FREQUENTLY ASKED QUESTIONS
What exactly is a "Personal Injury Case"?
What types of Accidents Lead to Personal Injury lawsuits?
Can I get compensation for pain and suffering in a personal injury lawsuit?
Can I recover lost wages and medical expenses as a part of my personal injury claim?
Can I recover punitive damages in a personal injury claim?
Can I have an attorney represent me on a contingency basis for a personal injury case?
What is a "contingency Fee Contract"?
What are the most common terms in contingency fee contracts?
Am I entitled to contingencey representation in California?
Should I always shop for the attorney with the lowest contingency fee?
What are some of the factors which would tend to increase or decrease the value of my case?
Robert F. Brennan, Esq.
Q. What exactly is a "Personal Injury Case"?
A:
A personal injury case is a case in which a person suffers injuries to his or her body. There are many different types of injuries which may be addressed in personal injury cases. My firm considers a personal injury claim to be different from a wrongful death claim, as there are actually some different laws which govern these different claims.
This is a partial list of some of the types of injuries my firm has handled on behalf of injured clients:
a. Amputations and lost fingers and toes.
b. Broken bones.
c. Disc injuries in the neck and spine, often requiring surgery.
d. Head and brain injuries.
e. Total or partial blindness.
f. Lung difficulties from breathing toxic (poisonous) substances.
g. Neurological (nerve and nerve-related) difficulties from breathing or exposure to toxic substances.
h. Plastic surgery injuries.
i. Loss of hearing or other sensory loss, including loss of taste or smell or loss of sensation.
j. Loss of sexual function.
k. Knee, elbow and shoulder injuries, often requiring surgery.
l. Burns and scarring.
m. Chronic pain.
Q. What types of Accidents Lead to Personal Injury lawsuits?
A:
The list is so varied that it almost defies definition. Basically, California law holds that a person who either negligently or deliberately causes injury to another must pay the other just compensation. With only a few exceptions, the law does not prohibit lawsuits wherever someone's neglect or deliberate conduct has caused injury to some other person or persons.
This is a partial list of some of the types of accidents and situations in the lawsuits which my firm has handled:
a. Negligence during surgery or medical procedure.
b. Injuries caused by toxic or dangerous compounds in drugs, foods or vitamin supplements, including ephedrine, PPA, Ritalin, ma huang and other substances which can be toxic and even deadly to some persons.
c. Injuries caused by defective or malfunctioning medical devices, including implanted defibrillators, pacemakers, etc., and electro-shock machines used in electro-shock "therapy".
d. Traffic collisions between cars.
e. Traffic collisions between trucks and cars.
f. Traffic collisions between vehicles and pedestrians.
g. Traffic collisions between bicycles and cars.
h. "Slip and fall" injuries in public markets and restaurants.
i. Injuries from toxic exposure to mold and poisonous chemicals in buildings and homes.
j. Defects in home exercise equipment which cause injuries.
k. Defects in cars, including defective airbags, which cause injuries.
l. Defects in tools or home appliances which cause injuries.
m. Accidents from dangerous conditions at construction sites.
The types of situations which can give rise to a personal injury lawsuit are quite varied, so if you do sustain an injury or if someone close to you is accidently killed, you should consult with a lawyer promptly about whether you have a legal right to seek just compensation.
Q. Can I get compensation for pain and suffering in a personal injury lawsuit?
A: Yes. Under California law and the law of most states, mental anguish, pain and suffering are all considered personal injuries and may be compensated under the law. Obviously, just as with bodily injuries, mental anguish, pain and suffering may be minor or it may be very substantial indeed. How much money serves as just compensation for a person's pain and suffering often depends on just how serious it is, which is usually determined by how serious the actual physical injury is. Lifelong burns and scars obviously would bring more in a lawsuit than a minor sprain, for instance. Proving how serious an injury is usually depends upon the evidence-how a person's life changed after their accident, what types of things they could do before which they cannot now do, etc.
Q. Can I recover lost wages and medical expenses as a part of my personal injury claim?
A: Under California law, the answer is yes, in most cases. If you incurred medical bills or you lost wages or work opportunities as a result of your personal injury, this would be a part of what you would seek in your lawsuit.
