Whitehead & Chiocca, PLC April 4, 2018

When you hire a personal injury attorney, you need to weigh your options carefully. This report was designed to help you address some of the issues you will face as you hire a personal injury attorney.

Do I Need an Attorney?

Before you can decide which attorney to hire, you need to answer the question, “Do I need to hire an attorney?” To make that decision, you must consider a few things.

1. Insurance companies and their employees handle personal injury cases all day, every day. They know the ins and outs, and they know how to go about settling your case with you. However, they want to settle it with you for as little as possible. They are a business, and the less money the company pays out in claims, the more profit they make. Many adjuster’s get bonuses for settling cases cheaply.

2. If you handle your own case, how will you know what the appropriate settlement value is? Remember: the insurance company’s goal is to pay you as little as possible.

3. If you handle your own case, will you know how to find out if there are liens on your case and how to resolve those liens? You may be required to reimburse your health insurance company for bills they paid. If you have Medicare or Medicaid, you will definitely have to reimburse the federal or state government if they pay for your medical bills. You do not want to end up in situation where you settle your case and then find out later that you must give that money to the government or a health insurance company.

4. When you do not have an attorney, you will not have one of the most powerful leverage tools available: filing suit. While you can file suit without an attorney, you will be severely handicapped trying to handle your own case. There are strict rules and requirements that you will need to follow if the case is in suit.

5. Without an experienced attorney working with you, you can actually harm your case. If you miss deadlines about which you are unaware, your case may be harmed so badly that you no longer have a case. There are many other ways that clients have caused fatal flaws to their cases before an attorney was ever contacted.

6. An attorney can determine how much insurance coverage is truly available to you from an accident. If you settle your case with one insurance company because the company tendered all of its insurance coverage, you may prevent yourself from being able to obtain a settlement from other insurance companies that could potentially provide insurance coverage.

If the case is small, where you only were seen by a doctor one or two times and have limited medical bills, you may come out better without an attorney. It’s difficult for an attorney to increase the value of a small case. The benefit of hiring an attorney for a small case is mainly peace of mind and not having to worry about anything but getting healthy. If your physical injuries, lost wages or other harms are large, you will be at a disadvantage without an attorney.

What Will the Attorney Charge?

Most attorneys who regularly handle personal injury cases do so on a contingency fee basis. This means the attorney’s fee is a percentage of the recovery. If there is no recovery, there is no attorney’s fee. Even though there is no fee, you will still be responsible for the costs, or what the attorney had to pay to other parties while pursing your case. Examples of costs are filing fees to file your law suit or copying charges from the hospital for copying your medical records. The most expensive costs arise just prior to trial, or at trial, when medical professionals, or other experts, have to be paid for their time in testifying at trial, or in a deposition.

Most attorneys charge one-third of the recovery amount as attorney’s fees. For some more complicated or more risky cases, an attorney may charge forty percent. Other attorneys charge one-third but move to forty percent if they are required to file suit on your case.

It may even be possible to have an attorney handle your personal injury case on an hourly fee basis. You will have to pay the fees as you go, and if you lose your case, you will still be responsible for the attorney’s fees. Some attorneys may agree to a mix of contingency fee and hourly fee. But again, the standard fee is one-third of the recovery.

What Should I Consider Before Hiring an Attorney?

The decision of which attorney to hire is an important one. There are many attorneys from whom to choose. Some are better than others. Some are going to be more suited to your needs than others. You may be working with this attorney for a few years, so you need to make sure you choose the attorney that is best qualified to handle your case.

There are some attorneys who will take a personal injury case hoping for a quick settlement. When the case does not settle and suit needs to be filed, they either refer the case to a more experienced trial attorney or tell the client to find another lawyer. Obviously this is not the type of attorney you want to retain.

Particularly in more complex cases involving very significant injuries, some attorneys get into the case and find out that it much more complicated and requires much more work than they anticipated. No insurance company is going to hand over a large sum without putting up a fight.

Some attorneys will harm your case more than help it. Here is a real example:

A client hired an attorney. The case was complex and there were a number of parties that were potentially responsible for the client’s injuries, one of which was a state government entity. The attorney did not properly investigate the case. The attorney failed to put the government on notice, thereby forfeiting the client’s claim against the state.

The attorney then waited until within a few months of the deadline to file suit on the case and still did not know the parties he needed to file suit against. The client and attorney parted ways shortly before the deadline to file suit.

The client then hired another attorney who had time to investigate the appropriate parties but neglected to do so. On the last day possible, a lawsuit was filed by that attorney. Rather than filing and signing his name, the attorney filed it in the client’s name as if the client had filed the lawsuit without an attorney. The client received shabby representation from not one but two attorneys on the same case.

