Handling a High Volume of Mass Tort Cases
Susan Barfield (00:05):
Thank you for joining another Case Works stream. We are here today, I’ve got a very special guest on today, special because it’s my brother. And we are going to talk all things mass tort related. And some of the things that we’re going to talk about is going to be where firms struggle. Bill, what are your top recommendations? How to mitigate fallout, how to manage high volume and how to keep clients engaged. But real quickly, I’m going to let you introduce yourself and give a little bit about your background. But just to set the stage, Case Works exists, really, because back in 2015 you approached me to help you on some medical review.
Bill Barfield (00:54):
Susan Barfield (00:56):
And so you said you just need a little bit of help. Well, that little bit of help turned into-
Bill Barfield (01:01):
A lot a bit of help.
Susan Barfield (01:05):
A lot of help. So anyway, that turned into Case Works having a really large team and at the onset, we were devoted to your firm and helping you succeed. But then we just saw that there was a lot of need in the industry to have this outsourced solution. And we’ll talk about these things and really working with you is really what helped to develop some of Case Works’ best practices. So anyway, for those of you that are watching, this is my brother, Bill Barfield.
Susan Barfield (01:37):
Oftentimes Bill, you’ve heard me say this, I get on a call and people will say, “Are you related to Bill Barfield?” And I’ll say, “Yes.” And they’re like, “Man, I just really, I really love your brother.” And I’ll say, “Well, if you love him, you’re going to really love me.” I had an attorney that said, “Well, why is that?” And I said, “Well, I’m better looking, I’m funnier and I’m smarter.” And they said, “Well, gosh.” I said, “Okay, nevermind, I’ll give it to Bill, he is funnier than me.” But anyway, I’ll let you go through a little bit of your background and just set the tone of some of the discussions that we’re going to have today.
Bill Barfield (02:14):
Sure. And thanks again, Susan, for having me on and I’ll curtail my background to, as it relates to mass torts and how I got into the industry and working where I am today. And so that took me all the way back to when I was coming out of law school. I worked at a law firm here in Houston, and we were working on nursing home cases and we decided to do these nursing home cases nationwide, that became somewhat of a mass tort. And then from that firm, I moved to the Lanier Law Firm where we were handling thousands of mesothelioma cases, which that was another mass tort.
Bill Barfield (03:00):
And then shortly after that, we went from working on meso cases. And certainly the Lanier firm has been many years working on product liability cases, whether it’s medical device, pharmaceutical cases, but those are all types of cases that fall under the umbrella of a mass tort. And in the evolution of my practice, I now find myself managing a firm. And that’s what we do primarily. Certainly we handle one off personal injury cases, which are great. Those are great for firms to have, and we have other different divisions. We have a class action division, but the majority of our practice centers around a mass tort arena. And yeah, so that’s my quick background.
Susan Barfield (03:47):
Yeah. And I think, thanks for sharing that, and I think some of the things we’re going to talk about today is just really what you’ve learned working on both single event cases and how that is very different than a mass tort and handling high volume. I know that when we’ve worked with, let’s say personal injury attorneys that are used to really maybe handling a docket of maybe let’s say a hundred cases is really a lot to them. And then they get into a large investment in marketing and acquiring thousands of cases. It’s just, it’s a whole different ballgame on how you manage those cases. And more importantly, how do you keep those clients engaged? But I think one of the first things I’d like to start off is talking about where you’ve seen firms struggle, just struggle in mass tort or potentially having friends that are in personal injury and try to transition over to mass tort, what are the areas that you see them struggle in?
Bill Barfield (04:43):
Okay. Easy, easy question to answer. It all revolves around the lack of technology and when I mean technology, here’s what I mean by that, technology when it comes to the use of client communication, case development, in case resolution, let me back up. Most personal injury firms, most commercial litigation firms, they’re great at handling a select few cases. They work them up and they settle for a great amount. That’s awesome. But the dynamics change in the mass tort context. Here’s the reason why, because you’re no longer working with a hand select few cases, you’re now working with thousands of clients. And the difference between a handful of cases and a thousand are simply just the dynamics of communication as it relates to the client, to opposing council, to outside stakeholders, whether it’s experts or whoever it might be. There’s just so much more in terms of the communication that is putting a burden on the law firm itself. And so you have to have the technology in order to fully gain the, what’s needed to properly handle these communications.
