DRI Comp Conversations: Episode 23

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Welcome back to another episode of comp Conversations, the DRI
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podcast for explore the world of workers' compensation for workplace
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injuries and medical treatment to claims management, litigation strategies, and
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emerging trends shaping the practice. I'm Jennifer White, and I'm
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joined by my co host Shane Dawson, a partner with
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Dinsmore and Shoal in Ohio. Today, we're excited to welcome
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Nick Peterson, my law partner at Peterson White, to discuss
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what associates get wrong and what Nick got wrong. Nick
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is a long time DRI member. He spent more than
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twenty five years defending murkers' compensation claims. Throughout his career,
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he's represented employers, insurance, careers, and courts and administrative courts
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across Tennessee, handled countless workers' compensation cases, and he's tried
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numerous cases to write it. Today, he'll share some lessons
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from both mentoring young lawyers and learning about the practice himself. Nick,
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thanks for joining us, Welcome to Conversations.
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Thank you for having me. It's a pleasure to be here. Nick.
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When Jen said we were going to have this topic
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and have you on here, I was so excited to
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hear all the things that you got wrong as a
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young associate. So this is going to be very revealing today.
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Well that's interesting because when I agreed to do this,
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I was not aware that that was the topic. So
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had I been informed, I might have decided differently.
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But here we are, so speaking of your own performance, Nick,
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if you could give yourself a grade as a first
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year lawyer, what grade would you give yourself?
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Let's just jump right in here so the topic, wouldn't
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it got wrong? I understood that we have an hour
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for this podcast, but it might take three or four
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hours to go through everything that I got wrong as
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a new lawyer. But no, in seriousness, I've had, over
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the years the pleasure of working with many talented lawyers
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and working for many talented lawyers, and along the way
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some not as talented. But you know, I guess good, bad,
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or ugly, there's always something to learn. If so, I
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think if you had asked me this question at the time,
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I would have given myself a solid like a minus.
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I'm killing it as a first year lawyer. But in
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hindsight grading myself today, I probably would get maybe a
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C plus. If I'm lucky to be honest, but that's
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probably pretty common for most new associates. So, and I
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may be too being too kind to myself, but I
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think C plus is probably a fair grade. We'll go
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with that.
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Okay, So with that benefit of hindsight, the nick what
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is it that you see now looking back and over
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time that you see as kind of the most common
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mistake that young associates have made and are still making?
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And give us an example. You can change names to
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protect the innocent or the guilty, but what have you
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seen over the years.
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And the examples that I'll give, I'll try to just
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assume that they're examples that involve me or Jennifer. I'll
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single it out to just No, I'm kidding, it'll be
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just me. So there's kind of two main categories I
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think that mistakes that I most commonly see among young associates.
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The first one is kind of categorized as failing to
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see the big picture of the case, where you see
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that young associates focusing, you know, hyper focusing narrowly on
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their task in front of them, whether it's researching or
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or doing the discovery responses or drafting motions that they're
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not they're doing those and oftentimes doing them very well,
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but they fail to understand how each of those pieces
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fit into the overall defense strategy. And so, you know,
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as an owner's partner, I'm I'm looking for associates who
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think like litigators, not just task completers. So every assignment
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needs to be tied to the endgame, and the associate
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would do, I guess, would would be better served too
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answer the question of whether what they're doing is going
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to better posture the case for settlement leverage or winning
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the dispositive motion or helping it trial the I guess
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an example of that is, you know, leaving out a
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key question in a deposition outline that you don't think
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to ask or include until it's too late. You know,
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you submit your brief at trial and it's like, well,
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it sure would have helped if we had included a
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question of that witness about such and such issue. It's
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too late. But the second mistake, I guess, you know
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mistake and air quotes is time management. Inefficient time management
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that results in over billing or under billing, you know,
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in the insurance defense world. Yeah, and I did my
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best to try to leave billing out of my conversation
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as much as I could, and I just couldn't. I
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couldn't cut it out of meat, you know, completely, because
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it's you know, it's it's our life, right. We live
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our lives in six minute increments. But I see new
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new associates really struggling with balancing thoroughness with efficiency. Spend
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spending too much time on routine research or over polishing
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internal work that doesn't really matter. And the side of
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that is they sometimes they cut their own time unnecessarily
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because they lack confidence. And so, you know, I guess
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just to sum that up, you know, clients and defense
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litigation are cost sensitive. The efficiency is as important, if
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not more important, than accuracy, and so the associates, if
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you can't manage your time, you know, you're you're hurting
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profitability and you're hurting the client relationship. So I guess
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giving an example of that would be, you know, don't
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cut your time, don't self cut your time, let your
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partners do it, and keep your time daily. Put it
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in there daily. That's really the key to it.
