If you’ve called several lawyers about handling your personal injury case and you haven’t found one who’s interested, it’s usually due to one of three reasons. First, your case sucks. Second, you want to sue someone who local lawyers don’t want to sue. Third, your case involves an area of the law that few lawyers want to deal with. Unfortunately, many lawyers will not give you a reason, or at least the real reason, why they don’t want to take your case. Hopefully, after reading this, you can figure it out for yourself, and decide whether your case is still worth pursuing.
Lawyers Don’t Want Cases That Suck
I know it’s crude to say that a case “sucks,” but this is generally the term we lawyers use among ourselves when describing a case that has more problems than it’s worth. FYI, a case that is slightly better than a case that sucks “has some hair on it” in lawyerspeak — this is usually used to describe a case with serious problems, but which is still worth pursuing (usually due to potentially large damages). Cases that suck usually have one or more of the following three features:
- Liability problems
- Damages problems
- Insurance problems
Liability problems: “Liability” refers to the “fault” aspect of the case. If a jury is likely to find that you are partly or mostly liable for your own injuries, most lawyers won’t take your case unless you have significant damages (think over $100,000.00 for “partial fault” cases and a lot more if you are “mostly at fault”). In car accident cases, collisions at uncontrolled intersections and those involving rear end collisions where the lead driver made a sudden stop often pose liability problems. In “slip and fall” or “trip and fall” cases, cases involving open and obvious hazards will often have liability problems.
If you were in a car accident where you were wrongly cited by law enforcement as the “at fault” driver, expect most lawyers to reject your case. Really, the only hope you have to remedy this is to beat the ticket at traffic court. This is something you’ll have to do on your own, as personal injury lawyers won’t want to do this for you. Even if you do beat the ticket, it’s unlikely that a lawyer will want your case — but it’s really your only shot, so why not try it.
“Open and obvious hazard” cases will usually involve slipping on a colored substance that is clearly visible on the floor (like spilled ketchup) or tripping over a floor display or change in floor elevation that anyone looking down would see. The key to selling these types of cases to potential lawyers is explaining why you didn’t see the obvious hazard. In stores, this can often be explained by the fact that you were looking at the merchandise on shelves. In parking lots, it can be explained by bags obscuring your view or that you were looking out for moving vehicles (if the lot was busy). Quickly explaining your reason for failing to see the hazard to a potential lawyer can be the difference between getting an appointment versus an instant rejection.
Damages problems: A case with clear liability, but little to no damages, is akin to a tree falling in the woods with no one to hear it. Because personal injury lawyers work on a contingency basis, they can’t afford to take cases without significant damages. Bumps and bruises and pulled muscles aren’t pleasant, but they also don’t result in huge settlements or jury verdicts. If you don’t have at least a few thousand dollars in medical bills, expect most lawyers to instantly reject your case. I am by no means suggesting that you overtreat for your injuries in order to drive up your medical bills. This strategy is sure to backfire, and will likely result in a case that you can’t afford to settle (your bills and medical liens will eat up your entire share of the settlement).
If you have a case with clear liability, but low damages, it may be worth pursuing on your own in small claims court (if you can’t find a lawyer). In Florida, the small claims court limit is $5,000.00 (this will vary by state), meaning that you will never be able to recover more than $5,000.00 (excluding your court costs) if you choose to file there. Keep that in mind when deciding whether small claims court is a good option for your case.
Insurance problems: There’s really only one type of insurance problem that will make a lawyer instantly reject your case: the defendant doesn’t have any. Most often, this will arise in the context of an uninsured driver (which can be solved if you have UM insurance). It also arises in cases involving bar fights, as many companies which insure bars now exclude coverage for any injury resulting from assault and battery (including the bar’s own negligent security). While it’s true that you can still sue uninsured defendants and try to recover your judgment from the defendant’s personal assets, most lawyers don’t want to risk suing a defendant that may lack the ability to satisfy a judgment. Also, cases involving the uninsured are nearly impossible to settle, as the defendant does not want to agree to pay large sum of money from his own personal assets. The near guarantee of having to take the case to trial, coupled with no guarantee of ultimately being paid, make these cases extremely unattractive to lawyers.