Q. Can I recover punitive damages in a personal injury claim?
A: Not necessarily, and not in all cases, but there are cases in which punitive damages may be recovered in a personal injury case. Under California law, in the usual personal injury case, the plaintiff need only prove that the defendant was negligent and that such negligence caused or contributed to the plaintiff's injuries. However, to obtain an award of punitive damages, the plaintiff must prove that the defendant acted with fraud, oppression or malice, and the plaintiff must prove one of these three things by clear and convincing evidence. Thus, in California, the plaintiff must prove quite a bit more to obtain an award of punitive damages. This is not to say that it's never done; rather, it does require a higher standard of proof, and California law does not allow an ordinary negligence case to include an award of punitive damages.
Q. Can I have an attorney represent me on a contingency basis for a personal injury case?
A: Yes, in most cases, and assuming that your case has some merit. If your case is without legal merit (for instance, if the evidence tends to show that you, not the defendant, were entirely at fault), then most attorneys will likely request that you pay all or at least part of their fee for taking your case. However, if your case has legal merit and if your injuries are significant enough, you should be able to find an attorney willing to represent you on a contingency basis.
Q. What is a "contingency Fee Contract"?
A: A contingency fee contract is a contract between an attorney and a client in which the attorney's compensation depends upon the outcome of the case. There is no one set form of contingency contract, and these contracts take many forms and have many different terms. However, the basic principle of contingency representation is that you do not owe your attorney any money unless he or she recovers something for you.
Q. What are the most common terms in contingency fee contracts?
A: There is no standard contingency fee contract. I have heard of contingency fee contracts with an attorney's fee of 15% of the recovery, all the way up to 60% for more difficult cases. [If this sounds unfair to you, remember that the attorney often risks all or part of his life savings on contingency cases, and the client probably could not get anyone else to take the case on lesser terms, and the client likely was not able to pay hourly for representation.] Most personal injury cases which are done on a contingency basis have a contingency fee of one-third up until a date close to the trial, and 40% thereafter. Many attorneys negotiate a separate contingency fee for appeals. Medical malpractice actions have their own contingency fees in California, which are governed by statute.
Any costs advanced by the attorney usually come out of the client's portion of the recovery when the case settles. Some attorneys require their clients to pay all or part of costs; some advance all costs. This point is entirely negotiated on an individual basis, and such negotiations often depend upon the attorney's belief about the strength of the case when the negotiations occur. If the attorney believes the case is only so-so, then the attorney will commonly require the client to bear at least some of the costs in advance. However, if the attorney believes that the case is very strong, the attorney will commonly advance (front) all costs, and will not ask the client to repay the costs until the case settles.
Remember that the costs in a lawsuit are frequently very high, and the attorney's willingness to bear these costs for you is a tremendous favor to you. I have personally invested as much as $50,000.00 of my own money into a medical malpractice case in which the malpractice victim could barely afford to put food on her table for herself and her daughter. If $50,000.00 sounds high to you, consider that I know of cases where the attorneys involved invested over a million dollars into the case.
So, next time you're thinking about why attorneys get a third, or forty percent, of your recovery, ask the question: where did the money come from that the attorney invested into my case? Lawsuits are very expensive in themselves; if you want a quality attorney to do a quality job, they're incredibly expensive.
An attorney's willingness to invest his or her money into your case is one of the most valuable reasons for having an attorney. An attorney's ability to invest in your case, and in other cases, comes exclusively from the attorney's ability to win cases or settle them favorably. Next time you hear the insurance industry's multi-million dollar publicity campaign designed to turn you off to lawyers and contingency cases, remember that an attorney willing to take a case on a contingency, and able to finance the case through a trial, is the only access to the court system in this country for approximately 90% of the population.
Q. Am I entitled to contingencey representation in California?
A: No. There is no entitlement to contingency representation in California. If an attorney agrees to take your case on a contingency basis, it is because he or she has chosen to do so, not because any client has any right to have contingency representation.
Since the attorney is essentially risking his or her entire compensation on the outcome of the case, contingency representation is quite a privilege. It is not likely you will ever obtain the services of an accountant, a doctor, a dentist, a plumber or an auto mechanic on a "contingency basis" (unless a doctor agrees to treat you on a "lien basis" in connection with your personal injury lawsuit.) The legal profession is actually very generous in extending to the public the offer of quality legal representation for little or no money up front, and no compensation to the attorney unless the case produces a result. No other profession does this.
