HOW TO HIRE A PERSONAL INJURY LAWYER

Once you have reached the conclusion that you need to hire a personal injury lawyer, how do you go about doing so? Naturally your objective is to locate competent counsel who will charge a reasonable fee. Ideally your advocate will have significant experience with the type of claim you wish to pursue. How to find the right lawyer for your case?

There are different routes to finding good counsel. Some observations from inside the industry will help you with your search.

The Referral System. The State Bar of Georgia requires lawyers to be competent in matters they handle, or, alternatively, to associate competent counsel to assist with the case. The mechanism for a lawyer to associate a more capable lawyer at another firm to assist with a case is a referral. The referring lawyer will frequently make the referral based on an agreement with the accepting lawyer that he will pay a portion of the fee to the referring lawyer. The prevailing custom in the personal injury arena is for the referring lawyer to get one-third of the fee. This may occur despite the fact that the referring lawyer does little to actively prosecute the case. The Bar allows this type of referral where little work is performed by the referring firm only if the client is aware of the relationship and agrees in writing to accept it. The referring firm must also agree to be jointly liable for the representation; that means if the claim is mishandled the client can look to the referrring firm, as well as the handling firm, for redress of any grievances.

This is not to suggest that all referring attorneys decline to assist in prosecuting a claim. Many firms work jointly on claims and achieve outstanding results with their combined resources.

The upshot of this system is that you can go to virtually any lawyer with a claim, and they may very well steer you to someone well suited to assist you. Whether or not the lawyers share fees typically has little impact on the client. Something to consider in personal injury is that there is intense competition for claims, as evidenced by TV ads, billboards, etc. Some practitioners may agree to handle personal injury cases when they lack significant experience handling such claims, based on the perception that such claims are lucrative. (In my experience, cases only become lucrative when a capable attorney prosecutes it well. Others are not lucrative at all, even though a recovery is made for a deserving client. Over time, fees tend to balance out to a figure comparable to hourly rates.) Many of the firms which advertise heavily do not litigate claims at all. If the claim cannot be resolved prior to suit, the matter is referred to another firm. These types of practitioners may not be the best choices to maximize the value of your claim. That said, many excellent lawyers advertise today.

The client needs to ask questions before signing a contract with counsel. The quesions to be asked should include the following:

- Undergraduate education and law school attended

- Number of years in practice

- Number of lawyers in the firm

- Martindale Hubbell rating for the firm and the attorney; they are rated separately. AV is best. BV is solid. CV is questionable. Some lawyers may have no rating. For younger lawyers this can be expected but veteran lawyers are typically rated.

- Professional Associations. Most focusing to any degree on personal injury practice are members of the Georgia Trial Lawyers Association (or its counterparts in other states).

- Previous experience handling the type of claim under consideration

- Previous number of trials handled as first chair (lead) counsel.

- Confirm lawyer malpractice insurance coverage

CONTINGENT FEE AGREEMENTS. Another factor to consider is the terms of the proposed contingent fee or other attorney employment agreement. Personal injury claims are typically handled on a contingent fee basis whereby the client pays no fees unless and until a recovery is made. This is in recognition of the fact that most consumers cannot pay hourly rates of several hundred dollars per hour for legal representation. The percentage of the fee paid to the lawyer is entirely negotiable. One-third (33 1/3 %) is common, perhaps increasing to a higher rate if the cases is actually tried to a jury or if an appeal is prosecuted. I sometimes go to 25% where the claim appears to be straightforward and capable of fairly quick resolution. Medical malpractice and other risky cases command a higher percentage such as 40% or perhaps 45%. I have never heard of a 50% agreement.

Recognize that hourly fees are not out of the question. I have handled some personal injury claims on an hourly basis, though this is rare. This might include a situation where the insurance policy limits have been offered pre-suit, prior to hiring counsel, and the primary task is to make sure there are no unexpected surprises to the client.

Expenses are another factor. This refers to funds spent by your law firm to bankroll the case. This would include filing fees, court reporter fees, fees to acquire medical records, copy costs, travel expenses, etc. (In some complex cases expenses can be tens of thousands of dollars.) They are paid at the end of a case, separate and apart from attorney's fees. If attorney's fees are a percentage of the "gross recovery", then expenses are deducted after attorney's fees are calculated. (Most contracts are written this way.) Attorney's fees could be calculated after expenses are deducted (which would lessen the fees somewhat).

Up until a few years ago in Georgia, the client had to agree to pay back expenses even if no recovery was made. Many attorneys, myself included, would decline to collect expense money from a consumer where a claim was lost, even though they were entitled to do so. Today the contract need not obligate the client to pay back expenses if no recovery is made.

Good luck with your search.

Copyright 2004, Schulten Ward & Turner LLP. All rights reserved. For more information contact the author, dlt@swtlaw.com, (404) 688-6800.

THE INFORMATION PROVIDED HEREIN IS SOLELY FOR INFORMATIONAL PURPOSES AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR LEGAL ADVICE SPECIFIC TO YOUR NEEDS CONTACT COUNSEL OF YOUR CHOOSING.