Taylor Poncz is a Georgia-based workers’ compensation defense attorney and advisor who pursues positive client outcomes by building relationships in her field. By building trust with her clients she is able to deliver both the easy and the hard facts about cases in client opinion letters, and where the facts are not on her client's side, she leverages long-term relationships with opposing counsel to resolve matters that meet the needs of both parties. Given Taylor's reputation for relationship building, her practice now includes serving as a private mediator for colleagues and opposing counsel alike.
Taylor, tell us about what it's like to build a workers' compensation practice, and how you deal with the adversarial nature of this area of law?
I'm a partner at Drew Eckl Farnham and am based out of their Atlanta office. Of the 100 or so attorneys in the mid-size firm, around half of us practice workers' compensation. Forthe last 15 years my practice has exclusively focused on workers' compensation, representing employers, insurers, and self insurers, in claims related to on the job accidents.
I was always interested in medicine, but did not think medical school was for me, so I quickly decided on law school instead. I went straight through from undergraduate, so I was practicing by age 24. As a summer associate at an insurance defense firm, I worked on workers' comp matters. What I liked about workers' comp is that it involves examining and dealing with medical issues without having to go through the drudgery of medical school. As a workers' comp lawyer, I read medical records everyday, take doctors' depositions, and analyze injuries and medical treatment. I like the medical nature of the practice area.
I learned early on that the practice of law is more adversarial than I ever thought it would be, and probably more than is necessary. There is a fair amount of unproductive conflict in relationships with opposing counsel. I realized that it caused me a lot of stress and was very draining to me. I knew that if I didn't manage the adversarial nature of my practice in a more meaningful way, I would not be a lawyer for very long. I can be a bull when I need to be, but I don't take on that role unless it's absolutely necessary.
I decided to use my interpersonal skills to build relationships with opposing counsel. I'm in this field for the long run, and I expect similar professionalism from opposing counsel. I lead with personality and authenticity with my clients as well as other attorneys.
The workers' comp bar is fairly small and at this point in my career, it's rare that I don't know the opposing counsel on a new case. And if I don't know the attorney, someone at my firm definitely knows them. In those situations, the first thing I do is send an email to my colleagues and say, “Hey, what's the reputation of this person?” I like that the bar is small enough that my reputation precedes me and that we know one another. By building relationships and focusing on the long term both with clients and opposing counsel, I can improve my daily life as a lawyer.
What role does legal writing play in workers' compensation cases, and how have you developed your skills in this area?
Communicating through our writing is so important, but it's tough to learn how to write like a lawyer. I remember a CLE speaker talking about having interviewed judges for their perspectives on legal writing and the feedback was that they wanted to see briefs written less formally than I would have thought. When writing client letters, and even sometimes briefs, I try to cut back on legal jargon and approach it more creatively when I can. That may not work for everyone, but it has for me.
Mentorship is essential to developing one's skill as a legal writer. I was fortunate to be mentored by the partner I worked with as a new lawyer, Mike Bagley, who is an excellent creative writer.
The introductions in his legal briefs always included a real world example, an awesome metaphor, or an overarching case theory. The intro was always creatively written and enjoyable to read.
Mike carried over this creativity into oral advocacy. I got to watch him give a closing statement for a huge federal case. He began with an anecdote about his daughter, and though she obviously had nothing to do with the case, the story was personal and we could all relate to it. Being able to connect with people that way is critical to being a successful litigator.
Speaking of mentorship, what advice do you have for attorneys who may be supervising a legal intern or first year associate?
Just as I received great mentorship when starting out, I really value the process of mentoring new associates on how to write like a lawyer, but more importantly, how to effectively communicate with clients and colleagues. I currently work with a second year associate who is very involved in my cases. As part of that mentorship, I make sure he gets practical experience on all parts of a case. He's involved with depositions, mediation, discovery, investigations, and also drafts letters and helps to analyze medical records. I think it is very important to include him on conference calls and copy him on emails to the client.
I also work closely with a paralegal who helps keep my cases running, draft discovery, and perform follow-up for medical records. Medical discovery is very time consuming: it involves faxing, waiting a month, and then making three follow-up phone calls simply to discover the entity says they never received the request. It's a lot of follow-up and follow-through on our part. Once we receive the medical records, there's additional follow-up to ensure we received the full file, and then the paralegal must scan and organize the files. These records are often voluminous, so technology like Clearbrief that can help find and highlight key pieces of evidence in my briefs, demand letters, and client memos is certainly appealing.
Ed. note: Click here for a tutorial on how to build an interactive medical record index using Clearbrief in Word to keep the legal team organized throughout the life of the case, from demand letter to deposition and trial prep.My practice is paperless and I am compulsive about keeping a neat, organized file. I also rely heavily on medical summaries so it is important that they are thorough and accurate.
Can you share an example of a time your relationships helped save the day in the face of bad facts?
Yes, one story is definitely coming to mind! In Georgia, employers are required to post a list of workers' comp doctors, known as a panel of physicians, at each job site. In practice, this allows the employer to select the doctors and maintain some element of control over which doctors may treat on the job injuries. But if the employer does not follow the strict requirements related to posting the panel of physicians, then the injured worker gets to pick whatever doctor they please.
The difference in the outcome of a worker's case is potentially huge: selecting one's own doctor - rather than from the employer's list - can mean the difference of thousands of dollars, surgery options, and timeline for getting back to work.
