the new landscape of personal injury law
Lawyers from leading personal injury firms reveal how they are innovating and diversifying to stay competitive in a saturated market
By Lucy Saddleton, Managing Editor, ADB Insights
In a changing world of medical advancements, increasingly sophisticated technology, and the rise of social media as evidence, personal injury law firms must continuously adapt to stay in touch with the needs of clients. Leading firms are evolving their business strategies and diversifying their portfolios to attract new clients and remain successful amid growing competition.
Top players in the North American personal injury space came together at the Legal Innovation Forum’s Personal Injury Law Webinar on April 24 to discuss the drivers and trends that are shaping their businesses, and to share tips for innovative practice management.
Among the key trends in Canada, panelists noted an increase in drunk driving accidents during the pandemic which has now leveled off, although texting and distracted driving continue to be a problem.
DRIVERS & TRENDS
“We've seen a dramatic increase in fatality claims, particularly pedestrian fatalities,” said Warren WhiteKnight, a partner at Bergeron Clifford LLP - an Ontario-based personal injury firm. This rise in claims around fatalities and serious injuries caused by distracted driving, combined with ongoing court delays since the COVID backlog, has resulted in significant challenges for plaintiffs, WhiteKnight noted.
Warren WhiteKnight, Partner, Bergeron Clifford
Smart cars are also causing a rise in automobile accidents.
“Smart cars are heavier and cause more damage than a regular car,” said Sandra Zisckind, managing partner at national firm, Diamond & Diamond. “The amount of damage that a smart car can do when they get into an accident with another car is significantly higher than with a regular car.”
With self-driving cars coming on to the market, and Tesla announcing the upcoming launch of its robotaxi, personal injury cases are likely to surge.
However, one of the benefits of technological innovation for personal injury lawyers will be the availability of data from self-driving vehicles, electric bikes, wearable devices and other robotic products.
“If the property damage isn't evident from visually inspecting vehicles, you'll be able to download that data for basically anything,” said WhiteKnight. “The future is going to be very quickly evolving in terms of having to understand these technologies in our different cases.”
Sandra Zisckind, Managing Partner, Diamond & Diamond
In another interesting trend, insurance companies in the US are taking a particularly aggressive stance with regard to paying out claims, according to Kenny Eliason, CEO at RECORD - a Las Vegas-based legal tech start-up that serves the personal injury space.
"Insurance companies have really tightened the purse. They are holding back money that was easily and readily available before the pandemic," said Eliason. Hospitals are also deferring accepting health insurance payments until personal injury claims have been approved. Eliason added.
Kenny Eliason, CEO, RECORD
In another trend, defense attorneys are increasingly losing cases to in-house attorneys as technology has simplified surveillance, Eliason noted.
“There's so many tools like drones, and social media and other ways to surveil the plaintiffs out there, which makes it really easy for a defendant,” said Eliason. “There's ethical considerations of course, but if there's any question or any doubt, these guys can easily spin up some surveillance on a plaintiff really quickly and cheaply.”
Amid the shifting landscape, new areas are emerging as potential opportunities for personal injury firms. Growing public awareness of sexual assault cases, as well as the public reckoning with long-term case and elder care issues have opened up new areas of interest.
“One good thing is that the no-limitation-period on sexual assault gives us an opportunity to go back and right some of the wrongs, and unfortunately, with sexual assaults, it's one of those things where you open a Pandora's box, and if there's one, there's usually plenty,” said Zisckind.
Panelists agreed that the generational shift has made it more critical than ever to stay in touch with clients and meet them where they want to be met - whether it be through texting, email or in person.
“It's a really cool space in regard to the technological innovation that is happening in real time,” said Eliason. “Bringing on something as simple as text messaging where you might not have had it before can really shift the operational costs of a law firm.” While technology is a valuable tool, some clients prefer to meet face-to-face.
“It's really important to maintain the personal touch and the human connection while leveraging technology,” said WhiteKnight. “When you walk into someone’s home, you get a sense of what the family is like and how close they are, and that really weaves into your narrative.”
PRACTICE MANAGEMENT
Speakers in the second session of the Legal Innovation Forum’s personal injury law webinar revealed how they are gaining a competitive edge through innovative practice management, portfolio diversification, new technology, and innovative marketing approaches.
BC-based firm Hammerco Lawyers has been going through a major transformation in the wake of the ICBC’s introduction of minor injury caps in the province, and changes to the processing of claims.
“This was an immense change that would affect about 60 percent of our practice so we needed to make some changes and build new practice areas,” said Morgyn Chandler, managing partner at Hammerco. The firm, which previously relied heavily on motor vehicle accident claims, went on to expand into other areas of business including sexual assault and civil assault as well as class actions, estate litigation and commercial litigation.
Morgan Chandler, Managing Partner, Hammerco Lawyers
During the pandemic, it was announced that BC would become a full no-fault jurisdiction, leaving many personal injury firms floundering.
“Thankfully, we had already taken these steps to diversify, so we knew we had a runway of about five years of inventory of existing files,” said Chandler. “We were also able to scoop up some practices and acquire some firms that made the decision when they saw no-fault and suffered some downturns in the pandemic to get out of the business.”
Hammerco also chose to bring on a new COO from a non-legal background who would treat it like a business and build efficiencies while the firm rebranded with the help of a brand strategist and digital innovation.
Ontario-based Gluckstein Lawyers has also diversified its files in the past five years, starting with medical malpractice.
“This isn't an area that you can just decide to jump into suddenly without experience,” said Jan Marin, senior associate at Gluckstein. “We needed to partner with experienced counsel in these areas.”
Jan Marin, Senior Associate, Gluckstein
Partnering with senior people from other firms can help bring credibility and expertise, Marin said. It is also beneficial to leverage the talents and interests of the existing internal lawyers, Marin added. Gluckstein also went on to expand into sexual abuse, class actions and mass torts.
As part of the rebranding process, Gluckstein went through a SWOT analysis to determine the strengths, weaknesses, opportunities, and threats impacting the firm and used this information to build a mission statement.
Successful firms are embracing technology, shifting to the cloud and making use of digital platforms and case management software tools such as Filevine.
When funding is a challenge, personal injury lawyers and their clients often turn to BridgePoint Financial - a nationwide boutique firm providing litigation financing solutions that are designed to address specialized funding for clients who are underserved by traditional lenders.
“We often hear from law firms that the banks just don't understand them,” said Missy Yeboah, director of client services and operations at BridgePoint. Over the past five years, BridgePoint has launched a number of solutions to help, including the File Funder program, which is designed to address the growing demands for disbursement financing, and provides a solution that firms can use for individual disbursements such as court filing fees.
Missy Yeboah, Director of Client Services + Operations, BridgePoint Financial
The firm also launched its Expert Access platform, which helps personal injury firms grow their practices while managing the cash flow fluctuations inherent in contingency fee arrangements. The program combines the ability to source the most qualified experts anywhere in Canada with the option to defer payments for reports until settlement with no interest for two years.
Many firms are also taking advantage of the BridgePoint Portal - an online web based application that allows lawyers to easily find specific files, and also offers real-time balances and invoices.
“I am one of the main architects for the BridgePoint Portal and I really wanted to design something that alleviated the work of reconciling data related information, that was straightforward and user friendly, and spoke to a law firm’s needs, and fills that gap,” said Yeboah. The firm frequently makes updates to the platform to address the evolving needs of the market.
The webinar was moderated by Andrew Bowyer, founder of ADB Insights, and Heather Suttie, legal market strategy & management consultant at Suttie.