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What's something associates spend too much time worrying about.
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Yeah, So, thinking back as a young associate, I think
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associates spend too much time trying to impress and not
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enough time trying to be useful. And the matter is
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what actually gets you ahead. And you know, it doesn't
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matter if you're being useful to your partner, or being
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useful to a senior associate, or being useful to your
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paralegal or your client. It's it's all that that mind shift,
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as opposed to just showing up and trying to impress
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everybody with what you know and how much you know.
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And I think that's that's kind of the shift that
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associates should probably spend more time, not necessarily worrying about,
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but paying more attention to.
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So conversely, what's something they don't spend enough time worrying about?
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And you and I kind of joke about this sometimes, Jennifer,
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But you know, I you've probably heard me say I
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want them worried about everything, because you know, if they're
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not worried about everything, then they must not care. But
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that's not really true. And I don't want them really worrying.
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I don't think that's healthy. But you know, I think
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if they could, they could afford to spend more time
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thinking about the business side of what we do, especially
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the efficiency costs and client expectations. That kind of goes
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back to the first question, the big picture and insurance defense.
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You know, our clients are focused on budgets and outcomes,
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not so much outcomes as much as budgets and cost containment.
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But as a result, it's not always about like being right,
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it's about being right economically in the context of that case.
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So the associates that spend an exorbitant amount of time
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researching when only thirty minutes or an hours really justified,
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that's an example of not good lawyering in this practice.
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It's a mismatch. And so I think appreciating how their
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work fits into the overall strategy of the case is
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they would be well served to focus on that or
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worry about that more. And the associates who progress are
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the ones that start thinking like problem solvers for the client,
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not like just task completers for the partner.
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Okay, so Nick, you and I I know we've both
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been doing this long enough that and so there's been
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a lot of change in this field, and now we
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hear about you know, it's all AI is all the
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talk in the rage. But so with all of these changes,
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it feels there's got to be some of these things
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that have been constant, right, and so what things, what
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mistakes anyway or landmines? Are associates still making what are
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they still stepping in that they've been stepping in since
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you and I were first shiny new associates many moons ago.
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So this is a hard question, and I think probably
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my answer if viewed in the context of the insurance
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defense world, this is probably most appropriate. In that context.
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I think lawyers overall, I think this is maybe a
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different answer. But in our world, especially in workers' comp defense,
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is the mistake of confusing activity with value. So, like
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associate associates and just lawyers in general, thinking that if
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they're working hard, researching more, writing, more billing more hours,
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making more phone calls, answering more emails, that that must
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mean they're doing a good job. You know, they're keeping
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the clients happy. But in reality, our clients, while they
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don't pay for effort in the long run, they pay
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for effort in the short run if it's on the bill,
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but in the long run they're looking for judgment. And
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I think confusing activity with value is a good example
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of not focusing on exercising good judgment in the context
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to the case. So you know that our clients want
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somebody to say, here's the issue, here's what matters, and
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here's the most efficient way to handle it. And you know,
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the flip side of that is you burying yourself or
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lawyer bearing themselves in the in the busy work in
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the weeds and sometimes feel safer than making a call about,
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you know, something judgment related to the case. So I
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think that's one thing I've noticed that every generation sort
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of struggles with and has persisted is confusing and being
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busy with being relevant or value adding for the client.
