How to hire an accident attorney.
How you pick your accident attorney can make a big difference in the results you get from your lawsuit. Since the fee arrangements are very similiar from attorney to attorney, why not take the time to make sure you have a lawyer who you can work with and who has experience settling and trying cases such as yours.
The most common, and usually the best way to find your attorney is through recommendations of people you trust. You are likely to receive a lot of recommendations, especially if the accident and injuries were severe or were the subject of news reports. The key is make sure you trust the person giving you the recommendation.
Things to avoid
- Lawyer solicitation. It is illegal for a lawyer to contact you about an accident directly or through someone else. You must contact the lawyer, not the other way around. Attorneys and hospital workers have been arrested for providing personal information about patients to lawyers who use the information to contact patients directly. If you are contacted by a lawyer or by a lawyer's investigator, tell them not to contact you again and find a different lawyer. Be very suspicious if the lawyer or investigator tells you that your doctor or someone else told them to contact you. Check with that person before speaking with the lawyer.
- Strangers giving you a lawyer's card. If you go to a hospital you may have a bunch of nurses, doctors, technicians or just plain strangers handing you lawyer business cards. You may even find people showing up at your accident telling you to use a particular lawyer or doctor. Ask the person why they are recommending the attorney. Does the lawyer pay them if you use that lawyer (which is illegal)? Is the lawyer just their friend or relative? Have they actually had a case with that lawyer or did they just hear that the lawyer was good? Make sure you can trust the recommendation and even then take the time to make sure the attorney is right for you and your case.
- Lawyers who asks you to pay money out of your pocket. Most accident lawyers will not ask a client to pay any money out of their own pocket. Usually the lawyer pays the expenses of your case which they recover at the end of the case. The fee is usually a percentage of any settlement or judgment (contingency fee). Be very suspicious of any lawyer who asks you to put up any money for expenses or wants you to pay them a fee before the end of the case. If the lawyer is unable to pay the costs themselves, they then may try to cut corners which could significantly affect the amount you recover. If you are having trouble getting a lawyer to take your case, be suspicious of any lawyer who will take the case if you pay them a fee up front. If you have a valid accident case, you will be able to find an attorney to take it on a contingency fee.
- Anyone who makes guarantees or bold promises. Lawyer fees on significant accident cases can be quite large. It is only human nature that some people will say or promise anything in order to get your case. Be careful of anyone who "guarantees" that they will get you a specific amount or that they can get you specific things, such as a green card. Once you sign a retainer and the lawyer starts the lawsuit, he/she may be entitled to a fee even if they don't deliver on what they guaranteed or promised. Legitimate accident attorneys will promise and guarantee that they will fight to get you everything you deserve but will not guarantee specific amounts, especially at the beginning of a case.
- Anyone who says that they are "connected" or have an "in" with a judge. We are fortunate in the Bronx in that the judges that sit on the bench are some of the most honest, ethical and caring judges in the State. If a lawyer has a close relationship with a judge, the judge is likely to ask that the case be assigned to another judge. This is the only way that the system can be fair. Hard work wins cases, not friendships.
Things to look for
- A firm that handles only or mostly accident cases. New York does not allow lawyers to say they "specialize" in a particular field, but you are better off with a firm that handles only or mostly accident cases. Just like you would not go to an internist for a brain surgery, you would not want to use a real estate lawyer for a brain injury case. Good accident attorneys have years of experience dealing with the court, insurance companies and in investigating and understanding often complex medical issues.
- A firm with actual trial experience. Many firms that advertise for accident cases do not have actual trial experience. Trial experience is important to you because the insurance company needs to know that if they do not settle your case, that your lawyer has the experience and determination to take your case through trial to verdict. This is really the only threat that will make an insurance company pay you what your case is worth.
- A firm that can give you the attention you need. Most accident firms are relatively small, ranging from 1 to about 25 attorneys with paralegals, legal assistants, secretaries and investigators. Some people prefer larger firms with offices in Manhattan skyscrapers and some people prefer smaller firms in their own neighborhood. Some firms take a large number of cases and depend on volume, whereas other firms take a small number of cases and depend upon the size of the case. The important thing is that the firm you choose matches your particular needs. Here are some factors to consider:
- How easy will it be for me to meet with the attorney?