I have represented employers who have not complied with the panel of physicians requirements, meaning that the injured worker got to pick a doctor outside of the panel. Where I have a poor relationship with opposing counsel, I know that the other attorney is probably going to pick a doctor likely to give an opinion that will drive up the claim value.
On the other hand, if I have a good relationship with that opposing attorney, I'm going to pick up the phone and say, “look, we might have some issues with the panel, and here's what I propose: let's pick someone more middle of the road, and here's what I'm going to do for you.” Relying on that relationship, I can usually negotiate with counsel in a mutually beneficial way since my client is likely more willing to trust the opinion of a reasonable doctor. But if opposing counsel wants to pursue a “Hired Gun” approach, my clients are going to ignore an unreliable doctor opinion—and rightly so.
I might further explain that both sides will waste money getting competing physician opinions. It's in both of our interests to agree to a reliable source and reasonably move the case forward. In a way both sides are conceding something: the worker gives up the opportunity to get a doctor opinion with a potentially inflated claim value, and my client usually won't try to challenge the physician's opinion. Nine times out of ten opposing counsel agrees.
I think this approach moves the medical treatment forward and is the best thing financially for the case. I leverage my good relationship with opposing counsel to take a bad fact on my side—an error on the panel of physicians—and mitigate its impact on my client. Interpersonal skills can translate to a lot of savings for our clients.
What advice do you give to employers about managing the panel of physicians to avoid a situation where an error might void their chosen panel?
The panel of physicians can be regularly reviewed and updated by employers. In fact, this service is a piece of non-litigation consulting that has become a part of my practice. It's a best practice to regularly review the panel to make sure that it's not outdated or contains an error.
A panel of physicians often comes prepackaged with the employer's insurance policy, but the employer is entitled to select their own doctors. I make recommendations to my clients all the time on who to put on their panel.
For example, one of my largest clients has manufacturing plants across the country and I represent them in the state of Georgia. A few workers' comp cases arose from the same plant in Southern Georgia where there are not many choices in doctors. I noticed that the same doctor was not getting the injured worker back to work and was not reviewing the surveillance I sent them. As a result, I advised the client to consider revising their panel of physicians and removing that particular doctor.
I also have some proactive clients who reach out to me and say that they are doing a refresh on all of their panels of physicians and ask me for good options for particular geographic areas. It's great to see a client acting on my recommendation to make sure the panel is up to date!
What kinds of documents do you regularly prepare and what kind of evidence do you use to support your writing?
The majority of my writing is drafting opinion letters for clients. For each case I must produce a settlement evaluation. I start by reviewing the demand letter from opposing counsel and the deposition summary reports. I review the medical records we receive and the results of discovery. From there I’m able to advise the client about the risks, benefits, and cost for various possible outcomes. I do the settlement evaluation regardless of whether the settlement is viable because I have to value the case for my clients for reserves purposes (so they can put money aside in a fund in case they have to pay out). The client wants to know the current trajectory of the case, the anticipated value of the case, or if a surgery or other medical procedure will be involved, the type of value of that procedure.
My daily correspondence tends to be brief emails with opposing counsel and providing case status updates to clients based on documents or discovery that we might have received. Those case status updates tend to be shorter form opinion letters.
As a defense side workers' comp attorney, we don't end up litigating too many cases each year, but our practice is incredibly fast paced, so you have to manage many cases and many personalities at once. I attribute my ability to do this well to the fact that I focus on building relationships and avoiding an adversarial interaction when possible.
How do you approach delivering hard truths to a client in an opinion letter?
Every attorney has a different style. I can understand the instinct to preserve the client relationship by telling the client that they're right or what they did was fine. But oftentimes that lack of candor will ultimately be costly. The client has hired me to provide legal advice, not to validate their every decision, but I endeavor to share tough truths in a way that builds trust and solves problems. I'll tell a client directly that something is not right, that we have exposure on these points, and here is how we can overcome that. There may be a case where an adjuster messed up, and I will acknowledge that and then do everything I can to help mitigate that for the client.
When I write a long opinion letter, I strategize about how I present it to the client. In that situation, I typically attach the long letter to a really short and sweet email that sums it up. I know my adjusters have tremendous case loads so if the litigation strategy includes an 8 page opinion letter, that's better sent as an attachment to an email with the high level takeaways. That way the adjuster can read the email, get familiar with the bottom line, and then approach the longer letter when they have more time.
I always make the effort to make my client look good, and I am quick to copy a manager on an email when an adjuster did a great job. I am also quick to tell someone I appreciate you, thank you so much, or you're great to work with. Praise is part of my style.
My appreciation for relationship building is a theme that weaves into all parts of my practice: it comes through in how I write, in how I frame issues to opposing counsel, in how I approach business development and collaboration with colleagues. Strong relationships support candid conversations with clients so that we can both enjoy our time together, and we're not just talking about facts and regurgitating case law.
What role, if any, does mediation play in your practice?
In recent years I've added private mediations into my practice, so my role is not as the defense attorney, but as the neutral mediator for other parties. Mediation is not mandatory for our workers' comp system, but it's an effective way to resolve claims.
For that reason, many of our cases proceed to mediation. I love the process of mediation because it requires that the mediator understands the value of relationships. It's a great argument for more civility in the profession—civility has the potential to grow your career and create better outcomes for your client.