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Let me follow up on that. Do you think that
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all clients, though, do they even recognize always that that's
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what they're looking for? Is that that judgment? Because sometimes
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what it seems like outwardly they're saying they want is
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that activity. When I when I think you're right, in
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the long run, what they really are looking for is
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that value they it just seems like sometimes they don't
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even know it or recognize it. Do you see what
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I mean?
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I do? I see exactly what you mean. And I
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think our clients may sort of struggle with the same
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things that we struggle with because you know, they're being
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bombarded on a daily basis with information and reports and
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task reminders and diary reminders on their end, and you know,
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they have time to do what's in front of them
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and maybe only dedicate a minute or two to each
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of those things. And they need to, you know, they
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need to move on. They've got to you know, stick
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and move, as they say. And so they're very familiar
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with what it's like to be in the thick of
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it and focusing on the busy activity as opposed to
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the judgment and value. But I think when it comes
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down to those times when you have the opportunity to
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do a file review with your client and you're sitting
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across from a manager or a VP of claims and
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they're hearing, you know, you're a list of cases and
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it's not just a list of activities that you've done
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in each case. So well, we've finished discovery and we've
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taken some depositions. And if they're seeing that you're moving
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the case meaningfully forward to resolution and sometimes that has
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to be trial unfortunately, but some you know, oftentimes it's not.
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And if they get a sense that they're paying for
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and your exercising judgment, I think that's where it matters,
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you know, So in the day to day I think
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you're right. I think the clients probably don't know and
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don't appreciate the fact that you may be doing your
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best to be providing good judgment when in fact it's just,
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you know, it's swatting flies as fast as we can
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so we don't commit mal practice. And our clients know
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that we pay attention to them and that we you know,
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think about them, and you know they're important to us.
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So yeah, I don't know if that answered your question
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or not, but that's kind of how I feel.
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I get it.
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Let's talk about my favorite part of the podcast, the
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early years for Nick Peterson. What did you get wrong
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as a young lawyer?
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My early years? Because we're growing way back. I don't
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know what happened to the twenty five years that it's
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been since I was licensed stated flown by, but I
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think probably the big thing I got wrong, and not
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just as a young lawyer. I think this persisted into
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you know, maybe my junior mid level associate years was
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not understanding my client's role as a customer. So you know,
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I understood my client's role as a client in the
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context of how law schoo teaches you to treat your clients.
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You know, know the law, explain the law, provide options,
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know how to write and argue, and be sure to
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be ethical with your client. But there's really no I
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never learned in school, at least how to treat my
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clients as a customer, and you know, in the sense
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that they're a customer. Is I think more in most sense,
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is more important than all the things that you learn
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in law school, because that's what makes them return to
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you and come back and give you more work, which
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is that's the name of the game, right We're looking
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to keep our clients long term and keep them happy,
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and you do that by treating them like good customers.
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So I didn't. I didn't get that right, I think early,
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and I didn't understand it.
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What's a mistake you made that still makes you cringe
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a little?
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Well, you know the story, Jennifer, and I'm going to
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spare all the podcast listeners from the details, mainly because
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they're extremely embarrassing. But one mistake that I made was
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I guess kind of summed up as trying to be
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someone I wasn't. In In our insurance defense world, client
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development is key, especially in work comp and I had
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a once upon a time, a nameless I had a
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nameless mentor who had a let's call it a unique
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way of developing clients and marketing to clients. And so,
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you know, as a young lawyer working for this individual,
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I assumed that when I, you know, I saw this
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unique method work for this individual, I thought it would
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work for me. So I tried it one day on
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a on a client and it backfired big time. It
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just it just came across completely insincere, and I feel
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like I made the client uncomfortable and I was embarrassed,
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and I just if that's not cringe worthy, I don't
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know what is. But without giving details, I think that's
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how I would explain it to be yourself.
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Okay, hopefully I can get the details about that at
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the annual meeting in October.
