Porter means service. That’s my motto. If I accept work, I have an idea on how to best serve my client. Contingency work in my law practice generally means the acceptance of representation regarding a client’s significant personal injury, or at times, a client’s loss of a loved one. Both circumstances are brutal, in different ways. Significant personal injury is a loss from the moment the injury occurs. Litigation does not, in the most fundamental sense, make a person well. However, being smart about how to handle a client’s personal injury claim can set them on a path which promotes their healing.
First things first. The goal of civil litigation is to serve the best interest of the client. One of several aspects to better serve a client is to obtain a meaningful monetary recovery. The “value” of the claim is broadly based upon the following factors:
· Liability: Unquestioned liability is a plus, but not required. Aggravated liability adds to the value of the claim. In California, we operate in a pure comparative fault environment. If the client (claimant) is potentially responsible for their own injury, their recovery will be reduced according to the percentage of their fault.
· Damages: There are three basic types of damages. Economic damages, non-economic damages and punitive damages. The first two are designed to compensate the injured person and are generally covered by insurance, to the extent there is insurance. The third is designed to punish the wrongdoer upon a showing of fraud, oppression or malice and is never covered by insurance. However, the potential for punitive damages can drive the value of recoverable damages into a higher range for a variety of reasons.
· The potential for the recovery of damages: Too often, even when there is unquestioned liability and significant damages, there is a limited potential for recovery due to a lack of assets or a lack of adequate insurance coverage. Complex issues arise as to whether other persons may be responsible for wrongdoer’s conduct. Additional defendants may provide additional insurance coverage or may provide a defendant who has the means to satisfy a client’s judgment.
While a monetary recovery is critically important, other considerations are at play. Being in litigation is often necessary to achieve a certain result, but not always. If I have an opportunity to represent a client shortly after the event which caused the loss, I can often guide the claims process in way that makes sense to the client and in a way which permits a claims adjuster to find significant authority to settle a claim. This process involves obtaining all available information including available reports, medical records, employment records, records of lost business opportunities, the interview of witnesses and the inspection of locations and or tangible things involved in a loss. Then, at an appropriate time, all the work effort is synthesized into a comprehensible package of material which may (or may not) be presented to an insurance company for their consideration.
There is no real downside to doing substantial work at the
outset of a claim. The work tends to remove
surprises if litigation is required and permits a more meaningful evaluation of
the value of a claim. If the claim can
be resolved prior to litigation, I can pass along the savings to a client in
the form of a lower contingency fee. In
addition, I can transmit funds in a timelier fashion, and save the client some
unavoidable angst associated with civil litigation. This is not to say that litigation should be
avoided. It is to say that litigation,
like any conflict, needs to be measured and thoughtful.