Category Archives: Car Accidents

What is the law on texting and driving in West Virginia?

As of right now, unlike other states, texting and driving is not illegal in West Virginia.  However, for drivers under the age of 18, cell phone use while driving is illegal, which includes texting.  There is legislation currently under consideration in WV which would make texting and driving a traffic infraction.  However, it has not yet been adopted, partially because it also criminalizes texting while parked in traffic.  There was recently an article in the Charleston Gazette on the legislation, which included some of the following information:

As drafted, texting while driving would be a primary offense — meaning that police officers could pull over drivers for texting, without observing any other traffic violations. However, there would be no court costs or driver’s license points assessed for a conviction.

Under the bill, drivers who pull over to the side of the road to read or send text messages would not be in violation of the law.

However, as currently drafted, drivers could be cited for texting while on a roadway, even if they were stuck in a traffic backup, and their vehicles were not moving.

Both nationally and in West Virginia, texting and driving is a substantial cause of serious injury and death in car wrecks.  Essentially, texting and driving is driving while distracted.  The federal government actually has a website which informs people about the dangers of distracted driving.  It contains some of the following information:

Research on distracted driving reveals some surprising facts:

  • 20 percent of injury crashes in 2009 involved reports of distracted driving. (NHTSA).
  • Of those killed in distracted-driving-related crashed, 995 involved reports of a cell phone as a distraction (18% of fatalities in distraction-related crashes). (NHTSA)
  • In 2009, 5,474 people were killed in U.S. roadways and an estimated additional 448,000 were injured in motor vehicle crashes that were reported to have involved distracted driving. (FARS and GES)
  • The age group with the greatest proportion of distracted drivers was the under-20 age group – 16 percent of all drivers younger than 20 involved in fatal crashes were reported to have been distracted while driving. (NHTSA)
  • Drivers who use hand-held devices are four times as likely to get into crashes serious enough to injure themselves. (Source: Insurance Institute for Highway Safety)
  • Using a cell phone use while driving, whether it’s hand-held or hands-free, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent. (Source: University of Utah)

Police-reported data from the Fatality Analysis Reporting System (FARS) and the National Automotive Sampling show that:

  • In 2009, there were 30,797 fatal crashes in the United States, which involved 45,230 drivers. In those crashes 33,808 people died.
  • In 2009, 5,474 people were killed in crashes involving driver distraction (16% of total fatalities).
  • The proportion of fatalities reportedly associated with driver distraction increased from 10 percent in 2005 to 16 percent in 2009. During that time, fatal crashes with reported driver distraction also increased from 10 percent to 16 percent.
  • The portion of drivers reportedly distracted at the time of the fatal crashes increased from 7 percent in 2005 to 11 percent in 2009.
  • The under-20 age group had the highest proportion of distracted drivers involved in fatal crashes (16%). The age group with the next greatest proportion of distracted drivers was the 20- to-29-year-old age group – 13 percent of all 20-to-29-year-old drivers in fatal crashes were reported to have been distracted.
  • Of those drivers reportedly distracted during a fatal crash, the 30-to-39-year-old drivers were the group with the greatest proportion distracted by cell phones. Cell phone distraction was reported for 24 percent of the 30-to-39-year-old distracted drivers in fatal crashes.
  • Light-truck drivers and motorcyclists had the greatest percentage of total drivers reported as distracted at the time of the fatal crash (12% each). Bus drivers had the lowest percentage (6%) of total drivers involved in fatal crashes that were reported as distraction-related.
  • An estimated 20 percent of 1,517,000 injury crashes were reported to have involved distracted driving in 2009.

The National Motor Vehicle Crash Causation Survey (NMVCCS) is a nationally representative survey specifically focused toward documenting events and conditions leading up to crashes.

  • NMVCCS captures distraction as an associated factor to the crash and/or as the critical reason that made the crash imminent. Driver distraction was coded as the critical reason in 18 percent of the crashes. Data describing the specifics of the distraction — for example adjusting the radio or eating — are included in this data set.

Another method for collecting pre-crash data is through naturalistic driving studies, in which vehicles are equipped with cameras and data recording equipment.

  • During NHTSA’s 100-Car Naturalistic Driving Study, driver involvement in secondary tasks contributed to more than 22 percent of all crashes and near-crashes recorded during the study period.

