Here’s a scenario: you had hip replacement surgery several years ago. In 2015 the hip began to hurt and cause other problems. You had revision surgery in 2016. While at home one afternoon recovering from the revision surgery, you see seventeen commercials from personal injury law firms asking if you recently had revision surgery following the failure of the [fill in the brand name] artificial hip. If so, lawyers are standing by to assist you with your case.

(At this point, if relevant to your situation please substitute “IVC filter” or “hernia mesh” or “artificial knee” or any number of risky prescription drugs in the scenario above for “artificial hip.”)

So your next thought may be: I should represent myself. This is known as being a pro se litigant. If that is your thought, your next question should be, “what steps should I take to make sure I get a full and fair settlement for my product liability case?” It’s a great question.

The First Thing You Do

In a word: hoard. Collect, gather, organize. Seriously, it is time to start building your case file. You will need to collect everything related to your product liability failure and to your injuries. What is relevant? Well, virtually everything could be relevant to your product failure injury claim, so gather and keep track of and organize everything. When in doubt, identify it and file it away.

Some of the documentation and evidence you will need:

• Medical records. This is rather obvious, but don’t assume just because you obtained the operative notes from your surgeon in the revision surgery that you have all you need. You don’t. You will also want to gather your complete medical history from the surgeon, your primary doctor, your physical therapist, any other medical care providers, even chiropractors and pharmacists. You need to gather your complete medical file. The defense will ask for everything, because one thing they will be searching for is a defense to your claim (e.g., were you rollerblading with your grandchildren the week before your revision surgery, taking a horrific spill?)
• Journal of symptoms/pain. It may sound like overkill, but keeping detailed notes on the onset of pain, the severity of pain, the levels of pain through the day, and other information may well win your case or increase your settlement offer. For example, what if you and your husband were competitive square dancers, and traveled the United States to dance and compete? Then your artificial hip failed, you needed revision surgery, and complications from the revision surgery forced you to retire from square dancing? That scenario sets up a very plausible argument for additional compensation, and it also sets up a loss of consortium claim for your spouse, as he just lost his dance partner.
• Explanted components. I wrote about retrieving the failed medical device from your revision surgery here, so you can read about that process by clicking the link, but it is vitally important that you send a letter to your hospital administrator and to your surgeon prior to the revision surgery so all medical staff are on alert to retain and preserve the explanted components. These components will certainly be needed as evidence as your case advances. And do not let the manufacturer’s sales representative, who may be in the room during your revision surgery, take away the explanted components “for further study.”
• Medical bills. Keep every one of them. From the surgeon, the hospital, receipts from the pharmacist, everything related to your hip surgeries.
• Expense journal. Keep careful track of all expenses: out-of-pocket expenses, co-pays, costs for prescriptions, mileage to and from the university hospital in the next town.
• Tax information. Did you miss two months of work in 2016 following your revision surgery? Did your 2016 W-2 show that you made $6,000.00 less than you made in 2014 and 2015? Make copies of your tax information going back to the time of your original implant surgery, and keep copies for every year through the year of your revision to the present day.
• Health insurance information. Gather all documentation related to any payments or services provided by your health insurance company. Most likely, the health insurer will expect to be reimbursed for payments it made on your behalf relating to a failed medical device or harmful prescription drug. You will eventually have to deal with that health care lien.

Not all of this information will be useful to your case. But in the early stages, you will not know what is useful and what is not (especially if you are working without a lawyer). So if you have any doubt about “relevance,” keep the document or the receipt or the letter. And keep all of the information carefully organized. If you have a receipt, paperclip an explanation (“second prescription for Percocet following my revision surgery”).

A Word of Caution

Let me be clear: I do not recommend representing yourself in a product liability case. There are simply too many things that you can overlook or that can go wrong. The best evidence that you should not represent yourself may be this: the medical device or drug manufacturer really wants you to represent yourself. Unrepresented parties often receive much smaller settlement amounts than do injured people who are represented by competent lawyers. It’s not that product liability lawyers are smarter than other people; it’s simply that a person who does this work day-in-day-out, month-after-month, for years will be more experienced in maneuvering through the dozens of steps it takes to prepare a good product liability case for (1) the best settlement or (2) trial.