Q. Should I always shop for the attorney with the lowest contingency fee?
A: This is quite like asking whether you should always eat at the cheapest restaurant, or stay at the cheapest hotel. Like a lot of other situations, you get what you pay for. My firm does not offer the cheapest contingency rates in Los Angeles County, but we consistently get a lot more money for our clients than firms which offer cut-rate contingency rates. Good lawyers deserve full compensation. Whatever you do for a living, you undoubtedly feel that you deserve to be fully and justly compensated for your efforts. Good lawyers who work very hard at their profession feel much the same way.
A: Yes. My office has successfully handled several such cases involving boats, motorcycles and RV’sThis is undoubtedly the single most difficult question which has ever been asked of a personal injury lawyer, yet any experienced lawyer understands that the client is entitled to the lawyer's best approximation of case value.
There is no precise science of finding the value of a case. Remember, if your case were tried to five different juries, you would probably have five different results, and some of the results would be completely different from other results. Just as there is no precise science to a jury's award of damages, there is no precise science to arriving at the settlement value for a case.
The very best that any attorney can do is to make you aware of the factors which tend to add value to your case, as well as those which tend to subtract value from your case. In addition, the lawyer's own experience in similar cases, or a review of jury verdict publications for similar cases, may produce some general guidelines for case valuation, but each case is different and must be treated differently
Q. What are some of the factors which would tend to increase or decrease the value of my case?
This is not an exhaustive list, but here are some of the factors which attorneys and insurance companies consider in arriving at case value:
a. Age of plaintiff (plaintiffs either very young or very old are regarded as more of an economic burden upon their loved ones, and thus their personal injury cases are usually not as valuable, except for babies or children who will need major medical care or life support for the rest of their lives.) In wrongful death cases particularly, very old and very young victims tend to have lesser case values than persons struck down "in their prime".
b. Seriousness of injury-a broken bone or a shattered disc in the spine tends to be much more valuable in settlement than a "soft-tissue" whiplash injury with no x-ray and no MRI film to back up the existence of the injury. ("MRI" stands for magnetic resonance imaging, which is a filming process much more precise than x-rays in detecting the presence of injuries.)
c. Whether the injury caused significant medical expenses, and how much.
d. Whether the injury caused a loss of earnings, and how much.
e. Whether the plaintiff also contributed to the injury. California follows the doctrine of "comparative fault," whereby a plaintiff who contributes to the occurrence of an injury shall have his or her percentage of comparative fault deducted from his or her personal injury award. For instance, if a jury awards a plaintiff $100,000.00 in damages for his injuries, but finds that he was 35% at fault for the accident, the plaintiff's judgment would be reduced by $35,000.00, leaving him with $65,000.00.
f. The quality and experience of the attorney. In general, attorneys who have a track record of jury trial victories will obtain better settlements for their clients than attorneys who earn the reputation of being afraid to try a case.
g. Whether the plaintiff is candid and likeable, or whether the jury will find him or her disagreeable, insincere or manipulative.
h. Whether there is an element of sympathy about the injury. For instance, an injury resulting in impotence or impaired sexual function would be worth much more in the case of a young man or a young woman in their early thirties. If the same injury were suffered by someone in their eighties, case value would be less. Similarly, a facial scar is generally worth more for a woman than for a man.
i. Whether an injury will heal completely, or whether there will be a permanent residual injury or disability. Someone who breaks their leg may be unable to walk for six or eight weeks, but this case is worth less than someone who suffers a ruptured spine and who is rendered paraplegic for life.
j. Whether an injury will need surgery, and the nature of the surgery. For instance, knee injuries are now normally treated with a procedure known as arthroscopic surgery, which is not that painful and is done under a local anaesthetic. Patients of arthroscopic procedures often leave the hospital on their own within 24 hours after the surgery is completed. However, major back surgery can require incisions at both the front and back of the body, and can require months of recovery and convalescence.
k. The changes in lifestyle because of the injury. For instance, a foot injury would probably be more important to someone who runs every day than it would be to someone who essentially sits all day long. If the injury causes a major change in lifestyle, particularly in the pleasant and pleasurable aspects of one's life, this can greatly increase case value.
Again, this is but a partial list of factors which lawyers, judges, jurors and insurance adjustors consider in evaluating personal injury cases. However, this little guideline should answer some of your questions about where the strengths and weaknesses of your own case lie when you have to decide whether to accept or reject a settlement offer.