Recent Blog Posts in March 2009

Hiring an attorney for an injury requires you to learn a number of words that are not in regular daily conversations. 

For example, we all know that lawyers, like most professions, get paid for their services. A lawyer's compensation is called a "fee."  You may have heard the word "contingent" or "contingency" from time to time.  These words mean "conditioned" or "conditional."

If you are involved in an injury accident that is the fault of someone else, you will hear and see the words "contingency fees" being used over and over again.  The good news is that this means the lawyer gets paid a percentage of the recovery he obtains for you.  And if the lawyer gets you nothing, you pay nothing for his time spent on your case.  "Contingency" also suggests that the lawyer is not going to charge you anything up front. The more concerning news is that often the "devil is in the details." You can learn a lot about your attorney just simply based on how his contingency fee is worded. This blog will review contingency fees.

THE BASICS:

The fact is that legal work is very expensive, and the average person does not have a spare $12,000 or $15,000 to hire an hourly attorney. So many years ago, it occurred to some smart lawyers that regular people needed access to legal representation as well. Injury cases generally involve battles with insurance companies who are armed to the teeth with lawyers, and many times people do not stand a chance of getting a fair outcome without the help of a sharp attorney.  The idea of contingency fees was revolutionary, because this granted regular folks access to skilled representation and put regular people on par with the skillful and cunning insurance industry.  Contingency fees allowed for an "even playing field." 

HIGHLY REGULATED:

Contingency fee agreements between lawyers and clients are highly regulated by the Colorado Supreme Court.  Certain information must be detailed and explained in the contingency fee agreement.  The lawyer must give the client the option to hire the attorney on an hourly rate, and the contingency percentage must be fair and rationally related to the complexities of the case. For example, attorneys have been disbarred for taking cases where they did effectively no legal work and then took an offer of settlement that had been the intended offer of the insurance company BEFORE the lawyer took the case, but the lawyer still took his one-third percentage for the settlement.

A good attorney realizes that any fee agreement that a client signs must be balanced against an appreciation that every fee an attorney receives should be both earned and reasonable.  A good attorney has a solid moral compass, and it should be second nature for her to be fair with her fees.

DIFFERENCE IN CONTINGENCY FEES:

At ANDERSON, HEMMAT & LEVINE, our contingency fee for regular injury cases is one-third of the gross recovery. If a case goes into litigation, because there is more work involved, the percentage increases to 40% of the gross recovery. These fees are fairly typical and consistent with most attorneys representing injury victims in Colorado.

For Workers' Compensation cases, our fee is the state-mandated 20% of benefits received. This is the fee that every Colorado law firm should be charging for any work- related injury claim.

WATCH OUT FOR FIRMS THAT TRY TO LOWBALL THEIR CONTINGECY FEE:

What might look like a good deal is often, after closer examination, not a deal at all. For example, there are attorneys who will sign clients to a one-third fee regardless of whether they settle the case within months or the case takes years and they have to go to trial and even withstand appeals by the insurance company.

Think about any job.  Assume an employee has easy tasks, as well as more complex tasks, and the employee gets paid the same regardless of which type of task he chooses to complete.  Do you think the employee will choose to do the complex task when he could make the same amount of money by performing the easy task?  My point is that any lawyer who tells you that she will charge only a one-third fee regardless of whether she settles your case or has to go through trial and appeals is telegraphing that she will take the path of least resistance.

A good attorney realizes that often to get the best result for her client, she may very well have to work harder, file a lawsuit, take depositions and even make arguments in a trial. None of the slick firms who offer "one price does it all" fee agreements has a reputation in the legal community for being anything other than settlement mills where you would be lucky to have a lawyer overseeing any part of your case. And these firms will never take your case to trial.

WATCH OUT FOR THE FIRMS THAT NICKLE AND DIME YOU:

Some law firms use a complex formula generally geared towards looking like they are going to provide you with a low contingency fee rate but over time the fee gets higher and higher. A competitor law firm to ours starts with a one-third fee. But months later, it goes up to 38%.  Then, if they file a lawsuit, the fee goes up to 40%. If the litigation process takes longer than six months, the fee moves up to a 45% rate.  If, after a trial, there is the need for an appeal, the fee moves up to 50%.

This type of fee agreement encourages the worst in our human nature. Imagine being able to be paid more the longer you drag your feet. Let's say that you agree to pay a painter $100 if he paints your garage in one week, but you agree to pay him $300 if it takes him two weeks to complete the job.  How likely will it be that your garage will be done in one week?