- How easy will it be for me to drop off or pick things up from the office?
- Will the office help me fill out necessary forms?
- Where will I have to go to fill out necessary forms?
- Will there always be someone available to answer questions?
- How big is the firm's case load (how many cases per lawyer)?
- A firm that has good past results. Most lawyer websites will include lists of the results that they have obtained on past cases and they are required to report these accurately. Make sure that there is a mix of "settlement" results and "verdict" results to get a feel for whether that firm can meet your expectations. The results posted on a firm's website are likely to be their "best" results and should have a disclaimer that past results do not guarantee a specific result in your case.
Questions to ask
Most people don't hire lawyers very often and can feel intimidated in speaking with a lawyer. You are likely to live with this lawyer for a while and it is very important that you feel comfortable speaking with him/her. Accident lawyers never mind being "interviewed" by potential clients. They know how important it is that you and your lawyer are a good match. If the lawyer is not willing to answer questions or to give you enough time to ask questions, you might want to consider speaking with another lawyer. The following are some helpful questions to ask when interviewing your lawyer:
- Does the firm handle anything other than accident cases. If so, what percentage of the practice is accident cases?
- Has the firm handled cases similiar to yours? This would include both the type of accident (car, elevator, scaffold, sidewalk, police brutality), and your type of injury. Certain injuries such as death, brain damage, loss of limbs, organ damage, major surgery, require a great deal of medical knowledge.
- Who will you be dealing with? Look or print out the timetable for a lawsuit, and ask who will be with you each step of the way.
- Who will try your case if it goes to trial? The person who will try your case if it goes to trial will be one of the most important factors in the result. You have every right to know that your case will be tried, if necessary, by an experienced trial lawyer.
- How long will your case take? Using the timetable for a lawsuit, ask if the lawyer will complete each stage as quickly as possible given the particulars of your case.
- Do you have to pay anything if you lose? Under a contingency fee you are never responsible for a legal fee if you lose. Some lawyers, however, may want you to pay the expenses of the case (which can easily be over $10,000.00) if you lose. You certainly want to know this ahead of time. While it used to be illegal for a lawyer to not hold you responsible for expenses, that law was changed a few years ago. Make sure that the retainer agreement you sign specifically says that you will not be responsbile for expenses if there is no recovery. If the lawyer is not willing to put that in the retainer, you may want to consider getting a different lawyer, but in any event you want to be aware of it.
- What happens if I don't want to take a settlement that the lawyer recommends? Your lawyer's advice on whether you should accept a settlement is an important factor to consider BUT the decision is and always should be for you alone. You want to know whether the lawyer will still go forward and go to trial if you turn down a recommended offer. Also, some lawyers will try to charge you for the expenses of the case if you turn down an offer and lose or they may try to make you pay for the trial expenses up front in order to take the case to trial. You want a lawyer who believes in your case and in your right to make your own decision regarding settlement. If the lawyer will not go forward or will try to make you pay expenses when you turn down a settlement offer, then he/she is not very committed to your needs--find another lawyer.
- Does the lawyer charge interest on the case expenses? Some lawyers try to include a charge for interest on their expenses as part of their retainer agreement. This is not a typical practice for accident attorneys in New York. If the lawyer does include interest charges, ask if they will cross that out of the retainer agreement. If not, then you can decide whether you are willing to accept this unusual charge.
- Does the lawyer own any part of or receive any money or benefit from any investigation, funding or document retrieval company that they recommend or use? It is unethical for an accident attorney to charge you for expenses from a company that they own or receive a benefit from without at least notifying you of that conflict. An investigation firm owned in whole or part by the lawyer could overchage your case or charge you for unnecessary services as a way for the lawyer to make more money. This is strictly forbidden. If the lawyer is not willing to disclose any such financial arrangements, get another lawyer.
Contingency fees:Accident cases are one of the few areas in which an attorney and client are allowed to agree to a "contingency fee." Without contingency fees, most people who are in accidents could not afford to hire an attorney and pay the expenses of their case.
A contingency fee means that you only pay a lawyer's fee out of any recovery from your lawsuit. If there is no recovery, there is no fee. If there is a recovery, the attorney is entitled to a percentage of the recovery. In New York, the courts regulate the amounts of these percentages. In normal accident cases, the typical percentage is one third of the net recovery. Net recovery means the total amount recovered minus the expenses.
