Busting Myths About Personal Injury

Hi, everyone, I’m Dennis VanDerGinst and welcome to Legal Squeaks.

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Now today, we’re going to try to dispel some of the myths surrounding personal injury lawsuits. If you’ve been injured due to someone’s wrongdoing, it’s important to know what to expect and what’s simply a myth. So we’re going to unveil some important truths about personal injury claims.

The first myth I want to talk about, that’s the myth that most personal injury claims are frivolous and that you’re greedy if you file a claim. Perhaps the biggest myth out there is this belief that society is sue-happy and that those who pursue injury claims are just trying to make a quick buck at someone else’s expense.

The term jackpot justice, for instance, has been used by proponents of this myth. And the infamous McDonald’s hot coffee lawsuit, which came up in the 90s, was held up as a prime example of the civil justice system run amuck. The problem, however, was that that case was spun in such a way that it was misleading and true. By the way, check out our Legal Squeaks podcast on Claim Shame for more on on that topic.

The effect of the spin on that case was that some people developed this claim shame, a feeling of guilt, which inhibited many people from pursuing legitimate claims out of fear that they’d be perceived as greedy. But to the contrary, most personal injury claims are brought by individuals who have been genuinely hurt and are genuinely suffering from the injuries that were caused by the wrongdoing of someone else. It isn’t greedy to require a negligent wrongdoer to pay for the damages you incur from that wrongdoing.

Why should you bear that burden? Not only should you not have to pay for those damages yourself, but by holding those responsible for causing your hardships, you might mitigate similar actions in the future from those people or others who might be otherwise inclined not to exercise proper care and caution. So keep that in mind, if you, if you have a legitimate personal injury claim, you need to to pursue it and and, you know, everyone else be damned.

You know, you have that right, and the moment you stop using your rights is the moment you start losing your rights.

Now, the second myth, which is similar to the first myth, is that some people believe that injury cases are skyrocketing and that the courts are bogged down with personal injury cases. And they also believe that legal reform is necessary because insurance rates are going up and doctors can’t afford to practice out of concern for malpractice insurance rates being so high, et cetera, et cetera.

Again, this is a bunch of bunk. It’s not true at all. According to the National Center for State Courts, personal injury cases only account for between 4.4% and 7% of all civil case filings. Most civil case filings are contract and property disputes or family law cases like divorces.

In fact, personal injury lawsuits have declined by over 25% in state courts and 79% percent in federal courts over the past several years. And as far as these these cost, these concerns about health costs and doctors health care costs rising, medical malpractice litigation, for instance, has nothing to do with that.

According to the Congressional Budget Office, medical malpractice amounted to less than 2% of overall health care spending. On the other hand, according to the American Medical Association, the overall number of physicians is up by more than 40% since 1990, while over that same period of time, the U.S. population increased by only 18%. So the competition is real, but it’s, the driving force here is the fact that there are so many physicians as opposed to the population rate.

So as to doctors being unable to afford to practice, in some cases that’s legitimate, but it has nothing to do with personal injury or medical malpractice litigation. Likewise, if you experience insurance rates going up, it has nothing to do with personal injury lawsuit, lawsuits either.

In 2019, for instance, the U.S. insurance industry net premiums written totaled 1.32 trillion, with a T, dollars. So the insurance industry is not hurting. Your rates go up because the insurance industry wants more money, not has nothing to do with personal injury claims.

The third myth is that people who have health insurance don’t need to file personal injury claims because they’ll be covered.

Well, health insurance and other forms of medical payment coverage, sometimes, first of all, they’re intended only to cover medical payments, they don’t cover, you know, the rest of the damages you might be entitled to. In addition, often they don’t cover all the medical bills that arise to treat injuries from an accident.

For instance, your health insurance likely has a deductible and or a co-payment requirement that you’ll have to pay before it even kicks in. It’s also very common for some treatments to be either disallowed or discounted with these types of coverages.

But as I said, more importantly, medical payments coverages only cover medical bills or a portion thereof. That doesn’t account for lost income, if you can’t work for a time. It doesn’t address out-of-pocket expenses. It doesn’t compensate you for pain and suffering, scarring, disability, emotional distress, nor a host of other damages for which you may be entitled to compensation. And the only way to get the full compensation to which you may be entitled is by pursuing a claim through the appropriate entities and procedures.

So the next myth, I don’t need a lawyer. Well, the truth is you may not be required to have legal representation, but you should understand that insurance companies have teams of lawyers on their side and you should have one so that you have a shot to obtain, you know, the reasonable compensation for your injuries. Mostly, people don’t know the types of compensation nor the amounts of compensation to which they’re entitled based on the nature of the accident and the injuries sustained.

More importantly, unless you’re an attorney, you won’t have the legal knowledge necessary, nor the ability to leverage the threat of litigation which enhances your financial recovery. In addition to the inconvenience, the inconvenience and stress that comes with handling injury claims is alone often enough to warrant hiring an experienced injury attorney for your injury claim.

The next myth, similar once again to the last myth, some people think that they’ll put more money into their pocket from their injury claim by not hiring an attorney there because they’re saving, you know what they’d otherwise have to be paying for attorney fees.

Well, while it’s possible in limited circumstances, generally speaking an injured person is going to net more compensation with an attorney than when they’re going it alone. And that’s by, that’s according to insurance industry statistics, which have indicated on average that a an injured person is going to put in their pocket 2.5x more with an attorney than they would without an attorney.

Now, the rare exception to this rule is if the claim is very small or if there’s limited insurance proceeds available and that it be offered without an attorney’s help.

So, for instance, if you have just a very minor injury, maybe just $100 or a couple hundred dollars out of pocket, and you’re not able to get that resolved, you know, you could certainly file small claims action by yourself. And you may be able to do that and may put more in your pocket doing so than if you hired an attorney. And that’s, again, assuming that you could get an attorney to handle a case of that, of that size.