The same is true in the law.  Frankly, there is motivation at certain types of firms to drag your case out as long as possible. After all, the client will pay more money if they can make it take longer than a year to resolve your case.

At ANDERSON, HEMMAT & LEVINE, our fee agreement encourages a prompt and fair resolution of your claim.  Feel free to meet with us.  Review our fee agreement.   Then compare it to other law firms.  We bet you make the same decision as thousands of other people by hiring us to represent you. 

This blog should be read in conjunction with prior blogs including "The First Meeting", and "Making that First Call." Those blogs involved the selection of a competent attorney for your case and took you through the process of navigating through all the various law firms and reaching a short list of prospective attorneys' offices. In these prior blogs, I provided you checklists for what you should experience and some insight as to what should cause you concern.

This whole process culminates with meeting one or more attorneys and ultimately making a decision about the attorney you hire to help you with your injury accident case. This blog assumes that you followed the advice of our previous blogs, and now you are in the conference room or the attorney's office ready for your meeting.

OFFICE OR CONFERENCE ROOM?

Where should the initial meeting be held?  An initial client meeting is the single opportunity for the attorney to get to know you. The meeting should be anywhere from one to two hours in length. It should not be interrupted by telephone calls and, because of the importance of attorney/ client confidentiality, it should not be interrupted with secretaries entering or exiting. The attorney's eyes should be on you, not on his mail, his computer, or other matters on his desk. This may be my personal preference, but I believe that it is for all of these reasons that your meeting should be in a comfortable conference room.

If the meeting is not held in a conference room environment and you get the chance to observe the attorney's office, take a quick look around the office and the desk. Is the office free from other client files and other client's papers?  These are supposed to be confidential client documents.  We, as attorneys, take an oath to protect the confidences of our clients.  Believe me, if the attorney's office is strewn with client files, correspondence, and confidential medical records, you can assume your personal matters will be equally strewn around his office if you hire him.

I believe the only possible exception to the "meeting must be in the conference room" rule is if this particular attorney maintains a personal office with no client documents, medical records or client matters in his office. I have only met one attorney who maintained an office like that. Unfortunately, that attorney's Obsessive Compulsive Disorder became so acute that he ultimately surrendered his license to practice law.

So, as a practical matter, if the attorney meets with you in his own messy office, you should strongly consider interviewing other attorneys.

WHO SHOULD BE IN THE MEETING?

There is nothing wrong with the attorney meeting you one-on-one. The only exception to that rule is if the matters of discussion involve physical injuries, such as in a medical malpractice situations, where photos, scars or the type of injury could make a client of the opposite sex personally uncomfortable. In that situation, meetings that include an office employee of the same sex as the potential client is not only appropriate, but highly advisable.

However, absent the above notable exception, the attorney who meets with you and brings his/her secretary into the meeting is likely attempting to get the secretary up to speed to handle all your legal matters, should you hire that firm. It is really a bad sign of things to come. You can consider it a certainty of things to come if the attorney introduces the secretary as "her go-to gal who is going to handle your day-to-day concerns." This is code for "you will never see me again, and I never return phone calls."  Do not just walk-RUN-away from that meeting, unless you prefer legal representation from a non-lawyer.

Alternatively, a meeting where the senior attorney brings a more junior attorney into the meeting could be a pretty good sign. It suggests an appreciation of you being an important case. The attorney has basically taken himself/herself out of circulation, as well as another attorney, for an hour or more. The "two or more attorneys" meeting projects a respect for your case, shows planning for big things, and should be viewed favorably.

HOW LONG IT SHOULD LAST?

The answer is largely fact-driven. For example, consider a rear-end collision, with the at-fault party admitting fault to the police, and a broken bone that healed completely. In fairness, that meeting could legitimately last 25 minutes. However, with the average case having more issues including medical expenses, future medical needs, etc., the attorney should be patient even if the meeting requires two hours.

Like anything else, if the attorney leaves you in the meeting to answer the questions of his secretary, this is a bad sign. If the attorney seems fidgety, looks at his watch, yawns, or leaves you alone for a prolonged period of time, that is a very bad sign. It should reflect the level of patience the attorney will have if you need his help later in the case.  

WHAT SHOULD BE SAID?

