It’s the Law: When you’re injured

Some years ago, I was turning into a parking lot when the car behind me plowed into the back of my cherished 1968 Mustang. The offending driver ran up, babbling, “I’m sorry, but I was beating my kid and didn’t see you turning.”
Needless to say, this was a man with problems. (The child appeared to be OK.) Although my ’Stang was crunched, I was lucky to walk away unscathed. Did Mr. Ideal Dad volunteer to repair my car? I strongly suspected that he had no such intentions. Sure enough, when I called to arrange payment, Dad was never in. I had to file a personal injury lawsuit.
Personal injury lawsuits are exactly what they sound like — injury to your person or your property. Readers might recall from a month ago that this is one of the few times lawyers might take your case on a contingency basis — they won’t take a fee unless they actually recover money for you.
The operative word is “might.” Lawyers are interested in three key things when they look at a personal injury lawsuit: liability, damages and ability to pay the damages.
The first issue, liability, simply asks who is at fault. It might be that one person is completely at fault, or there might be shared blame. As you can guess, lawyers always hope for cases where the other side is clearly at fault, such as someone blowing through a red light. Clear liability vastly simplifies a personal injury case.
The second issue, damages, is really the key to getting a lawyer interested in your case. The newspapers love to write stories about crazy lawsuits, and I have certainly had my share of loony calls.
On one occasion, an irate parent wanted me to sue because her child was kicked off the football team after he was arrested for supplying drugs to other players and injured his teammates when he totaled his car while driving under the influence. Outside of the problem that a jury would not be sympathetic to this young man, he wasn’t injured, other than hurt feelings.
Sometimes people are more determined to sue because their feelings are hurt than because of physical injury. Although emotional distress can be compensated in some instances, it doesn’t have all that much value if it isn’t accompanied by documented physical trauma or significant property damage. (As with most areas of the law, there are exceptions.) A lawyer is far more likely to take a case if you had $400,000 in medical expenses and your car is totaled, even if there is disputed liability.
There is, however, the final qualifying factor: Can you collect on a judgment? You might be surprised how often a judgment is not collectible. People who go to small-claims court experience this frequently. They get their judgment and then are surprised that there is no automatic mechanism to assure collection of the judgment. Even when they start using the various mechanisms to collect, they are often disappointed that the defendant simply can’t pay.
Useless judgments litter the landscape. As a result, lawyers rarely take a case if there is no clear source of funds to pay a judgment. In most cases, this means insurance.
Occasionally, a defendant has the assets to pay a judgment, but it is very common for a culpable defendant to start hiding those assets. Most such transfers are illegal and can be set aside, but it’s a lot of work, so lawyers strongly prefer insurance.
Once a lawyer decides to take your personal injury case, how much of your judgment is that lawyer going to take? The fee usually ranges from 33 percent to 40 percent. (The law restricts fees to no more than 25 percent when a child is injured.) All contingent fees are, theoretically, negotiable, but don’t expect much movement if your case has disputed liability.
If, however, you have a case of clear liability, the defendant has deep pockets and there are large damages, you should be able to negotiate a lower rate. I’ve heard of lawyers going as low as 20 percent on very good cases, but you’ll find that capable lawyers are pretty resistant to going below 25 percent.
These cases, though, are the ones lawyers fight for. If someone is catastrophically injured with clear liability and a $1 million dollar insurance policy, you can be assured that every lawyer you speak with is secretly salivating to take your case. Such cases tend to be simple from a legal perspective, and the payoff can be huge for only modest work.
Have you ever opened the Yellow Pages to the attorney ads? In every phone book in every city, you will see full-page ads from lawyers fighting for just these kinds of cases. I occasionally look at the Santa Cruz phone book and see ads from lawyers I’ve never once seen in court in 18 years of doing law here. I suspect these lawyers live out of county and are trolling for that one good case. Full-page ads are very expensive, but if that ad nets even one stellar case, the ad is paid for many times over.
All of this leads to the question: Is it worth 33 percent to 40 percent of your judgment to have a lawyer handle your personal injury case?
Studies have shown lawyers increase the size of settlements, and most suggest the increase is enough to pay the fee. Certainly, the more complex a case is, the more likely a lawyer will be to your advantage. But even if the dollar result is the same, hiring a lawyer has a few advantages: He or she will advance all costs, take the risk of getting nothing in the case of a loss, and do the arcane legal work.
Let’s hope, however, that none of you is ever injured. I’ve yet to meet a client who thought the payoff was worth the suffering.
Gary Redenbacher of Scotts Valley is an attorney in private practice. Contact him at ga**@re*********.com.