Litigation versus Claim Counsel

For personal injury cases, with the exception of medical malpractice, the typical statute of limitation is 2 years in Nevada. That means one must file a lawsuit within 2 years from the date of the injury. So unless a claim is fast approaching the statute of limitation deadline, a lawyer will notify a potential defendant about a claim hoping to get the insurance company for the insured-defendant to fairly negotiate a resolution. However, in real life, fair negotiation never happens and lawsuits are filed close to the expiration of the statute date.

Insurance Companies know this and use it to their advantage. Some lawyers hire “trial counsel” to take the case over if they are unable to settle it prior to filing the lawsuit. This may be in the best interest of the client if the attorney does not have the resources or skill to bring the case to trial. Many lawyers make a practice of signing up clients knowing they will never try the case hoping they will settle it before the filing deadline.

This can have an adverse interest on the client who relies on the attorney to do the best she can to obtain the best result. What ends up happening is that if the attorney cannot settle it he “sells the case” to a trial lawyer for 1/3 of the fees obtained. If you stop and think about it, if the client hired the trial attorney to begin with, that attorney would be able to earn a full fee rather than splitting it with the non-trial attorney. The the old adage, “You get what you pay for.” Most certainly the trial attorney will still do his best to get his 2/3 fee BUT is it really fair to give the referring lawyer anything if his best effort was hiring someone you could have hired directly? Probably not.

Preparation for Trial

Further, even though insurance companies know which lawyers are prepared to take a case to trial by what they do to prepare it, bringing in the “big guns” later in the game sends a message to the insurance company that you are going to trial. Once they see this they realize their misevaluation is going to go up or risk a jury verdict.

Serious lawyers want to create and maintain a serious impression with defense lawyers, insurance companies and defendants that they are working toward a trial date. For me, that means filing a lawsuit as soon as preliminary investigation is complete. That should be within the first 2- 3 months. By then you should know the clients’ veracity, the medical, wage and loss of life values, as well as the probable future medicals, wage and life costs. And just as importantly, if you conduct meaningful investigation early on you will know the liability status of the case (who is at fault). All of this investigation costs money but is well spent.

Start the Wheels of Justice Early

The wheels of justice turn slow. My motto is to get them turning as quickly as ethically possible. At the same time waiting the permissible 2 years to file a lawsuit could not only waste time getting to a recovery but, worse, forever lose important evidence to lost witnesses and the like.

The statistics of whether you will have to step foot in a courtroom are fractional. Since more that 90% of all lawsuits settle before ever reaching the courthouse, you should ask the lawyer you are considering for representation about that. My answer is: I always prepare a case as if we are going to trial. That is the only way the other side will take anything we say seriously. That includes settlement discussions and any alternative dispute resolution that we may enter in to.

When you interview a prospective lawyer, make no mistake, you are interviewing her more than she is interviewing you. She is trying to decide if it makes business sense to take your case. How much can she make? You are evaluating her integrity; will she get into my suffering with me and help me though it? Getting you to the right care givers, truly listening and understanding what you are going though. You have the right to say “no” too. During these initial meetings you should ask what and how she is going to proceed; how long things will take; who pays for what and when will those payments begin and for what?

While you may never face the inside of a court room you may face formal proceedings like depositions or compulsory medical evaluations. You may have to disclose and answer questions about very personal things that do not appear relevant. Your lawyer needs to have enough time in her day to calmly and completely go over these matters with you in detail. And finally, establish in your initial meeting how often you can expect direct contact for an update on all documents, hearings, Orders and other significant matters. In my office I meet with each client at least 1 time every 2 months to go over detailed proceeding. This is in addition to communications that occur on an as needed basis.

Communication

I find this communication not only keeps me and the clients updated on their case, but clients look forward to getting all the documents to go over to see what activities are taking place. This results in far fewer questions when we talk. My goal is to give my client a sense of understanding and control of this part of their life. This is especially true when other parts of his life may be out of control.

I will talk more about the goings of being in court, but for now I meant to cover what you should learn initially from your lawyer about court and your personal injury claim.
 

Because of his experience handling brain, spine and other  injury cases, Tim has been invited to lecture at over 50 attorney & medical conferences around the country. He has lectured for:

American Association of Justice
North American Brain Injury Society
Brain Injury Association of America
International Brain Injury Association
National Business Institute
Pacific Northwest Brain Injury Association
Oregon Brain Injury Association
Washington Brain Injury Association
Los Angeles County Bar Association
Utah Trial Lawyers Assocation
Utah Brain Injury Association
Nevada Brain Injury Association
Michigan Brain Injury Association
other brain injury affiliated groups
Tim Is a Fellow with AAJ's National College of Advocacy and is recognized for completion of the Advanced Studies of Trial Advocacy Program.
 

What percentage of your practice of law is devoted to handling cases and injuries similar to mine?

What were the results in terms of settlements or verdicts of the last 5 cases you handled that were similar to mine?

What associations do you participate in that deal with injuries like mine?

List three textbooks that you own and refer to when discussing injuries similar to mine?

Show me a text you have read regarding my injury within the last 6 months.

Name the seminars dealing with my injury you have attended in the last two years.

How many articles have you written over the past three years that deal with any aspect of injury similar to mine?

Would your law firm be able and willing to spend in advance as much as $50,000 in the investigation, preparation, and presentation of my case, if necessary?

Hiring an attorney with the best qualifications is your right. Exercise it wisely because it may be one of the most important decisions you will ever make.