Small Firm, Big Mountain: Ski Injury Law in Colorado

Kyle McEntee:

We're joined today by Evan Banker, a partner at a small personal injury firm in Colorado. With a specialty in when winter activities go wrong, you've been able to blend your love for mountain sports with the practice of law. And so you moved to Colorado for law school, and you really found your place, both in the intellectual sense, but also in your personal life. You found a profession focused on critical thinking, reading, writing, arguing, and you got a ski. When did you first hear of ski law and think, hey, I could get into that?

Evan Banker:

Frankly, I didn't even know it was a practice area. I came out of law school at a time where employment was really tough to come by. And I was searching for a job for probably five, six months after law school, and that's three or four of those is after I had passed the bar, and it was real tough.

I was interviewing just about anywhere around town, some jobs I was hoping I wouldn't get because I knew I'd have to take them just to pay the rent. One day, I got a call from a friend of mine who had applied at the firm I'm at now and was offered an interview, and in the interim, he had gotten his dream job at the AG's office. He suggested that they call me, and they did. They asked I submit a resume. The next day, I met with the partners, and the day after that, they made me an offer. So a lot of it is just luck.

Kyle McEntee:

All right. So talk to me about ski law. How does it differ from standard personal injury? What kind of conflicts are at the center of your cases?

Evan Banker:

So most of my cases involve two skiers or snowboarders that collide on the mountain. A lot of it is, and I don't want to say standard personal injury because really, no two cases are the same, but also, they're not that different. They do follow some sort of a pattern. When you're looking at your typical personal injury case, the elements are all there. Duty, breach, damages, causation. The damages, regardless of the duty and the breach, you're going to look at similarly. You're proving up damages to a jury. It's really the duty and the breach that are different in a skier case than in your typical automobile collision case or slip and fall type case.

Kyle McEntee:

We don't typically get into legal elements here, but I kind of feel like this is going to be important. Can you talk just very briefly about what you mean by duty?

Evan Banker:

Sure. So for any skier, this is going to be common knowledge, but when you're skiing, there are rights of way. There are just practices that every skier knows in terms of how to move around the mountain and how to watch out for each other. So, the biggest one is uphill skier yields to skiers below. So if you're going down the mountain and you've got someone in front of you, you want to pass them. It's your obligation as the uphill skier to pass them safely, give them a wide berth. They might fall. They might make a wide turn. It's your responsibility to watch out for those sorts of things. So that's one duty. Skiers merging onto another run have a duty to yield to skiers in progress. That would be one where it sort of flips and it's actually the downhill skier that needs to look uphill and yield to skiers that are in progress. If you're stopped on the mountain, skiers coming down the mountain, they're permitted to expect you're going to stay there and look uphill before you start. So just the sort of ordinary respect on the mountain that riders and skiers give each other in Colorado, those are codified. So there's the Skier Safety Act, which actually codifies these duties of care. And so when we're looking at a skier collision case, we're looking at what happened and who was responsible for yielding to whom. And sometimes it's a blend.

Kyle McEntee:

So it's, speaking of blends, it's kind of a blend of a category of accident types with no unique body of law other than general tort. But then there are these certain elements that are codified in Colorado.

Evan Banker:

Correct. For the skier collision cases. And I wouldn't say there's no unique body of law because when we start looking at actions against ski area operators, the mountains that are actually run by corporate entities, they've got specific duties of care. And there is a body of law specifically in Colorado around the waiver that everyone signs when they get their season pass or their lift ticket.

Kyle McEntee:

So would you say that's pretty similar to other areas in personal injury, other categories of accidents where there is this body of law that develops over time that informs the lawyer and ultimately whether you can take a case and win a case?

Evan Banker:

Yeah, absolutely. I think in every area of personal injury, and this is going to vary from state to state, there is a development of case law that is going to direct the arc of the case. And whether that's a dog bite case and you're looking at, well, is there a local ordinance, the local leash law?

