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You need to talk to a lawyer in order to determine if you have a case.
Your lawyer is going to look at a lot of factors. It isn’t just whether or not there is negligence–and if there’s negligence then there certainly is a claim to be pursued–but whether or not it’s worthwhile pursuing is another matter.
It has to make sense in order for the lawyer to pursue it, it’s his time too, and it has to make sense, most importantly, for the client to pursue it. And, if it doesn’t make sense, then it’s up to the lawyer to explain to the client that it’s something that he or she may want to think twice about before pursuing.
Basically, what the attorney looks at, and what the client should think about, is not just whether or not there is negligence, but whether or not there are damages, and whether or not the damages are significant enough–and related to the negligent act–to make it worthwhile pursuing.
When someone is injured due to someone else’s negligence, and they want to pursue a claim, typically the attorney who represents the injured party takes the case on a contingent basis. This simply means that if there is ultimately no recovery against the negligent third party, there is no attorney’s fee. The fee charged by the attorney in such cases, is typically, 1/3 of the gross recovery, if the case is settled prior to filing suit. Using a sliding scale, attorneys often charge 40% of the gross recovery if it is necessary to file suit, or institute arbitration proceedings. And, although unlikely in most cases, it is common to see 50% of the gross recovery charged if the matter is appealed from a trial verdict or arbitration award (where allowed).
In addition to the contingent fee for the bodily injury claim, it is commonplace for attorneys to charge a nominal administrative fee for first party claims, such as Personal Injury Protection (PIP) claims or Medical-Payment (Med-Pay) claims. These fees are usually not in excess of $150.00, and again should only be charged if there is a recovery from the first party. This is not a money-making charge by the attorney; it is simply designed to off-set what can be a time-consuming, but necessary, effort to obtain medical payments, and possibly wage loss reimbursement, in advance of any recovery from the adverse party.
Finally, claimants should be aware that they are, in addition to fees mentioned above, responsible for any reasonable costs arising out of pursuing the case. These costs may include charges by medical providers for copying records, preparing reports or forwarding itemized statements. The costs go up dramatically if it is necessary to file suit on a case, as depositions need to be paid for and experts need to be compensated, regardless of a positive outcome on the case, and prior to any recovery.
Be aware, all fee agreements must be in writing and signed by both the client and the law firm. Should you have any questions, as always, I’m always happy to assist you. Please don’t hesitate to call!
There are several important factors to weigh in deciding whether to accept an offer of settlement, prior to filing suit, or filing and proceeding to trial. These considerations are: (1) economics (cost), (2) time, and (3) upside/downside.
The cost of filing suit may include an increased contingent fee percentage paid to the plaintiff’s attorney. Contingent fee agreements often provide for an increased percentage of the gross recovery if it is necessary to either file suit, or actually try the case, depending on the language of the fee agreement. Naturally, the plaintiff’s attorney is doing more work litigating the case, than if the case settled prior to filing suit, so although this increase is logical, it still stings and must be considered when pondering a reasonable pre-suit offer of settlement. Other costs of litigation include, filing fees, deposition costs (court reporter, etc.), expert witness testimony (often very expensive), travel expense for the lawyer, plus other expenses.
Litigation can also be a very lengthy process. In certain jurisdictions it may take years to get to trial, and although getting to trial in other jurisdictions may be faster, other time consuming considerations, which are more difficult to define, include difficulty obtaining service on the defendant, and delays by the court. Also, time-wise, the litigant should consider the amount of time the litigation process takes out of his or her life, for depositions, answering interrogatories, and for the trial itself.
Finally, a plaintiff needs to calculate the potential upside versus downside of proceeding to trial. Is the case realistically really worth more than the pre-suit offer, when you take into consideration the increased fee, costs and time involved in attempting to gain what you perceive to be a more reasonable offer? Maybe, but you should discuss this question with a qualified attorney who is familiar with local jury verdicts and the trial system, before making this important decision.
What factors are considered when evaluating an automobile accident case? In other words, what is a case worth? This may not always be the first question I’m asked by a new client, but it’s eventually asked.
The most important factors to consider (not necessarily in order of importance) when assessing the value of a automobile accident personal injury claim are: (1) liability (is whose at fault debatable?), (2) injuries/damages sustained by the plaintiff, (3) amount of property damage, (4) where the case could ultimately be litigated, (5) how the plaintiff would present as a witness, and (6) how the defendant would present as a witness.
Let me expand briefly on each component, referenced-above. Liability simply refers to whether the plaintiff in any way contributed to the accident. This question can best be answered by a qualified attorney. In certain jurisdictions, if the plaintiff contributed to the occurrence/accident, he/she is barred from any recovery (DC, MD).
Component #2 is self-explanatory. If there is minimal treatment for injuries, or if the treatment is for “soft tissue” complaints (no objective proof of an injury), the case may be worth less than if there were a broken bone or permanent scar, etc.
Factor #3 focuses on the amount of damage sustained by both the plaintiff’s vehicle, and the defendant’s vehicle. In theory, the more property damage, the more the claim should be worth. But keep in mind, even if there is lots of property damage, if there is minimal treatment and minimal injury, the case still has minimal value.
Factor #4 has to do with the value a potential jury might ultimately put on the case, if the case ever went to trial. In general, the case may be filed where the accident occurred, or where the defendant resides. Certain jurisdictions are more plaintiff friendly, while others are very unfavorable.
Factors #5 and #6 are very subjective, and the plaintiff’s attorney, without deposing the defendant, may not know how the defendant would present as a witness. The basic rule of thumb is that an older, more responsible witness, is more credible.
For more information on this subject, please call me directly at 202-331-7227.
You will see a lot of blogs from seasoned plaintiff’s personal injury lawyers telling potential claimants what to do if they become involved in an automobile accident, and I will review those steps in my own blog in the not too distant future. This blog, however, is dedicated to informing the public of what not to do.
If you’ve been in an vehicular accident, and you’re not at fault, it’s very important that you not personally contact the adverse party’s insurance carrier. Your initial instincts will be to call the carrier right away, and make sure there is coverage. That’s a mistake, that could cost you. Let me explain. When you call the adverse carrier, they will invariably explain that they need a (typically recorded) statement from as to the facts of the accident, in order to honor your claim; that is nonsense. What they’re really looking to do is ask you, as soon after the accident as possible, about your injuries. Remember, it often takes a day or more before you start feeling pain after an accident. Don’t fall for the insurer’s trap. Provide no statement. Let your attorney contact the carrier and report the claim on your behalf. Do not worry if the adverse party has coverage or not. Even if they don’t, as long as you were insured, you are going to be covered for the loss.
If you’re ever unsure about what to do, call or email me. I’m always happy to guide you.