"DC Personal injury attorney Roger K. Gelb is among Washington's best - most honest and effective - lawyers who sue."

-Washingtonian Magazine, December 2007

What’s a Contingent Fee?


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What’s My Case Worth?


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Do I Have a Case?

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Contingent Fee Agreements

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!

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Weighing Litigation Versus a Pre-Litigation Offer

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.

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Elements to Consider When Evaluating an Automobile Accident Claim

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.

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WHAT NOT TO DO IF YOU’RE IN AN ACCIDENT

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.

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Chapter 10; Frivolous Lawsuits

The following is the final chapter of my text, Don’t Get Sued!  A Guide to Help Reduce Your Business’s Exposure to Lawsuits:

Try not to live in fear of frivolous lawsuits.  You read and hear a lot in the media about silly lawsuits and inflated verdicts.  The truth of the matter is that those are aberrations from the norm.  In fact, if you dig a little deeper into the cases that get a lot of attention, such as the now well-known dry cleaner’s case, where the owner of a dry cleaning store was sued pro se (without representation) by a judge for losing his suit.  Despite offers by the dry cleaner to settle the matter for far more than the suit was worth, the plaintiff pressed on (forgive the pun).  Eventually, the matter went to trial and the dry cleaner prevailed, the judge is not going to be a judge any longer and there are efforts by counsel for the dry cleaner to recoup some of the defendant’s costs, including legal fees.

There is also the case about McDonald’s coffee that was so hot that when it spilled on a woman, she suffered very serious burns, and the case went to trial and a huge verdict was rendered.  Well, as usual, there is more to that story too.  Apparently, according to jurors, they had become convinced that McDonald’s had been serving coffee that was so hot as to be beyond industry standards, and they had been warned about the problem.  The jury felt that punitive damages were necessary to get the attention of the big corporation.  In the end, the case resolved for far less than the original publicized verdict.

Finally, those in fear of being sued need to understand that personal injury attorneys, like myself, typically don’t get paid a fee unless there is a recovery.  So naturally, I don’t take cases in which it would be either difficult to prove, or if the client isn’t really injured, or both.  I don’t want to waste my time and I am quite sure that other plaintiff’s attorneys, at least in general, are equally selective.  There are also certain counter claims available to those wrongfully sued, including a claim for abuse of process and/or for wrongfully instituted civil proceedings.

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Chapter 9; Warranties, Breach of Warranty Actions and Disclaimers

The following excerpt is from Chapter 9 of my handbook, Don’t Get Sued! A Guide to Help Reduce Your Business’s Exposure to Lawsuits:

The sale of goods and services is regulated by, among other things, the Uniform Commercial Code (hereinafter, the U.C.C.), a version of which is adopted by most states and reviewing it should help the business owner (the seller) understand what is expected of his or her business.  The U.C.C. delineates four types of warranties, which are as follow:  (1) warranty of title, (2) implied warranty of merchantability, (3) implied warranty of fitness for a particular purpose, and (4) express warranties.  A brief description of each and the applicability of the warranty to your business is discussed below.

Essentially, a warranty of title warrants that you, the seller, have title to a product that you’re selling and that there are no liens on the product, which the buyer is unaware of at the time of purchase.  Meaning, don’t sell stolen or pirated goods.

There are six technical elements to the implied warranty of merchantability.  I am not going to spell out each of the elements.  One element is most important and is most often the basis of a claim in a merchantability suit, i.e., whether the goods being sold are “fit for the ordinary purposes for which such goods are sold.”  U.C.C.  Here is the important part for the seller to remember:  it makes no difference whether you knew of the defect.  If the product is defective, in many cases, you are liable.

Implied warranty of fitness for a particular purpose arises when a seller knows the particular purpose for which goods being sold are going to be used and the buyer is relying on the seller’s judgment to select suitable goods.

Any promise, statement, description, or sample made by the seller, which the buyer could have relied upon when entering the contract, creates an express warranty.  Some courts recognize certain exceptions including the personal opinions of the seller and certain statements relating to the value of the goods being sold.

Disclaimers of warranties may help the seller avoid some liability, however, the U.C.C. indicates that “negotiation of such warranties is inoperative to the extent that such a construction is unreasonable.”

Essentially, the seller may attempt to disclaim certain warranties, but be careful, because your disclaimers may not always be valid.  A few examples of situations where warranties may successfully be disclaimed are:  by inspection, or refusal to inspect, i.e., when a buyer purchasing something from the seller inspects the goods carefully and purchases anyway, or has the opportunity to inspect, but refuses.

Additionally, a seller may disclaim certain warranties (including merchantability and fitness for a particular purpose) by conspicuous writing, which indicates that the seller is disclaiming the particular warranty.  However, whether the warranty was in fact disclaimed, as in all disclaimer situations may ultimately be determined by a court.  As such, I would urge you to avoid considering attempts to circumvent warranties by way of disclaimers.

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Chapter 8: Assumption of Risk, Hold-Harmless Agreements, and General Disclaimers

Today’s blog contains the contents of Chapter 8 of my handbook, entitled Don’t Get Sued!  A Guide to Help Reduce Your Business’s Exposure to Lawsuits, which deals with assumption of risk, hold-harmless agreements, and general disclaimers, and the chapter reads as follows:

Under the doctrine of assumption of risk, a plaintiff may be precluded from a recovery (or the recovery may be diminished) if he or she knew of a potential risk, then voluntarily assumed it.  The assumption may be expressed or implied.  An example of a situation where someone voluntarily assumes an implied risk is when a fan is struck by a foul ball at a baseball game.  The average person knows that is a possibility.

An example of an express assumption of risk, is if you have located a hazardous situation in your store, such as a spill, and you have put up signs warning of the danger.  If a person walks in that area despite the warnings, it can be argued that they assumed the risk and may be precluded from recovering on any injury claim, or recover a reduced amount.

If your business offers rides (such as at a carnival) or some other potentially risky endeavor, it would be prudent to obtain a signature on a hold-harmless agreement, which expressly confirms that the patron assumes the risk involved and agrees to not pursue a negligence claim.  Such express agreements are generally upheld by courts.

Finally, general disclaimers such as signs posted or preprinted on tickets are often not helpful in limiting liability, but may dissuade would be claimants from pursuing the matter in the first place, i.e., before they speak to an attorney.*

*See BAR/BRI Multistate Bar Review Materials, 1991, Torts, page 48.

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