And so it varies from jurisdiction to jurisdiction, even within a state. So you're going to look at those local ordinances, the state law, and then as you're presenting your damages from state to state, there are, case law varies in terms of what damages can be presented. So how does a case arrive at your desk?

So lamentably, personal injury law has become as much a marketing endeavor as the practice of law. So you look around, and I think probably in most states now, everywhere you go, you see billboards and lawyers on TV and radio and buses. And really anywhere there's advertising space, there's a lawyer on it.

And so you've got to compete, unfortunately, with the noise. And part of that, I think, is just being the best lawyer that you can be, getting to know people and developing a word of mouth reputation, or you can choose to jump into that marketing world. It's very expensive and I think feels a little bit, I don't want to say icky, but not what you get into law to do.

Kyle McEntee:

And so are most of your clients buying you then through your marketing efforts, or are they coming through word of mouth? What's kind of the breakdown?

Evan Banker:

In terms of percentage, I think it's hard to say. We definitely market because you have to. People need to know you're there to find you. We are running a business. This is something that I think they don't teach in law school, especially with small firms, especially personal injury, where most of your clients probably have never hired a lawyer before and probably never will again. They need to find you. So we do get a fair amount that come. They search for us on the web. We have a large presence when it comes to ski law because there aren't many firms that have really established themselves in that niche.

I would say that our bigger, more interesting cases, more significant damages, those come through word of mouth. Because generally when someone has a really bad injury or a really unique circumstance, they tend to ask lawyers in their own personal network, who do I go to for this? And so once someone's asking their lawyer network, how do I find someone, we tend to be there.

Kyle McEntee:

Are you plaintiff only? We are plaintiff only, yes. One interesting thing that you mentioned is that a lot of your clients will hopefully never need your services again afterwards. And that's a real challenge, I think, for personal injury lawyers. And part of the reason why you see so much marketing and it requires so much marketing, how does that impact the initial conversations you have with potential clients?

Evan Banker:

So I would say that in almost two-thirds of my initial conversations, people are really hesitant about working with a lawyer. It's one of the first things that comes up is, I would never sue anyone. I'm not that kind of person. And I think that we've all been living in a society where there's this negative connotation to suing someone. And it's almost a dirty word. And so my first conversations are usually talking people through the idea of, it's not a bad thing to exercise your rights. It's not a bad thing to seek compensation when you've been wronged. And also, these are insurance claims. You're not bankrupting the kid that ran into you on the mountain. You're asking that person's homeowner's insurance or their parent's homeowner's insurance to pay for your medical bills, to pay for your lost wages. That's what insurance is for. So that conversation is usually one of my first.

Kyle McEntee:

So walk me through a typical skier collision case. Let's say this person, they're hesitant, but they call you after six weeks because their bills are mounting. And they're realizing, I can't afford this. My insurance isn't what I thought it was. What happens next?

Evan Banker:

So yeah, typically someone's going to call me a few weeks after the collision when the bills are coming and they thought, well, I wasn't going to do anything about this. But it really wasn't my fault. I shouldn't be paying these bills. And they look online or they talk to someone and they find us. And we have that conversation and they decide, yeah, we'd like some help with these claims. The next thing I do is I send a nice letter to the person who would be the at-fault skier and just let them know, we're representing this person. It's going to be a claim with your homeowner's insurance. We're not trying to sue anyone. We just want to make a claim. We let them know it's usually a zero-deductible claim. Insurance companies don't put deductibles on these because they want the opportunity to have notice of them so that they can investigate them and defend them well. And so in order to encourage reporting, they're zero-deductible claims. So we let them know, this is a zero-deductible claim. Just have your insurance call me and we'll just handle it as a claim. So that's typically the first step.

Kyle McEntee:

And then you have the conversation with the insurer or at this point you need to gather the facts.

Evan Banker:

So these things kind of happen on their own timelines and their convergent timelines, right? So we don't wait for one thing to do the other because we know, but we might get the incident report from the ski area. There's often an incident report, but not always.