But then the other example that I mentioned is if the proceeds, the insurance proceeds, the policy limits, in other words, are limited. So if you know, for instance, you have suffered a significant injury and that the other party who’s responsible for causing the accident, maybe they only have $25,000 worth of coverage for this accident, and that’s going to be tendered by the insurance company no matter what, well, in that instance, you probably don’t need an attorney. Sometimes you do, because sometimes, you know, the attorney can still get reductions on leins for your medical bills. That will end up netting you more money.

But on occasion, that might be a situation where you don’t necessarily need an attorney. But for the most part, you do. You do need an attorney.

So along similar lines, the next myth is, well, I have to pay my personal injury lawyer so much money up front. Well, the truth is that most personal injury law firms operate on a contingency fee basis, which means you pay nothing up front and that the firm or the attorney collects nothing, no fee, unless they win your case.

In additions, in addition, some firms like mine VanDerGinst Law, we advance the costs necessary to pursue your claim. And that, too, is only reimbursed if there’s a financial recovery on your case. That means in those situations you’re never out of pocket a dime. So there’s really no reason not to hire an attorney in those situations.

The next myth is that any attorney is fine to handle a personal injury claim. Now, it’s true that many attorneys are perfectly capable of handling a simple personal injury claim, but the practice of law is a lot like the practice of medicine.

There are generalists, there are specialists, and your chances of securing a better injury claim result will likely increase if you use an attorney whose practice is focused on personal injury law. The same way, if you, if you had a brain injury and you were seeking someone to, to treat you, you probably don’t want to go to your family doctor. You’d probably need to see a neurologist, a brain surgeon, a neurosurgeon. You know, that’s you’re going to get a better result.

So the same is true when it comes to selecting an attorney to handle the type of case that you are faced with, and in this instance we’re talking about personal injury.

The next myth that some people are, are unaware of is they think that they can file a personal injury claim at any time. Well, the truth is that there, there are limitations, and different states and different situations have different deadlines for filing a lawsuit. And if you fail to file your lawsuit within whatever that time frame is, you are barred forever from doing so.

These deadlines are known as statutes of limitations. In addition to those deadlines there are sometimes other requirements like providing notice, for instance, which an injured person must comply with, or again, they’re forever barred from pursuing their claim. So you have to be aware of that. Now for instance, the general statute of limitations to file personal injury cases in most states is between either one and five years from the date of the accident.

For instance, in Illinois and in Iowa, that, that timeframe is generally two years from the date of the accident.

But there are several exceptions to those general rules which may shorten, or in some instances actually extend the amount of time in which you must file your lawsuit. Again, another good reason to make sure that you have an experienced injury attorney helping you with your case.

The next myth, if someone else caused my injury, I’m guaranteed to get proper compensation to cover my losses.

Well, unfortunately, contrary to popular belief, personal injury cases do not result in easy money or windfalls. There’s no guarantee that you will get any, let alone proper compensation. It often depends on who you are or who you are dealing with and who you are hiring to represent you because if they don’t know what they’re doing, you’re not going to get the kind of compensation you’re entitled to. If you are dealing with a an obstructionist type of insurance carrier, you’re going to have a harder time getting the type of compensation to which you’re entitled.

So don’t think that just because someone else, you know, caused the accident, which which caused your injuries, that you’re going to get proper compensation without a fight. You’re generally going to be in for a fight.

The next myth. The person who’s responsible for the accident causing my injuries will be paying out of their own pocket to compensate me. Well, you know, unfortunately that can occur. And some people are certainly worried about the financial impact on someone who simply made a mistake.

You don’t want to take advantage of a situation by any means. But typically, even though the person causing the accident is legally responsible for paying the necessary compensation for damages, usually that person has liability insurance. Auto insurance, homeowner’s insurance or commercial policies, which provide not only their defense of the case, but also indemnify them for any loss. So if it turns out that they are responsible for your damages and that they’re going to end up owing you money for compensation, generally speaking, there is an insurance company in the background who is footing the bill.

They’re the ones who are actually going to pay those damages. And typically they’re the ones that are negotiating with you or providing a defense, meaning that they’re hiring the attorneys who are negotiating and or defending the case. So it’s their insurance companies who compensate for an injured party, or compensate an injured party for the damages that are incurred as a result of the actions of their insured. So don’t feel bad when you pursue someone. Generally, again, there’s an insurance company that is going to be footing the bill and certainly don’t feel bad for insurance companies. As I mentioned, one point whatever, trillion dollars in 2019.

The next myth. To receive compensation on my personal injury claim, I’m going to have to go to court. Well, most personal injury cases are settled out of court without even filing a lawsuit. And even with the cases that do get filed, most of those are resolved before a trial becomes necessary. Statistics vary depending on the source, but likely fewer than one injury claim in 100 actually goes to trial before a judge or jury.

So don’t be too concerned that you’re going to have to go to court. Most most cases don’t even get filed. But, you know, you need to have the leverage of going to court. You need have the leverage of having an attorney that will take your case to trial in order to get the case resolved without going to trial.

The next myth is that personal injury claims take years to resolve. Now this is a half truth. There are personal injury claims that certainly can take years if the case is complicated and or if there are disagreements as to either liability, you know, who’s responsible, or to the damages. How much should a person be compensated?

It can also depend on the docket where the cases get filed. So, for instance, a congested court docket like Cook County in Illinois, those cases can get pushed back much longer than a case in a more rural county, for instance. But most cases don’t require a lawsuit for a resolution, and in those instances, claims are often resolved soon after the treatment for the injuries has ended and the records are accumulated. Usually under those circumstances, a demand is submitted. And at that point, settlement negotiations begin in earnest and often the injury claims resolved during that process.

