Personal Injury lawyers represent clients who have suffered injuries resulting from negligent or intentional acts caused by individuals, businesses, and public entities.
When a lawsuit is filed and litigation commences, the injured client will be referred to as the plaintiff, and those who caused the injuries will be called the defendant(s).
The personal injury lawyer’s primary goal is to obtain the best recovery possible for you.
Retaining A Personal Injury Attorney And Factors To Consider
The Initial Attorney-Client Consultation
Most initial personal injury consultations are provided without charge.
For most lawyers, the first consultation with a potential client is critically important in deciding whether to accept the case.
It is also critically important for the potential client to decide whether or not to retain this lawyer to represent them.
An experienced injury lawyer will consider whether the case, even if legally sound, is financially viable and a good investment in the firm’s time, effort, and expense.
During the initial client consultation, the lawyer will determine the case’s relative strengths, weaknesses, and predictive value. Most fully litigated cases will usually require the firm to advance hard costs in excess of $25,000. In other more severe cases, costs advance can reach six figures.
The initial consultation also provides the personal injury lawyer with a valuable preview of how the client might perform under the stress of deposition and trial.
Obtaining your best recollection of events and circumstances
The initial client interview will also be the best opportunity to gather all the relevant facts from the client. For the lawyer, it represents the client’s best recollection of the facts and circumstances of the accident and the extent of the client’s initial injuries.
Since the client interview usually occurs within the first 30 days of the accident, the client’s observations and memory of the events are still fresh.
The experienced lawyer will want to explore the details, impressions, memories, and observations while they are still fresh in the client’s memory.
The initial consultation will also inform the lawyer of the level of investigation the case will require and whether the matter requires immediate legal research before fully committing to formally accepting the case.
Lawyer’s assessment of your case
During the client interview, the lawyer will inform the client of their case’s favorable and unfavorable legal and factual aspects and establish an initial strategy of how the case may play out should the matter proceed to trial.
Finally, the lawyer will explain that the burden of proving their case rests squarely on the plaintiff’s side.
Let’s look at the plaintiff’s burden of proof in more detail.
Plaintiff Carries The Burden Of Proof
To prevail at trial, your lawyer must prove each element of your case by a preponderance of the evidence. That is, the evidence will prove that it is more likely than not that the defendant was the factual and legal cause of the plaintiff’s injuries.
Punitive damages must be proved by clear and convincing evidence. In cases where punitive damages are sought, proving the damages element of the case will require a higher burden of proof. This is because punitive damages are not compensatory but are intended to punish the defendant for malicious behavior.
Personal Injury Practice Areas
Most people believe that accident lawyers only represent clients in traffic accidents. While traffic accidents can represent as much as sixty percent of their caseload, most personal injury lawyers also represent diverse cases.
Let’s first look at traffic accidents.
Traffic Accidents
When you are released from care and seek the advice of a personal injury attorney, the first issue is to determine which driver appears to be primarily at fault for the accident. This is initially indicated in the police accident investigation report – but not always.
Sometimes the police report does not assign primary fault to a single party, and sometimes, the police are entirely mistaken. In either case, most courts will not allow the actual police report into evidence to prove or disprove liability.
Traffic accidents causing soft tissue injuries
Low-speed, no-injury fender benders rarely require retaining an accident attorney. However, make sure you do not settle your case with the adjuster if you begin to feel pain in your neck, back, or shoulders. This could indicate a microscopic tearing of the soft tissue, commonly called whiplash. It is usually not a severe injury.
Notwithstanding, it is highly recommended that you not speak to the adjuster for at least three-to-five days after the accident. It is not uncommon for your injuries to take a few days before you feel pain and stiffness.
If you do feel stiffness or pain, go to your doctor immediately and ask to have x-rays taken to make sure you did not suffer a more severe injury. At this point, it’s advisable to have your lawyer contact the adjuster as soon as possible.
Moderate to high-speed traffic collisions with injury
However, suppose the case involves a moderate to high-speed collision causing significant body damage to your vehicle. You feel pain or the onset of shock. You should request that you be transported by ambulance for immediate medical attention. This is especially true if you suffered a pre-existing injury to the same area of your body before this accident.
Pre-existing injuries
Receiving medical care for your injuries should be your first priority. Reinjuring an old injury tends to exponentially affect your current injury. It will cause it to take longer to heal.
In the immediate aftermath of a substantial collision, people go into a state of shock. They are often oblivious to the extent of their injuries. At the accident scene, if the police ask whether you will need an ambulance, it is best to answer in the affirmative.
Common torts
A tort is a civil wrong caused by a defendant’s negligent, reckless, and sometimes intentional behavior resulting in damages that are legally compensable by the injured plaintiff.
Only some personal injury practices have experience in litigating such a wide variety of torts, so it is recommended that before you retain a firm, you inquire from the firm what percentage of their practice includes the specific type of tort that caused your injuries.
For example, if you believe your injury resulted from medical malpractice, you will want to select a firm that actively and regularly litigates medical malpractice cases.
Examples of Physical Injury Causing Torts
- Defective Products
- Pedestrian-Auto Accidents
- Medical Malpractice
- Food Poisoning
- Workplace Injuries
- Defective Drugs
- Premise Liability
- Dog Bites
- Slip Trip and Falls
- Asbestos Poisoning
- Civil Assault And Battery
- Physical Elder Abuse
Examples of Emotional and Financial Torts
- Intentional Infliction of Emotional Distress
- Defamation of Professional Reputation
- Wrongful Termination
- Workplace Discrimination
- Sexual Harassment
- First-Party Insurance Bad Faith
- Fraud
- Theft (conversion)
- Elder Abuse (Emotional and Financial Abuse)
Lawyer Compensation and Fee Agreements
Almost all personal injury attorneys work on a contingency fee rather than on an hourly rate basis. Instead, the attorney is paid only if and when you do. The contingency fee agreement sets forth the payment terms and the reimbursements of costs that the firm advanced in prosecuting your case.