Maybe there's witness reports. Maybe, and I always appreciate when someone who's injured has the wherewithal to collect a phone number or something from someone who said, hey, I saw this all happen. So we'll do our investigation at the same time we're trying to get the putative defendant's homeowner's carrier on notice. When the homeowner's carrier will call me, then we can give them that information to help them make a liability determination. Or we're not going to wait to do the investigation to get the homeowner's carrier on notice because sometimes that nice letter that I send to them asking them for their carrier goes straight into the trash. And then I'll follow up with a call if I've got a phone number or an email. And sometimes they'll say, oh, sorry, I'll go ahead and take care of that. Sometimes they'll just hang up on me and we can't let people ignore us. They've got insurance. We're going to put their insurance on notice. So the easy way, of course, is just call your carrier and let them know that this happened. The hard way is we just file a lawsuit and we get subpoena power. We get discovery. And part of discovery is they have to disclose their insurance. So we're going to get it one way or another. I always prefer to do things amicably if we can.

Kyle McEntee:

So what happens if like the accident happens on the mountain and the person just takes off? How do you figure out who the defendant should be?

Evan Banker:

So hit and runs are a real problem. The law requires you to stay on the scene if you're involved in a collision and exchange information. The only reason you're permitted to leave would be to go get ski patrol. And then you have to give your information later. Not everyone does that. So sometimes you're just out of luck, unfortunately. Sometimes we're able to track someone down. There are increasing numbers of cameras around the mountains. Some ski areas have cameras in the lift loading and unloading areas. Some have cameras around the base area. And if we've got a little bit of information about who the person is, for instance, we had a case not long ago where the person gave a first name and then left. And we had the incident on videotape. There's a lot of GoPros around the mountain. So our client's partner was skiing with a GoPro up behind her, caught the whole thing on video, got a first name. And the mountain happened to not be too busy there at the time. So we were able to issue a subpoena to the mountain for all pass scan data for anyone who rode this particular lift within this particular window with that first name. And there was only one. And he said, oh yeah, that was me.

Kyle McEntee:

When you say mountain, you mean the resort, right? Correct. Do they have to comply or are they willing to comply? How does that work with your conversations with them?

Evan Banker:

So when we're just starting a case, we have relationships with most of the large mountains here with their corporate counsel. And they'll give us some information, the basic information that's required to be exchanged, usually. Some mountains will give us nothing. Some mountains will say, well, if the client requests it directly, we'll give it to them. So different operators just have different practices. They all will respond to a subpoena. So if we don't know who the at-fault skier is, or we've got just enough information but we need more, what you do is you file a lawsuit against the John Doe. Or if you've got their first name, you can file a lawsuit against the partially known person. And then because you don't have the ability to serve them, you'd file a motion for early discovery for the purpose of just issuing that subpoena to the ski area. So the court will grant leave to issue the subpoena. Then with the court's order for the subpoena, you issue the subpoena to the ski area operator and they comply.

Kyle McEntee:

So I think one of the unstated assumptions so far is that with this client we're discussing this hypothetical, you've determined that there's a viable claim because you're representing them. You're willing to get into that attorney-client relationship with them. How do you go about proving fault then in those cases where you think there is enough?

Evan Banker:

That really depends on the case and what sort of evidence we've got and what sort of evidence we have to uncover. So in some, you've got a witness. Great. Then you're looking at, well, is that witness the person's spouse, partner, brother, sister, best friend? Is there some motivation for them to see this through a friendly lens or not? Or is it just a stranger who was riding the chairlift over where the incident happened and then went to patrol and said, hey, I saw that crash and filled out a report. Some of those hold more weight than others, but they're all really helpful. Sometimes the defendant or the at-fault skier, they might not become a defendant, just says, hey, I'm so sorry. This was all my fault. Skiers as a community really are good people. And a lot of times people just say, I'm so sorry. I didn't even see you coming. And they just take responsibility and they call their insurance company. They say, yeah, I ran right into them. I'm sorry. And the insurance company says, great, let's talk about what the damages are and what it's worth. Some are a lot more highly contested where both people are saying, I ran into, or you ran into me. No, I ran into you.