Data Sources

The following NHTSA data sources were used in the research:

  • Fatality Analysis Reporting System (FARS)
  • National Automotive Sampling System (NASS) General Estimates System (GES)
  • National Motor Vehicle Crash Causation Survey (NMVCCS)
  • The 100-Car Naturalistic Driving Study
  • National Occupant Protection Use Survey (NOPUS) of Driver Electronic Use
  • Motor Vehicle Occupant Safety Survey (MVOSS)

Please understand that although texting and driving is not yet a traffic infraction in West Virginia, it is punishable through civil liability in a personal injury lawsuit.  One of the first things we do as WV car wreck attorneys is to subpoena cell phone information for drivers who may have been using cell phones at the time of the car accident.  In close liability situations this can seal the deal.  In other situations, it helps ensure that our clients cannot be threatened with potential liability issues at trial.


WV Car Wreck Attorneys – Big or Small?

People who have been injured in West Virginia car wrecks will have a choice to make: hire the big car accident law firm, or choose an individual WV car accident lawyer to handle their injury claim.  Here is one big difference that I have noticed between the two here lately.  The larger car wreck firms in WV, in this economy, have been churning out settlements at very low figures.  I know this because this has made it much more difficult for the smaller firms: those of us who refuse to settle for less than our clients deserve.  The insurance adjustors have lowered their values for most injuries, because they compare to past settlements.  The more low settlements they achieve, the lower their future offers will be for similar injuries.

So what can be done?  Cases need to be tried.  They need to be litigated.  That’s what they build courthouses for.  If the insurance company won’t pay up, take it to the jury.  That is the only way you can get what you deserve.  In my experience, the smaller firms rely less on having a large caseload of cases constantly settling, and concentrate on doing well on a smaller number of cases.

At my law firm, we will always meet with car wreck injury victims for free, and will offer our opinions and insight with no obligation to retain us or even pay a dime.  And generally, our offices are much closer to our clients.  It is always frustrating when a car accident injury victim, or their family, bypasses our office to go to a big law firm in Charleston.  I urge you to talk with a small law firm first in your general area.  You may be impressed.

Personal injury representation: the right way

It’s hard not to notice that almost every attorney out there advertises heavily for personal injury clients.  There are generally two kinds of lawyers who do this: lawyers who regularly handle personal injury cases, and lawyers who do not regularly handle personal injury cases but who would like to.  An injured person must be very careful in his or her choice of personal injury attorney – firstly by making sure that they actually retain a personal injury attorney.  Secondly, even if someone regularly handles personal injury cases in West Virginia, he or she may not be the right choice for the case.

I cannot remember how many times I have had people call me who are unhappy with their choice of personal injury lawyer.  They hired them, signed an agreement, and never heard another word from them.  The reason probably being that they are one in a hundred of clients in a personal injury mill.  In one of those law firms there is little one-on-one attention to the client.  Instead there is a lot of procrastination and mass churning of cases, heavily reliant on forms and always dependent on the early settlement of cases for less than the client fairly deserves.  This is the wrong way to do it.

There is a right way to handle a personal injury case.  From day one, the law firm must undertake their own investigation of the cause of the injuries.  Evidence must be preserved.  I would bet that in probably 75% of personal injury cases, the lawyers do not adequately perform an investigation and do not adequately preserve evidence.  The result is that the client will not be adequately able, or prepared, to go to trial and win.  This usually means that the client must settle – and must settle for less than he or she deserves.

Thirdly, a personal injury case must be actively prosecuted.  This means that the law firm must work on it no less than once per week.  Things must get done.  The case must be kept moving – toward trial.  I would venture to say that 70% of personal injury cases are chronically delayed to due to no reason other than the law firm’s caseload or laziness.  Generally, the closer and more quickly you move towards trial, the better the settlement will end up being (assuming it is not done recklessly or without diligence).

Fourthly, the client must be kept involved and informed in what is going on.  The client must have constant access to the law firm.  There should be many questions answered.  The client should not feel left out of the process.  Likewise, a good personal injury case also requires a reasonable client.  If a client has unreasonable expectations (sometimes that is the fault of the attorney who has misled them in order to get the case) proper handling of the case can be impossible.  Where clients are reasonable and informed, cases get much better settlements.

So don’t just open the phone book and call whomever has the largest ad.  And don’t just call the attorney who handled your divorce.  This is a complex area of the law that requires specific talent and experience.  Utilize the free consultation process to find the right person for your case.

