Contrary to popular belief, personal injury lawyers do not take every case that walks through the door.
The last thing an attorney wants to do is take a new case that ends with an inadequate result or unhappy client.As might be expected, there are a number of factors personal injury attorneys will consider before taking a case, some more important than others, in making this threshold decision. In this article, we will review these factors in the usual order of general importance, with do’s and don’ts to guide you in the process.
Match the Case Type to the Law Firm’s Practice Area
We live in a world of focus and specialization. Companies, social enterprises, individuals – all have their strong sets and areas of expertise. Walk into a personal injury law firm that only handles auto injury cases and your medical malpractice case will be declined. Take a slip-and-fall into a defective products firm, and you will be referred elsewhere. Want to bring a class action against a drug manufacture who caused you further ailment? Don’t look to a firm that’s never done mass torts.
Like everyone else, attorneys have a strengths and areas where they enjoy the most success. Select an attorney who will consider your case right up his or her alley, and at your first meeting, be thoroughly prepared to describe your case in those terms. In other words, you want the attorney to be thinking, “this client is speaking my language.”
Damages: Bring Proof of Personal Injury Damages
Personal injury lawyers thrive by handling cases that result in a substantial settlements and higher verdicts. Since injury lawyers get paid on a contingency-fee basis, the more money they recover for you, the more money they receive as the case-related legal fee. Also, if a case involves very slight injury and involves virtually no medical care, the victim very likely would not file a lawsuit to recover personal injury damages. Because the claim would have very low value, the attorney would not add a strong threat of suit and the attorney’s fee in these cases likely would not cover the firm’s administrative costs of handling the case. Simply put, lawyers are more likely to show interest in cases involving more significant injuries and higher economic losses.
Damages that can be collected by a personal injury victim include medical expenses, lost wages, other out-of-pocket loss relating to the injury, and “general damages”. General damages is the additional tax-free money paid to the victim for pain, suffering, inconvenience, lost quality-of-life, and for having to live with scarring, lost mobility, and any other disfigurement. With proper medical evidence, the victim can collect money for future medical needs and future potential income loss as well.
Attorneys often avoid the direct discussion of why they don’t accept a case. However, the frank truth is that in cases involving a very modest claim for money damages, the attorney cannot make a sufficient difference in the client’s net recovery to warrant getting involved. Further, in very small cases, lawyers lose money because they pull staff and resources away from more serious injury matters to handle these cases. Thus, to encourage a lawyer’s interest and involvement, be prepared to explain the full nature and extent of your injuries and losses.
Liability: Be Prepared to Demonstrate Fault by a Wrongdoer
No matter how big your damages, you cannot recover anything from someone else unless you can demonstrate legal liability and fault to the insurance adjuster (or, if the case does not settle, the jury). In the case of automobile accidents, often the police responding to the scene will make an initial assessment of fault in their police report. However, this is NOT conclusive in North Carolina and thus you must look beyond the Police Report to determine fault and legal liability.
In North Carolina, if the victim is slightly at fault for causing his/her accident or injuries, they have no claims and no right to be paid for the injuries or medical costs. If you are just 1% at fault for the accident, you have no claims! This is a terribly unfair law and our firm and others have lobbied for legal reform for decades. Unfortunately, this legal barrier to injury claims still remains.
Lawyers will not accept a case for an at-fault driver, and this is because even the best lawyer cannot change the law that would apply in a jury trial. Further, insurance adjusters always look to place slight blame on accident victims (even passengers) so they can deny injury claims and avoid payment obligations. If you are clearly at-fault and responsible for causing your accident, personal injury lawyers typically will not accept your case. However, in disputed cases, aggressive lawyers will accept your case and it is important to bring them in early so they can conduct a proper investigation, and gather and preserve crash-scene evidence to ensure the highest possible settlement or trial verdict.
No matter how much you’ve suffered, how many medical bills you have, or how clear the other guy’s liability, you cannot get water from a rock. The presence or absence of insurance coverage will have a huge impact on whether a personal injury attorney will take your case, especially if the wrongdoer appears to be of ordinary or modest means.
In the case of auto accidents, there are multiple sources of possible insurance coverage that might be available to fund injury claims. If multiple drivers make mistakes which led to the accident, all of their policies would apply. If the at-fault driver is driving a borrowed car, the driver’s own auto policy would pay for injury claims and the vehicle owner’s policy would also pay. If the at-fault driver was employed when the accident happened, the employer’s business liability policy likely will also cover and pay for victim losses. Also, in cases where the at-fault driver has insufficient coverage, the victim can look to multiple sources of Underinsured Motorist coverage for additional money benefits. Auto injury lawyers know how to locate and access these policies to maximize the funding available to the personal injury victim. In cases where there is no insurance at all for the at-fault driver or the victim, the attorney may reject the case because of the difficulty in securing money payments from drivers who cannot afford to carry legally mandated car insurance. To get the best advice when you seek a free initial consultation from a auto injury lawyer, have as much knowledge of the insurance scenario as possible.