But if you take on your product liability case yourself, you should start by building your case file, one document or record at a time. Good luck.

Note: This post is not legal advice. And I don’t have TV commercials.

I get the impulse to “do it yourself.” Prior to attending law school, I sued my landlord in small claims court for the return of my security deposit (I won). I also tried to replace the steering box in my 1974 Ford Bronco (that didn’t turn out so well).

These phone calls from pro se litigants are often interesting. Plainly some people have developed a distrust of lawyers. For others, the thought of paying legal fees for a good attorney seems unpleasant and undesirable, even overwhelming. Some may be trying to litigate their claim “on the cheap.” But the real question is: does it work? Can a person represent himself or herself successfully in a product liability injury case?

more Do You Really Need a Lawyer?

Here’s the quick answer: No. Technically a person does not need a lawyer to bring any civil action. You can always represent yourself (as an individual) in a lawsuit.

The pro se litigant has a long road. If you’ve read my blog at all, you know how complicated it is to identify a viable product liability case, to gather (and pay for) the relevant medical records, to draft the complaint, to make all the proper case filings, to meet all deadlines from the multidistrict litigation’s case management orders, and to position your case for trial or to negotiate for the highest possible settlement. It’s a slog.

Can a pro se litigant handle it? It’s possible. But you should expect to spend hundreds of hours researching the claim, reading court orders, double and triple-checking deadlines and court filings. One misstep and the case can be dismissed. I would say that the life of a pro se litigant is stressful and difficult at best, and the defense lawyers representing the companies will know immediately that they are dealing with a pro se plaintiff and will reduce settlement offers accordingly. It’s just the way of the (defense) world.

It’s impossible to say whether the defendants will make an offer to a pro se plaintiff that is less than net amount an injured person represented by a competent attorney could expect, but in many cases that is exactly what happens. The pro se plaintiff often gets much less in settlement.

So if you choose to represent yourself, be careful, and be ready to do a boatload of research and work on your case.

By the way, here’s another answer: you do not need a bad lawyer. You should always take the time to research the lawyers and the law firms you are considering. I wrote about this subject some time ago, which you can read here. But my answer is that you do not want to hire a bad lawyer.

So the real question then becomes:

Will a Competent Lawyer Improve My Case Result?

I am sure some law professor at some point has done a study of the results obtained by pro se litigants: the wins and the losses and the weak settlements and the strong settlements. I have not done such a study. But I have practiced law for many years, and I am quite certain a good lawyer who is knowledgeable about the subject matter will get good results for his or her client, and often considerably better results than the client would get on her own.

Did I Miss Something?

Beyond that, the lawyer is responsible for all the headaches and all the responsibilities of the litigation, from start to finish. If there is a deadline, the lawyer must know it and must comply with all filings by the deadlines. Your lawyer will let you know if you need to make a litigation decision, and will inform you of the scheduled date for your deposition, and will let you know of upcoming hearings. You will be freed from the stress and anxiety and chaos of litigating your own case. You will not wake up in the middle of the night and ask: did I miss something today? The psychic benefits of hiring a competent lawyer can be substantial. Instead of poring over discovery, you can do things like focus on your surgery rehabilitation, or read a book, or take a nap.

But Lawyers Are Expensive!

Lawyers are not cheap (and if they are they are probably not worth hiring). But lawyers are expensive the way surgeons and hospitals are expensive, the way a comfortable, reliable car can be expensive.

In a product liability injury case, the minefields are everywhere. After all, you are suing huge corporations who make billions of dollars each year, often on the product that harmed you. These corporations have truckloads of money to spend on armies of dark-suited lawyers, all working feverishly to make your case go away.

So at the end of the day, I’d say it is a dangerous game to represent yourself in any litigation, but especially in complex product liability litigation. Hire a good lawyer, and if your case has value your lawyer will find the value.

As always, good luck.

Note: this article is not legal advice.