“We Don’t Get Paid Unless You Get Paid” and Other Slogans Used by TV Advertisers

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I have been recovering from hip replacement surgery (my second) these last two weeks and have watched a lot of daytime television while keeping my leg elevated and ice on my hip.  Although I have enjoyed the short sabbatical, I hate that it came only through the necessity of having a new hip implanted. But I am doing very well and expect to be back in my office next week!

One thing that I won’t miss  is watching so many lawyer ads on TV. I do not believe they improve our image as plaintiff’s personal injury lawyers and for lawyers like me who actually try jury trials, it is perfectly clear that our jurors hate these ads. I just recently tried a medical malpractice trial in DeKalb County (which resulted in a $2.35 Million verdict for my client) and many of the perspective jurors during jury selection talked about how they didn’t trust lawyers because of the ads they see on TV and generally, because of these lawyer ads, they were suspicious of our bringing a personal injury case to trial. I had to do a lot of work in jury selection to make sure those potential jurors understood I didn’t advertise and that my case they were about to sit on was a legitimate case in which my client’s mother had died due to medical malpractice. I hate that right out of the gate I had to deal with some other lawyer’s advertisement on TV, like the person in an ad who claims her lawyer got her $900,000.00 and she doesn’t even look injured!

One of the things I have noticed while being forced to watch these TV lawyer ads, is that most of them proudly promote that they don’t get paid unless you get paid, as if they are the only lawyers in the State of Georgia who will boldly make that promise.  Although their statement is true, they are not the only personal injury lawyers who don’t charge a client for their time unless and until they win or settle a case for the client. In fact, as far as I know, ALL plaintiff’s personal injury attorneys, in Georgia and the entire United States for that matter, make the same deal as these TV advertising lawyers who act like they have the monopoly on this arrangement. It’s called a contingency fee agreement and all personal injury lawyers use one to be retained to work for a client on a personal injury case. Please understand that the statement made by TV advertisers about this says absolutely nothing about their skills, ability and experience as a trial lawyer.  We all work under this arrangement.

A contingency fee is a contract between the client and the lawyer.  It sets a certain percentage as the fee the attorney will recover out of any settlement or verdict paid on the personal injury case. The lawyer’s fee is “contingent” upon recovering something for the client. Once a recovery is made, the contingency has been met and the attorney is entitled to the agreed upon percentage as an earned fee. If there is no recovery, the “contingency” has not occurred and so there is no fee triggered under the contract. Thus, “we don’t get paid unless you get paid.”

The American Bar Association describes it succinctly:

“A client pays a contingent fees to a lawyer only if the lawyer handles a case successfully. Lawyers and clients use this arrangement only in cases where money is being claimed—most often in cases involving personal injury or workers’ compensation.

In a contingent fee arrangement, the lawyer agrees to accept a fixed percentage (often one third) of the recovery, which is the amount finally paid to the client. If you win the case, the lawyer’s fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money, but you will not be required to pay your attorney for the work done on the case.”

Contingency fee agreements are extremely helpful for those who have been injured in an incident for which there exists a third party liability claim but who would not be able to afford a lawyer to hire on an hourly basis to assert the claim for them. Consider this: the average length of litigation is anywhere between 2 and 5 years, with the plaintiff’s attorney putting in thousands of hours into the case to build the case and, ultimately, try it. For a very experienced attorney, a reasonable hourly fee might be $400.00/hour or maybe even more. Let’s say a plaintiff’s personal injury attorney put in 1,500 hours to litigate a case and see it all the way through a trial to a verdict, and if that lawyer billed $400.00/hour, the attorney’s fee would be $600,000.00. There are not many individuals (not corporations) who would be able to pay that kind fee to bring a case. This is especially true when the individual who has a case is most likely severely injured and probably out of work.  Nor could an individual have the ability to pay for necessary trial expenses just to be able to bring a case to trial.  For example, expert witness fees can be huge, ranging from $8,000.00 per day for trial testimony to a flat retainer of $25,000.00 per case. Expert witness testimony is often required testimony at trial, such as in a medical malpractice case.  Case expenses for a medical malpractice case from start to verdict may total in the range of $100,000.00 to $150,000.00. Without a contingency fee agreement an injured individual would have no means of bringing the negligent party to court to hold it responsible.

The plaintiff’s personal injury attorney risks all of her time and expenses in bringing a case, so she must really believe in its merit to proceed. That’s why the notion of “frivolous litigation” is a joke, because no lawyer would ever be able to make a living on bringing frivolous cases.  A frivolous case is not going to be a successful case and we only get paid if we are successful. The suggestion that lawyers are getting rich off of frivolous cases is at best a misnomer, at worst an outright lie.

Jurors should also be aware that the lawyer’s contingency fee comes out of the total of the verdict. The jury is not allowed to hear evidence about  the contingency fee contract, but if the jury wants to make sure the plaintiff gets the benefit of the entire verdict they deem appropriate, they really should include another 40% on top of that amount to ensure the plaintiff receives the entire award.

 

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

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