Lawyers Don’t Want to Sue Certain Defendants
If you want to sue a prominent member of your local community, such as a wealthy businessman, a doctor, a lawyer or your local law enforcement, you may have trouble finding a local lawyer to take your case. This is purely a matter of personal preference by your local lawyers, and has no reflection on the merit or value of your case. Lawyers may not want to sue businessmen, lawyers or doctors for business reasons. These people may be a valuable source of client referrals. They may serve on the same local committees or belong to the same social groups. Doctors may act as expert witnesses for local lawyers. These lawyers don’t want to burn bridges that may impact their business or social lives in the future over just one case.
When it comes to local law enforcement, aside from the social concerns mentioned above, lawyers may also be reluctant to sue them out of fear of retaliation. In my experience, this fear is unfounded. I’ve handled numerous tort and civil rights cases against local law enforcement (one of which even resulted in a sheriff’s deputy being charged and convicted on federal criminal charges), and I’ve never had a negative encounter with any officer as a result of this. Of course, most people, lawyers included, don’t want to risk law enforcement painting a target on their backs.
If you suspect that you are having difficulty retaining counsel because of who it is you want to sue, your problem can usually be fixed by expanding your lawyer search to neighboring cities.
Lawyers May Reject Your Case if it Involves a Legal Niche They Don’t Want to Touch
Personal injury cases aren’t limited to car accidents, medical malpractice and slip and falls. Product liability, libel and slander, false arrest and excessive force, among other things, fall within the purview of personal injury lawyers. However, not all personal injury lawyers take these types of cases.
Product liability cases, especially isolated cases (not mass torts involving hundreds of plaintiffs), could be too expensive or time consuming for many lawyers. Libel and slander cases more often involve hurt feelings than real damages. False arrest and excessive force cases require knowledge of federal civil rights laws, with which the vast majority of personal injury attorneys are unfamiliar. It’s simply not worth most lawyers’ time to learn a new area of law for just one or two cases.
Even if you have a traditional negligence case, you may have a hard time finding a lawyer if your case is likely to end up in federal court (under diversity jurisdiction). They won’t admit it to you, but many personal injury lawyers are terrified of federal court. The procedural rules significantly differ from most state courts, with many potential traps for the unwary. Most personal injury lawyers rarely or never wind up in federal court, so they are uncomfortable trying to learn these procedures from scratch. As someone who practiced as much in federal court as I did in state court, I’ll admit that I had a significant advantage over defense lawyers who had little or no federal court experience. Federal procedural and substantive law is not something one wants to “dabble” in.
With most of these types of claims, it’s really just a matter of calling enough attorneys until you find one who knows the area of law you need. The exception may be the libel and slander cases. If you haven’t suffered a significant business (monetary) injury as a result of the libel or slander, don’t expect any lawyer to value your mental anguish enough to take such a case.
Lawyers May Lie About Why They Aren’t Taking Your Case
In my county, I am appalled at the number of lawyers who will lie to potential clients and say that they can’t take a case due to a “conflict of interest,” when in reality they are rejecting a case because it falls into one of the above categories. I know why they do it. They don’t want to tell the client that his case sucks and waste their valuable time explaining why, while also risking an unpleasant argument over the merits of the case. They certainly don’t want to say that they can’t sue a certain doctor because he refers them a lot of business. They also don’t want to admit ignorance or fear of a certain area of law.
So, why do they claim to have a conflict of interest? Two reasons: (1) lawyers won’t have to explain how they have a conflict, because in cases of a real conflict of interest, attorney-client privilege would preclude them from discussing it with you, and (2) because they legally can’t explain the conflict, they get off the phone with you in the shortest amount of time, and without any hard feelings.
Unfortunately, this leaves the client completely oblivious as to the true problem with finding a lawyer for his case. It also wastes a lot of other attorneys’ time, as a person with a possibly awful case calls more lawyers around town. I’ve found that brutal honesty in telling clients why I’m not interested in their case usually doesn’t take much longer than making up a bogus reason. I’ve had people whose cases I’ve torn to shreds thank me for my honesty afterward. I’ve also been able to send people to lawyers who are more likely to take their cases just by taking a few extra minutes to hear them out.
If you find that you are running into the “conflict of interest” excuse, it may help if you just ask the lawyer if he’s really turning down your case because it sucks. Explain that you’re not going to argue with him over his opinion, but you don’t want to waste your and a bunch of other attorneys’ time shopping around a case no one wants. If enough potential clients do this, maybe lawyers will stop lying about why they aren’t taking your cases, and clients can more easily find a lawyer who likes their case.