Deciding to work with a personal injury attorney is an important choice and it is not one that should be made lightly. The person you select will represent you in and out of court, bringing years of legal training and experience to your case. Ultimately, the final decision in your case rests with a judge or jury.
Why the hiring decision matters more than most people realize
For many individuals, the decision is seemingly based on how they would hire a plumber. They Google around, check a few reviews, maybe phone two or three firms, and ultimately settle on the company that appears nice and has an opening. This method is adequate for a pipe with a leak. However, for a personal injury case, it can likely cost you thousands of dollars.
Private injury victims that hire a lawyer, get settlements that are 3½ times larger than those who try to barter without a lawyer (Insurance Research Council). The gap isn’t that size because lawyers are three and a half times better at negotiating than you. It’s centered on the fact that a good lawyer can build a case, will refuse to accept a lowball offer, and has the actual credibility – combined with the readiness – to take a matter to trial. A poor lawyer will take a quick settlement that is just a little bit better than you’d get on your own, subtract their charge, and leave you. Your case is over, your money’s gone, and you haven’t even started to mourn the loss of either, and they’re likely signing up the next client as you stumble out the door.
The 7 questions below are engineered to help you identify which type you’re dealing with before you hire them.
Question 1: What does your fee structure actually cover?
All personal injury lawyers use a contingency fee contract, so you pay only if you win. But what happens with costs if you don’t win? Not every client knows to even raise this, but it’s important and maybe the only negotiation point in your control.
It’s not only the lawyer’s time; the costs can be massive. Expert witness fees, filing and deposition costs, medical records, and accident reconstruction can be thousands or hundreds of thousands, called case expenses or disbursements. The attorney floats this money, which you then reimburse after a loss, win, or settlement. Or the lawyer may agree in the retainer that they will take their cut and then the rest gets allocated to costs.
Other firms are so flush they’ll assume all case expenses and absorb them. Clarify who pays all those costs both if you do win and if you don’t. Ask for the percentage, then the cost portion for a case you lose. Get it in writing.
Question 2: How many cases did your firm take to trial last year?
This is the question that separates the wheat from the chaff.
Settlement mills are low-end firms; generally the ones with the most billboards, and advertising that interrupts your favorite TV show. They run their business like a meat factory, accepting as many clients as possible and pushing for fast, (even if very unfair) settlements. Speed is the only game in town. The problem is, when you try to wrap things up quickly, the insurance company can smell that from 10 miles away. And somehow, very rarely, the value of that case isn’t quite what you hoped.
Speed doesn’t often equal maximum value, and insurance companies know exactly where settlement mills take every case. Insurance adjusters keep tabs on it. There are actually databases for the law firms (and even the individual attorneys) that haven’t seen the inside of a courtroom in two years. When they send a settlement offer to that firm, it’s a completely different offer than they send to the firm that tried six cases last year. It’s not bad, it’s not good, it’s just business. But it’s the threat of trial that drives up the value on all the cases.
When you ask an attorney this question, pay attention to whether the answer is avoided. A straight ambulance-chasing shyster will directly answer, “We never go to court!”. Settlement mills will try to spin it by saying how they ‘resolve’ cases. That’s all you need to know.
Question 3: Who will actually be working on my case?
This is where the bait-and-switch happens, and it happens more often than the industry likes to admit.
A well-known partner – someone with years of trial experience and name recognition – sits across from you during the consultation, builds rapport, and earns your trust. You sign. Then your case gets handed to a first-year associate or a paralegal carrying 80 files. The partner you hired may never look at your case again.
There’s nothing inherently wrong with support staff handling administrative tasks. Paralegals and associates are part of how law firms function. But you need to know whether the attorney you’re hiring is the one making strategy decisions, reviewing settlement offers, and preparing for trial – or whether they’re just a face for intake.
Ask directly: who handles day-to-day case management, who will I speak with when I call, and will you personally be present for depositions and trial if it comes to that?
Question 4: How well do you know the local courts and jury dynamics here?
This is the most underrated question on the list, and it might be as important as any other.
