April 9, 2003
Before
They Hire A Lawyer, Clients
Need To Know How The System Works
by
Robert F. Gonderman, Michiana Point of View
The recent coverage of the conduct of Attorney Paul Kusbach has focused public attention on the personal injury legal practice in this community and throughout Indiana. Mr. Kusbach’s abuse of his clients is self-evident and is properly subject to criminal investigation.
However, other problems individuals face when they seek legal counsel for personal injury claims are not so obvious. How should people with serious injuries choose an attorney to represent them? How do attorneys differ in how they handle personal injury lawsuits? I would like to shed some light on these issues.
I am an attorney who has worked exclusively in the personal injury practice for the past seventeen years. When I started to practice law, advertising was in its infancy. Very few attorneys were on TV or on billboards. Since then, there has been an explosion of mass media advertising. Attorneys fight for the back cover of the phone book. The first question to be asked is does this advertising really help the public make an informed choice about who to hire when they need a personal injury attorney? I submit that it does not.
The public should know that any attorney who passes the bar, can take and
try a personal injury claim to a jury. In medicine, if you want to do
cardiac surgery, you have to become a specialist in cardiac medicine. Such
specialized training and board certification helps protect the public by
making sure that the physician has the necessary qualifications and training
to perform the particular surgical procedure. Unfortunately, any attorney,
regardless of his or her actual experience and competency, can take out an
ad as a “personal injury attorney”. Looking good on a slick TV ad doesn’t
mean that the attorney is ethical or competent.
The public should also know that attorneys can have different approaches to
the practice of personal injury law. An attorney may massively advertise so
that one attorney is responsible for as many as 150 cases. Such advertising
budgets can exceed a million dollars a year. To support this advertising
budget, the attorney then hires a substantial staff of assistants to manage
high case loads.
Because advertising at this level is so expensive, there can be pressure to
turn cases over quickly. Failure to maintain substantial cash flow can
lead to the types of problems seen in the Kusbach case. For some attorneys,
the goal is not to maximize the value of each case for each client. The
goal is to move cases quickly with minimal direct attorney time and
involvement.
Hypothetically, let’s say a case has a true value of $150,000 if fully
prepared. To get the full $150,000, the attorney may have to work on the
case for two years and advance $12,000 in expenses. The attorney time in
the development of the case may exceed 200 hours. The attorney fee in such
a case would be $50,000 (1/3 of the recovery). At 200 hours, the attorney
makes $250 an hour. Further, the attorney cannot take as many other cases
because of the time commitments of this case. What happens if the attorney
can settle the case in 4 months, with only 10 hours of attorney time, for
$75,000 through the use of assistants. The attorney fee would only be
$25,000 but the pay per hour for the attorney time would be $2,500 an hour
instead of $250 per hour. The insurance company will be happy to settle
early because it is only paying half of the value of the claim. The
attorney wins. The insurance company wins. Who loses? The client who
often does not know that their case was undervalued. Certainly, every
attorney who advertises does not practice in this fashion. However, the
pressure is there when the advertising budget gets too high.
Another approach is limit the number of cases an attorney is responsible for
to 15-30 cases. Such an attorney might only employ one staff member per
attorney. Such an attorney seeks to develop each case thoroughly to
maximize the result for each client. This type of approach makes it
difficult if not impossible to maintain a million dollar plus advertising
budget.
I submit that a person seeking a personal injury attorney should interview several attorneys. They should ask the following types of questions: Each case is different. A result in another case cannot tell you what the
result will be in your case. Nevertheless, knowing that your attorney has
won the majority of his or her jury trials is important. Knowing that your
attorney has tried cases resulting in substantial jury awards helps the
client know that the attorney has the actual skill and competency to manage
and try a large case. The pool of attorneys who have tried cases resulting
in million dollar verdicts is small indeed. Knowing how the system works and what questions to ask can help Michiana residents make an informed choice.
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