Trial Lawyer Resource Center

This is a guest post from Miller & Zois personal injury lawyer Laura G. Zois.Most of our law practice is based on referrals from other lawyers. Some lawyers first try to settle a claim themselves. In many case, these lawyers are amazed to see the offer rise the moment we notify the insurance company of our involvement in the case, even if the adjuster is an out-of-state adjuster, which is often the case in truck accident cases, who may not have ever heard of Miller & Zois. There are a few reasons for this. But the main reason is that claims adjusters know that lawyers and clients rarely both have the stomach to litigate a case. Usually, the leader of the resistance to litigation is the lawyer who does not want to expend the energy - which is considerable if you do not have the systems in place to file frequent claims - to bring and handle a lawsuit. If you don't want to refer out your personal injury cases, the solution to these substandard offers is quite simple: file more cases. How does this help? Insurance companies use the taxpayer ID number of law firms to determine if the firm has a history of filing cases and taking them to verdict or if they simply settle all of their cases. There is no evidence of this but it would not be surprising if some insurance companies also look to the size of the cases a law firm is willing to file. Will you blink at every 6 figure offer you receive? Some lawyers will file suit on smaller cases but are willing to settle the larger cases under market value. Usually the problem is most lawyers will not file suit and even fewer will try a case. The settlement negotiations between lawyers and insurance companies in these cases are similar to the interactions between children before they get into a fight. If you were a fan of television in the 1970s, there is a Happy Days episode directly on point: Richie Cunningham was being picked on by a bully. Fonzie revealed to Ritchie why he rarely got into fights: Sound tough, act tough and people will think you are tough. "Stand up to the bully," Fonzie told Richie, "and he will back down." As Richie prepared to fight the bully (I think it was the Rocko character if I remember correctly) in the middle of Arnold's Restaurant, it because clear he was not going to back down at he was squaring up to fight. Ritchie asked Fonzie why the bully was not backing down. Fonzie comically told Ritchie that he forgot to tell him one thing: once in his life, he would have had to have actually hit someone for the "act tough, sound tough" strategy to work.This is the exact problem with most personal injury lawyers in these cases. Most lawyers talk a big game when it comes to bringing a claim. In fact, I think there may be an inverse relationship between how tough you talk and how willing you are to actually file a claim. The phrase "talk is cheap" got started for a reason. But the insurance adjusters know full well who has been in a fight before and is willing to file and try personal injury cases. If you do not have a history of hitting someone, to use the Richie/Fonzie metaphor, the insurance company is not going to blink. The solution is to just throw a few punches and you will see over time that the size of your offers will increase.To file more cases, you need to have a quality plan to move cases through your office without friction. These claims can be resolved in an efficient, cost-effective fashion. This requires having systems in place for gathering and organizing the client's medical reports, police report, lost wage documents and other pertinent documents, as well as initiating and following up on settlement negotiations. For the personal injury lawyer, you could fill an entire book with the detailed nuances of an effective case management system but if you are organized and consistent in your systems and willing to keep an open mind about which systems are efficacious and which must be changed, you are 95% of the way there. One important system to put into place is sending out your demand packages with a copy of the complaint and discovery you intend to file if the case cannot be resolved. Does it take extra time? Absolutely. But you will be ready to file in the event the case does not settle, and you have also sent an important message to the adjuster about where the case will go if she/he does not make a reasonable offer.

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Personal injury clients expect their lawyers to diligently handle their claim, turn over every stone that there is to turn, and remain in constant and concise communication with them about their case. The problem with hourly clients in personal injury cases is that they don't want to pay for it.If you are handling a plaintiff's personal injury case on an hourly fee basis, the first question you have to ask yourself is why? As borne out by a recent study, people who prefer contingency fee agreements even if it meant they were ultimately likely to pay more in fees. In fact, affluent trial lawyers were also included in the experiment as imaginary plaintiffs, and they too chose the contingency fee agreement over the hourly billing rate. Besides being risk adverse, most clients prefer a contingency fee arrangement because it makes sense. In any business relationship, if you are able to forge a deal where the parties are working with vested interests, you are better off. The personal injury lawyer-client relationship is one of the cases where the parties' interests line up well. Moreover, the contingency fee preference is also because it is less stressful for the client to have some degree of cost certainty. Few people like paying anyone by the hour, especially when it is hard to know how many hours will need to be expended. Most of us would rather just be given an all inclusive price to solve the problem, in any context and, particularly for personal injury victims. In light of the overwhelming logic of a contingency fee arrangement in a personal injury case, that brings us back to the question of why an hourly fee. The usual reason is the attorney has requested an hourly fee because the lawyer does not believe in the case. Almost invariably implicit in this is that the lawyer believes that claim will not benefit the client. If this is the reason for the hourly arrangement, you should not take the case. If you do not think you will achieve a successful outcome for the client, you should not be involved in the case. If it is the client that desires an hourly fee arrangement, you have to question that as well. That client is choosing a path the client thinks is going to save him money. This means you have a very cost conscious client. There is nothing inherently wrong with this. But if the client is proven wrong and the fees are higher under an hourly arrangement, the client may not concede the hourly way was the wrong way to go; instead, they may point the blame right back to you for over billing, spending your time needlessly, and so forth. In summary, hourly billing is rarely the best approach. If you have an exceptional case that you think warrants an hourly billing arrangement (or you ignore this advice), here a few thoughts:1. Obviously, you cannot know exactly what each task will cost at the outset of a case or what the final cost will be, particuarly medical malpractice or complex product liability cases. Still, you will likely be asked to make an estimate for various tasks and your overall fee. If you try to set expectations too low to make sure you get the case, you are likely going to find yourself in trouble. "Underpromise and overdeliver" should be your motto.2. Get approval for anything that would not be legal malpractice to not do.3. Document everything and make sure your time sheets are clearly detail the work that you have done.

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