Susan Barfield (06:07):
Yeah. The technology really drives the efficiency and the operational decisions and also helping keep clients informed and engaged. And I know you do this at your firm and I know who the employee is, that is what we would call the client management software, they’re the expert or the ambassador champion. I mean, it’s a full-time job to understand all the nuances about the management software system and to be able to leverage, because I think what happens and I’ve seen firms, they’ll say, “Well, what system do you work off of because I don’t really like mine?” It’s not that they don’t like theirs it’s that they don’t know how to use it to the highest and best use so that it’s helping to drive all the things that you just talked about.
Bill Barfield (06:52):
That’s right. And here’s what I have seen, that law firms are great at trying to understand and implement a marketing budget and then executing on that marketing budget and then seeing the cases come into the firm and that’s all great. But once the cases or the new clients come to the firm, even before that really, you have to manage those clients, manage those expectations and that’s all in the area of communication. And so as lawyers, we were always taught on how to bring clients to the firm, but really the reality is we were never taught on, what do we do when we have a large segment of clients? How do we handle that? How do we manage that? And what are we really required to do ethically and just professionally for our clients. And that’s where somebody, an IT liaison, somebody who can help manage those communications, the whole IT infrastructure when it comes to client communication, vendor communication, communication with all the stakeholders, somebody there that can help drive that process is so key to the firm on many aspects.
Susan Barfield (08:11):
Yeah. And I know we’re going to talk about client engagement, spending the dollars and then not keeping your clients engaged is certainly not going to yield a good ROI. And so it’s, I think for you, it’s very different because your firm is not just a mass tort firm, you’ve built an empire of a lot of referral networks. And so the clients are not the only people that are holding you accountable. Those attorneys are wanting to know what are the communication, and you have to be able to keep them informed and engaged on what’s happening to the cases that they referred over.
Susan Barfield (08:45):
But talking a little bit about client communication, because as we all know, we can work the case up. That’s awesome. It is a fully compensable case. And, but at the time of settlement, if you can’t get those plaintiffs on the phone, it’s a big issue. It’s a big issue for the amount of money that you’ve spent to work it up. If there’s a funder involved, it’s a big issue for them. And so I know we’ve employed a lot of interesting techniques to help to keep clients engaged. What do you do at your firm as far as client engagement and communication?
Bill Barfield (09:18):
Okay. So the number one rule that we employ at our firm is, you can’t start trying to contact the client at the time of settlement, that doesn’t work, it will never work. And ultimately that would lead to a very bad outcome. And so backing up, what do we do as a firm? We start engaging with our client from the very beginning. Okay. And then throughout the process, the discovery process, which is you file the case, you go through discovery. That includes plaintiff fact sheets, whatever it might be, we are trying to maintain a consistent relationship with those clients. And how do we do that? We utilize the technology of a case management system, all of the other parts that surround that case management system, we find out what is the client like, how do they like to be communicated with, do they like emails, text messages, what is it that they like?
Bill Barfield (10:12):
Whatever it is, we try to dictate how we communicate, or we dictate our message around what they’re used to because ultimately the goal is this, whenever, whether it’s discovery or whether it’s settlement, we need to be able to get in touch with that client, why? Because the client ultimately makes the decisions when it comes to settlement. And so we need them to be engaged and we need to be fully informing those clients early on in the process. So settlement is much easier and it’s a shorter span versus having a protracted span because you just simply can’t get in touch with a client.
Susan Barfield (10:54):
Yeah. And I think one thing that you guys have done really well, and we stole the idea, was sending out videos. I mean, just putting video in the subject line of an email versus seeing like an 85% open rate and we need people to open up the email and sometimes it’s some lengthy directions that we need clients to do. But if you record a two minute video, they’re going to watch that, but they’re not going to read all of the content. So we saw that was very effective. And so we are doing that as well.
Bill Barfield (11:22):
Yep. And so that’s effective not only for clients, Susan, but it’s also very effective for referral council, for just simply just general marketing in whether it’s LinkedIn or whoever it might be. The reality is that people like to watch and learn by watching, not simply by reading some text. Okay. And that’s, I take that, that’s personally my… I prefer that more than anything else. I certainly can read what’s on the screen, but just listening and hearing it from somebody just reemphasizes the message and that certainly helps.
Susan Barfield (11:58):
Yeah, for sure. And we’ve gone into some firms that asked us to come in and help complete an audit on 10,000 cases, 10,000 plus cases where they’ve sat on those cases. Like you said, don’t wait till settlement. Well, one either they’re not going to answer or they’ve already gone and signed up with someone else. They’re going to have a dual rep issue. And so just starting from the point at which there’s a signed retainer, having nurturing campaigns, keeping them informed is just going to mitigate the fallout and mitigate the dual rep issues.