Personal injury law doesn’t take place in a vacuum. It takes place in particular courthouses, in front of particular judges, advocated to juries selected from particular communities. A lawyer who practices even semi-regularly in a given county will have a feel for how the local judges run their courtrooms, what arguments seem to work with juries in the area, and which expert witnesses are favored in that region. That information is not gleaned from a case file half a state away – it’s earned by spending years appearing in the same courtrooms.
For instance, if your accident happened in Southeast Texas, working with Beaumont Personal Injury Lawyers who regularly try cases in Jefferson County courts will confer a substantial advantage that a big out-of-town firm simply cannot replicate. Regional jury tendencies, local procedural idiosyncrasies, and existing relationships within the courthouse are all issues that come into play. “Billboard firms” that advertise statewide but rarely show up locally are operating at a real information deficit when they waltz through a courthouse door that they’ve never been through before.
Ask the lawyer how many cases they have had in the exact county where your accident occurred. Ask if they have had any cases before the specific judge who will handle your case if it’s filed. If they can’t give you an answer that is somewhat detailed, take that into account.
Question 5: How do you determine what my case is worth?
If an attorney provides you with an exact amount during that initial consultation – it’s likely just an attractive number meant to impress you. Reputable attorneys avoid promising specific figures for a very good reason: it is simply too early in the process to accurately determine your full losses. This requires gathering, reviewing, and analyzing all of your medical bills, receipts, records, and expenses. And, as you’ll see in the next point, you’ll also need to reach Maximum Medical Improvement before your attorney can determine what your future medical expenses and lost wages will be. A realistic valuation of your claim will cover all past and future medical bills, associated wage losses, out-of-pocket costs, property damage, and any additional foreseeable losses.
Similarly, non-economic damages are often guessed at or omitted from the offered estimate. Non-economic damages are the abstract losses that can be extremely damaging, but are difficult to put a number on. Think things like pain and suffering, emotional distress, and loss of quality of life such as being unable to care for your family or losing joy in normally loved activities. Determining the past and future value of these non-financial losses requires a complex analysis of multiple factors related to your accident, injury, and situation.
Question 6: What does your communication process look like?
One of the most common reasons clients cite for dissatisfaction with their attorneys is that their attorney does not communicate with them. It is a valid question to ask before signing on the dotted line. Will you go months knowing absolutely nothing – has their behavior during the sales pitch been unrepresentative?
You are entitled to demand that your attorney and their staff be accessible to talk about your case. Note: this doesn’t mean they’re on your case all day long, or jump the second you call. It means they are available at reasonable times to take your call or schedule a meeting when you need one.
Question 7: What’s a realistic timeline for my case?
Unfortunately, there is no one-size-fits-all response, and any lawyer who gives you one is likely not being completely transparent. However, the fact that you’re asking the question can provide some insights for you.
How long a personal injury case takes can be influenced by numerous factors, such as whether you have to wait and see how your physical recovery progresses; the willingness of the insurance company to come to the negotiating table, not to mention to negotiate in good faith; and how busy the civil court system is in your area. The pre-litigation process – when your lawyer works directly with the insurance company without first filing suit – often proceeds at a different pace than post-suit litigation. Once you file a lawsuit, you will be at the mercy of the court’s docket, which includes standard discovery and any pre-trial motions or appeals.
What doesn’t really cause delays in many cases are the “we just need to try this one more thing” endless investigations some lawyers tout on television advertisements. And, while it’s not exactly a delay, if you try to settle too early, your recovery might not be completely known and the ultimate cost or expense might be underestimated.
So why is this a good question to ask? Because the attorney’s answer will clue you in to what he or she believes specific challenges might be in your case.
One final thing before you sign
Being board certified in personal injury trial law is, in a sense, a formal marker of guaranteed experience – attorneys who have it have been practicing personal injury law for a certain amount of time, and shown their skills in numerous personal injury trials. They have also taken and passed an external professional competency exam covering all aspects of their chosen specialty.
It’s not a necessity, though; plenty of fantastic personal injury attorneys have chosen not to become board certified for one reason or another. But it’s a good idea to make an appointment specifically with those who are, to see if they might be the right fit. Especially in catastrophic injury cases.
