January 9, 2009

Some people are knowledgeable about who the best personal injury lawyers are but many are not. The names you see in the newspaper may be some of the best or they may be good at getting their name in the newspaper but not as good at representing their clients.

One place to start is Board Certification. The Texas Bar Association sets minimum qualifications for Board Certifications in many areas of the law including Personal Injury Trial Law. http://www.tbls.org/static/pdf/attstdpi.pdf

The fact that a lawyer is board certified does not ensure that he is honest, diligent or particularly talented. However, it does show that he has met some minimum requirements for experience in the area. Personal Injury Trial Law certifications require that a lawyer has tried some cases and specifically some personal injury cases. (see the State Bar of Texas web site above for the specifics.) I have been certified since 1986 in Personal Injury Trial Law and recertified every five years since then.

In choosing a lawyer, the client should not be reticent about interviewing with several lawyers before making a choice. It is an important decision and should be done carefully. Here are some considerations.

A. How much time, if any, will the lawyer have to devote to your case?

When a person has suffered a serious injury or the loss of a family member they may first think of a famous lawyer they heard of on television or in the newspaper. However, famous lawyers are in demand and may not have time to work on your case. He or she may have associates that work for them and your case may be handled by one of them. Make sure you know which lawyer will be lead counsel on the case, and who will be responsible for the pre-trial development as well as the mediation and trial of the case.

Generally lawyers have many cases and no lawyer will be able or willing to spend all his time on your case.

Much of the work in litigation is done by paralegals. Make sure you know who will be contacting you and working directly with you throughout the case because it may be a paralegal who is the most available to answer your questions and work with you throughout the case. Therefore, it would be wise to evaluate the paralegal and secretary of the lawyer as well as the lawyer himself.

B. Does the lawyer have experience in your type of case?

Every case is different and it may not be practical for you to seek a lawyer who has already tried a case exactly like yours. However, there are types of cases and it is important to know if the lawyer has any experience in your particular type of case. The fact that a lawyer has successfully tried many car accident cases doesn't mean that he is also well versed in or an airplane crash litigation. Many injuries, such as closed head injuries, also have nuances that make experience in the area an advantage.

C.Are you confident in the lawyer's ability and honesty?

A hard working honest lawyer is almost always a better bet than one who simply tells you "what you want to hear". Spend enough time with the lawyer to satisfy yourself that they are someone you trust. Does the lawyer look you in the eye and listen to you? Does he pretend to have all the answers the first time you meet? Does he pretend to be clairvoyant to reassure you? Some lawyers will say anything to sign up a good case. Then the bad news comes later. Make sure that both you and the lawyer are realistic about the case.

The case may take years and it may be a long emotional experience. Don't rush into hiring a lawyer.

D. Does the lawyer have the resources for the case?

Some cases are expensive to develop. If the lawyer cannot afford to properly develop the case it may impact the value of the case. Make sure that the lawyer is candid in estimating for you how much time and money will be necessary to handle the case.

E. Fee Arrangements:

Most clients with a personal injury case cannot afford to pay a lawyer by the hour. These cases can take years and legal fees can be very expensive. That is why the law permits contingent fees. A contingent fee is one in which the attorney agrees to take a percentage of the clients recovery as his fee.

You are not required to accept a contingent fee. If you want to pay a lawyer by the hour, that should also be acceptable. Most personal injury lawyers have little experience in working by the hour but if you are the rare client who can afford to pay a monthly bill for attorney fees then that is just as appropriate as a contingent fee. However, when you pay hourly fees, they must usually be paid in full each month along with the case expenses. If they are not paid, the lawyer may be permitted to withdraw from representing you.

The contingent fee lawyer becomes, in effect, your partner in the case because you have assigned to him part of your recovery. The hourly lawyer gets paid whether you win or lose . Which kind of lawyer do you think is more emotionally invested in your case? Because the contingent fee lawyer gets nothing if you lose your case, his percentage may represent a greater fee than an hourly fee would be for the same case. It is sometimes called "entrepreneurial" law practice because the lawyer invests his time in the case in hopes of a greater return than he would receive working by the hour.

F. Expenses:

Most personal injury cases in litigation require the expenditure of money for things like filing fees, medical records, deposition costs, expert fees etc. Hourly lawyers require that the client pay the expenses and usually require that they be paid monthly throughout the litigation.

Contingent fee lawyers routinely loan the client the money for expenses and are paid back out of any settlement or recovery. Here are some important things to understand about litigation expenses and the repayment of expenses.

1. Read your employment contract (power of attorney) carefully. Some lawyers require the client to pay the expenses out of the clients share. Some lawyers take the expenses "off the top" out of the total recovery before deducting the fee. The first way of doing it increases the lawyer's fee and decreases the client's recovery. The second way increases the clients recovery and decreases the lawyer's fee. There are good reasons for each way of computing fees and expenses.

2. Most lawyers borrow the case expense money from a bank and require the client to pay the interest on the loan. Read your contract carefully to see if this is the case. If it is, it should be stated clearly in the contract.

3. Is there a standard fee? No. Percentages vary from firm to firm and case to case. The easier and more lucrative the case the more likely the lawyer will accept a lesser fee. In a harder and more speculative the case, the lawyer may seek a higher fee. This is all subject to negotiation.

4. Is there a standard way of doing expenses? No. The IRS does not allow lawyers to deduct the expenses of litigation as a business expense. It views such expenses as a "loan to the client". That is why most lawyers borrow the money and require the client to pay the interest. The American Bar Association requires that the client always be responsible for the expenses. This is how some lawyers justify taking the expenses out of the clients share of the recovery.

The important thing is to make sure you understand that the power of attorney you sign is a binding contract that assigns part of your recovery to your lawyer and obligates you to repay the case expenses. Make sure you understand what the terms of the agreement are and how the final settlement will be computed!

Here is a simple example showing how the client's settlement can be impacted.

Method 1 - Expenses from the Client (40%) fee

Total Settlement $10,000

Attorney's fee 4,000

Client's gross

Recovery 6,000

Expenses - 1,000

Clients net $5,000

Recovery

Method 2 - Expenses "off the top" from gross recovery

Total Settlement $10,000

Expenses deducted -1,000

Gross recovery $ 9,000

Deduction of

Attorneys fees

(40%) $ 3,600

Net Settlement

To client $ 5,400

The second method increases the clients recovery and reduces the attorney's fees. Logically, the IRS ruling and the ABA guidelines would dictate that the first method be followed. However, many lawyers use the second method because it favors the client and gives the attorney an incentive to hold down expenses. The most important thing, again, is to understand going in how your net settlement will be computed from the beginning.

If you have any further questions or would like to discuss my opinions stated above, you may email me at johnl@oqlaw.com.