It’s a good idea to talk to a personal injury attorney before deciding to represent yourself. Most personal injury attorneys offer a free initial consultation. At that interview, you can expect to learn whether your case is worth pursuing. You will probably also pick up some jargon that pertains to your case. Although no attorney likes to be “shopped,” interview a couple attorneys to get a feel for what it would be like to work with one of them.
Personal injury attorneys compete vigorously for high-value cases. One may have already contacted you if you were hospitalized or your accident was in the news. State bar associations have rules governing this kind of contact. Don’t sign any documents with one of these attorneys or their representatives until you have had time to think clearly and make a reasoned decision about who you want to represent you. The good news is that if they are chasing you, you can be pretty sure your case has value.
Personal injury attorneys are usually paid on contingency. Whether they receive any fee is contingent on whether they obtain a recovery. Your contract with the attorney, called a retainer agreement, spells out the percentage the attorney will earn under certain circumstances. For example, the agreement might specify that the attorney will earn one-third of the recovery up to trial. If the case is tried in court, the percentage increases to 40%, and if there is an appeal, the percentage increases to 50%. The figures reflect the additional time required. Some states have laws limiting the attorney’s share in cases involving minors’ claims or medical malpractice.
Costs and expenses are usually calculated separately from the attorney’s fees. “Costs” are those expenditures which can be recovered from the defendant in addition to the judgment entered against that defendant. A victorious defendant can also get a judgement for costs from a plaintiff. Examples include fees for filing, service of process, subpoenas and expert witnesses. Before a plaintiff abandons a case already in litigation, the plaintiff will usually try to negotiate a settlement agreement that each party shall bear their own costs.
“Expenses” are not recoverable from the other side and often involve expenditures recorded within the attorney’s office, such as for photocopies and electronic research. Experts who are used for investigation only are also in the expense category. While your case is pending, the attorney is advancing the money to pay for costs and expenses. If there is no recovery, not only has the attorney worked for free, but has also lost the money invested for case expenditures.
At the conclusion of a successful case, the defendant will write a check payable to you and your attorney. Your attorney will prepare a settlement statement showing the gross proceeds and listing the fees and expenditures deducted to arrive at your net recovery. After you both endorse the check, the attorney will deposit it in the firm’s trust account, a separate account for clients’ money. After the defendant’s check clears, you will receive a check for the net proceeds drawn on the trust account.
Some plaintiffs are surprised by the size of the expenditures required to finance a case, especially one that lasts for years. The time to clarify how the firm will calculate expenditures is before signing the retainer agreement.
If the attorney tells you the firm cannot accept your case, you know the case’s value is too low to produce a reasonable attorney fee for the anticipated work and reimbursement of the costs and expenses. If the attorney says the firm will only accept the case if you pay fees on an hourly basis, the attorney is sending you a signal the case has little value. Some attorneys will work on contingency but ask clients who have the financial means to pay for the costs and expenses. Some attorneys believe this makes sure plaintiffs “have skin in the game” which makes them take their participation seriously. Most personal injury attorneys do not ask for an advance. If you encounter this request, ask some questions about why the attorney is asking for the advance and how it reflects the attorney’s initial case evaluation.
Don’t sign a retainer agreement without an assurance that the attorney is prepared to work with you through conclusion. Some attorneys will write a demand letter to the insurer or even file the case in court without undertaking further litigation hoping to earn a significant fee in a short time, but are not prepared to take the case further. You may find this attorney will transfer your case to another attorney who has the ability to see the case through; the attorneys divide the fee you initially agreed on. If, however, your attorney terminates representation completely, you may find it hard to find a second attorney because the first attorney will be entitled to a share of the eventual recovery. If the first attorney filed court papers, court approval will be required for the termination of representation. That is usually granted unless trial is imminent.
When a case is too small for an attorney’s attention or it appears the fee would dwarf the recovery, it may still be worthwhile to represent yourself. Some plaintiffs discharge their attorneys partway through litigation and proceed on their own.