While both lawyer and client have the legal right to freely negotiate the financial terms of the fee agreement, the customary fee schedule calls for the attorney to receive thirty-three and one-third percent of your settlement before trial and forty percent of any sum recovered upon commencement of trial.
In some states, contingency fee agreements must disclose whether the attorney carries malpractice insurance. Failure to disclose this fact in the retainer agreement may be grounds for voiding the fee agreement.
Client is responsible for costs advanced by the attorney
Generally, even under contingency fee arrangements, the client is ultimately responsible for out-of-pocket expenses, such as filing fees, copying costs, deposition and expert costs, investigative services, et cetera. If you dispute your lawyer’s fee, you have the right to arbitrate the fee dispute with the local bar association.
If your lawyer lost your case or could not recover monetary damages, under the terms of the fee agreement, the law office receives nothing for its services and efforts.
However, under most fee agreements, the attorney is legally entitled to reimbursement from the client for all reasonable costs advanced by the lawyer.
In these circumstances, most personal injury firms will consider waiving their right to reimbursement of the costs they advanced in exchange for a release of attorney liability from the client.
Minors Compromise
If, at the time of settlement, the client is a minor, to protect the minor’s financial interests, the court must first review and approve the settlement terms in what is called a minor’s compromise hearing. In this hearing, the court will order the plaintiff’s attorney to compromise their fees on the case. Usually, the attorney fee is reduced to 25%. The amount of attorney fee reduction is set by state law.
Selecting A Personal Injury Lawyer
Selecting a personal injury lawyer should be an active and engaged process. It’s best not to feel rushed by the process. It should be based on a variety of important factors and considerations. Some of these factors are covered below. Before your search, it is important to know state and federal law requires attorneys to conform to exceptionally high ethical and professional standards when representing clients.
Lawyer’s ethical duties to their client
Under the law of Professional Conduct and Ethics, a lawyer owes a fiduciary duty to the client, including the duty of loyalty and confidentiality, and most importantly, to protect and advance the client’s interests even over their own.
A lawyer’s willful or neglectful failure to comply with these standards can result in suspension or permanent disbarment from the practice of law. Each state enacts its own professional rules of ethics governing attorney conduct.
Factors to consider before retaining your personal injury attorney:
Depth of experience in your type of case
Ask the lawyer the level of expertise they have in your case’s particular area of law. Be sure to ask specifically and politely what percentage of their current practice regularly practices in this legal area.
For example, if your case involves injuries caused by an automotive defect, be sure to ask what percentage of their firm’s practice covers product liability and whether the lawyer who is interviewing you whether they have ever tried a vehicle defect case.
Another good question for the lawyer you are interviewing is whether they will be the attorney personally litigating the case. If your case involves substantial injuries, be bold and ask how many actual jury trials they have tried in the past six months and could the lawyer discuss the factual circumstances of these cases.
Impressive law school does not mean an impressive trial attorney
Some lawyers actively advertise they graduated from a first-tier law school such as Harvard or Yale. This may be impressive credentials if the lawyer practices complex intellectual property transactions or big corporate mergers and acquisitions law. Still, that type of lawyer usually differs from the type of lawyer you want as your trial lawyer in a personal injury case.
The best personal injury attorneys are highly intuitive and extremely capable of reading a jury and knowing how to touch their hearts and minds.
Don’t Retain Lawyers That Mostly Settle Cases Before Filing a Lawsuit
Find and retain an experienced trial attorney
Some firms have a well-earned reputation as settlement mills rather than trial lawyers. The last thing you want is a paper pusher that spends most of their time on the phone with insurance adjusters closing out cases, or worse, a poorly managed paralegal making critical legal decisions on cases that an experienced lawyer should be making.
Some of these firms have memorable toll-free phone numbers, but unfortunately, their case results are not always as memorable.
Don’t judge a lawyer by their desk
Don’t be discouraged by a busy and cluttered desk. It does not always mean the lawyer deals in volume. It can also mean the lawyer is extremely hardworking. And if the lawyer is asked where a particular document or pleading is on their desk, they will have no problem retrieving it. Why? Because many of these types of lawyers are also visual thinkers. Their desktop becomes their personal domain where everything in their mind is also on their desktop.
These lawyers can simultaneously work on as many as 15 or more active cases. This a critical skill to master as a trial attorney. They possess a particular type of intellectual dexterity. If you get lucky, this lawyer can also be an emotive thinker.
These types of lawyers are known as hybrids thinkers for possessing both right and left-hemisphere mental skills. They can see in their mind’s eye both the big picture of a case while also seeing its parts, and sometimes at the same time.
These are usually highly skilled trial lawyers. However, be advised that, like any general rule of thumb, there are exceptions. So be careful and be informed when you look for the best lawyer possible for your case.
Don’t be fooled by an expensive suit and tie
How the lawyer presents is an important factor, and we are not referring to the lawyer’s color choice of tie and handkerchief. We are referring to whether you can intuitively sense their kindness, empathy, strength, and confidence.
Remember, if you or someone you love has suffered severe life-changing injuries, their fate will rest in this lawyer’s hands. Whether the lawyer you choose is the right lawyer, you will need to feel the lawyer has been truthful with you and has your best interests front and center.
The law requires this, and so should you.
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