How do I choose an attorney?
Choosing an attorney should be done carefully. You will work with an attorney closely during your case and you want to be sure that the attorney is someone you will be comfortable working with. You should take the time to find out about the attorney as a person.
Most importantly, you need to select an attorney who is well-qualified to handle the issues involved in your case. Lawyers are not allowed to advertise based upon specialization (with the exception of patent law). However, lawyers do in fact specialize or limit their areas of practice. It is always important to find a lawyer whose law practice specializes in the area involving your legal claims. Ask the lawyers about their experience in this field. Find out what success they've had in handling similar cases.
While the charges that may be involved for the legal services may be an issue, it should not be overriding in making your decision. On the other hand, you should never hesitate to ask about the charges of a lawyer and compare the charges by various lawyers. As in many instances, however, it may even be better to pay a little more in fees to get the best lawyer possible. The net return to you in a personal injury case would be much greater.
How does the process of bringing a claim work?
Bringing a claim most often involves filing a lawsuit with the courts and having it served upon the Defendants, or people that you are suing. However, much work must be done before the filing of such a lawsuit.
An appropriate investigation needs to be done to establish the basis of the lawsuit. Records need to be secured, witnesses may need to be interviewed, legal research may become necessary, and experts may need to be hired who can express opinions on the issues involved in the case. Only after proper due diligence has been done to establish the basis for a lawsuit, can a complaint be filed with the courts.
In some instances a claim can be filed with the insurance company by letter. It is sometimes possible to exchange information directly with the insurance company in order to reach an agreement on a proper evaluation of the case and a settlement of the matter without the need for filing suit. However, in today's climate and with the attitudes of most insurance companies, this is seldom possible.
I want to file a lawsuit. What is the first step?
The first step in filing a lawsuit is selecting and then meeting with your attorney to prepare the lawsuit. The attorney will assist you in investigating the case, determining what parties may be liable to you and selecting the theories of liability that will be included in the lawsuit. Once this process is completed, the attorney will file a complaint in court. The complaint will name you as the plaintiff and the parties that are at fault as defendants. The complaint will state the facts of your claim and the legal theories of liability you are pursuing (for instance, negligence, product liability, consumer protection, etc.). The complaint will set forth the kind of damages you are asking for but will rarely set the amount of damages that you are claiming.
How much will it cost for you to represent me?
This may be an important question to ask in your case, and the answer may well be different in each case. Some basic factors, however, are involved.
When involved in personal injury or wrongful death cases, most lawyers will agree to handle a case on either an hourly fee or a contingency fee basis. An hourly fee involves generally paying a retainer of a certain amount, and then being billed on a monthly basis for the work that is done. The more hours worked by the lawyer, the more the fees involved in the case. There is never any guarantee of a successful outcome in such an arrangement and, if the case were lost, the client is out all fees paid to the lawyers.
A contingency fee is a fee that is based on the outcome of the case. If the case is lost, then no fee is charged. If the case is won, generally a percentage of the amount of recovery is charged. Sometimes that percentage will vary depending upon the stage of the case which in turn reflects to some degree the amount of work that has to be done. In other words, the percentage may be lower if the case is settled early, a higher percentage if the case is settled very close to trial or only after trial starts, and yet a larger percentage if the case ultimately goes to an appeal.
A separate issue relating to the ultimate expense involves the costs of bringing the lawsuit. The filing of a lawsuit requires the payment of a filing fee. The service of the papers requires the payment of a service fee. Securing medical records from doctors results in charges. Taking depositions requires payments to a court reporter and payment of doctors when they testify. Hiring expert witnesses involves paying their fees. Copying charges, fax charges, telephone charges, travel expenses, etc. may also be involved. There are many other potential kinds of costs that may be associated with the handling of a given case. These costs are ultimately your responsibility as the client. However, most lawyers will agree to advance those costs during the litigation and then secure reimbursement for them at the end of the case.
What is a contingency fee?
A contingency fee sets the amount of the fee dependent upon the result obtained in terms of compensation to you. A contingency fee is a percentage of the total recovery in the case. (If no recovery is had, then the attorney's fee is zero. If you recover $100,000, customarily the attorney's fee will be one-third, or $33,000.) The contingency fee allows people with insufficient funds to hire an attorney on an hourly basis access to our courts.
How does the litigation process work?
The litigation process is divided into four phases.
Stage One. The first stage involves the investigation and filing of the complaint. During this stage, the attorney investigates the factual basis of the claim and legal theories of liability. The attorney may hire investigators, expert witnesses and obtain documents that are necessary to evaluate and pursue the claim. After the complaint is filed, the defendant files what is known as an "answer." The answer denies the factual allegations stated in the complaint and denies any liability for the claim.
Stage Two. The second stage of the litigation process is known as discovery. Discovery allows both the plaintiff and defendants to send written questions to the opposing party (called interrogatories) that need to be answered under oath. It allows production of documents from the other side. It allows for oral questions upon examination called a deposition. As a plaintiff, you and your lay and expert witnesses (such as treating physicians) will be deposed. It allows the parties to subpoena third parties who are not part of the lawsuit to obtain documents or testimony.
Stage Three. The third stage is known as pre-trial motions stage. During this stage, the parties bring pre-trial motions in order to (a) have the case dismissed or the issues narrowed; (b) to obtain discovery that was not allowed; (c) to establish the procedures to be used at trial.
Stage Four. The fourth stage is the trial of the case and any appeals. During this phase, the parties present their case to a judge or jury by way of live testimony and submission of exhibits. After hearing the evidence from all sides and listening to the instructions of law given by the judge in the case, the jury renders a verdict. There is a right to appeal from a verdict that can be exercised by either party. The appeal process generally takes between a year and two years.