It’s a good idea to interview at least a couple different South Florida injury lawyers before deciding which to hire to handle your claim. But just as you are considering which attorney to hire, he or she is also considering your case potential. If your case is declined by one lawyer, ask why and don’t hesitate to get a second opinion. Most offer free initial consultations.
That said, there are several reasons why an attorney may decline to accept your case – and it may have more to do with them than the viability of your claim.
Here, our West Palm Beach injury lawyers explain a few reasons why an attorney may turn down your case.
Understanding Contingency Fees
Unlike criminal attorneys or divorce lawyers (most of whom are paid upfront or by retainer), Florida personal injury lawyers are paid on a contingency fee basis. What this means is an injury attorney does not require upfront payment. Instead, his or her fees will be taken out of a percentage of whatever you are ultimately compensated. If you do not win your case, your attorney is not paid.
As noted by the Florida Bar Association’s pamphlet on attorney’s fees, contingency fees must be agreed upon by written contract at the time your lawyer agrees to represent you. That contract will outline a fixed percentage of your damage recovery. The exact percentage will usually depend on the complexity of the case, strength of the evidence and your attorney’s track record of success. For the most part, though, contingency fees are typically set somewhere between 30 and 40 percent.
If the attorney does not think the case is winnable, they may decline to represent you. Again, it’s always wise to get a second or even third and fourth opinion, particularly if your injuries are severe.
Trouble Establishing Liability
Establishing liability is critical to any Florida personal injury or wrongful death claim. Just because someone was injured or died does not mean someone else legally required to pay for it.
Most Florida injury and wrongful death claims are predicated on a legal theory called negligence. That means someone else had a legal duty to use reasonable care, they failed to do so, this failure caused the injury at issue and the injury resulted in financial losses. If any element of this cannot be established, there is little chance the case will be successful.
(This is one reason why it is so crucial to seek immediate medical attention after an injury. It helps to make a better case for cause-effect.)
Inadequate Damages
One’s damages must be sufficient to make it worth an attorney’s while. Damages can be paid for things like medical expenses, wage losses, property damage, pain and suffering and loss of life enjoyment. That doesn’t mean every case is a six-figure slam-dunk. But the attorney will look at things like:
- How seriously you were hurt.
- How much time you were forced to take off work (and when you’ll be able to return).
- How substantially your life has been impacted by the injury.
- Who was responsible for the damages.
- Whether the person(s) responsible have insurance coverage (and how much).
- Whether insurance is likely to cover the damages.
You may have a strong case, but if a defendant has no resources to cover the damages, it may not be worth pursuing the claim.
If the person hurt was responsible for his or her own injuries, there may be no one to sue. However, if one is only partially responsible, Florida follows a system of pure comparative fault. What that means, per F.S. 768.81, is that even if one is partially responsible for his or her own injuries, they may still recover from the other at-fault parties. So if you’re 30 percent responsible but others are 70 percent, you can still collect 70 percent of your total damages from those parties.
Florida is somewhat unique because unlike in other states, you aren’t barred from collecting damages if you’re 50 or 51 percent responsible. (In some states, even 1 percent personal responsibility and you’ll be barred from collecting anything.) Here, you can be up to 99 percent liable and still collect on the other 1 percent in damages. The question of whether you’ll find an attorney to represent you in that situation is another matter.
Large Expenses of Bringing a Case
Because of the contingency fee arrangement, an attorney/law firm may need to invest a substantial amount of time with no guarantee of payment. On top of this, there may be expenses associated with the case. If a case is complex or must go to trial, an attorney may need to cover the upfront costs for expert witnesses, depositions, documents, preparation of exhibits, etc. If these expenses are too high, the attorney might not have the resources to afford this. Smaller law firms may be a bit choosier with the cases the take, but it’s often a careful risk-benefit assessment for any attorney.
Too Much Time Investment
South Florida personal injury attorneys will carefully estimate the amount of time a case is likely to take. Complex cases will take longer, as will those that must go to trial. If a case is likely to take up a great deal of time, an attorney may be reticent to take the risk – even for a strong case, as payment may not happen for many months or even years. That doesn’t mean you should give up. If you have a fairly strong case, chances are you can find an injury law firm capable of willing to carry the risk of lengthier proceedings.
Expired Statute of Limitations
The relevant statute of limitations will be key for an attorney in deciding whether to take on your claim. Most personal injury lawsuits in Florida have a four-year statute of limitations, which begins from the date of the cause of action (usually, the date you were hurt). Medical malpractice claims and wrongful death lawsuits must be filed within two years. There may be some exceptions (which is why it’s worthwhile to talk to a lawyer, even if it’s been a while since you were hurt), but a time-barred claim is typically a non-starter.
A Novel or Complex Legal Issue
This won’t be relevant in most personal injury cases, but occasionally, there may be a novel or complex issue the attorney feels inexperienced or ill-equipped to handle properly. Sometimes, it’s simply that the attorney does not routinely handle such matters (medical malpractice is a good example of cases that are more complex, but not all firms handle). Other times, you may be pursuing a novel legal argument. In either situation, the attorney should tell you why they are turning down the case, and perhaps they may even direct you to a law firm better prepared to successfully handle your case.
Never assume that just because one personal injury lawyer declined to take on your case that you shouldn’t pursue it. Always seek a second (or even third, fourth) opinion before making a decision.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Additional Resources:
768.81 Comparative fault, Florida Statutes
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Watch for Dangerous Product Recalls This Gift-Giving Season, Nov. 27, 2020, West Palm Beach Personal Injury Lawyer Blog