Choose the right doctor after your southern West Virginia car accident

Choosing well-qualified, caring doctors quickly is important for your health and for your car accident claims. As a West Virginia car accident lawyer, many of my clients have no health insurance; many have no doctor; and, they do not know where they should go for medical care following a car accident. We interact with the best medical doctors in the southern West Virginia area, including Greenbrier County, Mercer County and Raleigh County, West Virginia; and, we can provide critical guidance when it counts.

The sad truth is many doctors refuse to see car accident victims, especially those without insurance. Many doctors also work for auto insurance companies, making thousands of dollars examining car accident victims and “discounting” the injuries suffered. If you innocently choose one of these “insurance or defense” doctors, you will have little opportunity to receive full and fair compensation for your injury.  Do not run the risk of going to the wrong place for your medical care.

You should also know that those “car accident & injury clinics” like the TV lawyer advertisers need lots of “clients” to pay for all that advertising. Do you want to go where the focus is on profit or patient care? You should NOT be treated like a number by your doctor or your lawyer. You deserve the best medical care and the best legal representation. While we can not represent everyone that asks us, our goal is to make a huge difference for those who we do represent. Our results, including numerous car accident and personal injury settlements, right here in southern West Virginia, demonstrate that hiring the right lawyer, right from the start, may help you reach your goal to win the highest award you deserve.

– John H. Bryan, West Virginia Car Accident Attorney

What is my West Virginia auto accident injury claim worth?

What is my West Virginia car accident injury case worth?  This is a great question, and indeed almost every West Virginia car accident case client has asked me this question.  Unfortunately, there is no easy answer.  Obviously, money is not everything, but the purpose of our civil justice system is to compensate people for the wrongs of others, and the only manner of compensation which can be achieved is through money.  One of the most difficult aspects of handling West Virginia personal injury actions, including car accident cases, is to discuss, and agree on, a settlement value.

The basis for a settlement is simple.  Assuming your attorney can prove the other party is at fault, what does an insurance adjustor believe  your attorney can convince six West Virginians, sitting as jurors, that your claim is worth?  Of course there’s a whole lot more to it, but everything else is merely a weight on either side of the scales of justice – either weighing for, or against, the value of your case.  This forms the basis over which your case can be negotiated and settled.  If no settlement is possible, then you have to actually ask those six individuals to give you what you are arguing you deserve.  Of course, juries are made up of individuals, which means that different juries could come up with different values, which means that the value of your case is unpredictable.

Some things we can predict.  More often than not, the value of a case will increase over time.  In almost every case, the value of a settlement offered the day before trial is going to be greater, if not much greater, than the value of a case settled before a lawsuit is filed.  But there are many factors that could weigh the scale in either direction (i.e., sway, or potentially sway, jurors in favor of either side’s arguments):

The arguments usually consist of disagreements over the severity of injuries, as described by you, other witnesses, and your medical records, and over the causal connection between the accident and the injuries incurred and complained of.  Another factor is the persuasiveness and credibility of the testifying witnesses.  Yet another factor in consideration is – what venue in West Virginia would the case be brought in (i.e., what county).  For instance, in the coalfields of McDowell County, jurors are notorious for giving large verdicts.  But, in Greenbrier County or Monroe County, although they also are in southern West Virginia, jurors are notoriously conservative, and thus have a record of handing out smaller verdicts.

It helps to understand how insurance companies determine the value of a West Virginia car accident injury case:

Many insurance companies we deal with in West Virginia injury cases use computer software called Colossus, which is reportedly used by more than half of American insurance claims adjustors.  The enter data received from your lawyer, including medical records and the amount of any lost wages.  The program then considers the severity and location of the accident.  It will even consider whether a lawsuit will have to be brought in Greenbrier County, or McDowell County, or Mercer County, or Raleigh County, West Virginia.

The program gives value to certain injuries, and awards more value to permanency of injuries.  Higher value is given to objective injuries, such as broken bones, or herniated discs.  Lesser value is given to subjective injuries, such as complaints of chronic pain or headaches.  Value could also be added or removed due to other factors, such as whether the injured person went to the hospital immediately after the accident, or whether there were preexisting injuries, or injuries which have occurred after the accident.