And you've got to untangle that. And maybe there's not a witness, but you can start getting into the forensics of it. And a lot of people now are skiing with tracking apps, something like Strava or SkiTracks, something that is actually got their GPS radio running on their phone.

If it's our client, we can just have them export that file for us. If it's the defendant, we would get it in Discovery, have them export the file. You can overlay their entire ski day on a Google map and see where they were at any given moment, where their speed and direction and time was throughout the mountain and elevation.

So you can just lay them out next to each other and see who was coming and who hit whom. Sometimes you don't have that. Often you don't have that or video. And then you're looking at the forensics of the equipment and the injury. Bones break, ligaments tear in response to particular directional forces. So we might work with a bio-mechanist who can say, well, I'm looking at this MRI and you can see how these bone fragments have a directionality to them. And in order to create this fracture pattern, the impact must have come from this direction. Same thing you can do with ski equipment. You picture just taking a stick and a knife and running the knife down the stick.

Kyle McEntee:

I really don't want to picture that.

Evan Banker:

Well, you can picture how the bark would peel back. We're talking about skis now, not bodies. So you can picture how the bark would peel back off the stick if you just ran a knife down it. It's got a directionality. With one ski moving relative to another, it might shave some plastic off the top of the ski.

Kyle McEntee:

Not some skin. Not some skin.

Evan Banker:

Or mar the boots or bindings in a particular directional way. And so we can use those sort of things to prove who was coming from where.

Kyle McEntee:

I guess you're not squeamish though, because this was about skis, but there's also a lot of body parts in the wrong place you're dealing with.

Evan Banker:

It is injury law. And I wouldn't be doing my job representing my client who lived through that injury if I didn't really get to know it as well.

Kyle McEntee:

Is that something that you found interesting as a kid? Like dismembered people?

Evan Banker:

Yeah. Well, maybe not dismembered people, but medicine for sure. I had always sort of seen myself on a pre-med track. And I really took that into college probably into my sophomore year before I realized that medicine wasn't going to be for me. I had worked on an ambulance course, so I sort of saw that side of emergency medicine. Also, I tried organic chemistry. So that derailed that. And after a little bit of searching around through economics and finance and that sort of thing, I think I realized that I was always meant for law.

Kyle McEntee:

Well, what's interesting is, say I was always meant for law. You mentioned that personal injury lawyers are often demonized. And you grew up with that perception too. The person who sues or files the suit is the bad guy.

Evan Banker:

McDonald's, hot coffee, absolutely.

Kyle McEntee:

Oh, I hate that case. That is the worst example, right? That people always give a bad litigation. But when you look at the facts, yeah, McDonald's was so in the wrong on that.

Evan Banker:

For sure. And I've stopped ever trying to disabuse anyone of the notion that that's whatever they think it is. People have their feelings on that case, and I'm not going to change them.

Kyle McEntee:

Yeah. All right, so back to you're now the bad guy. I don't think so. You don't think so now. But how do you wrestle with that stereotype? And does that affect how you go about your business?

Evan Banker:

So no, I don't think that now. And I guess I could start with just sort of how I came to it in the first place. Like I said, when I was searching for employment and I went to career services at my school, and I said, hey, I got this offer from the small personal injury law firm.

I've also got these other interviews coming up at these big firms, but I got to let them know what do you think I ought to do? And they in no uncertain terms said, do not work at a small personal injury law firm. You'll never be able to do anything else in law.

And I obviously took the job anyway, and I think it's the best decision I ever made. But I think it just shows this pervasive bias against plaintiffs, personal injury lawyers in particular, but small firm practice too. I think career services says if you're not grabbing that brass ring, you're not doing it right. And I look at my friends who did grab that brass ring, and I look at my life next to theirs, and I would never trade. So I'm really happy, and I think there's a place for making a life, running a small business, and helping people one at a time. When I first came to the firm, of course, I lived and grew up with this perception of the ambulance chaser. And I had to understand what it is we do, and are we the good guys, or are we sort of the scourge of the legal practice? And as I grew in the practice, and I met our clients, and I was charged with intake, that was empowering. Because I get probably 100 calls for every one case that I take.

