Unless you receive a referral from someone you trust, choosing a lawyer for your personal injury case can be one big crap shoot. Fancy ads or a nice office tell you more about a lawyer’s business acumen than his competence and skill as an attorney. There are plenty of “successful” attorneys out there making money hand over fist by running a “settlement mill” practice, where the individual clients do poorly, but the attorney does fine due to a “volume” business model. Asking the right questions can help you avoid these mills.
Most of the questions potential clients are encouraged to ask attorneys provide no insight into how their case will be handled or how effective the lawyer will be. Does it really matter to you where the lawyer went to law school? Some of the best litigators in the country didn’t go to a fancy law school. Does it matter if the lawyer has 10 years of experience versus 15 years of experience? 15 years of mediocrity aren’t worth more than 10 years of excellence. How about accolades from groups like SuperLawyers or the Million Dollar Advocates Forum, which are basically a popularity contest and a pay-for-praise company, respectively? Clients often feel better after asking about a lawyer’s qualifications, but most of the question they ask reveal nothing about how their cases will be handled. Here are two questions to ask which will give you information that is actually useful to choosing a lawyer.
How to Choose a Lawyer – Question #1
“When is the Last Time You Went to Trial?”
Jury trials in personal injury cases are rare, and they are becoming even more rare by the day. Don’t be surprised if the lawyer you are interviewing hasn’t been to trial in the past year or two. I would see it as a positive if he has gone to trial in the past two years, but not necessarily a negative if he hasn’t. Of course, the longer it’s been since the lawyer went to trial, the more concerning it is. If it’s been more than four years, I’d consider that a negative.
For purposes of this question, it doesn’t matter whether the lawyer actually won the case at trial. Most cases that go to trial are not sure things, and juries can be fickle. It is the willingness of the lawyer to go to trial that should interest you. Every personal injury lawyer will tell you that they are willing to take a case to trial, if necessary. Of course, actions speak louder than words — if your lawyer says that he’s willing to take your case to trial, but hasn’t tried a case in 7 years, you may want to take his claim with a grain of salt. Note that insurance companies also keep score on which lawyers try cases and which don’t. Who do you think is more likely to receive a favorable settlement offer?
Absence from the courtroom creates anxiety about the courtroom. In other words, the longer it’s been since a lawyer went to trial, the more inclined he’ll be to settle a case rather than brush up on his rusty trial skills. Obviously, every rule has its exceptions, and there may be lawyers out there who haven’t tried a case in years, but are itching to jump back into the courtroom. I’m just saying that I’ve never met one.
After dropping this bomb of a question, you’ll want to make it clear to the lawyer that you’re not one of those crazy clients who will insist on “having his day in court” in spite of a good settlement offer. You just want to know that your lawyer won’t pressure you to take a lousy settlement offer just to avoid a trial.
How to Choose a Lawyer – Question #2
“How Many Cases Are You Currently Handling?”
Lawyers are not used to being asked this question by potential clients. However, it is not only a fair question, but one which all clients should ask when choosing a lawyer. The more cases your lawyer has, the less time he has to devote to each case — and more specifically, to your case. No matter how brilliant a lawyer may be, if he doesn’t have adequate time to devote to your case, the quality of his work will suffer. Also, overburdened lawyers are less likely to return your phone calls in a timely manner and may be more inclined to settle cases just to help clear their calendars. An overburdened lawyer can cause your lawsuit to slow to a crawl, as his calendar may be too full to timely schedule depositions, hearings and, if need be, trial.
How many cases is too much for one lawyer? Ideally, when choosing a lawyer you’d want to find one with less than 100 active cases. If your lawyer has more than 150, I’d strongly consider moving on to someone else. Of course, not all cases are created equal. Social Security cases and workers compensation cases, which many personal injury attorneys handle as well, don’t require the same amount of time or attention from a lawyer as a standard personal injury case, such as a car accident or slip and fall. These types of cases are heavy on paperwork and are usually paralegal-driven. Also, especially with Social Security cases, they lie dormant for long periods of time while waiting for a final hearing, during which time they take practically none of the lawyer’s time. So, if your lawyer says that he has 175 active cases, but 100 of them are Social Security cases, that shouldn’t cause you any real concern.
How to Choose a Lawyer — Final Thoughts
When interviewing a lawyer, make sure you are speaking with the attorney who will actually be handling your case. It does you no good to know that the partner interviewing you has 80 open cases if your case is going to be given to an associate with 200 open cases. Also, if your case is going to be handled by an associate who has little or no trial experience, you’ll want to know whether a more experienced lawyer will “first chair” (be lead counsel on) your case if it goes to trial, and you’ll want the answer to Question #1 for that lawyer.
The more cases a lawyer has, and the fewer times he has gone to trial, are the best indicators of whether you are dealing with a “settlement mill.” Settlement mills are high volume law firms which almost never try cases. If they can’t settle a case, they’ll either drop the client or refer him to a firm that does try cases (for a 25% referral fee that comes out of the accepting lawyer’s fee). They also tend to settle cases for far less than they are worth. Avoid settlement mills at all cost.
The two questions I suggest are obviously not the only ones you should ask when choosing a lawyer. However, they can save you from falling prey to a settlement mill, or an overburdened lawyer who’s “a malpractice case waiting to happen.” They will also help you find a lawyer who has the time to adequately prepare your case and the willingness to take it to trial, if the need arises.