There are probably many other myths that need to be debunked, but those are the primary ones that I think make the most sense for us to address at this time. Certainly, if you have questions, feel free to reach out to me at VanDerGinst Law. We’d be happy to answer any questions that we can about your personal injury case or about questions that you may have regarding a personal injury case.

But in the meantime, I want to thank you all for joining us. Again, I’d like to remind you, if you haven’t already done so, please register, subscribe or follow Legal Squeaks on your favorite podcast platform. Absolutely free to do so.

Also, if you’d like to watch the video version of this or any of our other episodes, simply go to legalsqueaks.com and follow the prompts.

Also, please check out our other podcast, Uncommon Convos. Be sure to join us next week on Legal Squeaks.

And in the meantime, have a great day, stay safe, and I love you all.

Welcome to Legal Squeaks, I’m your host Dennis VanDerGinst. Today I want to talk to you about a concept I refer to as Claim Shame.

It’s not really a legal concept. It’s more of a phenomena that I’ve observed developing over the course of more than 30 years in, in practice. And what it refers to is the reluctance of some people to pursue lawful and rightful claims that they may have against wrongdoers who’ve caused them damages, or usually they’re, the insurers of those wrong doers, or their own insurance carriers.

And the problem with this phenomena is that if you don’t use your rights, you lose your rights.

And that might seem like an alarmist thing to say, but it’s true. So I’d like to talk about why it is this mindset exists and why it’s not a good thing.

So I’m going to start by addressing the reluctance of some people to pursue wrongdoers who have caused them damages. This is usually, by the way, in the arena of personal injury cases, but it can also be in other areas of law, for instance, dealing with contracts, criminal charges, etc..

Now, certainly I agree that people shouldn’t be quick to pursue legal remedies when it’s not warranted. But too often people either presume they don’t have a valid legal argument, or they’re ashamed to pursue it.

So why is that? For some people, it might just be the way they were brought up. Their, their religion, their spiritual beliefs, the turn the other cheek mentality. But the source of this mentality, which is most troubling, is the misplaced concern that frivolous lawsuits are clogging up our court system or are the reason insurance and business costs are so high.

Now do frivolous lawsuits happen? Sure, anyone can sue anyone for anything. But there are so many checks and balances built into our civil justice system that frivolous lawsuits are typically dismissed long before they’re ever seen and heard by a jury.

And if a case gets to a jury, both sides have an opportunity to present their evidence and the overwhelming number of times the jury gets it right.

But even then, if there is concern about a runaway verdict, for instance, the defendant can exercise motions and appeals to get any wrongful judgment discounted or discarded.

So frivolous lawsuits present no real danger to our legal system. So why is it that it’s become such a concern?

The simplest answer is that big business and insurance interests have poured billions of dollars into public relations campaigns and lobbying efforts to minimize their exposure to lawsuits.

This effort is what’s been part of what’s known as tort reform or the tort reform push.

Now, tort reform refers to proposed changes in the civil justice system that aim at reducing the ability of victims to bring litigation for injury claims or to reduce the damages that they’d be entitled to receive. It really is counter intuitive with respect to our jury system.

We have juries for a reason. The juries listen to the evidence, the juries decide who’s at fault. The juries assess the kind of damages that should be awarded. The tort reform push is counterintuitive to that.

And the message of these campaigns has been focused on arguments dealing with frivolous lawsuits and jackpot justice, which is a term they’ve coined to express this notion that people file lawsuits to gain windfall, windfalls of undeserved compensation awards, again, ignoring the statistical evidence that stacked up against that notion and the very nature of our civil justice system, which provides so many checks and balances.

Now, one of the most infamous examples of this campaign was the McDonald’s coffee case from many years ago. It’s become kind of the poster child of the excessive lawsuit argument. Most of you have probably heard about the case.

The headlines were basically that some woman won millions of dollars from McDonald’s because she spilled hot coffee on herself.

And the myth was that this woman, while driving a car, holding McDonald’s coffee between her legs, spilled some coffee on herself and then, inflicted with minor burns, she sues McDonald’s as if she didn’t know that, you know, coffee’s hot and driving with it between your legs could be dangerous. And ultimately, she wins millions of dollars even though she was to blame.

Now, that was the picture that the tort reformers painted. On the surface, it certainly made for a compelling argument. I mean, how can someone get paid millions of dollars for spilling hot coffee on themselves?

Only that was not what really happened.

That was an incomplete and distorted report of the true story.

So let me give you the real facts. And what I’m going to tell you here is easy, is easily verifiable, by the way. I’ve got no hidden agenda in exposing the skewed and false reporting of this case. To borrow from the X Files, the truth is out there.

So the person who was injured was, by the way, a 79 year old woman. That really doesn’t make too much difference, but it was a sympathetic character. And she was parked in a car that her grandson was driving. So she wasn’t driving and the car was not in motion. It was parked.

And even though she may have had arguments available to her that the Styrofoam cup that she had was flimsy and hard to handle, she didn’t make any excuses along those lines.

She acknowledged that the spill was, the spill itself was her fault. What she took issue with was that the coffee was ridiculously hot, 190 degrees, which at 140 degrees, serious burns can occur. So this was near the boiling point and it was completely unnecessary to be that hot.

In addition, this wasn’t some minor injury. It caused third degree burns on her legs and her genitals, almost 16 percent of her body, nearly killing her. She had to be hospitalized for eight days.

She had to require extensive surgery and skin grafts and had permanent scarring as a result. In fact, her recovery lasted for over two years.

Her doctor testified at the trial that it was one of the worst scald burns he had ever seen.