In non-auto cases, it is not so easy to ascertain insurance coverage before suit is filed. Though things like Homeowner’s Insurance, Business Insurance, and Umbrella policies often exist, ascertaining the extent of coverage may have to come later, after a claim is made.
Even if the potential defendant has substantial assets, however, the lack of insurance coverage will deter some attorneys from taking the case, because uninsured defendants are less likely to pay a substantial settlement without a long, drawn out fight. Thus, the presence of insurance coverage to fund the client’s claims is a factor personal injury lawyers always consider when they decide whether to accept a new case.
Evidence to Rebut Any Affirmative Defenses
North Carolina is a contributory-negligence state. This means the injured personal injury plaintiff cannot recover any damages against the defendant if he or she was even one percent at fault. In auto cases, the attorney’s initial analysis of the injured party’s own fault, if any, can make all the difference on whether he will take the case.
Since contributory negligence is an absolute bar to recovery, the prudent personal injury attorney must be sure of his own client’s lack of fault. The same evidence that established the defendant’s liability will come to play here.
But there are other defenses as well, such as the statute of limitations that are equally harsh. No attorney wants to take on a case that is time-barred. Therefore, the older the case, the more difficult it may be to usher it through any applicable statutes of limitations.
Experienced personal injury lawyers understand the elements of a successful case, and they also know of all available legal defences that might either bar a claim or reduce case value. If they believe the potential client likely would not win their case in a jury trial, they likely would not accept the matter.
A Difficult, Unlikeable, or Unbelievable Client
Savvy attorneys are on the lookout for difficult clients. While the lawyer may be able to deal with an abrasive or overly demanding client, the truth is that juries typically respond to demanding, angry or pushy victims by awarding very low verdicts. Being patient and pleasant in a trial setting is the best approach for the victim. If a jury sees that a true victim seems understanding and not angry, they often get angry for you and award higher damages. If the victim is obviously angry toward the plaintiff or over-reaching with their claims, the jury will be less sympathetic and less generous.
Attorneys will also resist a client who appears on the scene seeking to control all discussions and demanding service above that of other clients. Rarely is the money worth it if the client has made the attorney’s life miserable. From the moment the attorney first encounters “the difficult client,” until he retires, he will be on the lookout for the client whose case he wished he’d never taken, notwithstanding its initial appeal of high damages or the like.
As a potential client often meeting the personal injury attorney for the first time, avoid any bad impression by being organized and on time, bringing proof of damages and liability, and overall being rational, friendly, and helpful. If the attorney likes you, he can take your case no matter what the other factors look like, and if he does not like you, he can refuse your case no matter how strong it seems to you. Remember that the attorney will be your employee and that you retain control of the case, and also that if the attorney is fond of you and your cause, he/she will be more passionate as they fight for the highest possible personal injury claim settlement.
Exorbitant, Anticipated Costs
Sometimes your case has substantial damages, clear liability and the lack of any obvious defenses – yet it still is unpalatable due to the anticipated cost of prosecuting the case. Medical malpractice cases are perhaps the best example, because high-priced medical experts are always required to establish that the doctor or hospital acted negligently.
The same is true of defective products cases, accident reconstruction cases, complicated multi-party cases, and toxic tort cases. The attorney can spend a ton of money and either a: come up empty-handed, or b: run out of funds to continue prosecuting the case as it needs to be prosecuted.
You remember the movie Erin Brockovich, right? There the first plaintiff’s attorney almost ran out of money to continue the case. So if your case will be an expensive one to prepare, do yourself a favor and go to a well-financed firm that specializes in the kind of case that you have.
It’s a free country and attorneys can ethically take any case they are qualified to handle and which they can afford to support. This can include charity cases, cases with low provable damages, and cases of questionable liability. However, the practice of law is also a business.
If an attorney continuously takes cases that don’t return revenue to the firm then he will soon be shutting his doors and going out of business. Keep all of the foregoing factors in mind when you prepare to attend your initial consultation. Knowing how to best prepare your case can go a long way in getting the right attorney to accept your case, build your evidence of damages and fight the opposition to secure the largest cash award for your injuries and losses.