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The Process Of Contingency Fees As Applied In Personal Injury Cases

Interviewer:When you take a case, potentially you’re going to be investing in that person with the expectation of getting a money back in the end but there’s no guarantee but essentially, you’re willing to represent someone upfront for free and then you take a percentage of whatever winning they would get after you’re paid back for your expenses, right?

Nicholas Lowe: That’s exactly right. Every case is a gamble. A case that looks very good at the beginning may prove to be a bad case and cases that look small at the beginning may prove to be a big case. We work them all as hard as we can, we try to investigate the case as thoroughly as we can. Once the lawsuit’s filed, we battle with the other side as strongly as we can and then we evaluate it and try to get a fair and reasonable settlement. Sometimes, we lose but the good attorneys know when to push a case and when to back-off and that’s very important. It’s important to communicate that to the client. Clients who understand the weaknesses of the case, understand the positives of the case have much more reasonable expectations at the end and I like to keep clients advised as the case proceeds. I don’t like it when at the end of the case for the first time; a client is hearing five things that are bad for his or her case. They should have heard that as the case moved along.

A Competent Attorney Always Keeps Their Client Informed of The Facts Regarding Their Case

Interviewer: Do you set the expectation right at the beginning and continue as you go along?

Nicholas Lowe: Yes. I don’t set expectations at the beginning, clients may have expectations but a good attorney doesn’t tell a client what they want to hear, they tell a client the truth. At the beginning, many clients will say, “What do you think my case is worth?”  My answer is I have no idea, you haven’t finished your treatment, I don’t know what you medical bills are, I don’t know what your wage loss is, I don’t understand fully the impact this has had on your life. I am not going to tell you on day 1 your case is worth million dollars but then at the end of the case, when it turns out to be a $50,000 case, the client is rightfully annoyed. The better answer is let me work the case up, let me develop it, let me understand your medical treatment, let me understand what your doctors have to say, let me understand what’s in store for you in the future and then I can give you an evaluation. Typically it happens towards the end of the case.

A Step By Step Breakdown of the Process A Plaintiff Has to Go Through in A Personal Injury Case

Interviewer: When someone comes to see you and they agree to retain you, what are the steps that they’ll go through in a case and what’s the typical timeline in a case?

Nicholas Lowe: The average case takes 1 to 3 years from the day to the accident. Much of that time we’re waiting for the client to finish treatment. I don’t want to settle a case the first month not knowing if the client’s going to get better or not, not knowing if the client’s going to end up in surgery in the future or not. It’s very important to let the injury mature and let the treatment complete itself. That does not mean you can’t file a lawsuit before then. If it looks like they’re going to be treated for some considerable period of time, months or a year, you can file a lawsuit right away. As the case is winding its way through the court system, the client finishes their treatment and by the time the case is ready to go to hearing, the client is ready to settle the case.  You don’t have to wait until the client has finished treatment in other words.

Once a Personal Injury Suit is Filed, There are Timelines that Attorneys Must Adhere to

Once the lawsuit’s filed, there are timelines that attorneys have to follow. They have to serve the lawsuit within a certain amount of time, the defense has to hire an attorney and they have to respond to your lawsuit. Typically we go through what we call the discovery phase where we send written questions to the other side that they have to answer under oath. They send similar questions to us that we have to answer under oath. The ones that plaintiff has to answer are basically, “What type of injuries do you have?  What body parts, what doctors have you seen, what hospitals have you been to?”Then the defense gets those answers and they send out subpoenas to all those places. So, they get your records at the chiropractor, they get your records at the MD or physical therapist or orthopedic surgeon or hospital and they review those.

The Insurance Companies Will Try to Use Any Evidence that Negatively Impacts the Plaintiff’s Case

What they’re looking for in those records is something bad for your case, if in the records, there’s drug use, if in the records there’s another accident either before or after the one we’re representing on, all of those things impact negatively the value of the case. Once both sides have worked up the case, then we get into the settlement phase and typically the plaintiff will throw out a settlement demand. The defense will respond and there are many ways to settle the case. One is to simply negotiate it on the phone and reach to an agreement, another is to take it to mediation where you hire somebody to help resolve the case, another is to arbitrate the case where you have a private judge hear the case and decide the value. In most counties, about three or four weeks before a jury trial is scheduled, they’ll have what we call a mandatory settlement conference and everyone else to show up at that and the judge presides over it and the parties try to settle the case. If all of those things fail, and 95 per cent of the time they don’t but if all of those things fail, then you’re left with the jury trial.

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