And yeah, people call with problems that if I took them, and that was the face of a personal injury lawyer, I would deserve the ridicule. Because I have the freedom to run the business, and to run my own practice, and each lawyer gets to run their own practice sort of the way they choose. If a client is telling me a story where I think, wow, someone really did something they shouldn't have done here, and you were really badly hurt for it, I'd like to help you get recompense. That's something that I really like doing. And also, when this client will call me, oftentimes they'll say, hey, I've been talking to their insurance company, and they're telling me it's my fault. So to be able to level that playing field, it's still David versus Goliath. But once you get into a courtroom, it's less that.

Kyle McEntee:

Well, what's interesting is the business model of personal injury reflects that little guy attitude. Because you're not getting paid unless you win. Because that's the only way to give the opportunity for a lot of people who otherwise couldn't afford a lawyer, to actually get that lawyer to represent them.

Evan Banker:

Exactly. It's an access to justice issue. Ski area operators, big box chain stores, in auto cases, state farm, all state farmers insurance representing someone who's at fault in a auto collision. They've got all the money in the world. They've got all the lawyers in the world. It's not a problem for them.

When just an individual is making a claim against someone like that, they probably don't have the resources to go out and hire a lawyer on an hourly basis. So there really needs to be an alignment of interests where I see your case as something that I believe in, and I want to pour my time and energy and passion into. And also, like you said, we don't get paid unless they get paid.

So I need to see it as a viable claim. And you hear about sort of in the popular culture, frivolous lawsuits is sort of the bane of the legal profession. There aren't very many of them because lawyers don't want to take cases they're going to lose. We don't like working a case, putting in the time, the effort, the resources, and getting a zero. That's not a good way to run a business. It's no fun.

Kyle McEntee:

So you handle about 40 ski cases a year, which is like two-thirds of your practice. Is the rest of your docket filled with personal injury contingency fee cases, or are you filling up the rest of your time with hourly work or fixed fee work so you can have some predictable revenue for your firm?

Evan Banker:

Boy, when you put it like that, it seems like maybe we should. But no, it's all contingency work, and it's all personal injury with the exception of a little bit of pro bono work. So, for instance, I've got a pro bono immigration case that I'm working on, an asylum case, which sort of in the current political climate, I felt compelled to do. Sometimes I'll help out sort of people in my orbit who might have problems collecting. I've got one right now. Someone's having a problem collecting payment from their ex from a separation case.

But the business side of it really is all contingency fee personal injury. So the balance of them will sort of fall into auto cases, which are all pretty standard, and they're much more well-investigated than ski cases. Insurance companies handle them more regularly, and so they just process more regularly through that ordinary claims handling process than do ski cases. And then occasionally some medical malpractice cases. Those cases I love because it kind of brings back in my initial interest in medicine. They are really complicated cases. You are charging that a professional who has gone through 10 years of higher education, a residency, a fellowship, maybe a board certification, did something that a reasonably careful doctor wouldn't have done, and they become personal. When it comes to doctors, being a good doctor is part of their identity. So admitting to a mistake or acknowledging the potential that they had done something wrong, it's a taller hill for them to climb. And they can be really emotional cases on both sides. So some medical malpractice, but not a ton because it is so resource intensive and so emotionally intensive, frankly.

Kyle McEntee:

So on the resource side, I want to talk a little bit about your small business. So it's just three partners, one associate and one lawyer of counsel. What's your experience been like working with such a small team? Is it fine because of the cases you're taking, and that's why you're not taking as many med mal cases?

Evan Banker:

Absolutely. It works because we work as a team really well together. We've been doing this so long with each other. We all know each other so well and trust each other that if one of my partners says, hey, this is a case worth taking, I know that it is. And if it's borderline, we'll sit around and we'll talk about it. As advocates, the first person we convince is ourselves. So it's really important to have that sort of gut check where I might have been talking to someone and heard something really awful happen to them. They were badly wronged by a professional they trusted. And maybe the liability is really clear, but the damages aren't.

