Do You Have A Case?
In the many years I have been practicing personal injury law, I have taken of thousands of calls from potential clients. A great number of these callers have heard me say: “You don’t have a case.”
This paper is not meant to keep you from calling an attorney to get an opinion about your case. Rather, it is meant to give you a better understanding of what the attorney must consider in evaluating your case. You will also find some tips on how to give the attorney the best information that will allow him to accurately evaluate your case.
THE ATTORNEY SHOULD BE SYMPATHETIC AND GRATEFUL FOR THE OPPORTUNITY TO BE YOUR ATTORNEY
Most plaintiff’s attorneys have a big heart, are hugely sympathetic, and are very sorry you have been injured. We feel your pain. This is why we represent Plaintiffs and not defendants. We love getting justice for the little guy and we love beating the big bad insurance companies. The best part of my practice is talking to potential clients. I am honored to be given the opportunity to accept a new case.
Having said that, I have to also accept the fact that there is a limit to how many hours in the day I can spend on the phone with prospective clients. Most experienced attorneys can evaluate a case’s potential upon hearing only a few relevant facts. This process shouldn’t take more than a minute or two. To that end, we attorneys will ask the perspective client simple questions that, if answered succinctly, can achieve the goal of laying all the relevant facts out in a matter of a couple of minutes.
Unfortunately, most people think the attorney has to hear every little detail. Since they don’t know what details are important, they figure to play it safe and leave nothing unsaid. Please try not to be this person. You can avoid being this person if you will just simply listen to the attorney’s questions and answer them as simply as possible.
HOW TO TALK TO THE ATTORNEY
First, stick to the facts and do NOT give in to the urge to embellish or to make it sound more dramatic. Remember, your job is NOT to convince the attorney to take your case. He already has enough incentive to take your case – this is the only way he can make a fee. Forget what YOU think is important. He has years of experience and he will let you know by his questions what is important. If he accepts your case, there will be plenty of opportunity later for him to ask you additional questions and for you to bring up anything you feel he needs to know.
WHAT THE ATTORNEY IS THINKING
There are two parts to every personal injury case – liability and damages. Liability refers to being able to establish fault (negligence) against someone. Damages refers to your injuries, medical costs, pain, suffering, mental anguish, lost income, etc. But if we cannot establish fault there is no point in discussing your injuries. Therefore, the first thing the attorney is going to want to hear about is how the accident happened. He is looking at whether legal negligence can be made against another person or company. In a car wreck case, determining fault is not rocket science. With few exceptions, it is either a rear-ender, a stop sign situation, a red light case, or a failure to yield the right-of-way.
The next thing the attorney will want to know is whether the at-fault person or company had insurance. Most attorneys will not take a negligence case against a person with no insurance because the average person is judgment proof. If there is fault and there is insurance, then and only then will the attorney want to hear about your injuries.
IT’S WHATS IN YOUR MEDICAL RECORDS THAT COUNTS
Once the attorney begins to ask about your injuries, brief, objective descriptions work best. There is no need to go into detail about how much agony you are in or how you may never be the same again. Trying to convince the attorney that you are in a lot of pain and misery is not necessary as the adjuster will only be interested in what your medical records say. In all my years of practice, I have never had an adjuster ask me if my client was in a lot of pain. So, if you are in a lot of pain, the best way to help yourself is to tell your doctor, not your attorney.
Here are some things to keep in mind when you call an attorney to see if you have a case:
He’s busy: Try to be understanding of this – he has a busy calendar and is working on multiple cases every day. His litigation cases have deadlines. He has depositions, taped statements, discovery responses to review, motions to prepare, evidence to review, etc. He has calls and emails to return, all of which, if he is conscientious, should be returned promptly. On top of this, you are not the only one calling him/her about a possible case. You may be the fourth or fifth call that day.
The consultation is free: You are not paying him for his time. The only way he is going to get compensated for talking to you is to accept your case and bring it to a satisfactory conclusion. He gets no compensation for the cases he rejects.
He’s heard it before: The experienced attorney has heard your facts, or facts very similar to yours, many, many times. He has also handled many, many cases with injuries just like yours. You do not have to go into detail.
He’s not stupid: The experienced attorney will catch on to your facts very quickly and with minimal information from you. He thinks in shorthand. It does not take him long to get the picture – you were rear-ended at a stop sign, you went to the ER by ambulance, and you have been diagnosed with whiplash. You do not have to tell him you were on your way to pick up your daughter at the time you were rear-ended, or that you were in a brand new car, or that this has never happened to you before, or that the other driver was rude to you, etc.
It’s a business: The attorney you call is not only trying to advise you, he is making a business decision. You are asking him to take a financial interest in your case and in so doing, he will have to invest his time, money, and effort. His decision is based on his calculations as to whether he will be fairly compensated if he takes your case.
YOU MAY BE BETTER OFF WITHOUT AN ATTORNEY OR JUST FORGETTING ABOUT YOUR CASE
My prime consideration is always the client. Regardless of what taking your case might mean for me, it’s more important to consider what it may mean for you. If your claim has been denied already and I know a lawsuit will be necessary, I will explain to you that you will have to miss time to come in and answer discovery, come in for your deposition, and perhaps even have to spend a couple of days in court in front of a judge and jury. If your case has small potential, going through a trial may not be worth it to you. Or, your case may be too small and handling it yourself may be advisable to having to pay your attorney a fee. Finally, the evidence may be weak and you may lose your case after a lot of time, effort and expense. All that time, money, worry, and aggravation for nothing!
THE ATTORNEY SHOULD GIVE YOU HIS REASONS FOR REJECTING YOUR CASE
I have turned down many cases for many reasons, but I have always explained my reasons to the prospective client. Many attorneys feel they may have some liability to you if they tell you don’t have a case and they are wrong. I don’t agree with this. If I think the person asking me for an evaluation doesn’t have a case, I will tell them so and tell them why. I always encourage them to seek an opinion from two or three other attorneys, but after so many years of experience, I have confidence in my assessment. So, whether the reason is that your liability facts are too weak, your damages are too small, or the defendant does not have insurance, you should know why the attorney is not accepting your case.
If you have been injured and you feel it was caused by someone else’s fault, I encourage you to call an attorney to evaluate your case and determine whether you need legal representation. I also encourage you to start the conversation by stating the purpose of your call in a few concise sentences and then let the attorney ask you the questions he thinks are relevant to his evaluation. If you listen to the questions, answer them to the best of your ability, your case will get a fair evaluation.
Robert Rodriguez, attorney
Law office of Robert Rodriguez