There are many pleasant fictions of the law in constant operation, but there is not one so pleasant or practically humorous as that which supposes every man to be of equal value in its impartial eye, and the benefits of all laws to be equally attainable by all men, without the smallest reference to the furniture of their pockets. – Charles Dickens, Nicholas Nickleby
Personal injury cases like mine are usually contingency cases, i.e., the law firm fees are contingent upon winning the case for the client, at which time the lawyer receives a percentage of the final amount (in New York the lawyer’s share is generally 33-1/3%).
In contingency cases, the law firm usually pays all the out-of-pocket costs and puts in its lawyering time for nothing throughout the course of the lawsuit.
The law firm usually pays the costs. In my law firm days I once learned about an excellent potential case that I assumed would be on contingency. But the two lawyers (both individual sole practitioners and both independently wealthy) who had interviewed the client asked for a retainer and fees. The potential client couldn’t afford it. The lawyers didn’t take the case.
Afterward, I asked one of the lawyers why he had insisted on billing. His answer had to do with the costs involved in pursuing the case, locating witnesses, etc. While I knew he could easily have afforded to foot the bill, he had decided not to.
From which I learned something: although under most circumstances I’d prefer to have a small law firm or even a sole practitioner as my attorney, for a contingency case a plaintiff might do better with a larger law firm: they have the bucks to expend and, presumably, won’t be pushing for a fast, lesser settlement just to get paid — and paid back.
When I first met Basil Valentine, Foot Lawyer, he told me to call if I needed a car service to take me around. He meant it; the firm would have picked up the bill.
At that point it would have picked up the bill. But retainer agreements make it clear that the law firm is simply advancing the costs of the suit. In the end–after a verdict or settlement–the client will be reimbursing the firm for the costs. Even before the money is divided up, those costs will be deducted first from the gross amount and paid back to the law firm.
So if a lawyer says he can’t take on your lawsuit, he knows it’s not worth it, i.e, he can’t afford it. It’s possible that another, bigger law firm, i.e., a personal injury factory, might see it differently, but I doubt it.
Although I personally had no idea what my broken foot was “worth,” the Foot Lawyers certainly did. Not only have they handled many of these cases previously (“slip and fall,” they are called, whether you fall down or stay upright; I kept saying, “But I didn’t fall,” and kept being told it was still a “slip and fall”), they have access to resources which give accurate financial portraits of all sorts of cases.
One of these resources is called Jury Verdict Reporter, a compendium of case abstracts covering all aspects of a case through final financial agreements.
Once, while working for lawyers, I was assigned to comb through this book to research the worth of a particular case. It was eye-opening: celebrated cases which won jury verdicts of millions of dollars were almost always appealed and would be subjected years later either to the judgment of an appellate court or a negotiated, i.e., pushed and severely reduced settlement.
I called a couple of the plaintiffs’ lawyers to follow up the stories. One sympathetic plaintiff, awarded many millions by a jury, had his claim reduced by an appellate court to under $100,000. Which meant that after his costs were reimbursed, the lawyer had worked for five or more years to earn $25,000.
(Have I said previously that the pressure we keep getting for “tort reform” is disingenuous nonsense? I have? What I just described above proves it. That is, we already have “tort reform.” It’s called the justice system.)
After assessing the sidewalk photos, the neighborhood and my presentation, Basil Valentine knew whether my case was worth his 33-1/3 percent. (I, however, without paying $349 to a jury verdict website for what they term a “day pass”–a one-day usage fee! I am outraged–must remain in the dark about the worth of my broken metatarsal. My superb library in NYC does carry the Jury Verdict Reporter, but the latest date is 2003.)
So having made his determination about me, Basil Valentine pulled out the retainer agreement. My case had passed financial muster.
Next: Here, posted in this space, a genuine retainer agreement!