First, this is YOUR meeting. YOU were injured. The attorney should spend the beginning one third of the meeting listening and saying very little. The attorney should not interrupt you during the meeting. Once you tell your story of how the injury happened and your concerns are voiced, the attorney should spend some time asking questions and clarifying injuries. Again, the attorney should be listening 80% and talking no more than 20%. The last part of the meeting should be the attorney addressing the law, strategies, and specific proposed plan of action for your case in a way that does not hide the ball. If the attorney becomes aloof at this point in the meeting, and seems not to want to share what he specifically would do, this is because the attorney is worried that you will take his advice, do it yourself, and cut him out of his fee. That is the type of attorney that should cause you to run screaming from his office.

To the contrary, the attorney should be very open to your ideas and should have no concern about laying out his plan of action with specific detail. The expression "the devil is in the details" is correct. If the attorney is not able to tell you what he is prepared to do, he likely doesn't have a clue. Good lawyers never worry about overloading you with details.

At Anderson, Hemmat & Levine, we work hard to fulfill the high expectations that our clients expect. It is that expectation that drives all of our actions.

The average experience of the typical injury victim hiring the usual personal injury attorney is unsatisfying. We know this because nationwide studies have documented it.

Let me begin by emphasizing that there is nothing average, typical or usual about Anderson, Hemmat & Levine. So what makes Anderson, Hemmat, & Levine so unusual?  Instead of giving you one answer, we will give you three:

1) AT ANDERSON, HEMMAT & LEVINE, YOU HIRE ATTORNEYS, NOT SECRETARIES:

It's no secret.  Many law firms delegate all or nearly all client representation responsibilities to secretaries or paralegals. How do you know if that is happening to you? Here is a test. Call your lawyer. Tell him you would like a call back to discuss your case status. If a secretary or paralegal returns your call, guess what? Yes, I am sorry to tell you that it is likely that the "lawyer" handling this most important case for you never went to law school, may not have finished college, and is actually a secretary. Scary?  You bet! Sadly, clients just accept and even expect their matters to be delegated.  While clients continue to report their dissatisfaction in nationwide polling, they seem not to do anything about it.

At Anderson, Hemmat & Levine, we have lots of great secretaries. However, we keep them busy being secretaries. Attorneys represent clients at our firm. If you call for a status report at our firm, you WILL talk to your attorney. 

2) WE GO TO TRIAL.  DEFENSE LAWYERS KNOW IT AND RESPECT US:

It's no secret.  Many law firms have a business structure that prevents them from actually getting in the courtroom. They operate with so few attorneys and so much volume that they never intend on taking a case to court. The case WILL be settled because there simply is no choice.   It's true.  They WON'T  try your case! It is like a lion without its teeth or a boxer without a right hook. The problem is that the insurance companies know which law firms go to trial and which ones do not. The insurance companies know which firms have legitimate trial lawyers and which ones are forced to take their low-ball settlement offers.

Anderson, Hemmat & Levine has an entire litigation department and tries case after case, year after year. Defense lawyers and insurance companies know it. They respect us and know that in trial they are in for a huge fight. They even, on occasion, refer our firm to their friends and family.

3) OUR PARTNERS COME TO WORK:

It's no secret.  Most of the talking heads you see on lawyer television advertising do not keep regular business hours.  They are retired and currently are sitting on a boat somewhere near St. Barts. Twenty years ago, perhaps they were active in their law firms.  Now they just check in from time to time.

At Anderson, Hemmat & Levine, our partners are in the office every business day. We feel it is important to assure the quality of the legal work we provide.

Come see us for a free consultation and compare us to the average, typical and usual. We bet you will see the difference.

Contact Us Now

I want to address valuing an injury settlement. When I am contacted by a victim of an automobile accident, the conversation sometimes turns to the topic of valuing the case. In fact, every injury case undergoes the calculus of injury evaluation at some point. After all, at the end of the day, the only thing the law can do is to attempt to give injury victims back at least some of what they have lost. After a major injury accident, these victims often lose their careers, sometimes their families, and often their long-term health. At the very least, an attorney has a duty to appropriately work up a case for a fair settlement. This blog will cover the analysis that we go through to try to answer some of our clients' questions.

WHAT MOST PEOPLE THINK:

Pain and suffering, what lawyers call "non-economic damages," is usually what most clients assume constitutes the beginning, middle, and end of the injury evaluation analysis. In fact, I usually do not directly address pain and suffering at all during settlement discussions. Pain is subjective, and generally, insurance adjusters pay it little mind. The pain is real, and the suffering can be excruciating, but valuing it for settlement is really impossible.

