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February 2011

The Customer Service Model of Emotion for better trial results

This post is somewhat of a departure from my "usual" posts about liens and other important (but dry )material and it is also a huge departure from my normal practice of completely ignoring "friend spam."  What's "friend spam"?  Well, you know how you get those "chain emails" from Friends or Friends of Friends about a "Thought for the Day" or other inspirational material?  That's "friend spam".

At any rate, the 3 minute video below came through my email from a friend and I dared to click on it.  It's a little cheesy, potentially apocryphal, and it ends with an advertisement for what may even be a pseudo-religious employee training service.  And yet, I'm reposting it even though it violates many of my cardinal rules for reposting.  So why?  Why would I re-post this?

First if all, even trial hardened lawyers need to be a little mushy from time to time, right? 

But more importantly, I think this video reminds us about how to effectively try a case and prepare witnesses.  In the story, Johnny the Bagger manges to break through the mundane world of grocery shopping by connecting with his customers on an emotional level with a simple but genuine gesture.

How does this apply to jury trials?  First off, most jurors come into the courtroom with a deep set of unrealistic expectations about trials and often a mindset that is "anti-plaintiff."    After decades of insurance company propaganda, Jurors often start out by thinking they can not trust the plaintiff or their lawyer because they "want something."  The Plaintiff's lawyer has a monumental task of overcoming these perceptions while also juggling a long "to do" list of minimum evidence requirements. 

In the pressure of trial, making sure we cross off our "to do" list, we often forget that we MUST connect on some visceral level with our jurors.  Our clients can not simply clinically spout off a list of symptoms and economic losses.  It is our job to find a subject that breaks through the perceptions and connects the jurors and the plaintiff on an emotional level.

I find that when I prep even the most stoic witness, there is usually one subject or another that can get them emotionally stirred up.  I wish I could say it was always the same subject, but it never seems to be.  Often it is how the Plaintiff perceives the emotional impact of the injury on the family.  But that "a-ha" testimony never seems to come in the abstract.  It only comes in story telling.  It happens when I say, "Look, I hear you when you say this injury has impacted your family, but tell me one story, give me one example of how you figured that out."

Once I hear that story, the story that makes my client get misty eyed, I never ask about it again, until trial.  I don't tell my client I am going to ask about it.  I want my client to be raw for a moment, I want them to be emotional, I even want them to be (emotionally) messy and uncomfortable.

I want them to be real.

The video I watched this morning reminded me that being real is so important in what we do.  How do you "stay real"?  When do you let your guard down?  As lawyers, we have so many roles to fulfill in trial that it is very easy to become mechanistic.  What gets you out of that non-emotional role and shows the jury that this is not just another case for you, but a real person with real injuries?

If you can't answer the question easily, watch this video, see if it makes you feel something, and then take a moment to figure out how you can translate that feeling.

The video link

Chris Nichols 1.800.906.5984

When is a medical provider required to accept Medicaid in an injury case?

Increasingly, lawyers find that even when an injured client has some type of health care coverage, when the client has been injured by the negligence of a third party, it is often difficult to get the health insurer to pay the bills.  Typically, this stems from the Health Insurance contract having language that says the insurer is a "secondary payer" or "payer of last resort".

In the not too distant past, Medicaid was a reliable source for payment of medical bills for clients who were from low incomes homes or disabled (but not eligible for Medicare).

In the last five years, Medicaid has changed rules which emphasize that Medicaid is a secondary payer to third party liability insurance.  While this seems "fair" in the sense that the negligent third party caused the injury, the reality is that Liability Insurance Companies rarely, if ever, "pay as you go" for medical treatment.  To protect their insured (and their bottom line) they refuse to pay for services as they are rendered and choose to pay "at the end" of the case, after treatment is completed.

This makes it hard for clients to get needed medical treatment, makes that treatment more "expensive" for the client, and takes away Medicaid's 1/3 "cap" on recovery from liability settlements.

I frequently get inquiries from lawyers about how to "make Medicaid pay" for medical treatment.  Alternatively, the question is also "How can I force the medical provider to submit the bills to Medicaid?"  Many medical providers do not like being paid by Medicaid because the reimbursement rates are low and the provider must accept Medicaid's payment as payment in full (aside from the $3 co-pay Medicaid allows).

Below I have pasted the relevant sections from Medicaid's manual to medical providers which provide the framework for how to get the bills paid.

You can view the entire Medicaid manual here.

Retroactive Eligibility
Retroactive coverage may be approved for up to three calendar months prior to the month of the application if the applicant meets all eligibility conditions in the retroactive period. Medicaid will pay for covered services received during the retroactive period provided that all other Medicaid guidelines are met. Providers may choose to accept or decline retroactive eligibility. However, the provider's office policy should be consistently enforced. If a provider accepts retroactive eligibility, upon receipt of Medicaid reimbursement, the provider shall refund to the recipient all money paid by the recipient for services covered by Medicaid.
Accepting a Medicaid Recipient
In accordance with 10A NCAC22J.0106, a provider may choose whether to accept a patient as a Medicaid patient.  However, Medicaid providers must be consistent with their policies and procedures when accepting or refusing Medicaid recipients. Providers may not discriminate against a Medicaid recipients based on the recipient's race, religion, national origin, color, or handicap.
Agreeing to provide services to a Medicaid recipient and submission of a claim to the N.C. Medicaid Program for payment constitutes agreement to accept the Medicaid payment (in addition to any authorized copayment or third-party payment) as payment in full.

A provider may refuse to accept a Medicaid recipient and bill the recipient as private pay only if the provider informs the recipient prior to rendering the service, either orally or in writing, that the service will not be billed to Medicaid and that the recipient will be responsible for payment.

But of course, you have to compare those passages to the rules regarding Third Party Laibility situations: 
Third-Party Liability
State and federal regulations for third-party liability (TPL) require responsible third-party insurance carriers to pay for medical services prior to a provider's submitting a claim to Medicaid. Providers are required to seek payment from third-party insurance carriers when they know of their existence. A third-party insurance carrier is an individual or company who is responsible for the payment of medical services. These third parties are Medicare, private health insurance, automobile, or other liability carriers. DMA's third party recovery (TPR) unit is responsible for implementing and enforcing TPL laws. The TPR unit implements and enforces these laws through both cost avoidance and recovery methods. Refer to Section 7, Third-Party Insurance, for additional information.

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