Situations like this, while rare, demonstrate why you must not simply hire the attorney with the best commercials or the first one you see in the yellow pages. It is an important decision and one you should not take lightly.

The following are questions that you should consider when deciding on which attorney to retain. While they may not be all of the factors, they will provide you with a great start on what to ask a potential attorney before you hire him or her.

1. What is the focus of the firm’s practice?

Many firms handle many different types of cases; domestic, criminal, estate planning, and bankruptcy are just a few. Many firms will also add on personal injury cases. Some mistakenly believe they can get a quick settlement for you. However if they are not knowledgeable in the area of personal injury, it will be apparent to the insurance company and the defense attorney. Attorneys who specialize in handling personal injury cases establish relationships and reputations among defense lawyers, which can greatly affect how the case is handled by the insurance company.

2. Does the attorney take many cases to trial?

Many attorneys do not try cases. It has been said that 20% of the attorneys try 80% of the cases. This may not be exactly true, but it demonstrates the need to go with an attorney who is willing to try a case. If the attorney is not willing to go all the way to trial and the insurance company knows this, the settlement may be for less.

3. Does this attorney stay involved with organizations of other attorneys that practice personal injury?

While many attorneys may be competitors for business purposes, most attorneys who practice in the same area unite to work together to be better attorneys and to better represent their clients. Some organizations not only work to help keep their member attorneys better educated but also work to protect the rights of people who are injured. The law changes frequently due to Supreme Court decisions on new issues as well as changes made by the General Assembly and Congress.

4. Does the attorney write and speak to other attorneys about personal injury law and related topics?

Writing articles and speaking to other attorneys is a sure sign that the attorney you are hiring is well-versed in personal injury cases. Many speaking engagements for attorneys are for Continuing Legal Education (CLE) courses. Attorneys pay for these courses and most want to hear speeches by attorneys who are trying cases and directly handling cases, not those who are referring or settling them out.

5. Does the attorney regularly attend educational seminars about personal injury topics?

While every attorney must attend 12 hours of continuing legal education a year, they can be on any topic. Attorneys that focus on personal injury are more likely to be up on the latest law, cases and strategies for handling a personal injury case.

6. Do other attorneys regularly refer personal injury cases to this attorney?

If other attorneys regularly refer cases to your attorney, it can indicate that the attorney is respected by other attorneys.

7. If it is a large firm, which attorney will you be working with?

How does the attorney you are assigned measure up when asked these questions? If you are not told at the first meeting who your attorney will be, how do you know what kind of lawyer you will be working with? Some large firms do not even assign an attorney to a case unless a lawsuit has to be filed because the paralegal or claims person working on the case is unable to settle it.

8. Are you meeting with an attorney on your first visit?

This may be an indication of how much you will actually work with an attorney versus working with staff.

9. When are you assigned an attorney?

There are firms that will not assign you an attorney until a lawsuit needs to be filed. This means that all of the preliminary work, including possible settlement, is done by someone other than attorneys. While they may be supervised by the attorney, they are doing the day to day work on the case.

10. Does the firm feel like a big box store or a mill as soon as you get there, or does it feel like you will get personal attention?

You need to be comfortable with the firm you are going to work with. If it feels like you are just a number in the beginning, it will likely get worse. Many firms use one lawyer to “oversee” hundreds of cases at a time, while the non-lawyer staff handles the case. It is often difficult to even speak to the attorney that is supposedly handling your case at some firms.

11. Does the attorney carry malpractice insurance?

While most attorneys do carry malpractice insurance, it is not required. Make sure your attorney has malpractice insurance in place so you can still recover if that attorney makes a mistake. If the attorney is not covered by malpractice insurance and makes a mistake, it will be much more difficult for you to make a recovery.

Does Advertising Matter?

You may have noticed that one of the questions to consider is not “Does the attorney advertise?” Just because a firm spends a lot of money on television advertisements does not mean that firm is better than those that do not. It does not matter to the insurance company which you will have to resolve the case with. There are some large advertising firms that are not known for trying cases. Within some large advertising firms there are some lawyers who never try cases. The insurance company’s lawyers will know if your attorney is one who is hesitant or unwilling to go to court and will treat your case accordingly.

Many people mistakenly assume that because a firm advertises, they are a great firm. All advertising means is that the firm is willing to pay a lot of money to get its name publicized. It in no way reflects on their abilities as attorneys.

There are some firms that advertise that do have good attorneys and enjoy a good reputation among other attorneys. You should not judge the firm by its advertising. Size them up by the criteria previously discussed. That will help you to make the decision if the firm or attorney is right for your case.

You are making an important decision when you hire an attorney. All attorneys are not the same. Make sure you give careful thought to who you hire.