SPECIALS; WHAT ARE THEY AND WHY THEY ARE SO IMPORTANT:

Instead, when I start the process of thinking about the value of a case, I think about what we call "specials." I am not sure the origin of the term, but it basically refers to what makes the injuries here unique and different from any other person who might be stiff or sore following a collision. "Specials" are the addition of past medical bills incurred by the client, plus the value of what doctors are predicting the client's future medical needs to be, plus past wage or other economic loss, plus future wage or economic loss.  In fact, when I start a plan of action to maximize a client's recovery, what is called a "case work-up," I am always trying to think about what I would

be saying about my client to a jury were the case to go to trial.

Calculating past medical bills is easy.  It is a simple calculation of what has been billed in medical care up to the present. Future medical care is a bit more complex. It requires asking the treating doctor or other professional to provide a life care plan of what the patient is likely

to medically need in a 1 year, 3 year, and 10 year time horizon. Often, once the doctor helps us detail future care needs, including prescription drugs, future therapy, and other care over a future time period, we hire an economist to help value the future medical needs. For example, if a patient is going to need a second back surgery in 10 years, we need to calculate how much money we need from the insurance company this year in settlement to assure sufficient money to pay for that surgery when it is needed.  That is a great question for an economist. Certainly, no one should start settlement talks in this sort of case without knowing the present value of future medical needs. We also frequently use an economist to assist us in valuing any future wage

loss. If a client has lost the ability to do his chosen profession, we will often retain a vocational rehabilitation expert to assist in our understanding of the cost to vocationally retrain our client.

Lastly, an often neglected consideration in ultimately valuing an injury case is the permanent loss of function or impairment of function. Many times, treating doctors release clients that have a permanent limp, or pain, or have permanent physical restrictions. At the end of the treatment, the doctor may simply tell the client, "you're going have to learn to live with it."  That is the definition of permanent injuries. But without asking the right questions of the doctor and, in fact,

encouraging doctors to evaluate and document the permanent loss, the client could miss out on substantial and well-deserved additional recovery.

THERE IS NO GOING RATE:

Contrary to what you might hear from lawyers who do a high volume of cases, there really is no "going rate" for injury. There are certainly ranges of recoveries for certain kinds of injuries. For example, cases with back surgeries have a range of value, while cases with only chiropractic care have another range.

A good attorney will take each case and make proper inquiry, asking the right questions and document everything that can make a difference in the ultimate recovery for the injury victim.

Give us a chance to show you how we are different. We are available for home visits, for evening appointments, hospital meetings and our initial consultations are always free.

Contact Us Now

Workers' Compensation law in Colorado can be both unusual and even illogical at times. Injuring oneself lifting a heavy equipment at work, or cutting one's hand on the job are traditional workers' compensation injuries. However, a good workers' compensation attorney is always thinking "outside the box." We have had many injury victims come see us after being told by other lawyers that nothing could be done for them. But, in fact, they had perfectly good, and even very lucrative, workers' compensation claims. They did not know it, but even more scary, the attorneys they met with before us didn't know it either.

Some interesting examples of nontraditional, but yet valid, workers' compensation claims include:

Example 1)

A traveling salesman sustains an injury while traveling for work, but injures himself on a non-work day when he slips and falls while getting into a hotel pool.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 2)

An employee already injured on the job gets rear-ended on his way to physical therapy.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 3)

After having a knee surgery due to a workers' compensation injury, an employee injures her other knee, while at home, due to the extra stress put on by the weight being taken off the first knee.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 4)

An employee who works at a restaurant at the top of a ski mountain injures herself skiing to the restaurant 30 minutes before her shift starts.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 5)

An employee parks her car at her work parking lot. Just as she gets out of her car, another car runs her over.

ANSWER: Yes, it is a valid workers' compensation claim.

Example 6)

An employee goes in for a workers' compensation ankle surgery but is mistakenly given an unnecessary knee surgery. 

ANSWER: Yes, it is a valid workers' compensation claim.

And guess what? As you might have suspected, every one of these examples was an actual case our firm took on, and won! In fact, each one was turned down by at least one law firm before they came to see us.

It is not always obvious what is or what could be a valid workers' compensation claim.  But at ANDERSON, HEMMAT & LEVINE, we are always working to help our clients get justice. If you need help understanding your workers' compensation rights we always provide a free consultation.

Contact Us Now