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It's really not as interesting as it may have sounded,
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but you know it was, you know, just just play
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to your strengths, I think, is what I'm trying to say. Like,
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if you know that wasn't my strength, this particular a
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unique method of client development, all.
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Right, Well, maybe this won't be feedback from that particular mentor,
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but was there ever a piece of feedback that you
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got from a partner or a mentor that you didn't
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like getting it at the time, but now as you
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look back on it, it was actually very stage advice.
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Yes, there were many of many. I had many examples
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of this that I could think of, but one that
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kind of stands out to me. I at one time
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I had a partner call me complacent, and it was
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sort of I don't think he really had any agenda,
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and it wasn't in the context of like a formal review.
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We were just we were sitting around sort of an
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informal setting and called me complacent. And I was definitely
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not happy about that, and I was also equally convinced
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that he was wrong. I was not being complacent. This
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is just the biggest misunderstanding, and it bothered me. It
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still bothers me today, frankly, but not in the same
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way because what I didn't realize at the time is
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that it didn't matter whether or not I was actually complacent.
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What really mattered is that I created this impression in
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his mind that I was complacent, which is all that mattered.
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And so you know, once knowing that and having figured
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that out out you know, it was all about doing
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the things to show your partners that you're paying attention
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to what matters. And you know, I was busily doing
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my work, but I wasn't doing a good job of
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keeping him apprized of what I was doing. So that
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resulted in the appearance of complacency. And so they say,
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and Jennifer has heard this before too. You know, perception
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is reality. So that's where I failed.
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Okay, So similarly, what's a lesson that maybe somebody didn't
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didn't tell you, but you ended up having to learn
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the hard way on your own.
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As I learned this very early as a young associate.
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That Rule sixty was made for young associates, and I'm
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referring to Rule sixty of I think this is pretty
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universal and most jurisdictions, but Federal Rule sixty is mirrored
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in most state rules where mistakes and excusable neglect can
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be forgiven in orders from the court, but you have
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to own your mistakes and your excusable neglect. And mine
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involved a settlement order that I had accidentally left out.
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There were there were actually back in back in those days,
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we could settle two different dates of injury and one
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set of settlement documents, and I had neglected to include
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one of the two injury dates as part of the
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global settlement, so there was still potentially a claim hanging
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out there. So I had to file a real sixty
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motion and uh and explain why my mistake was excusable.
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So that was definitely a lesson learned the hard way.
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Read your read your client's assignment instructions carefully.
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Was your mission granted?
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It was? Granted? It was? It was Judge Rosenbaum in
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Knox Can Circuit Court for anybody listening in East Tennessee
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might know who that is. But yeah, I went down
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there and I filed my affidavit and went into court
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and threw myself at the mercy of Judge Rosenbaum and
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he laughed and I think, you know, he was probably
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in his seventies at the time, but he told me
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a story about how he remembered having done something similar
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when he was younger too, so it made me feel better.
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Are there mistakes that you see that are unique to
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the workers compensation practice?
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So you know, internally as a practitioner of a law firm, yes,
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I think probably the most common mistakes that I see
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that are unique to work comp are math related, so,
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and the's a function of how statutory the calculation of
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benefits are at workers comp cases. So, you know, we
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spent three years in law school, most of us, some
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of us four, But I didn't take a single class
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in law schoo me how to calculate a wage statement
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or how to commute compute a weekly compensation rate or
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annuities or things like that. So you know, those are
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on the job training that you're going to have to
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gear up for. Unless you're just good at math, naturally,
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you're going to have to go back to your you know,
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elementary and middle school math and brush up and pay
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attention because that can affect the outcome of your case
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drastically and your recommendations. If you're off on your math
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and you have to go back to your client explain
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why your exposure analysis was, you know, fifty percent too low.
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That's that's that's a problem. That's embarrassing and it doesn't
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instill confidence in your client. So pay attention to your math.
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This is my recommendation there.
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Nick, you've touched on us a couple of times in
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different ways, but what do you think young lawyers misunderstand
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about working with adjusters and clients in the world comp field.
