You know all those lawyer commercials where they proudly announce that the lawyer only gets paid if they get a recovery for you? Well, guess what? Every personal injury lawyer has the same model. It is called a contingent fee, and it means the lawyer’s only fee is a percentage of what he recovers for you. No recovery – no fee. Simple. And universal. If a lawyer’s only selling point is “no recovery – no fee” you must wonder if they have anything unique to offer you at all. Will they treat you with the respect and attentiveness that you deserve? Will they work to achieve your goals or their own? Do they have the personnel and resources to handle your case properly?
What questions do you need to ask, and what steps should you take to find the lawyer and law firm that’s the right fit for you and for your claim?
The attorney-client relationship can be an intensely personal one, and it can continue for years. You may need to tell your lawyer some unpleasant or secret things about yourself, and you may need to hear difficult truths from him during your case. There is simply no substitute for a face-to-face meeting to help you find the right lawyer for you. I suggest that you meet with several attorneys before making a final decision. It always amazes me that people research and shop for months before buying a new TV or dishwasher, but they hire the first lawyer they meet.
Meet with several lawyers to see who feels like a good fit. Do they listen to you and understand what you hope to accomplish? Do they understand what you and your family are going through? Can they explain in detail how the process will go, and can they answer all your questions?
When I was in law school, I used to think it was the personal injury lawyer’s job to get the most money possible in every single case. Now, having worked with thousands of clients over more than twenty-five years, I know that different clients have different needs. Some do want to maximize their financial recovery, and a good lawyer can help them do that. Others want to get the process done quickly and without any further disruption of their lives. Some want a dangerous condition remedied or a dangerous practice stopped. Still others want an apology—often the most difficult outcome to achieve.
The point is that a good lawyer will listen to you and get to know you as a person. Remember, when you hire a lawyer, he is working for you—not the other way around. If he doesn’t respect your needs and your goals, you need to find a different lawyer.
Here are a few questions you might want to ask any lawyer you are considering having represent you in an injury claim:
1. After I hire you, what do you expect me to do?
It is important that you understand what the lawyer will do for you and what you will need to do for yourself. I tell my clients that their job is to recover from their injuries and get their lives back to normal, and my job is everything else. That means if you get a bill or a collection notice in the mail, you get it to me so I can deal with it. If an insurance company or its representative calls you, you refer him to me. If you have a concern, you let me know. If I don’t know about it, I can’t do anything about it.
I am also very clear about advising my clients to limit their posts on social media sites while their claim is pending. (More about that later.)
When your treatment is finished, find out whether you are expected to obtain copies of your medical records and other documentation or whether the lawyer will do that for you.
2. After I hire you, what will happen?
Just as important as knowing what you are expected to do is having a clear understanding of what the lawyer will do. A good attorney will be able to explain clearly what will happen in each phase of the representation.
I explain to my clients that while they are still in treatment for their injuries, it is my job to make sure the bills are being paid promptly and by the right insurance company, to protect the client from unwanted contact by the insurance company, and to make sure everything in general is going smoothly.
At the conclusion of the client’s medical treatment (which is always a decision made by the client and his or her doctors), I obtain all the relevant medical records and bills, along with all other necessary documentation.
Once the records are obtained, I prepare a detailed, comprehensive demand package for the insurance company. This package explains why the loss is the company’s insured’s fault and explains exactly how my client’s life has been affected by the injuries. This package serves two purposes: it gives the insurance company the information it needs to make a fair evaluation of the claim, and it demonstrates that I take the claim seriously and am willing and able to take whatever steps are necessary to get my client a full recovery for his or her loss.
Once my client reviews and approves the demand, I send it to the insurance company with a firm deadline for its response. At that point, the insurance company either makes an opening offer and I engage in negotiations, or it does not make an offer and I file a lawsuit. I will discuss the litigation process later in this book, but my point is that a good lawyer should be able to explain to you what will happen in every phase of your claim and to address every possible situation that might arise. If he can’t do that to your satisfaction, you might want to find a different lawyer. At the conclusion of this book is an infographic I call “The Dubin Difference.” This document provides an easy-to-follow illustration of each phase of your case and what you should expect.
3. What if I need to speak with you during my claim?
As discussed above, the complaint I hear most often from clients about their attorneys is that they’re hard to reach and they don’t return calls. It’s a simple truth: attorneys can be difficult to reach. We are often in court or meeting with a client, and we can’t stop to take every call that comes in but failing to return calls is inexcusable.
Many law firms utilize case managers, who act as your primary contact during your claim. There certainly is nothing wrong with using a case manager, but what if you really need to speak with your lawyer? What procedures are in place to make sure you get through when you need to?
You deserve to hear from someone in your lawyer’s office at least once every month. Even if it’s just to see how you’re doing and to let you know that nothing has changed, it’s important to check in on a regular basis. You also have a right to speak to your lawyer anytime you need to. She may not be able to take your call immediately, but you should get a return call within twenty-four hours. And you should get the lawyer’s full attention during the call.
Will you get regular updates from the lawyer you are thinking of hiring? Will she guarantee that you will be able to speak directly with her anytime you need to? If not, maybe you should find a different lawyer.
4. What kind of medical treatment should I get?
Okay, this is kind of a trick question, but you should ask it anyway. Lawyers are not doctors. We do not prescribe treatment and we do not diagnose injuries. I know there are several ways to treat different types of injuries, and I can certainly make suggestions if requested, but what I generally tell my clients is that they should see a doctor and follow that doctor’s advice. If the recommended treatment isn’t working after a while, I may recommend they seek out a second opinion.
I can tell my clients what the legal consequences might be of getting $20,000 of acupuncture with no other treatment, or of taking months off from treatment before resuming, but I never prescribe treatment.
Some attorneys have very close relationships with a doctor and insist (or strongly suggest) that you see “their” doctor. In this situation, it’s fair for you to ask yourself whose interests the lawyer will be looking out for—yours or the doctor’s.
If the person you are meeting with insists that you see a particular doctor or health care provider, perhaps you should consider a different lawyer.
5. What is this gonna cost me?
Again, this is a question that should be easy to answer, but you may need to do a bit of digging. As I started this post, almost all lawyers will tell you there is no fee unless they get a recovery for you, but do they mention the costs advanced? Costs advanced are case-related expenses that the attorney advances to move your claim forward. An attorney should be able to explain generally what those costs will be and how you will pay for them.
Also, most attorney fee agreements set forth one fee for settlements (generally one-third) and a higher fee for litigation (generally 40 percent). Your prospective attorney should be able to explain exactly how and when the fee increases, and what that means to you and your net recovery.
I would be especially wary of any attorney who promises you a specific dollar amount in recovery. The simple truth is that we can’t guarantee any result, and we can’t possibly know the value of your case until your treatment is completed and we know what long term residual effects from your injuries (if any) will remain. If an attorney promises you a specific dollar amount, I’d walk out of that lawyer’s office immediately.
The bottom line is that hiring an attorney is an important decision. Hiring the wrong attorney could not only reduce your ultimate financial recovery but could create more stress and uncertainty for you and your family, which is exactly what you are trying to avoid by hiring a lawyer. Shop around. Ask for referrals. Meet with more than one attorney and ask the questions contained in this post. If you take these simple steps, the odds are you’ll have a good experience with your lawyer, and a good outcome to your personal injury claim.