Now, on the other hand, McDonald’s, at the trial, admitted that it had known about the risk of serious burns from its scalding hot coffee for at least and probably more than 10 years. Because from 1982 to 1992, McDonald’s coffee had burned more than 700 people, including children and infants.

Many of them had received severe, severe burns to the general area, their inner thighs, buttocks, the same area where this woman had been, sustained most of her, her injuries.

Witnesses for McDonald’s at the trial admitted in court that consumers are unaware of the extent of the risk of these serious burns from spilled coffee. They admitted that they did not warn customers of the nature and extent of this risk, and they couldn’t offer any explanation as to why they did not warn people other than, I guess, the presumption that, hey, coffee can be hot.

But the coffee was so much hotter than, for instance, competitors that that’s what made, made this so, so dangerous and such a huge risk.

The McDonald’s witnesses also testified that it didn’t intend to turn down the heat. There was no plan at that point for the procedure to be changed, which, you know, that’s not necessarily something that’s going to fall in their favor when a jury is listening to their righteous indignation, is probably what they were the way that they were viewing it at the time.

McDonald’s actually admitted during the, the trial that its coffee is not fit for consumption when it sold because severe scalds can occur if it spilled or if its, its drunk at that, at that temperature.

Now, the other thing to understand is that she didn’t want to go, to court. She just wanted McDonald’s to pay the medical expenses that Medicare had not covered, which was estimated at around $20,000. McDonald’s offered her $800, which is why the lawsuit was filed to begin with.

So after hearing the evidence, the jury concluded that McDonald’s, that their handling of the coffee was irresponsible. Now, this is, again, one of those situations that wasn’t reported accurately.

It, the jury, only awarded $160,000 in compensatory damages after deciding that she had been comparatively negligent in contributing to the injuries.

In other words, they they determined that compensatory damages were worth more, but they discounted it because she was the one who admitted spilling on herself.

But then it awarded punitive damages, and punitive damages are designed to punish. So they wanted to punish McDonald’s for its callousness, knowing that over 700 people had been severely burned before. Yet they didn’t do anything about it and they weren’t planning to do anything about it going forward.

They were upset. The jury was upset, so they assessed $2.7 million in punitive damages.

Now, that $2.7 million basically represented two days coffee sales for McDonald’s. That’s how it was arrived at. In that context, it certainly didn’t seem like it was that outrageous. But as I said before, there are checks and balances in our civil justice system. So McDonald’s argued that the punitive damages was excessive and the judge reduced the final verdict to $600,000.

Still not good enough, McDonald’s intended to appeal, which likely could have been drug out beyond her life expectancy because she was elderly. So they ended up settling the amount for an undisclosed amount, but it was certainly far less than the $600,000.

So, as I said, the civil justice system works very well usually. Here, a jury found that the evidence presented on her behalf was compelling. What it did in response, when put into that context, made a lot of sense and represented only a very modest punishment of McDonald’s. And further, when the argument was made that the jury’s verdict was excessive, that problem was appropriately addressed by the trial court who substantially reduced it.

So how is it that the public’s view of this case got so warped? Well, essentially, greedy corporate interests spent years running a disinformation campaign along with a lot of money, which much of the media bought into holding up the McDonald’s coffee lawsuit as an example of this supposed epidemic of frivolous lawsuits.

The case obviously has become the target of countless jokes since then. And people have embraced the idea of people making mountains out of molehills and trying to get money for nothing.

And it’s that perception that has become the pervasive mindset of a lot of Americans to the point where it’s eroded a lot of confidence in the system and led to the spread of this attitude that I referred to, this attitude of Claim Shame.

As an injury attorney, I can’t tell you the, the many times, the countless times that people have come to me, at the end of their rope, almost apologizing for asking, you know, the need to ask for help because they have become ashamed to pursue legal remedies due to this type of conditioning that they’ve undergone via media persuasion and lobbying efforts influenced by interests who simply want to minimize their own lawsuit exposure.

I hear from so many people who come to see me about injury claims that, you know, I’m not the suing type. Most people don’t even realize that when you take an injury claim to an attorney, it isn’t typically going to immediately be filed as a lawsuit.

Most injury cases are negotiated and settled before even having to file a lawsuit.

And those cases that do have to get filed as a lawsuit, only a small portion of those actually go to trial because they, too, eventually get settled. Most of them, once the parties have an opportunity to do some investigation and discover the strengths and weaknesses of their respective cases.

Yet people remain either jaded or ashamed to look into their own rightful remedies for harm that they suffered due to the negligence or wrongdoing of another.

And this, this attitude can impact juries as well, because often there are jurors who come into a case skeptical of the motivation of the injured person. Fortunately, that bias can often be overcome if they’re willing to at least listen to the evidence with an open mind.

Now, as I mentioned at the beginning of the podcast, there’s, there’s also often a reluctance people have to pursue claims with their own insurance carriers, and they usually offer 2 explanations as to why, that is. Why they don’t want to file a claim with their own insurance carrier.

The first one is because it’s not their fault. They shouldn’t have to pay for it. Their insurance company, shouldn’t have to pay for it.

The second one, the second reason that they don’t want to pursue their own insurance company is because they don’t want their insurance premiums to go up.

So let’s, let’s talk about those reasons.

The first one, you know, please don’t feel sorry for your poor insurance company. Net premiums in the last couple of years have exceeded a trillion, with a T, dollars in the insurance industry.

You pay for your premiums for a reason. If there’s, by the way, if there’s another party that’s responsible for your injuries, your insurance company’s going to have a subrogation right. That means that they’re going to be entitled to recoup all or at least some of what they paid on your behalf. So, again, please don’t feel sorry for them.

In addition, sometimes using your own health insurance or other insurance coverages, for instance, in, in car accidents, that that can provide the quickest and most convenient way to get the necessary treatment you need, or in the case of car accident cases, it can get you the vehicle repairs or replacement or a rental while the other party is still investigating.