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I think the thing they probably misunderstand the most is
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that our adjusters and clients have more than three minutes
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to read our emails or letters and make a decision
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and enter that into their claim notes and update their reserves,
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you know, and enter a diary. I think if we
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better understood the time pressures that our clients are under
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and the fact that they don't have thirty minutes to
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sit and read a nine page evaluation with you know,
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a dissertation of the origins of workers comp law and
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when it was enacted in your state and how it's
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changed over the last one hundred and fifty years. You know,
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I'm exaggerating, but my point is, are we misunderstand I
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think young lawyers in particular, misunderstand the pressures that our
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clients are under to be to be fast and efficient.
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Have you observed any specific qualities over the years that
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stand out that you think kind of separates what you've
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seen make a good workers comp attorney from a great one.
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Yeah, I think it's I'm using the trifecta kind of
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comes to mind, but it's really just two things. If
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you can combine the two things I think you'll really
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succeed as an associated and work Number one is being
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an effective written communicator, and if writing effectively is oftentimes
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much shorter than more verbose and using direct as opposed
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to passive voice. And then someone who can communicate effectively,
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clearly and provide sound judgment, I think is the first
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of the two things. So the second thing is showing
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up and being a good oral litigator on your in court,
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on your feet, thinking on your feet, being able to
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pick up a file, present it to the court in
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the form of emotion hearing or even you know, something
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more involved like a like a trial. I think someone
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who can handle both of those things in the work
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comp world will go far. And you know the third ultimately,
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this will come in time, and we don't expect most
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young lawyers to do. This is to be good at
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developing new business and going out and impressing clients and
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getting you know, new books of business. So that's the
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name of the game right there for me.
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All right, we're going to ask you some rapid fire questions,
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so your answer needs to be quick and short and sweet.
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So I'll start out and we'll go back and forth.
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Best trait in an associate intelligence or reliability?
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Reliability and why is that so? Oftentimes we are in
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a situation where an adjuster needs a quick answer or
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has a quick question, and so we need associates who
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are ready, willing and able to jump on that and
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get us an answer, get us a status. Be reachable.
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We use that term a lot. We do a lot
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of work from home in our firm, and so that's
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fine and it's great, people love it, but you need
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to be reachable, and that kind of goes back to reliability.
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I have yet to run into any associate, even young associate,
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who lacks the necessary intelligence to do this work. So
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they passed law school that I think that's probably I'm
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just assuming they're already intelligent enough to.
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Do this, okay, Which is preferable? Confidence or curiosity?
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I think confidence in this case scifically for the reasons
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kind of we've talked about before. Being able to present
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a case to a judge with confidence and convince the
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tryer of fact that you know you're right in the
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other side should lose. That's I think more important than
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curiosity and kind of goes hand in hand with I
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think clients appreciate confidence to a point. As long as
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it's backed up, you know, you can be confident and
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it can be insincere, which might work in the short term,
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but they'll figure it out eventually. So you're this confidence,
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I think it needs to be legitimate, you know, founded confidence.
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Best career advice you've ever received.
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My first boss ever told The first thing he ever
427
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told me was don't be afraid of making a mistake,
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because you're going to make a mistake. Just don't make
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the same mistake twice.
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So, all right, one thing every associate should stop doing tomorrow.
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So this is where I try to avoid this topic,
432
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but I'm going to go into it a little bit. Stop.
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I think associates need to stop waiting until tomorrow or
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the end of the week or the end of the
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month to put their time in if they need to
436
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put And this goes for everybody, partners, whoever I'm talking to.
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If you're billing by the hour, put your time entries
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in immediately, accurately and completely. This will ensure that you're
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capturing your time ethically and that you're able to gauge
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your efficiency. So for young lawyers, if you're doing this
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every day and you know you'll notice patterns. And if
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you're if your pattern that you notice is that you're
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averaging two hours a day, something's off and you will
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know immediately and you'll be alerted to it sooner, and
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you'll have the ability to seek assistance to fix it,
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because at the end of the month, if you haven't
447
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put your time in, you're gonna have zero and you're
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gonna be you know, you're you will be more susceptible
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to inflating an entry that shouldn't have been inflated because
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you've forgotten the other you know, eighteen point ones or
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point twos that you did that would account for that discrepancy.
