Not all personal injury lawsuits are created equal. Cases, claims, and payouts vary based on a multitude of factors, some which have no relation to the harm suffered.
Will an attorney take your case?
First, for many Plaintiff’s attorneys (note: a plaintiff is the person who initiates the lawsuit), the first thing they’ll do is consider, “How likely is the personal injury case profitable?”
For a case to be profitable, there must be a Defendant or party who can pay a judgment or settlement. If there are no such deep pockets, there is often no case. In fact, there is a term called “judgment proof” for someone who cannot afford to pay a judgment. That is simply because a person without cash or other assets most likely will not be sued.
Next, the attorney will consider the amount of damages suffered by the Plaintiff or potential client. Just as before, if a Plaintiff cannot point to a harm that was suffered (e.g. physical injury, lost wages, pain and suffering), then the attorney will not likely take the case. Many personal injury attorneys will only take cases with a significant amount of damages. That is because the attorney/client fee structure for most personal injury cases is based on a contingency model.
A contingency model simply means that the attorney’s fee will be calculated from a percentage of the client’s recovery.
It is not uncommon for a personal injury attorney to “front” the expenses associated with a lawsuit with their own money. Given the inherent risk involved in filing a lawsuit, a low damages case is usually not a wise use of the personal injury attorney’s time or resources.
Even so, prospective clients frequently underestimate the degree of damages they suffered. A seasoned attorney will be able to diagnose whether there are damages that are overlooked or undervalued by the client.
Only after those two considerations are met (i.e. sufficient money and damages) will a personal injury attorney even consider whether there is sufficient liability to bring a case.
Assessing liability is even more complex than diagnosing damages, as Defendants sometimes have “affirmative defenses”. This means that although a Defendant acted in an irresponsible manner, they are still not legally responsible for the harm. This may allow them to escape from their responsibility.
Although important, liability is a secondary consideration to the first two factors. A good attorney finds liability in places where lesser attorneys cannot.
Types of Personal Injury Claims
There are many types of personal injury lawsuits. Such lawsuits range from boating accidents, to refinery explosions, to slip and fall accidents, to commercial vehicle (18-wheeler) wrecks, to run-of-the-mill car crashes.
If you’re seeking a personal injury attorney, it’s important to know your attorney’s record. Many attorneys represent that they are familiar with a specific type of case, but in fact, do not understand the nuances associated with such varying lawsuits.
Additionally, a good attorney will diagnose the type of case and employ a strategy to most effectively recover money for his client.
Boating Accidents – Jones Act
For example, an offshore boating accident case can be brought under the “Jones Act”.
The Jones Act is a federal maritime law that gives specific rights to injured seamen, crewmen and other maritime workers. Such workers have a right to make a claim for lost wages and health benefits. They can also file a claim or lawsuit against a negligent employer or third party, and/or file a seaworthiness claim if improper vessel maintenance caused the accidental injury. The Jones Act also includes a provision that gives you the right to visit a doctor of your choosing and receive a second opinion.
Refinery & Explosion Accidents
In contrast, explosion cases are expert-intensive and require a thorough investigation of the source and cause of the explosion. Such lawsuits are often expensive, but the high level of damages and certainty of payment frequently offsets the expense.
Other personal injury attorneys specialize in routine car wrecks. Such cases have a common playbook and focus on which person caused the accident. It also looks at the medical records of the aggrieved Plaintiff.
Attorneys to Avoid
Beware the attorney who advertises heavily but attempts to settle every case without considering whether the case would receive a better recovery if tried. Unfortunately, many attorneys employ this type of strategy to the detriment of their clients.
When considering whether to hire a personal injury attorney, look not just at the attorney’s record of wins and losses, but also to their demeanor. Is the attorney a fighter or is he/she timid or afraid? Is the attorney committed to their clients? Often a client gets a “gut feeling” regarding their attorney, and whether that attorney gives the client their all.
Demand the best – your pocketbook and conscience will thank you later.