Plus, when you use your own carriers, under certain scenarios, a good lawyer can coordinate your benefits in using those coverages so that it eventually enhances the amount of money that you’re going to get in your pocket when the case is settled.

So the second reason may warrant a little more consideration, at least when it comes to concern over auto insurance premiums rising if you make a claim.

Now, normally, depending on the state that you’re in or the state where you have your insurance contract, you’re not going to see a premium rate increase if you make a claim when you’re not at fault.

Now, that’s not that that can’t happen, but normally it doesn’t. And you can always find another carrier if it does, because, again, if you need the coverage, you need the coverage. That’s what you pay the premiums for. So take advantage of that.

So there’s one more area where we often see Claim Shame exhibited, and that’s in those situations where an injured person feels that they caused or contributed to the accident and therefore they’re not deserving or entitled to any compensation.

But that’s not always the case. As we discussed with the McDonald’s coffee case, a person can cause the accident, yet not be responsible for the extent of the injury, In that situation, she admitted to, you know, being at fault in spilling the coffee, but she certainly shouldn’t have, nor was she found to be accountable for the extent of the injuries. That was on McDonald’s.

Also, the law recognizes that when accidents happen, it’s not always 100% the fault of one party or the other.

There can be an apportionment of fault between all the parties. Some states recognize what’s known as contributory comparative or modified comparative fault, which limits the rights of an injured person to recover in a pro-rata relation to their own percentage of fault.

So if a jury hears all the evidence that the injured person was 10% to blame, his or her recovery would be discounted by 10%.

So, for instance, slip and fall accidents, often it’s a combination of fault there. People need to watch where they’re going. They know that there’s, there’s ice in the location they’re, they’re walking, so they have to be careful. They have to watch where they’re going to have to be careful of how they walk, what kind of shoes they’re wearing, et cetera.

But it might also be that the either the snow or ice existed for such a period of time or was created in such a manner that the property owner is also to blame, to some extent.

A jury might hear that testimony and decide, well, we feel that the injured person was at least 20% at fault. They should have taken better care of of how they were walking in that area during that period of time. But they may have decided that, you know, reasonable compensation for the type of injuries was $100,000.

Well, under a comparative fault state, that hundred thousand dollars would be reduced by 30%. So the injured party would still get $70,000.

Now, there’s a very extreme theory of law called contributory negligence, where if you are at fault at all, you get nothing. I think that’s only in one state, I think it might be Louisiana.

But there are other states that have modified the comparative fault rule, which basically would say then they’d have that same reduction under the scenario that I just described, where if it’s anything less than 50 percent, it’s going to be reduced by that amount in the amount that remains will be something that the injured party would be entitled to for compensation. But the moment they hit that tipping point, if a jury decides that the person is more than 50 percent at fault in these modified comparative fault states, they get nothing.

So the point is that even if you were partly to blame in causing an accident, you might still be entitled to a recovery. And in fact, in workers’ compensation scenarios, you’re entitled to benefits even if you’re completely to blame, as long as you were injured at the time that you were, at the time you were injured, you were working and in furtherance of that employment.

These are laws that were put in place for the general well-being of the public. So you need to be, you need to feel entitled to take advantage of your rights to compensation. They’re intended for everyone’s benefit. Don’t be a victim of Claim Shame.

So thank you for tuning in.

Please be sure to subscribe and like us, also check out legalsqueaks.com to suggest future topics and leave comments.

Also, be sure to check out our other podcast, Uncommon Convos. I hope you’ll tune in next week. Until then, have a great day. Stay safe. And I love you all.

Welcome to Legal Squeaks, I’m Dennis VanDerGinst, and before discussing today’s topic, I’d like to remind you all please subscribe to or follow Legal Squeaks on your favorite podcast forum and ask your friends and family members to check us out as well.

Today, I’m going to talk to you a bit about some of the things you should consider when deciding whether to hire a lawyer for your legal problem and what lawyer to hire if you decide that that’s the route to go.

Before we get to that, someone recently asked me what the difference is between a lawyer and an attorney. It sounds like a joke. I know, but it’s not. The terms are often used interchangeably and people presume that they refer to the same thing. But even though it is common practice to use them as synonyms for each other, there is a difference.

The term lawyer means someone who has successfully completed law school and has obtained a juris doctor degree.However, an attorney is a lawyer who is then gone on to pass the bar, the bar exam, and then been admitted to practice law in one or more states. So all attorneys are lawyers, but not all lawyers are attorneys, technically speaking. But for purposes of this conversation, when I use either term, I’m referring to someone who can represent others with their legal needs.

So there’s also been the question presented as to whether a non-attorney can represent someone else. Now, as I just referred to, unless you are an attorney admitted to practice law, you can’t represent someone else, at least not in court.

You can, however, represent the interests of a child or a ward if you are a parent or you’ve been appointed as a guardian or conservator for a person who’s judged under a legal disability or incompetent, which requires special consideration or for limited purposes through a power of attorney designation. So just wanted as an aside to bring that up before we get on to the topic of hiring attorneys for your legal needs.

So the first question is whether or not you should hire a lawyer. And the answer to that question primarily depends on the legal issue you’re facing. In broad terms, most legal problems fall under one of three different categories, either criminal, civil or public. By public I’m referring to administrative or regulatory laws which primarily deal with the structure of of the administration of government. It can overlap with criminal and the civil justice system, but we’re not going to really directly discuss that today.

Right now, we’re really going to focus just on criminal and on the criminal and civil justice systems, because those are the areas where most people are going to have issues that might require an attorney.

