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I'm a pro se plaintiff in a wrongful death suit, the case is open and shut, because the hospital was extremely negligent.

Glendale, CA |

I am looking for an attorney to assist with the legal technicalities of the case with representation on a limited basis to assist with retaining expert witnesses and to consult with written discovery.

I have economic resources to retain counsel and witnesses. But, I've found this to be a bit difficult. Do most attorneys prefer to take cases all or nothing?

Attorney Answers 22


  1. Attempting to litigate a wrongful death case on your own is not a wise decision. You need any experienced litigator to provide you with the specialized representation a case of this magnitude requires who will be able to maximize any possible recovery you may be entitled to. Use the Avvo Find a Lawyer tool to locate several experienced attorneys in your area.


  2. Attorneys usually prefer to take cases like this on a contingent fee basis where the attorney gets a percentage of the fee in the event of a recovery. To find an experienced medical malpractice lawyer in your area, use the Avvo "Find a Lawyer" tab.


  3. Most plaintiff's medical malpractice attorneys would rather take the case on contingency. The fees and damages are subject to MICRA. You might find someone to take the case on an hourly basis. Good luck.


  4. Yes, they do for a number of reasons. One of which is the liability they face by undertaking any representation and then not being able to determine the actions taken in the case. If you really want effective and proper representation on such a serious matter, have an attorney handle the case in a traditional way.


  5. I'm always leery when I hear a lay person refer to a case as being "open and shut." Unless the hospital admits that it and/or its staff was negligent, I'm guessing defendants will put up a vigorous fight. That means it's not so "open and shut," and will likely be a drawn out battle. You will likely be outgunned by defense counsel and need to have an attorney representing you. Most attorneys take cases like these on a contingency fee basis. Most attorneys also are not likely to want to be involved on a "limited basis to assist with retaining expert witnesses and to consult with written discovery." After all, the attorneys are the legal experts. Not many want to take a back seat to a lay person (without the necessary legal background, experience, and skill) controlling the handling of the case. Plus there is a lot more to discovery than hiring experts and consulting on written discovery. Do you actually plan to take the depositions of the doctors and hospital staff yourself? Who will defend you at your deposition?

    On a contingency fee basis, the attorney would receive payment through any settlement that you obtain and/or any judgment entered in your favor. You should consult with a personal injury attorney in your area.

    ***This response is provided solely for general information purposes and is not intended to be legal advice, nor does it create an attorney-client relationship.


  6. In answer to your question, yes, most attorneys do prefer to take cases all or nothing. That is because there are many potential pitfalls, land mines, and obstacles to recovery in any case. It is very difficult to handle a case "piecemeal," and there are really no benefits to the attorney or client from doing it this way. Even if you were to find a counsel to agree to such a limited representation, what happens when that attorney discovers a very big legal mistake that you have made (or are about to make)? If the attorney does nothing (due to it not being within his or her limited scope of responsibility) is it possible that someone might be critical, feeling that the attorney had committed malpractice? Additionally, we each lack the objectivity to professionally handle cases that involve ourselves or family members. This is true of attorneys and non-attorneys alike. This is why it is often said that an attorney who represents himself has a fool for a client. As others have said, your best option is to hire an attorney and turn the entire case over to them.

    The opinions expressed in this answer are meant for educational and public service purposes. Requesting general information about the law on a public website should never be a substitute for a personal consultation with an attorney who can give specific legal advice tailored to the facts of an individual case. Please be aware that Robert Hogan is licensed only in Texas and New Mexico, and that any opinions given are not meant to apply outside of these states. No attorney-client relationship is intended by answering questions or emails.


  7. If an attorney accepts your case, you can expect that they will do so on a contingency fee basis. Use the Avvo find a lawyer function to locate a California licensed trial lawyer who has the necessary expertise handling medical malpractice cases that you will need to prosecute your case.

    Good Luck.

    Answering this question does not create an attorney-client relationship between us. The answer given is for informational purposes only and is not a substitute for contacting an attorney licensed to practice in your jurisdiction and obtaining legal advice from such an attorney.


  8. Avvo has a terrific "find a lawyer" tool to locate a top-rated Avvo attorney with a low contingency fee. Good luck.

    Licensed & have offices in PA & NJ ONLY. (Philadelphia, PA & Marlton, NJ)


  9. Typically med mal attys will either take the case on contingency, or reject the case. Few people have the financial resources to pay hourly and for experts. Few cases are open and shut. It is very difficult to charge hourly unless it is on a separate and distinct project or assignment. Cases need to be coordinated, so it is difficult to handle just parts without knowing how the rest is all going to go along with it. Generally you are best off to have an experienced atty handle the entire case, if you can get one to do so.


  10. WOW, in all my years of practice I have never had an "open & shut" case. There is no such thing. Medical malpractice cases are extremely technical and cases are won and lost based upon the testimony of the experts. Don't try it alone. Hire a lawyer. Most lawyers will handle the matter on a contingency basis and if it is truly "open & shut" would be glad to do so.


