There may be issues regarding liability that affect an attorney's willingness to accept a case. Some of the major examples are as follows:
• governmental immunity
• applicable law in the appropriate state
• contributory negligence on the part of the claimant
Texas is a particularly difficult venue for handling claims against governmental entities. The political leaders in Texas have chosen the path to give immunity to many if not most of the governmental functions in order to reduce litigation. Other states may not have the same attitude and whether a case can be successful vary state by state depending on the law.
State law also controls such actions as dog bite cases, slip and falls and other common personal injury claims. The state law where the occurrence took place will be a main consideration for any personal injury attorney. Cases that are profitable in one state are not necessarily profitable in another.
Another example would be medical malpractice cases- in the state of Texas, the legal hurdles that an attorney must jump are extremely expensive to the law firm up front and when coupled with limits on damages imposed by tort reform, some families are unable to find any attorney willing to accept a Texas medical malpractice claim.
Finally, an attorney may have a concern about the actions of the claimant that brought about the accident. Texas has a general rule that if the claimant is more than 50% responsible for an accident, they take nothing. This can be a major concern for a law firm who is betting not only their time but their money in pursuit of the case.
Damages are elements that are legally recoverable in a personal injury action in the state where the occurrence occurred. Generally, legal damages in the state of Texas include such things as:
â–� Lost wages
â–� medical expenses
â–� disfigurement physical impairment
Personal injury attorneys evaluating a case will consider damages right after the liability facts. Often, potential clients call and say such things as "I could have been killed". Certainly, this is probably accurate but what could've occurred but didn't are not proper elements of damages. If a potential client says "it's the principle of the matter" an experienced attorney who handles cases on a contingent fee basis will most likely decline the case, because, they have to get paid for the time and risk of the investment of handling a case.
An attorney must evaluate the expected damages against the likelihood of prevailing in the case, the expenses that the attorney must front and the expected time the case may take to fruition. Personal injury claims are usually taken on a contingency basis and for that reason, personal injury attorneys who have been in business for more than a few years have learned to be very selective in the cases they accept. Defense attorney's on the other hand, are paid when they win, they lose or the case gets settled. Every time they touch the phone or the file, the billing process begins. They have no risk in the case and are paid even if the results are adverse.
Alternatively, personal injury attorneys must consider their time and the investment of money when analyzing whether or not to accept the case. Many personal injury victims cannot comprehend that an attorney may not want to take a case because the expected pay to the attorney is small for their time and investment. Attorneys are businessmen and women and must evaluate the expected return for their time and investment in every case. By way of example, if a case may take 50 hours of an attorney's time and the attorney would charge $400.00 an hour the expected fee to the contingent fee lawyer must exceed $20,000 plus some amount to justify the expenses the law firm anticipates and a multiple for the risk associated with an adverse result.
Another big item for attorneys to consider is the ability to collect should they win. Bad things happen to good people and unfortunately, often the insurance coverage or ability to collect is very limited when the damages are huge. The attorneys cannot change the facts regarding insurance coverage. We see wrongful death cases and terrible injuries every day where the negligent driver carried only the minimum coverage and there was no other source of funding.
Another source of concern would be liens that may affect the ability of the firm to collect money that goes into their client's pocket. Hospital liens and subrogation can have a big impact on the bottom line recovery to clients and this is usually most pronounced when there is little insurance coverage available.
Every personal injury case comes with costs associated with prosecuting the case. While in some instances the out-of-pocket expenses to the law firm can be small there are other times where the expected out-of-pocket costs are a reason a firm declines a case.
An example would be a product liability case which can easily run into six figures in out-of-pocket expenses for the law firm. An old saying for product liability attorneys is "if the client can walk in to your office you can't take the product liability case". Another example would be a Texas medical malpractice cases which are extremely expensive upfront for the law firm. Finding a qualified expert in these type of cases can cost tens of thousands of dollars and must be balanced against the risks of the case and the expected damages.
As set forth above, the time that the attorney expects will be required of the matter must be factored in by the law firm prior to accepting a case. Most law firms have parameters by which they screen cases that include damages, liability and time expected in the file. An attorney must consider what his hourly rate would be, along with the likelihood of recovery and the amount of damages. Because contingency fees are only paid upon exchange of money, the attorney must factor in the risks of an outcome that is not completely favorable to the firm.
Finally, the attorney must use their own judgment in deciding whether the plaintiffs are compatible with the attorney handling the file. Attorneys are particularly wary of individuals who shop for lawyers and are looking for an attorney to give them the "highest number" or value of a case before all of the facts are known.
Many personal injury victims become dissatisfied with their attorney and seek to change lawyers while a case is pending. This is a red flag for personal injury attorneys as are persons who call multiple law firms seeking to be told how great their case is.
There can be other factors such as minor property damage in a car wreck or where the attorney feels the medical treatment is excessive or may not wholly be related to the accident. Other recent personal injury claims are also a factor that attorneys use in deciding whether or not to accept the case or not. Finally, the attorney must like the client as a personal injury case can in some instances last a long time.
Personal injury lawyers must be business people when accepting a new personal injury case. The amount of the expected damages must be balanced against the ability to collect, the cost in the case, the attorney time necessary to move the case forward and the risks inherent in every case. Additionally, there are only so many cases one personal injury attorney can competently handle at a time. Every case that is accepted requires time and resources that take away from the ability to do other work.