So criminal law refers to the laws that define criminal offenses. Those that determine when and how to charge people with those those offenses. Trying people for those offenses, and penalizing people who either are found guilty or plead guilty to those offenses. It includes federal and state crimes. It includes misdemeanors and felonies. Broadly speaking, it might also include pseudo criminal infractions like moving violations, for instance, speeding and nonmoving violations like parking infractions or equipment failures with with vehicles.

So do you need a lawyer if you’re charged with a crime or can and should you represent yourself? In most instances, if you are determined competent to represent yourself, you may do so. A judge will make the determination by weighing factors such as your age, your level of education, your familiarity with the English language, and the nature of the crime in which you’ve been charged.

But even if you can, meaning legally, you’re allowed to represent yourself, it doesn’t mean that you should represent yourself, as Abraham Lincoln said “a person who represents himself has a fool for a client”. Any person who is charged with a crime which could result in imprisonment is entitled to be represented by an attorney. It doesn’t matter if you’re charged with a felony, which are the more serious crimes, or a misdemeanor, which often results in fines and lesser penalties. As long as jail or prison time is possible, you are entitled to to representation.

For instance, if a defendant is facing a misdemeanor charge that has a maximum sentence of six months in jail, he or she still has a right to a lawyer, even if the actual sentence turns out to be a fine and probation with no jail time.

So the issue that this all hinges on is, is whether or not there is the possibility of jail or prison time. And if so, you’re entitled to a lawyer. And if you can’t afford an attorney, one will be appointed. I’m sure you’ve seen it on on television shows and in movies when people are read their rights. Now, typically, if you can’t afford an attorney, the appointed attorney will be a public defender, and want to talk a little bit about public defenders in a moment.

However, I wanted to also clarify most traffic traffic violations, which don’t don’t have the possible consequences of jail time, are not going to warrant the appointment of counsel because, again, there’s got to be that possibility of jail or prison time. With most traffic violations in most states, the consequences are usually going to be fines or losing your license for a period of time.

Similarly, defendants in civil cases don’t typically have a right to an attorney, except in rare circumstances where there is a potential loss of liberty, like if someone were found to be in contempt, they may under those circumstances, be facing some jail time, they, too, might then have an opportunity to get a lawyer appointed.

Now, the decision as to whether or not you can or can’t afford an attorney rests with the judge who’s going to consider your employment status, your income, your other financial obligations and assets, because just because a defendant has a job doesn’t necessarily mean that they can afford a lawyer. And if a judge determines in looking at all of these issues that it would create an undue financial hardship that judge may then decide to go ahead and appoint a public defender.

Typically, if you’re facing large fines and penalties, including the possibility of jail or prison time, you will want an attorney. If you can’t afford one, as I mentioned, a public defender might be perfectly capable of handling your case. Bear in mind that a lot of them have a lot of experience. The problem with public defenders, and this is why they they often kind of get a, a bad rap, is that they’re oftentimes burdened with too many clients, and they often also have very limited resources for hiring experts and doing other things that might be significant in presenting a defense, especially if you’ve got complex charges that are hovering over your head.

So it’s obviously, if you can’t afford to hire a private attorney, that’s still better than representing yourself. But I wouldn’t want someone to think that just because they were appointed a public defender that they were going to get someone who wasn’t capable. That’s simply not true.

Now, if you can hire a private attorney with reference to criminal charges that you have pending, you’re going to want to go through a checklist that would be similar to the checklist you would go through if you’re hiring an attorney for a civil case.

First of all, you’re going to want to know how much are they going to charge? And we can talk about charging a little bit more when we discuss civil cases. But sometimes it’s hourly, sometimes there’s a flat fee depending on the nature of the charges against you. But that’s certainly something you’re going to want to ask when you are trying to determine what attorney is going to be the right one for you.

You’re going to want to know how much experience do they have? And now experience is not just limited to the number of years they practice, but what type of practice have they had during those years? What percentage of their practice is devoted to criminal defense work? For instance, have they handled similar cases? Just because they have handled numerous battery cases doesn’t necessarily make them qualified, for instance, to handle a murder case.

So you’re going to want to get some sense of what cases they have handled and then how successful have they been with those cases? Do they try the cases? Do they plead them out, you know, get some information what, as to what their reputation is in the community. Go online and check to see if there’s any information about them. Hopefully most nowadays, most, if not all reputable attorneys and law firms have websites and on their websites, they should have information about the nature of their practice, the nature of their experience and some of these other things that would be certainly important to you.

You also want to find out if they have any conflicts with respect to the case that you are presenting to them. For instance, sometimes the defense attorneys might know the alleged victims. You know, I’d be a little difficult for them to represent you if they have some kind of affinity for or affiliation with a victim and or witnesses that may be involved in the case.

Do they have any friction with the judge or the prosecutor which might make things more difficult? Those are things you’d also want to explore. What resources do they have access to? Do they have adequate staffing? Do they have other partners or or attorneys that they can rely on? You know, there are a lot of very capable solo practitioners, but sometimes solo practitioners can get bogged down. They can they can get sick, they can die. You know, they can go missing. And there might be nobody else who is familiar with the case that’s going to be able to pick right up and go if you are forced to go to trial or if you’re forced to have a hearing on something that, and there’s no attorney available. So you’re going to want to know what resources they have access to.

And then finally, you’re going to want to get some idea of your comfort level with that firm, with that attorney, with that staff. Obviously, your freedom might be at stake if we’re talking about the possibility of, of prison or jail time being a, a penalty that you’re facing. You want to make sure that you trust that attorney to have your best interests at heart.

Now, hopefully you won’t have much need for an attorney in a criminal legal matter, but it is much more common that you might have one for a civil matter. And because civil matters include cases in which any private citizen or company needs a civil remedy or resolution to a legal matter. It can include personal injury matters where someone seeking compensation for injuries that were caused by someone’s wrongdoing. It can include real estate issues, immigration issues, business contracts, you know, making sure you have proper filings in order to to incorporate your business. It includes family law, which encompasses divorces, custody, child support, adoption, et cetera, estate lawyers, et cetera.

