There are a number of factors that come into play when an attorney decides whether or not to take on a personal injury case for a client. Here are some, but not all, of those factors:
1) Has the Statute of Limitations run (it is different for different types of cases)?
2) Was the client injured?
Most if not all Massachusetts personal injury, medical malpractice and products liability cases are taken on a contingency fee basis. What does this mean? I found the following informative and articulate post over at injuryboard.com authored by attorney Scott E. Smith. Here is the post:
Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking an attorney for his advice is no different than asking an accountant to set up a business plan or do your taxes, a doctor to examine you, render a diagnosis and prescribe treatment or hiring an electrician to fix the wiring of your home. Nonetheless, many people are under the impression that calling a lawyer and asking a question is free. Although most lawyers will gladly answer preliminary questions regarding a legal matter, when it is determined a lawyer is needed, a fee contract is required.
Most lawyers charge by the hour, as do most professions. Depending upon the lawyer's qualifications, experience and expertise, the hourly rate will vary. However, there are situations attorneys will work for a client on a contingent basis or on a reduced hourly rate and negotiated lower percentage. A contingency fee allows a lawyer to charge a client a percentage of money recovered in behalf of the client in a given case. A contingent fee contract has been referred to as the "poor man's key to the courthouse" because many individuals who are in need or require the assistance of an attorney cannot afford an hourly rate.
Is A Lawyer Contacting You After A Car Accident?
Following a motor vehicle collision people typically start receiving a ton of mail from insurance companies. Unfortunately, some of this mail may also be from car accident lawyers soliciting you. Sadly, there are lawyers who actually scour the accident reports from recent car crashes in order to solicit, either on the telephone, letter, or both, potential clients in hopes of drumming up business. Many lawyers, including myself, look with disfavor on this practice because it gives personal injury lawyers a bad name. I have written before on how injury lawyers do not deserve a bad reputation, but certainly these lawyers who solicit in this manner do nothing to elevate the reputation of personal injury lawyers in Massachusetts.
If you receive a letter from a lawyer after a car accident whom you did not contact, be careful when dealing with such a desperate and unscrupulous attorney.
Sadly, and unbelievably, there are lawyers who scour the accident reports from recent car crashes in order to solicit, either on the telephone, letter, or both, potential clients in hopes of drumming up business. Many lawyers, including myself, look with disfavor on this practice because it gives personal injury lawyers a bad name.
It is considered improper solicitation so if it happens to you, do not trust that the lawyer attempting to solicit you is an ethical lawyer.
Many times a passenger and driver injured in the same auto accident will seek out to have the same attorney work on the case. But, that is not always a good idea. The reason is because the attorney may have a conflict of interest if it is shown that his driver-client may have been at fault for the accident (either fully or partially), while the passenger obviously has no fault for the accident.
That happens from time to time and when it does, the attorney must withdraw from the case. Usually, the best option is for the passenger and driver to go to different lawyers at the start of the case, in order to avoid any problems down the road, should a conflict suddenly develop.
Generally, lawyers who take on auto accident, slip and fall, dog bite, and other personal injury cases charge a fee of 1/3 of the recovery. Very seldom does a lawyer who represents personal injury victims charge by the hour.
What the 1/3 percentage fee means is that if the lawyer obtains a settlement, or verdict for the client, the lawyer will take 1/3 of the recovery, plus the expenses the lawyer advanced. Some lawyers charge a lower percentage, some charge a higher percentage than 1/3. Some lawyers will charge a fixed percent, but if the case is put into litigation, the percentage fee may increase. It all depends on the lawyer and how he or she structures their contingent fee schedules.
Finally, some lawyers are willing to negotiate the percentage of the fee with prospective clients.
Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A. Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers. It is written in a way which makes the law a little less confusing and easier to understand. It is a FREE monthly publication you can pick up at most MBTA stations. The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.
Massachusetts Lawyers Weekly, a weekly publication for lawyers on news and developments in Massachusetts law, has recently launched Exhibit A. Exhibit A is a monthly newsletter written by lawyers and intended for non-lawyers. It is written in a way which makes the law a little less confusing and easier to understand. It is a FREE monthly publication you can pick up at most MBTA stations. The newsletter covers many different legal topics which you may find useful if you have specific legal questions, or, if you are just interested in the law generally.
Massachusetts attorney Eric J. Parker has written a great article concerning the role confidentiality agreements play in Massachusetts medical malpractice settlements. Here is the article:
Negotiated settlements of claims arising from medical negligence frequently involve the issue of confidentiality between the parties. In cases where a defendant physician, facility or other health care provider demands a confidentiality provision as part of a settlement agreement, plaintiff’s medical malpractice lawyer must consider several factors prior to agreeing to include confidentiality as a material term of a release and settlement agreement.
The first and most obvious consideration is the client’s intent and objective in bringing the action in the first place. A client that is dealing with their own, or a family member’s loss, as a result of a medical error experiences a wide array of emotions in deciding whether to pursue a claim. A frequently stated motivating factor is the desire to “make sure this doesn’t happen to someone else.” As noble a cause as this may seem, it does not square with the remedies available in most jurisdictions, or the purpose of the civil trial system. The civil litigant is entitled to fair compensation for their injuries, and that remedy is the “justice” available.
Nearly all Massachusetts personal injury lawyers take cases on a contingency fee basis. What that means is that your attorney will take 33 1/3% (or possibly more if your case goes into suit) of any settlement or judgment amount as his/her legal fee at the conclusion of the case. If your attorney advances any costs in prosecuting your claim, it is you that is ultimately responsible for any such costs.
With contingency fee cases, your attorney is required by the Massachusetts Rules of Professional Conduct to provide you with a copy of the signed, contingency fee agreement. This is the agreement that formalizes the attorney/client relationship. If your attorney does not provide you with a copy of the fee agreement, ask him/her for a copy of same.
Massachusetts Personal Injury and Workers' Compensation Law Blog