The way this works is that the attorney puts out the expenses of your lawsuit out of his/her pocket upfront. Those expenses are first deducted from your recovery and returned to the attorney. The fee is then one third of the amount left after the expenses. Below is a simple example of how the recovery works:
|Total settlement or judgment||$100,000.00|
|Attorneys fee (1/3 of $90,000.00)||$-30,000.00|
|Net recovery to you*||$60,000.00|
The earlier on your case settles, the smaller the expenses will be. Trial expenses, including expert witness fees such as your treating doctor, engineers, neuropsychologist, etc., can increase your expenses tremendously.
All liens, if any, are deducted from your net recovery. This includes liens for workers' compensation payments and appropriate medical liens, Medicaid and Medicare liens. Most liens will be reduced by one third to cover your attorney fees on that portion on the amount of the lien as well as a share of the expenses. In addition, your lawyer may be able to negotiate a further reduction of liens or dispute certain claimed liens such as those filed by doctors or your healthcare insurance.
There are several instances where a court must approve any settlement or distribution of funds, including your attorneys' fees and expenses. These occur in instances where the client is an infant, is incompetent or the case involves a death. In those cases the attorney must file for a Compromise Order. The compromise order will spell out exactly how the settlement proceeds are to be paid including the attorneys fees and expenses. Depending on where the compromise order is sought (supreme court, surrogate court or federal court), it can take from 2 months to as much as a year to get the court's approval.
Retainer AgreementWhen you hire an attorney for an accident case you will be asked to sign a "retainer." This is a written contract between you and the attorney regarding the expenses and fees in your case. The retainer agreement is usually a fairly standard form, but you should take the time to go through the form for things that may not be typical. Such as:
- Interest charges on expenses. Most attorneys do not charge interest on their expenses. If the retainer form has interest charges in it, ask that they be crossed out. If they are not willing to cross it out, you may want to consider hiring another attorney.
- Putting expenses upfront. The vast majority of attorneys do not require clients to put any money out of their pocket during their case. If your attorney requires you to put money up front or at any time during the lawsuit (such as if you refuse to take a settlement), ask that it be removed. If the attorney will not remove it, you should strongly consider getting a different attorney.
- Penalties for not accepting a settlement. Be very careful of any language that has a penalty if you do not agree to accept a settlement recommended by your attorney. Your case belongs to you and the decision to accept a settlement or not accept the settlement should always be yours alone. If the attorney will not remove this language from the retainer, consider if you are willing to agree to it, or if you should speak to a different attorney.
- Attorney's right to withdraw. Some firms put in a clause that they have the right to withdraw as your attorneys if they later feel that you do not have a case. This language is not necessary as the attorney has an ethical obligation to recommend that you withdraw the case and to ask that they be removed as your attorneys if they feel that you do not have a legitimate case. Where this often comes into play is in car accident cases where the extent of your injuries cannot be determined at the time you sign the retainer. Later on it may develop that your injuries do not meet New York's threshold for no-fault law and your attorney may recommend that you discontinue the case or they will ask to be removed. If you do not agree to discontinue or to allow your attorney to withdraw or to find another attorney, the attorney must make a motion to the court to ask to be removed. This is only true if the lawsuit has been started.
- Appeals. Many retainer agreements will contain language that says that your attorney is not required to appeal your case should you lose. This language is fine, but unnecessary. The attorney who takes your case is not obligated to conduct an appeal. They must, however, advise you of your right to an appeal. If your lawyer declines to appeal your case and you then find a lawyer to take the appeal, the original lawyer may be waiving all rights to a fee if the appeal is successful.
- Switching attorneys. You always have the right to switch lawyers if you are unhappy with your present lawyer regardless of what the retainer agreement says. Your first lawyer may be entitled to a lien on your settlement if you switch lawyers, but the total fee that you will eventually be charged will never be more than your original 1/3 fee no matter how many attorneys you've had. In order to transfer the file, your existing lawyer has a right to be paid for the expenses that they've laid out. Typically, your new lawyer will pay those expenses to your old lawyer and the two lawyers will make an agreement as to how the 1/3 fee will be split between them. If they cannot agree (which is not uncommon) they will agree to let the court decide it at the end of your case.