These are all examples of of civil matters that you might need an attorney for. So, you know, as I mentioned, there’s a much greater likelihood that at some point you may need an attorney, even if it’s not with respect to a criminal matter. So selecting the right attorney for a civil matter can be very involved.

Again, the first question here is, do you need a lawyer? Because there, frankly, are some things that nowadays you might be able to accomplish without a lawyer, which were more difficult maybe years ago.

So, for instance, if you go online, you can often find a lot of documents that can accomplish what you might have otherwise needed an attorney for. For instance, wills, contracts, sometimes real estate documents, things of that nature, you might be able to find those documents online and they may suffice. They may be perfectly appropriate for the purpose you need them for, but you do take a risk that what you get online may not be appropriate to your situation or it might not be appropriate in the state in which you reside.

So just be mindful that if you’re looking for that as an option in place of hiring an attorney, do whatever you can research-wise or or, you know, maybe even ask an attorney whether they think that this is an appropriate document that you downloaded, and if that will be something that, that you can use in your state. Some some firms and attorneys will answer that question for you. So you might want to check that out. You certainly want to do whatever you can to ensure that what you are using, what you’re gathering online, is sufficient for your purposes.

Some people also try to handle their own divorces or other disputes, again, that can be perfectly fine when the parties are in agreement, but if there are important items that can’t be agreed to, you probably need an attorney. So, for instance, perhaps a couple is getting divorced and they agree that they’re going to share custody and visitation. They agree to who’s going to pay child support. They agree as to whether there’s going to be alimony or maintenance and maintenance and what that amount might be, but maybe they can’t agree as to how marital property should be divided.

Well, then at least for that issue, they should have an attorney. They could certainly try to get most of it done by agreement. But if there are any issues that can’t be agreed to, you probably need an attorney, even if it’s just for that issue. Some people also, also will try to settle their own injury claims because they’re concerned that attorney fees will eat too much out of the money that’s going to be recovered.

Attorney fees in injury claims are often a contingent fee between 25 and 40 percent of the recovery. And indeed, there are times when people are perfectly capable of presenting their, their own claim. If necessary, they might even be able to present the case in small claims, especially if the court where it’s presented is more lenient as to the rules of evidence. But some courts are not some some courts the judges are going to hold you to the same standard that attorneys would be held to if they were presenting a case for trial.

So you have to be, again, sure that if you are presenting a claim that you’re aware of your rights and what you should be entitled to and how to get it. If you are presenting that claim in small claims, that you need to know in advance whether you are going to be held to the same rules of evidence that lawyers would be, in which case you probably don’t want to take that, take that step, because that’s going to be biting off an awful lot.

And the big consideration here is when people make that, use that rationale to handle a case for themselves versus hiring an attorney, a lot of times it is, again, because they think that they’re not going to end up with as much money if they have an attorney. But really, you have to look at it this way. Would you rather be entitled to 100 percent of $100, or two thirds of a $1,000? Because most of the time an attorney is going to get a better result than you will, a layperson will, on their own. And that’s statistically true based on the data that’s been accumulated by insurance companies over the years. So you have to keep that in mind. Even if that weren’t true, just the frustration that you save yourself is often worth hiring an attorney in that in that scenario.

So assuming that you conclude that you need an attorney for a civil matter, what are some of the considerations in hiring an attorney in those cases? Well, again, cost is often a primary factor. Some attorneys charge an hourly fee, some attorneys charge a flat rate and some charge a contingent fee. And it usually depends on the nature of the legal issue that you are asking them to address.

For example, if they’re asked to do something for which they have a pretty good idea what their time commitment might be, the, they will often charge a flat fee. So, for example, maybe you’re wanting them to do a simple will and they know what that’s going to entail. So they have a flat fee, simple wills cost $350. OK, or maybe they, you you ask them to handle a moving violation. It’s going to be a one time appearance maybe that they’re going to charge you a flat fee, $750.

But if it’s going to be an ongoing effort, then they’re likely going to charge hourly. So, for instance, a contested divorce, they might charge $200 an hour. Or a complicated probate over contested will again, they may may charge that hourly and they may charge, you know, anywhere between, I think the typical hourly fees are between $100 and $400 an hour, depending on the experience of the attorney and the type of case where you’re located. A number of factors. But you can anticipate $100 to $400 an hour is what you may be paying for an attorney doing hourly work.

By the way, don’t always go for the lower hourly rate because more experienced attorneys might get the work done a lot faster than a less experienced attorney. So you might have, for instance, a, a newer attorney who’s only charging $100 an hour, and you have a more experienced attorney charging $400 an hour. But the less experienced attorney is going to take 10 hours to get the work done and the more experienced attorneys is going to take 2 hours. So in that scenario, you’re actually paying $1,000, even though it’s $100 an hour, you’re paying a total amount of a $1,000 for the less experienced attorney and you’re only paying $800 for the more experienced attorney.

So when you are facing an hourly rate, be sure you try to get an estimate of the total fees. Attorneys may not be able to give you an exact amount, but they can typically estimate for you how much work is going to go into it and therefore around the range of fees you might be able to expect.

And then the last way that attorneys charge is with a contingent fee and contingent fees are typically reserved for cases where the attorneys are attempting to recover money on behalf of the client. For instance, compensation for injuries in a personal injury case or a worker’s compensation case.

In those situations the attorney is only paid if and when a financial recovery is made. And their fee then is a percentage of that money that’s recovered. Typically, that percentage will be anywhere from 25 percent to 40 percent of the amount recovered. And it depends on the again, the nature of the case. Sometimes workers compensation, for instance, the the contingent fee is less. Medical malpractice cases, the contingent fee is higher. Again, depends on the state as well.