Kyle McEntee:

And what's implied there is that winning does require damages, right? You could have a dollar damages, right? And that feels like a win. But for you, you get 33 or 40 cents out of that. You can't justify your time.

Evan Banker:

Exactly. We're not after Pyrrhic victories. Sometimes my senior partner will say, what are the elements of a negligence case? And of course, the law school answers, duty, breach, causation, and damages. And he'll say, damages, damages, damages, and damages. You've got to have something to go after. And the way I explain it to clients is the law almost takes a no harm, no foul approach to these sort of things. You can only recover the damages that are causally related to the negligence. So, if someone's negligent, but it doesn't harm you, there's not a case there.

Kyle McEntee:

I think the other phrase we hear in law school a lot is making someone whole. That doesn't mean making them more than whole.

Evan Banker:

Right. And that becomes client counseling down the line in a case that is a viable case where someone might be saying, you know, I need this much. I won't settle for less than this much. This is what I want. And their case maybe isn't worth that much. Maybe it's worth two-thirds of that, realistically.

And you're looking at what is the reasonable range a jury might award in this sort of case. And so, what's a risk-adjusted value of that?

Kyle McEntee:

So, working at a small firm, especially with people who have a lot of experience, these are senior partners, maybe nearing retirement. Is the question of succession kind of top of mind right now? Is that something you're thinking about?

Evan Banker:

I think in a small business, you always need to be thinking about succession. When you've got three, four partners working together and your caseload supports that, if something were to happen to one of those partners, and it might be retirement or something planned, but it also might be something sudden like illness or injury or accident that makes them unable to practice, can your firm absorb the caseload from that lawyer? And if not, then you're probably one lawyer short or short on paralegal staff.

As we've got lawyers moving towards retirement, we brought on a young associate. With the idea that maybe that's slightly more than our caseload supports, but it balances and transitions over time. A young associate needs to learn the ropes and how the practice goes. You get some coaching time in there and it's a much easier transition.

Kyle McEntee:

So, I'm not saying that your firm is not relationship-driven in terms of clients, because you do have word of mouth. But because you do get so many of your cases through marketing, it does change the dynamic a little bit compared to other firms, maybe of a similar size, that are really relying on those relationships. And so, their succession planning looks quite a lot different, I think.

Evan Banker:

Yeah, I would think so. There's a lot less of, I need to know this business owner because we've got their book of business. And so, I need to introduce them to my junior partners so that they can also develop that relationship and it'll transition over. In terms of as a relationship business, for us, it's being known in the legal community and speaking with our work product so that people know, I've got a friend that was injured, I want to call Evan.

Kyle McEntee:

So, when you took this job, there was some skepticism from people who were advising you that it was a good choice. Because they were worried about your own succession planning. They were worried that you might be typecast into this personal injury lawyer role, and specifically a plaintiff's personal injury lawyer. Do you feel like the skills you've built would allow you to transition if you wanted to?

Evan Banker:

I think that the skills that you develop in a small personal injury practice serve you well anywhere in life. You've got to be able to run a business. You've got to be able to have empathetic relationships with real people. You need to be able to, as a lawyer, research new and developing areas of the law because no case is exactly the same. New issues come up in every single one. And civil law is a wide body of law. You get to practice appeals. You get to practice collecting judgments. You get experience sometimes in bankruptcy court. Not any place you want to be. But when you're handling people's problems, often they have ancillary problems. And you've got to learn how to do that because you're the person that they're relying on. You know, I'll send this to the other department of my major firm. You figure it out. So yeah, I think that you learn a lot.

And I think that while you specialize in personal injury, you develop this sort of ancillary halo of knowledge of the law. And that's why people come to you, right? Because you have this broad and deep knowledge of the law that people will come and say, you know, I know this isn't exactly what you do. But can you give me an idea here of what, you know, what I need to do? Or can you help me find the right person? And just being that hub for people is often, I think, the best thing that you can do both as a lawyer and as a business person.