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So that's I think that's what they should stop doing.
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What's one thing every associate should start doing tomorrow?
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I think it would help if they start thinking ahead.
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Lots of associations you kind of talked about this before,
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where you know, they do exactly what they're asked to do,
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and most of them do it very well, but then
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they stop there. And so I think the next level
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that they should start doing is anticipating what comes next.
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So if like you're drafting a motion, think about what's
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the what's the opposition going to say in response? To
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my motion. If you're reviewing discovery, think about how does
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that how do your your report to the client, how
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does it play in down the road at a deposition
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or in support of your motion for some rejudgment. I
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think as a partners, you know, on a refirm clients too,
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we really a value associates who are not just completing tasks,
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but they're starting to see the case like a like
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in a strategic way. So that doesn't necessarily mean you're
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always right, but you're always thinking ahead, you know, trying
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to be more useful and showing that you're developing that
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judgment thing that we've talked about.
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All right, Nick, we're getting down to the end here,
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so if you can go back, you've got time in
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the wayback machine to go back and give young first
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year Nick Peterson one piece of advice before you are
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whisked away into the future. Again, What is that one
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piece of advice you're going to give this young bright
479
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eyed Nick Peterson.
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Yeah, I would say it's not too late to switch
481
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to transactional law. I'm kidding, I'm kidding. No. I would
482
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say I think focusing on building good professional relationships with
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everybody that you come into contact with did not. I
484
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mean we're talking about in the office. So your paralegals,
485
00:31:18.160 --> 00:31:23.359
your your co workers, your your senior partners to the courthouse.
486
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You know, clerks, bailiffs, your clients, opposing attorneys, court reporters, everybody.
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You know. The relationships that you build and form in
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in your daily dealings are going to last your entire career.
489
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And you know, I rattled off a lot of you know,
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types of people, but it sounds like a lot, but
491
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in reality, at least in Tennessee, it's pretty small pool.
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The folks that we deal with, you know, we deal
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00:31:49.319 --> 00:31:52.960
with on a sort of revolving, rotating basis. You're you're
494
00:31:53.000 --> 00:31:56.319
going to have another case in the future with that
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00:31:56.359 --> 00:31:59.880
opposing attorney who was difficult to work with, and you know,
496
00:32:00.079 --> 00:32:04.079
don't don't make it worse. Now you're going to have
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00:32:04.920 --> 00:32:06.960
You're going to make a mistake and that the maybe
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00:32:07.000 --> 00:32:08.920
the clerk can help fix it if they know you
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00:32:08.960 --> 00:32:12.799
and like you. You're going to miss a deadline. Unfortunately,
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00:32:13.440 --> 00:32:18.960
probably unless you're perfect, that the court might forgive if
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00:32:19.000 --> 00:32:22.880
they know and respect you, and you're definitely going to
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00:32:22.920 --> 00:32:26.440
lose a case that won't impact your client's decision to
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00:32:26.480 --> 00:32:28.279
send you more work in the future if they know
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00:32:28.359 --> 00:32:33.440
and trust you. So, you know, I think relationships is
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where it's at in this business. And that's probably just
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00:32:36.240 --> 00:32:39.480
general good advice for life, but that's what I would
507
00:32:39.519 --> 00:32:44.359
I would encourage my baby self to focus more on,
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00:32:45.319 --> 00:32:48.759
you know, building good professional relationships with everybody I come
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00:32:48.799 --> 00:32:50.920
into contact with in this industry.
510
00:32:54.240 --> 00:32:58.079
Nick, thank you for sharing your time with us and
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some of your lessons.
512
00:32:59.440 --> 00:33:03.880
We appreciate it. Absolutely, it was a pleasure. Yeah, thank you.
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Both appreciate it.