Consumers often believe that a trial attorney’s day consists solely of sitting in court arguing cases. Not so. In fact, the term “trial attorney” is one of the most misunderstood concepts for non-attorneys to comprehend. In this day and age, public perception of an attorney is generally based on who is willing to spend more money on advertisements such as billboards, commercials and internet searches.
In reality, a vast majority of attorneys rarely step inside the confines of a courthouse and even less make a full blown living at being just a “trial attorney”. If I asked 10 people (non-attorneys) who they believe are the most skilled trial attorneys in the area, the names would be a who’s who of the highest advertising attorneys (the majority of whom refer their litigation to other attorneys). Remember, anyone can spend money to create catchy commercials or radio advertisements; this does not correlate with the amount of time the attorney spends at the courthouse, much less their actual ability in court.
Consumers should educate themselves when hiring an attorney as opposed to calling the first 1-800 number, lawyer referral service or commercial they see most often in aiding them in making such an important decision. So the question is, “How important is it in a personal injury case to hire an attorney that is willing to take a case to a jury if the settlement offers are unacceptable?” The answer is obvious but often times it’s “too little, too late” when you are being pressured into accepting a settlement offer that is not commensurate with the injuries you sustained.
Assume that you are an everyday person that has been involved in a car accident and is seeking competent legal representation. How do you choose an attorney that will handle your case from inception to finish? You will realize that only two events will resolve your case; that is a settlement or jury verdict.
In a nutshell, personal injury attorneys prepare your case so that adjusters can make the best decision in evaluating the claim in order to secure the highest possible offer. Without delving too deeply into the obvious criteria that result in a good offer (objective medical findings, cost of treatment, medical procedures/recommendations, property value of accident, prior injuries, etc.), it is no longer feasible to believe that you will get a fair offer from insurance companies without the need to actually file a lawsuit and exercise legal remedies available pursuant to Florida statute. Insurance carriers essentially have one duty…that is to pay claims and pay them fairly. Ask any personal injury attorney and they will almost uniformly explain that insurance carriers rarely make “fair” offers anymore. When that happens, you have two choices: 1) Try and squeeze a few more shillings out of the low ball offers and settle; or 2) file a lawsuit.
If you are being represented by an attorney or firm that does not routinely file lawsuits in order to keep the insurance carriers honest, this would be the part of the case when you will start feeling pressured by your attorney to settle the case. Some personal injury lawyers are very, very convincing as they never had any intentions of filing a lawsuit if the insurance carrier did not make an appropriate offer to settle your matter. Hopefully you have chosen a law firm that is not only willing to file a lawsuit, but will advise you when the offer is absurd. The only convincing these lawyers do is to assure you that filing suit will greatly benefit the potential to secure a legitimate offer in your case. Do your homework and make sure your attorney or firm files lawsuits regularly and are willing to properly finance the litigation; also ensure that they are not planning to pursue your lawsuit on a shoe-string budget. That’s right, plaintiff attorneys essentially invest in your case by putting up their own money (sometimes a lot of money) to file suit and hire experts.
Finding the right law firm and attorney is not an easy task. As described above, the public is inundated with billboards, TV, radio and internet advertisements by the same dozen or so attorneys that allocate huge budgets to get you in the door. Many of the attorneys you see in those nice suits are rarely, if ever, willing to file a law suit…and they know this the second you walk into that door.
If you feel pressured to accept a paltry settlement offer by your attorney you have a right to get a different attorney. This is NOT to say that every case is worth a massive settlement amount; there can be a number of reasons why a settlement offer is low, including defects with your case. However, if an insurance adjuster knows that the law firm representing you is known to never file or rarely files a lawsuit, you can understand why the adjuster would be content in offering you well below the realistic case value. The result for the insurance company will be an across the board savings that you cannot imagine if you take that one under-valued case and multiply it by thousands of claims every quarter. Remember, if the ONLY job of an insurance carrier is to pay claims, then why wouldn’t they purposely under-value the settlement offer knowing that a good percentage of attorneys will never file suit?
It is important to note that we are not talking about the major injury cases that require surgery. No, we are discussing the moderate impact car crash that resulted in you sustaining a herniated disk causing you chronic pain. These are the everyday cases that attorneys should fight tooth and nail to obtain “true value” as insurance companies know that these cases are the ones less likely to be litigated. Without litigation why even have negotiations? Instead just have the insurance company send you a check, as the mentality behind those offers is the hope that the attorney will convince their own client into taking the settlement offer.
So who are the real trial attorneys? Who are the firms that will not force you to take $5000.00 on a case that is truly valued at $20,000.00? If you want those answers, you need to ask the questions. Ask your potential attorney how they deal with the major insurance carriers making de minimus offers. Will they file suit in your case and if need be take the case to trial? Ask them. These are the questions that should always be asked instead of being enticed by a pretty face on a billboard or a catchy tag line.
If you had several attorneys write down the names of the top dozen attorneys in your area that litigated personal injury cases it is unlikely that you would recognize the majority of the names. Years ago, when attorneys were barred from most advertisements, lawyers relied on their peers for referrals. Fortunately, this still holds true in some regard. One of the best ways to find a competent trial attorney is by way of referral. If you do not know a personal injury attorney, you can ask any attorney that you know; from the bankruptcy attorney your friend used to the family law attorney your cousin utilized last year and held in high regard. Attorneys know other attorneys. Compile a few names as this is a good way to start your hiring research. Ask the attorney that is giving you the name if they get a “referral fee” if you sign up with the recommended lawyer. This is important. Obviously if the attorney they are recommending is going to cut them in on a percentage (sometimes as high as 25%), then take that with a grain of salt as the lawyer referring you out has a financial interest in your decision.
Most attorneys, regardless of a potential referral fee, will give you the names of fellow lawyers that they know will give you excellent representation; a bad referral would reflect badly on them personally and professionally. So regardless of commercials and billboard advertisements, the trial attorneys that are out in the trenches day every day develop a reputation for doing so with most local attorneys, even those not directly related to that chosen practice area. Most of these trial attorneys do minimal advertising because the work they do speaks for itself.
If you, a family member or friend, have been physically injured as a result of a car accident, make sure to keep this article in mind. You want to hire the best person available at the beginning of your case. You want to hire someone that not only refers to him or herself as a trial attorney but one that actually litigates and tries cases in their field. Jumping on the phone and calling a 1-800 number with a catchy jingle or remembering that billboard you saw last week might put you in a situation where you feel you are being pushed to settle your case for less than its value. In these cases, often the one doing that pushing is the very person you thought would fight for you…I mean that’s what the commercial said right?
Christian Myer, Esq., is a St. Petersburg injury law attorney and civil trial lawyer. Mr. Myer is also an Adjunct Professor at Stetson University College of Law where he teaches Trial Advocacy.