Question: I have an open and shut personal injury case! Will a lawyer charge me less because my case is so easy?
The first thing I would like to explain is that there is no such thing as an open and shut personal injury case. Such a thing simply does not exist. Defendants are not willing to just hand over money, no matter how strong the case may be. Most defendants in personal injury cases have insurance. As a result, the insurance company is responsible for handling the case, not the actual defendant. No matter how much the defendant may want to settle, it is up to the insurance company to decide how to go forward. Insurance companies are not in the business of handing out money. If they were, they wouldn’t have so much.
Beyond these facts, I have yet to see a case that didn’t have problems. The defendant’s side will always find issues. On top of that, you never know what a jury will do, if you end up in court.
Some Cases are Not Cases at All
Frequently, the supposed open and shut case is not a case at all. It is very common for people to tell me about a case that meets maybe one or two requirements for negligence, but does not meet all of the elements. If your situation does not meet all of required elements, you do not have the potential for a successful lawsuit. Let me give you some examples.
- A person is in a car accident because another person hit them. The other person’s insurance company paid for the damage to the car, but the victim wants more for their inconvenicence. However, the victim does not actually have any injuries. In such a case the victim lacks damages. And with no damages, there is nothing to sue over.
- A person slips and falls at a store. In the jurisdiction where they fell, there is a notice requirement. A notice requirement means that the store must have actual or constructive notice (awareness) of whatever it is that caused the fall. Or there must be a specific law requiring the store to deal with whatever caused the fall. Without appropriate notice, there cannot be a successful lawsuit. Understand, this requirement varies by jurisdiction, so you need to talk with a lawyer if you think you have a case. People often think that if they fall at a store and get hurt, the store is always responsible, but this is simply not true.
- A person undergoes surgery and suffers a serious negative consequence. However, the consequence is a potential result of even a properly performed surgery, and the doctor explained the risks to the patient. There is likely no case, because as long as the doctor followed the medical standard of care, a bad result does not create a medical malpractice case. This is the reality even if the damages are severe.
I have been approached by people in all of these scenarios. And not one of them had a lawsuit. They thought they did. They even thought their cases would be easy. But lawsuits are never easy. Even very strong cases are not easy. Nor are they inexpensive.
Lawsuits are Expensive
There are many costs involved with personal injury lawsuits. These include filing fees, gathering evidence, expert witnesses (as necessary), and so on. In personal injury cases, medical records must be collected, and these can be quite expensive. During discovery, the lawyer will often need to take depositions. This means asking questions of various witnesses and/or party members. Often, the depositions will be filmed. There also must be a court reporter present. All of these things and people cost money. Even if the case never moves to trial in front of a jury, a lot of time will be spent by the lawyer and her staff to prepare the case. An inexpensive case can easily cost thousands of dollars. A medical malpractice case will often cost fifty thousand dollars or more.
Perhaps understanding that lawsuits are expensive will help you understand why lawyers do not bring them easily. In personal injury cases, where the lawyer will be fronting the costs as well as time and expertise, it should make sense why lawyers only take on cases that are strong, with a high potential for success. In addition, the amount that may be recoverable must be enough to provide a fair amount to the victim, with enough left over to cover costs and fees for the attorney.
Lawsuits are Painful – Protecting the Client
Lawsuits are very difficult. In injury cases, clients, and sometimes their families, have to be willing to share a great amount of very personal information. This will include financial information. It will also include information about the person’s life. How the injury impacted the victim both physically and emotionally. If the person is married, their spouse may have a loss of consortium claim. This could lead to questions about the couple’s sex life and relationship. If the victim is making claims about how they have been harmed emotionally, records related to any therapy will be required. The therapist may keep notes that have extremely personal information. The victim’s life will be under a microscope. If the defense believes the victim is faking or exagerating their claim, they may even hire a private detective to follow him.
For the average person, simply knowing that a lawsuit is going on can be very difficult. It can be hard to simply put the lawsuit in the back of your mind, as it goes forward, leaving your attorney to handle it. Most people suffer a great deal of anxiety about lawsuits. In addition, the process is very long. Your average lawsuit can take 2-4 years, or even more, before it even gets to trial.
If your case does go to trial, the opposing lawyer will put you on the stand and bring out every piece of information they can to make it seem like your injuries are not the defendant’s fault. They will be very difficult on you. They may humiliate you. That is their job. And it is something you can expect to have to deal with in both depositions and at trial.
I am Not Trying to Discourage You – But Be Realistic
Why am I telling you this? It is not to discourage you from bringing a lawsuit under the appropriate circumstances. I just want you to understand that if your lawsuit is not worth much, or if your lawsuit is not very strong, an ethical lawyer will be worried not only about protecting herself, but about protecting her potential client. An ethical lawyer will not want to bring a suit from which you, the injury victim, will receive very little to no benefit.
While many lawsuits will settle without having to go to court, even those suits can be expensive. If you have a solid medical malpractice suit, but the damages are only about $10,000, a good lawyer will probably not take that case. The reason is because medical malpractice cases do not tend to settle easily. They always have expenses such as medical experts, medical records, and depositions. On the inexpensive side, those costs will be $10,000. So there is already no money left for the client or the lawyer.
If the case is worth $15,000, you might think, well, I can get $5,000. But the lawyer will want 30-40%. That leaves $3,000. And the reality is that it isn’t financially worth it for a lawyer to take on a case for such a small fee. It is expensive to run a law firm and it takes many hours to handle any medical malpractice case. And while $3,000 might be a lot of money in general, it isn’t enough to go through the emotional pain and time it will take the victim, who is already upset and injured, to go through the difficulties of a lawsuit.
Whenever I speak to a potential client and show them, in the end, how little money there would be for them in a best case scenario, and explain the difficulties that come with a lawsuit, they never want to go forward. And they are always grateful that I explain the realities of the legal system to them. A good and ethical lawyer will not further victimize a client who is already suffering by taking on an inappropriate lawsuit.
What it comes down to is that there are many factors that go into determining whether a personal injury lawsuit is likely to be successful. But one reality is that there is no such thing as an open and shut case. No such thing as a slam dunk. Every case, even the strongest, will have their challenges. And every case comes with costs. Those costs are both financial and emotional.