Also considered will be who the accident attorney is responsible for the case. The insurance adjustors know which attorneys settle cases without proceeding towards trial, or even filing a lawsuit.  Even more important, it will be up to your attorney to take your case from a number generated by computer software to a realistic view of human compassion and needs.  Your accident attorney has to communicate your everyday pain and suffering to the jury.  This is a very subjective task.  One attorney may not do well at it, but another may do extremely well.  The resulting compensation which juries award for that pain and suffering will be the result.  I believe that the more effective your accident attorney is at trial and persuasion, the more compensation you will receive.

Example Values of Specific Injuries (According to a recent national Jury Verdict Research analysis):

Foot Injuries: the overall median award was $98,583.  Multiple fractures to the same foot increase the median to $144,000.  11% of these injuries were from motorcycle cases.  Another 28% of these injuries were from car and truck accidents.

Leg Injuries: the overall median award was $141,847.  However, there are many types of leg injuries and fractures, some of which command remarkably higher verdicts, such as a femur fracture, which holds a median award of $482,273 – with the highest recorded verdict being $4,000,000.  Multiple fractures in the leg carry a mean and median verdict of $596,618 and $192,762, respectively.

Rotator Cuff Injuries: the overall median award was $72,667.  These typically occur in side-impact car collisions.  

Knee Injuries: the overall median award was $34,550 – which does seem a little low.

Vertebrae Fractures: the overall median award was $112,537. 66% of these cases were from car accidents, which are the leading cause of spinal injuries.  The overall award for multiple vertebrae fractures increases to $207,000.

Hip Fractures: the overall median award was $175,000, and the overall mean award was $435,581.

Overall, the value of your case can only be determined with respect to your individual injuries and circumstances.  Also at play is the amount of insurance available to compensate you  for your injuries.  In many, many cases, there is not enough insurance.  Sometimes alternate sources of insurance or liability can be found.  For this reason, among many other important reasons, it is very important to consult with an experienced West Virginia car accident injury lawyer about your particular case – and preferably one who has a reputation for going to trial often and winning.  As I have said before, almost every car accident attorney offers a free consultation.  And if they don’t, then call someone else.

 – John H. Bryan, West Virginia Car Accident Attorney.

Civil Liability of Police Departments and Officers in West Virginia for Auto Accidents Resulting From Pursuit Situations

Here is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia a few weeks ago which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).  

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.  

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).  

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers 

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

Note:  If you or a loved one has been injured in an auto accident involving a police department, or other governmental, vehicle, please know that recovering compensation for those injuries is made infinitely more complicated due to immunity and causation problems.  It’s extremely important that you speak with an attorney who has experience with these types of cases.  I offer free consultations and (potentially) accept these types of cases in all 55 West Virginia counties.  Call me at 1-888-54-JBLAW.

 – John H. Bryan, West Virginia Car Accident Attorney.

Tips on Hiring a West Virginia Personal Injury Lawyer

I recently came across an article on ExpertLaw, regarding tips on hiring a personal injury lawyer, and I think it is great advice for anyone who has been injured and is seeking out a West Virginia personal injury lawyer – or a personal injury lawyer in any other state for that matter. Several questions are discussed:

Why do I need a lawyer?

When you or your loved one suffer an injury as the result of somebody else’s action, perhaps it seems natural that the person would offer to compensate you for your injury, or that their insurance company will do the right thing and offer a fair settlement. Unfortunately, that rarely happens. Many people will not take responsibility for their actions, and insurance companies profit from undercompensating injury victims. Insurance companies and their lawyers also know the governing law backwards and forwards, and they know that most non-lawyers have no idea what legal rights and remedies they possess.

An experienced personal injury lawyer knows how to build your case, how to negotiate your case with an insurance company, and, if necessary, how to take your case to trial. While it is possible to negotiate your claim with an insurance company yourself, insurance companies will typically do everything they can to take advantage of you and to effect the lowest possible settlement, while attempting to elicit statements from you that will damage your position if you ultimately decide to sue.

A lawyer is in a good position to help you obtain a favorable settlement that, even with the attorney fee deducted, significantly exceeds what you can obtain on your own.

How much does a personal injury attorney cost?

Personal injury lawyers almost always accept cases on a contingent fee (or “contingency fee”) basis, meaning that they if they win they receive a percentage of the award as their fee. If they lose, they do not receive an attorney fee. (Please note that attorney fees are different from costs, and you may be responsible for certain costs associated with your case, such as the filing fee for your lawsuit, even if you lose. While this is rarely an issue, as most civil litigation settles short of trial, you may wish to clarify the issue of costs with your lawyer.)