Obviously, you’ll want that clarified in advance, so, you know what that that contingent fee is going to be. By the way, don’t be swayed by discount lawyers who charge on the low end of that range. As they say, you often get what you pay for. So even though pricing is a factor to consider, it is one of many factors to consider.

Another clarification that you’re going to want is whether there’s any retainer required. For flat an hourly fee cases, for instance, attorneys typically require a certain amount of that anticipated fee to be paid up front and then as it is earned, it is removed from the retainer. But even contingent fee cases, there shouldn’t be a retainer for the fees. However, some attorneys require what’s known as a cost retainer. That’s money that they’re going to ask you to pay up front for anticipated costs that will be necessary to proceed with the case.

For example, when dealing with an injury case, it’s very typical that the attorneys and staff need to order medical records and bills from treatment providers if the case gets filed. There are filing fees. There are court reporter fees. Often depositions need to be taken of treatment providers, or experts need to be retained in order to testify.

Those are all costs that are separate from the attorney fee because this is being used to pay for, for, you know, the services of other people. And sometimes the retainers that are asked for costs can be hundreds or even thousands of dollars. So you want to know that up front. There are there are certainly law firms out there that will front those costs. They will advance those costs so that you are not out of pocket and you’re going to want to know that up front.

You also want to know what the focus of their practice is. The practice of law is a lot like the practice of medicine. There are practitioners who have general practices and then there are others who specialize or focus on specific areas. So general practice lawyers handle a wide variety of legal issues and they can be more or less comfortable with, you know, numerous areas of law. You’re going to want to explore that if you consult with the general practice lawyer, determine what areas of law they’re more comfortable with, what what areas they may be less comfortable with.

General practice lawyers are certainly a good option, perhaps even the best option for basic legal needs, like drafting a simple will, handling real estate, closing, taking care of a speeding ticket, you know, those types of things because they’re often less expensive than a specialty lawyer. And they can handle those those matters expertly. But if the case is more complex, then you might want to consider hiring an attorney who is more experienced in that specific area of law.

So, for instance, if you needed brain surgery, you’d obviously go to a brain surgeon, not to the family doctor, nor to a gynecologist. So by the same token, if you needed a patent or trademark done, you would likely want to consider hiring a patent attorney or an attorney who’s more experienced in intellectual property law rather than a general practice attorney.

Experience again with civil practice matters is also an important factor to consider, it goes hand in hand with that practice focus. An attorney, there is a distinction, because an attorney can decide to focus his or her practice on personal injury, for example. But just shifting the focus doesn’t mean their experienced. In other words, they could have been doing something else or they might be right out of law school and they’ve determined “my focus is going to be patent law, or real estate law, or personal injury law”.

But that doesn’t mean that they have the experience that you might need or that is certainly going to make you feel more comfortable, because experience means prolonged exposure to that area of law and continual opportunities to handle that area of law. It doesn’t always mean the length of time in practice, but that can be a consideration. It can also be the number of clients that they’ve represented for those types of cases. So, again, you’re going to want to make sure that you are checking out online references to see what the experience is for the attorney or law firm you are considering.

Another consideration that you’re going to want to factor into the decision should be the potential conflicts of interest. We’ve referenced that with respect to criminal law, but also with civil law, because, for instance, if you have a contract dispute and you want to be sure that the attorneys on your side, you want to ensure that that attorney who’s representing you isn’t somehow beholden to the defendant. You know, maybe, for instance, they have represented the defendant in the past.

In the divorce cases we mentioned the ability to, you know, do a lot of things by agreement. Sometimes there’s only one attorney who is retained by one party or the other. And it may seem that that attorney is representing both parties because a lot of it is being done by agreement. But really, that attorney should really represent just one party. So you’re going to want to be familiar and aware of where those conflicts may exist.

A common situation that arises in injury cases, for instance, is that an attorney will take a case to represent an injured party against a defendant, but that defendant is insured by an insurance company who often uses that same attorney. So how can an attorney fight for you against the same insurance company for which they sometimes work? It’s difficult to be comfortable that an attorney in that position will fight to get every penny for which you, as the injured party is entitled, when you know that they also rely on that same insurance company to supplement their own living. So you need to, you know, ask those questions in advance.

Another often overlooked area of inquiry is convenience. It shouldn’t be, probably when we’re dealing about legal issues, convenience might need to take a backseat sometimes to thoroughness, for instance. But in our fast paced society, it’s often difficult for people to deal with attorneys, to deal with the legal system, spending time going to attorney offices or the courtrooms or being on the phone with attorneys and staff. It can really bog people down. So you’re going to want to see, you know, what resources the attorney has.

Are they able to do video conferencing? Can they come to you if necessary? Ask about other resources? Do they have a reasonable case management software? Do they have adequate staffing? Again, are there multiple attorneys in their office in the event that it’s necessary for someone to cover a hearing or cover an issue for which the attorney you’re primarily dealing with isn’t available?

And as with the list for, for criminal defense attorneys, ask about their reputation. Search them out online, look at online reviews, look at testimonials, look at their website, and finally assess your confidence and and comfort level with that lawyer or law firm.

Depending on the complexity of the case, you may have to spend a lot of time with them. So you have to be sure to trust them. Be sure that you are comfortable with them.

So I hope this information was useful. As, as always, please be sure to follow us or subscribe to us, for free, to Legal Squeaks on your favorite podcast platform, you can also suggest topics or guests at legalsqueaks.com. Also, please check out our other podcast, Uncommon Convos.

Join us next week for another episode of Legal Squeaks.

And in the meantime, have a great day. Stay safe. And I love you all.