Bill Barfield (12:30):
And that goes back Susan, to the struggle with most firms that are coming into this mass tort arena, which it’s a great atmosphere and I love the colleagues and the professional relationships I’ve developed. But new lawyers coming in, they do not appreciate the need for protocols that need to be in place so that this technology can be… Or the decisions about communication engagement with clients. There can be protocols in place so that the technology through the use of the protocols with the technology that their goals can be met. And what are those goals? To consistently routinely communicate with these clients. And what’s the ultimate objective? To lower the dual rep, where you have other lawyers that also represent the same client, which is common in the mass tort industry, but the overarching goal is create a communication piece and engagement with your client and all of those problems will be reduced.
Susan Barfield (13:41):
Yeah. And I think it can sound daunting to attorneys that haven’t handled, let’s just say a thousand cases. They might say, “I mean, a thousand cases, how am I going to be sending out recording videos and how do I… All the text messaging.” I mean, if you have a robust management software system, you do that on a mass level. So you create one video, you send it out to everybody or, and it can be specific to, let’s say you need a driver’s license on a hundred cases because the facility rejected to the electronic, whatever the case may be. You can mass email, text and communicate with the client. So it’s not as daunting as it may seem to those that haven’t handled high volume.
Bill Barfield (14:22):
Yes. That’s a perfect example. Because again, we, as lawyers, we’re trained on how to handle cases and typically coming out of law school, we’re handling a select few cases, but now you’re put in an arena where you’re handling thousands of cases at one time. And the reality is if you don’t have the technology and you don’t have the protocols in place, and the people who have done this before, then your system is going to be burdensome to you. So it’s a combination of three things. It really is technology, the correct people and the correct protocols. You put those two together and you’re going to have very successful outcomes or great outcomes.
Susan Barfield (15:07):
Yeah. For sure. You hit on something earlier, which I think this is not talked about enough in the industry, is it really starts with having a strict criteria and getting quality leads through the top of the funnel. We’ve worked with firms, their philosophy is just, go out and get as many cases and let’s just see what happens. And then we have firms that’ll be like, the criteria is really strict, stringent, I know they’re paying more money for those leads. But when you compare the throughput of those cases and the success, the client engagement, all of that, traditionally we have seen higher stats on getting cases to being fully compensable with engaged clients, those firms that really leverage a stricter criteria. And we can talk about what your firm does as it relates to the criteria. But what’s your thought on that?
Bill Barfield (15:57):
Yeah. So my thought is simply this. Here’s the reality. This industry has evolved over the last 10 or 15 years. So if we were to take this same industry 10 years ago, 15 years ago, that really was the model was to simply take in everything that you can, and then figure out along with the defendants, what is a compensable case? And with the court’s help, we would figure this all out together. Okay. Now, how has the industry changed today? Well, the one thing that’s changed is the fact that there’s so many more plaintiffs, the technology that we have and the marketing that we have has allowed us to go out and-
Susan Barfield (16:40):
There’s so many new channels to connect with people.
Bill Barfield (16:42):
That’s correct. And so, because of that, there’s so many more clients. And with that as a foundation piece, you need a strict criteria, so that you’re only pulling in the clients that ultimately will be compensable because it does cost so much money to work up these cases.
Susan Barfield (17:03):
Yeah. And I think back to when we first started working together and just, I mean, I was just astounded by the volume of no records founds that were coming back. I mean, it was just, it blew my mind. We were blowing money. It was just a lot and so we started trying to analyze like, why do we have so many, no record founds? And I remember the analysis indicated really some simple things that we, there were things that we could change and things that were a little more challenging, but things such as well, we have to always remember that clients are poor historians first off. And so they gave us wrong dates. Well, we were trying to order with a real strict date range versus just widen that date range, because they’re going to be off several years.
Susan Barfield (17:51):
There was the wrong facility, they would tell us at Walmart is where they got their prescription in reality, it was Walgreens. And so that’s time and money that we’re wasting. And then it was going after or chasing cases where the incident level or the incident date, or when we were trying to obtain records was past the seven year retention rate that we’re seeing, the national retention rate. And so I remember providing you with this analysis of how quickly it fell off the ability to obtain records from facilities after at 7, 8, 19, 11, 12 years.
Susan Barfield (18:28):
And so I think that was really eye opening. And I try to share that with attorneys that we start working with because whoever they’re working with, the marketing team, they’re trying to say, “Oh just, we can go back 20 years.” Well, sure. You can get clients that have incident dates or had issues 20 years ago, but I’m not going to be able to get the records for you to prove the case up. So what’s your thought on and how has that changed over the years when we talk about strict criteria, one being just those dates that we’re trying to obtain records.
