of thousands of dollars of expenses in one or two individual cases so there’s a lot of risk there’s a lot of time spent and oftentimes that isn’t recouped or that isn’t realized until years down the road and people do not realize that. How would you respond to colleagues or family members seeing the McDonald’s hot coffee cup case and seeing plaintiffs personal injury attorneys as overly opportunistic? Also a really good question and first of all you have to on the McDonald’s coffee cup issue you have to really know the facts of that case that case has been so poorly mistreated and portrayed by the media that poor woman had second and third degree burns in a very private area of her body that required skin grafting and McDonald’s had 800 prior complaints of their coffee being too hot almost boiling and hurting people so that’s the McDonald’s coffee cup case in general though you know and this is something that young personal injury attorneys are going to have to deal with and I’ve dealt with you know a distant family member at a holiday or a classmate saying oh you know I don’t believe in the personal injury system or I think there should be caps on damages or tort reform. The defendants in these cases more often than not are multi-billion dollar companies or multi-billion dollar insurance companies who are indemnifying and paying. Oftentimes you just have to look at the facts if you tell them the facts of the case and show them the facts of the case and how bad the conduct was how bad the medical care was that can sometimes open their eyes explain to them that you’ve had a case or you saw a case in the office and it’s you know it’s public record it’s in file documents where a truck driver was watching TV on his phone driving a 45,000 pound truck in a construction zone and killed three people a little girl and her mom and her grandmother explain that to them explain to them that if you look at the data states that have enacted tort reform or caps on damages the insurance premiums that the physicians and drivers in the state and trucking companies in the state and contractors in the state all end up paying go up at the same rate that they do in any other state that hasn’t enacted tort reform. This idea that we need to cap damages or that we need to take jury verdicts away is driven by the insurance companies and if you look at the actual data all that they do is they get damages capped in certain states where there’s tort reform and then they’re paying out less over time. They’re not reducing the premiums of the policy holders and giving them their money back and saying hey we’re not paying out these damage awards anymore we can refund some of your money or we’re not going to increase your premium. The premiums increase at the exact same rate that they do in states without tort reform and that’s been proven time and time again with the data. So that’s what I would respond to them. When I graduate law school and I start trying cases for myself how would I deal with opposing counsel who’s being really difficult? You’re going to encounter that. Thankfully it is few and far between. The best way I think is to use the court to use the judge. A lot of times and I’ve noticed this really since COVID you can’t get anything from the defendants these days particularly an obstructionist defense attorney without a court order. You have to just keep going back into the court and using the judge and the judge’s orders and their authority to get what you need. If you have an obstructionist opponent you’re not going to get things produced that you’re entitled to. You’re not going to get documents voluntarily. Everything’s going to be a fight. Use the court in a positive way. As a young lawyer I was definitely you know I didn’t want to bother the judge. I felt like when I would file a motion to compel or I’d have to go over on a case management and ask for something I felt like I was bothering the court and in retrospect you realize that’s dead wrong. That’s why the judge is there. The judges want to help. They want to push the case forward to resolution and when they see a lawyer that’s being hamstrung by the other side they will intervene. You just have to ask them to so you know don’t be afraid to file your motions to compel. Don’t be afraid to go to court on a monthly or even you know bi-weekly basis to get the documents you need and the evidence you need to prove the case. Don’t just put up with it. As a young attorney or a attorney just coming out of law school trying a case how do you contend with opposing counsel who may have decades of experience? Really really good question and that’s something you are invariably going to encounter. The short answer is you have to know the facts of your case and you have to know the law. They’re going to have more experience than you. They’re going to know the tricks. They’re going to know what buttons to press. You have to know the law and know what you’re entitled to in discovery. Know what your client’s allowed to do and not do. Know what the defendants owe you and what they don’t owe you and you have to have a really really good understanding of the rules of civil procedure and the appellate court case law and the supreme court rules. The defense attorney is going to have more knowledge than you if he or she has 10 or 20 years of experience or rather they’re going to have more experience than you. You have to level the playing field with your knowledge and if you can go into the courtroom and show the defense attorney and also the judge that even though you’re very young you know the law you’re competent and you’re prepared you’re going to put yourself on a much more level playing field. That would be the most important thing. As a young attorney coming out of law school how important is having a mentor? Incredibly important. You have to find somebody who can mentor you whether it’s in your own firm or outside. Illinois trial lawyers association is a great tool for that. Everybody on the board of managers is willing to mentor. Even people outside of their firm if they don’t have a good mentor or you know you have a very small firm or your sole practitioner. Find somebody who you can bounce ideas off of and who you can go to when times get hard. As a young lawyer no matter how smart or how prepared you are you’re going to be encountering things that you’ve never experienced. Literally things as simple as how do I respond to that nasty email from a defense attorney or how do I respond to this motion that’s been filed against my client to compel or for sanctions and you have to find somebody who can guide you. You know they’re not going to do it for you but who can give you some words of wisdom maybe a brief of there’s a template some case law and just tell you the practical you know ways to navigate this profession because it is really hard. As a young lawyer it’s very hard you’re going to have sleepless nights you’re going to have anxiety it is what it is but if you can find somebody to help guide you a little bit through those times it makes it a lot easier. Can you tell me about a case that you’re most proud of? Sure one of them when I was a very young lawyer maybe one or two years out of school I had even worked on this case as a law clerk during law school maybe even in college in my summers this was a case that my dad handled a vast vast majority of and when I became a lawyer I jumped in on it too but it was a young man who at the time was in his teens and he was having blood and protein in his urine which is a red flag you know kids shouldn’t have protein in their urine and his primary care doctor knew about it and he kept going back to her his mom kept bringing him back to her and the primary care doctor just kept saying you’re fine you’re fine you’re fine. It turned out over a two-year period that this young man’s kidneys had essentially wasted away and his disease that he had was entirely preventable. If they had intervened early on they would have saved his kidneys and he would have lived a completely normal life but because they didn’t and they ignored multiple blood tests over years he ended up losing his kidneys and he had to go on the transplant list and get dialysis and he eventually got a transplant but he’s going to need another and he’s going to end up back on dialysis and it completely shattered him and his family and his childhood and his youth and I did the 213 disclosures in that case you know I took some of the depositions in that case and eventually that case settled for 25 million dollars the night before trial which I think was a record then and is still a record now for a kidney case in the state of Illinois and what we were able to do for that young man you know he is now going to be taken care of for the rest of his life no matter how sick he gets how well he does he is going to have the money that he needs to live a nice semi-normal comfortable lifestyle and have the caring needs the medicines he needs the dialysis he needs because dialysis is incredibly expensive millions of dollars in dialysis for the rest of his life and that was a very very rewarding feeling because he was a nice kid who did not deserve what happened to him

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