The amount of the contingent fee your lawyer will charge will vary somewhat from state to state. In most states, the attorney fee will be between one third and 40% of a personal injury award. Attorney fees for workers’ compensation cases are more tightly regulated, and are typically lower than for regular personal injury matters. If your case is potentially worth a lot of money, you may be able to negotiate a reduction of the attorney’s contingent fee – however, the best personal injury lawyers are usually not willing to negotiate their fees. They know that they are often able to recover substantially more money for their clients than attorneys with lesser skills, resulting in a greater award to you regardless of the percentage taken by the attorney.

Where Can I Find An Attorney?

You can find the names of attorneys from a variety of sources. You may seek advice from friends, or from your doctor or another health care professional. You may look in the Yellow Pages or an online lawyer directory. You may contact a State Bar lawyer referral service. There are many ways to seek a personal injury lawyer, but there are no magic answers to finding a good lawyer.

Go To An Attorney You Trust, And Seek A Referral

One of the best ways to find personal injury lawyer is to consult an attorney you trust. If you do not know any attorneys, ask your friends for names of attorneys they trust. It is not important that they give you the name of a lawyer who can handle your case – what is important is that the attorney is likely to comprehend the issues of your case, and is well-positioned to know which attorneys in your community have the skills to handle your case. Even if the attorney cannot personally take your case, he will often be able to refer you to a lawyer who can.

You should note within this context that attorneys frequently receive “referral fees” when they send personal injury cases to other lawyers or law firms. The amount of this fee can be significant – it is usually about a quarter to a third of the fee received by the personal injury lawyer who handles your case. This gives the attorney an incentive to refer you to a good personal injury lawyer – but if this possibility makes you at all uncomfortable you shouldn’t hesitate to ask if the attorney referring your case expects a referral fee.

Referral Services & Membership Organizations

Many state bar organizations offer referral services to help people find attorneys. Usually, any member of the organization can list with its referral service, and you can’t know just from the referral that the lawyer is truly qualified to handle your case.

There are also a number of specialty organizations, such as the American Association For Justice , which offer online directories of their membership. Most lawyers with significant personal injury practices are members of the AAJ. However, most legal organizations are open to all attorneys, and membership means only that the attorney has paid the membership fee.

Internet Lawyer Directories

A number of commercial on-line directories claim to screen their attorneys, or claim to list only highly qualified attorneys. Most are not being completely honest. Regardless of their promises, most on-line directories will list any personal injury lawyer who pays the required fee, and there is absolutely no guarantee that the listed attorneys are qualified to handle your case.

There are also a large number of websites on the Internet which look informational, but in fact are owned by law firms. Be wary of any “injury information” site that lists law firms or offers lawyer referrals, particularly if it does not make obvious the identity of its sponsor.


The issue of attorney advertising is addressed in the next two questions:

Should I hire the guy with the 1-800 number, and all of the ads on TV?
Should I hire the guy with the big “yellow pages” ad?

Should I hire the personal injury law firm with the 1-800 number, and all of the ads on TV?

Generally speaking, television and radio advertisements are a bad way to find an attorney. Many advertisements are paid for by referral agencies, which collect large numbers of calls and then divide them up between member attorneys. Even when the advertisements are paid for by a law firm, often many of the cases are referred out to other firms who share the enormous cost of advertising. Most of the time, the attorney with the big advertising campaign will not have an office near you. Unless your case is worth a lot of money, you may well find that you are quickly referred to a different firm or that you can’t get much attention for your case.

Please note that, when it comes to hiring a personal injury lawyer, many of the best personal injury attorneys do little or no advertising. They get their cases through “referrals” from other attorneys, due to their reputations for doing good work and getting good results.

Should I hire the lawyer with the big “yellow pages” ad?

If you look at the “full page” ads in the yellow pages, you will likely find that there are two types. The first type is an ad for a local attorney, who has chosen to pay for the full page. The second type is an ad for an attorney from outside the area, sometimes from the same attorney who runs the huge television ad campaigns.

Many of the biggest ads will be from personal injury law firms, who anticipate that their large advertisements will bring them large numbers of injury cases. Many of the better personal injury lawyers and firms do pay for full-page ads. However, as was previously noted, some of the best personal injury lawyers do little or no advertising at all. Also, there are many attorneys who buy the largest ad that they can afford in order to make their practices appear better than they really are.