Bill Barfield (19:01):
Sure. And once again, like you just said, Susan, this has evolved over the last five to 10 years. Now, more and more you’re seeing law firms that focus on inverting the funnel or turning that funnel over and using that strict criteria. And I go back to the point, why would you do that? Well, simply because it does cost so much money to work up these cases and it reduces the risk that the law firm has in this certain docket that they’re investing their time, energy and their money in. And so you put all that together. You had to have the strict criteria. Now at some point in the future, if that criteria is able to, you’re able to expand it, that’s great. But at least in the beginning, start out with something strict so that you can manage your budget, manage the marketing budget, manage the actual overhead that you’re having to utilize just to simply work up the case.
Susan Barfield (20:00):
Bill Barfield (20:03):
The reality is this, without that team and without the technology, what I have seen as a struggle with law firms, is that they feel like, well, the same staff that was handling these personal injury cases, they can handle these mass tot cases. And that’s true for the most part with a caveat, they can’t simply do the mass tort cases without the technology. And they certainly can’t do the mass tort cases and the workload that they were doing with the personal injury cases. There’s just a lot going on with mass tort cases in general. So back to your point on technology, you’ve got to have the technology, you have to have the outsourcing, whether it’s personnel or just simply the management of the cases. And then you just need to be driven in terms of getting the best select criteria that you need for these cases.
Susan Barfield (20:51):
Yeah, for sure. And I guess the only other thing I’d probably add to that is if you are trying to manage thousands of cases, you’re going to need a really good telephony platform, because just the simple dialing clients, trying to reach them for whatever the myriad of missing information, whatever new form has been released, that you need to obtain information. I mean, you just can’t manage it efficiently. The same systems that you use prior to-
Bill Barfield (21:23):
That’s right. Yes, telephone systems have to be topnotch and they have to be able to communicate with your computer system. And without that, you cannot have a fragmented system in this industry because it will certainly reveal itself in time when you don’t want it to reveal itself at the time of settlement, or just simply at the time of needing to communicate with these clients. Proper telephone system, and you need to have the people in place that can utilize the robust telephone system that you have. You need to have a team that’s dedicated to inbound and outbound marketing. I say marketing, it’s just communication with those clients. And if that telephone system is able to communicate with your case management system, then that lessen the burden on your staff and it creates an efficiency that is hard to reproduce.
Bill Barfield (22:23):
Yes 100%. And then over and above the telephone system, you need to, on an umbrella level or the overarching level, you need to be thinking about security for your law firm. Security when it comes to the data that you’re housing for your clients, and you have thousands of clients and you’re housing, their medical information, personal information, all of this has to be secure and it has to be properly backed up. We have a system that’s backed up several times a day and it’s secured on multiple levels. So what we’re seeing is that we now are becoming lawyers that are dedicated to organizing data and making sure this same data is properly secured and properly utilized or else that creates a tremendous amount of liability for us as the law firm and all the stakeholders that are involved in this case itself.
Susan Barfield (23:22):
Yeah. Well, that’s a whole nother stream just on itself, on what’s required from a security perspective.
Bill Barfield (23:34):
Oh, 100%. We spend several hours a week talking about how is our system secure? How can we make it more secure? And what are those steps that we need to take? Because that’s on the forefront of our mind, because the reality is all it takes is one issue of some sort of data breach and at any level. And so that creates so much downtime for our firm and can costs us so much money. That’s irrespective of just the violations that we have in terms of our client information.
Susan Barfield (24:09):
Yeah, for sure. Well, this has been great. I appreciate you taking time and sharing this information. I think that, like we talked about before, this is going to be the start to mini series and for people to just get bite size information on things that we’ve learned over the years. Obviously you’ve been doing this a lot longer than me, but things that you’ve learned and been able to leverage, to be able to handle the volume of cases that you’re able to handle successfully.
Bill Barfield (24:39):
Listen, I appreciate you having me on Susan. I would say, what is the takeaway from this? It deals with a couple of concepts, but I think we’ve said it, technology is certainly what drives the success of the firm and having the technology with the processes in place and having the people, whether it’s in your firm or with a firm like yours, Case Works, whoever it might be. The people protocols and the technology, if they’re working together, you will ultimately have some great successful outcomes.
Susan Barfield (25:14):
Yeah, for sure. For sure. Okay. Awesome. Thank you.
Bill Barfield (25:18):
All right. Thank you.