If you look through the yellow pages, you will see that most lawyers claim to specialize in “personal injury” cases. Many of these lawyers have handled very few personal injury cases, and some have never had even a single injury case. The yellow pages can provide some degree of confirmation that a particular law firm is established, but even a big advertisement does not certify that a firm is qualified to handle your case.

Are there special types of personal injury lawyers for different types of cases?

Yes. When you are seeking a personal injury lawyer, you should consider that most personal injury lawyers do not practice medical malpractice law, and many do not handle workers’ compensation cases. Just as you would seek a specialized doctor to provide a special type of medical care, the practice of medical malpractice law is very specialized and in seeking a lawyer it is almost always best to seek out a lawyer or law firm which has significant experience in that area of law. Some lawyers specialize primarily in workers’ compensation law, which is typically handled through a special system of administrative courts.

Further, beyond workers’ compensation and medical malpractice, certain law firms specialize in particular types of injury or cause of action. There are personal injury law firms which focus primarily on burn injuries, or brain and spinal cord injuries. There are personal injury firms which concentrate primarily on car accidents, construction accidents, or litigation over defective products. You will benefit from asking whether a lawyer you consult has experience with your type of injury before you make your hiring decision.

If I meet with an injury lawyer, do I have to hire him?

No. Although personal injury attorneys rarely charge for an initial meeting with a potential client, before your meeting you should ask if there is a fee for an initial consultation. If there is, you will be obligated to pay that fee even if you do not hire the attorney. However, even when the consultation is free, you have every right to take some time to think before you hire a lawyer, and you have every right to decide not to hire the lawyer. Hiring a personal injury lawyer is a big step, and there is nothing wrong with consulting several lawyers to find one who makes you comfortable.

What should I ask the attorney before I hire him?

The questions you should ask will vary with your case. Consider the following list to be a starting point:

What are your areas of specialization?
Have you handled cases like mine before? How many? What was the outcome?
Will you be the only attorney who works on the case? If not, who else will work on it?
How long will it take for this case to be resolved?
Will you take my case on a contingent fee basis?
Are there things I should do to improve my case, or to help you?
How will you keep me informed about the progress of my case?
If I contact your office with questions, how long will you take to return my call?
If you are unavailable or on vacation, who can I speak to about my case?
How often do you go to trial?
If I am not happy with a settlement offer and you want to settle, will you go to court anyway?
If I am happy with the offer but you think we can win more at trial, will you follow my wishes?
Have you ever been disciplined by an ethics committee, or been suspended from the practice of law? If so, why?
What “continuing legal education” courses have you attended during the past few years? Have you taught any?
Please note that, as desirable as references may be, it is usually not possible for personal injury lawyers to give references from past clients due to attorney-client confidentiality. However, you may wish to ask for references from other attorneys.

Should I ask for a written retainer agreement?

Yes. A written retainer agreement is the best way to ensure that your rights are protected, and in many jurisdictions is required for a contingent fee agreement to be valid. Many personal injury lawyers use a relatively short fee agreement, but even if it looks short and simple you should take your time and read the whole agreement before signing. If there is something you don’t understand, ask for clarification before you sign.

What if I hire an injury lawyer, but I don’t like the work he does?

Your lawyer works for you, and you have the right to terminate the attorney-client relationship. Please note, however, that your lawyer is still entitled to compensation for work performed on your case. If the lawyer was representing you on a “contingent fee” basis, the lawyer will often be entitled to a portion of the proceeds of your case once it has been resolved.

Usually, before you fire your lawyer, you will want to first talk to a different attorney. Sometimes the new attorney will tell you to try to work out your problems with your lawyer. If you choose to hire the new attorney, the new attorney should be willing to work out the details relating to any fees you may owe to your prior lawyer.

If I want to appeal my case, does my attorney have to represent me?

Generally not, unless your retainer agreement requires your attorney to take on the appeal. Your lawyer will ordinarily only have to represent you on the matters specified in your retainer agreement. Once a final judgment has been entered, your lawyer ordinarily has no further responsibility to represent you or to appeal your case.

What if a dispute arises?

In the event that a dispute arises between you and your lawyer, many state bars offer dispute resolution services. These services can be of particular benefit in the event of fee disputes. If you feel that your lawyer has acted in an unethical manner, each state has a “grievance” procedure where you can file a complaint against your lawyer and have your complaint investigated.

Source: Expertlaw.