  11. In medical malpractice the Attorney's fees are governed pursuant to California Business & Professions Code section 6146, which covers limitations of Attorneys fees that may be charged in claims such as these, and which states in pertinent part:

    “(a) AN ATTORNEY SHALL NOT CONTRACT FOR OR COLLECT A CONTINGENCY FEE FOR REPRESENTING A PERSON SEEKING DAMAGES IN CONNECTION WITH AN ACTION FOR INJURY OR DAMAGE AGAINST A HEALTH CARE PROVIDER BASED UPON SUCH PERSON'S ALLEGED PROFESSIONAL NEGLIGENCE, IN EXCESS OF THE FOLLOWING LIMITS:

    (1) Forty percent (40%) of the First Fifty Thousand dollars ($50,000.00) Recovered.
    (2) Thirty-three and one third percent (33.33%) of the Next Fifty Thousand dollars ($50,000.00) Recovered.
    (3) Twenty-five percent (25%) of the next Five hundred thousand dollars ($500,000.00) Recovered.
    (4) Fifteen percent (15%) of any amount on which the Recovery exceeds Six hundred thousand dollars ($600,000.00).

    The limitations shall apply regardless of whether the Recovery is by Settlement, Arbitration, or Judgment, Whether the person for whom the Recovery is made is a Responsible Adult, an Infant, or a Person of unsound mind."

    Let me know if you have further questions.


  12. There is no such thing as an open and shut medical malpractice case - even the example where a patient is opened up on the operating room table and then shut with a clamp inside has viable defenses to a fair amount of damages sought. Medical malpractice is a very complex area of law due mostly to the highly scientific aspects of medicine, but also due to the unique procedural rules and business and professions codes that govern the area. As for taking on a medical malpractice case, my firm will only take a case all or nothing at all... and then, we are very very very very selective in the cases we take... passing on 99% of the ones that come our way.

    - Paul

    Paul J. Molinaro, M.D., J.D.
    Attorney at Law, Physician

    Paul J. Molinaro, M.D., J.D. Attorney at Law, Physician Fransen & Molinaro, LLP 4160 Temescal Canyon Road, Suite 306 Corona, CA 92833 (951)520-9684 www.fransenandmolinaro.com / www.888MDJDLAW.com "When you need a lawyer, call the Doctor... Call Paul J. Molinaro, M.D., J.D... Call (888)MDJDLAW." * This post and all others I make on Internet are for informational purposes only. None of the information or materials I post are legal advice. Nothing I post as comments, answers, or other communications should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. While I try to be accurate, I do not guarantee accuracy. ** Fransen & Molinaro, LLP practices in the areas of defective drug and medical device litigation (Actos, Accutane, Actonel, Antidepressants, Avandia, Bextra, Byetta, DePuy Hip Implant, Digitek, Ephedra, Fosamax, Gadolinium, GranuFlo, Guidant Implantable Defibrillators, Hormone Replacement Therapy (HRT), Ketek, Kugel Mesh Patch, Lipitor, Mesothelioma, Nuvaring, Ortho Evra, Paxil, Pradaxa, Prempro, Prisma Dialysis Recall, Reglan, ReNu with MoistureLoc, Smith and Nephew Hip Replacement, Stryker Hip Replacement, Tequin, Topamax, Transvaginal Mesh, Trasylol, Vioxx, Yaz, Zelnorm, Zimmer Durom, Zyprexa, and More), medical malpractice, personal injury, and real estate law and does so anywhere in the State of California. *** If you enjoy my posts, enjoyed a consultation with me, or are a happy satisfied client, please give me an Avvo recommendation/review.


  13. Being an attorney of record in a case is like being pregnant. You either are someone's counsel or you are not someone's counsel. Attorneys have responsibilities to the Court, to you as a client and you cannot do something in a half baked manner. Don't play around with a case like this and retain a competent and qualified attorney. Wrongful death cases are never open and shut.


  14. I am sure that you can find an attorney who will handle the case on an hourly basis at say $3-400 per hour. However, this would NOT be advantageous to you, because the attorney would not be invested in the case. If you lose the attorney, loses nothing. You want your attorney to be in the same position that you are, that way it maximizes the chances that you will be on the same page.


  15. You need to speak to and hire an experienced medical malpractice attorney. You need to be what you truly are and that is the Plaintiff. It is hard to do that when you are also the lawyer.

    My post is for informational purposes only and in no way establishes an attorney client relationship.


  16. You simply cannot do a trial on your own and no lawyer would provide you with some "partial" assistance. I can tell you have no idea what you are doing and your case will eventually be dismissed with prejudice by your comment that this is an "open and shut" case. YOu are counting on rationality and fairness and this is in short supply from the other side in most cases.
    Tell me if you think this is open and shut. Client is having her gall bladder removed when what looks like a huge tumor is discovered. Other surgeons are called in. The surgery lasts 8 hours. The "tumor' is removed along with part of her liver and intestine where this "tumor' had adhered. Turns out it was a sponge left in her abdomen some 17 years earlier. This is indefensible. This is the very definition of medical negligence--leaving a sponge inside someone. This did not stop the defense from hiring an expert to say that the records disclose 7 sponges were used during that surgery 17 years ago and 7 were accounted for after the surgery. COnsequently there was no negligence during this surgery. (It was her first and only surgery until the gall bladder surgery)
    The case did settle on the courthouse steps but you are dealing with people who have no shame and in addition no case has not flaws. If this is a wrongful death claim and there are beneficiaries aside from yourself you are doing them a disservice by trying to do this on your own.

    If you feel this is the "best" answer or is "helpful," please indicate. Since I am limited to the information you provide, I cannot guarantee the accuracy of the answer. You should seek the advise of an attorney who can explore all aspects of your question. This communication does not form an attorney client relationship.


  17. Attorneys do prefer to handle the entire case, for a variety of reasons, including ethical ones. In order to make sure a case goes properly, the lawyer needs to be free to make appropriate decisions. I think it would be difficult to find an attorney to help under the circumstances you are seeking.

    I am a medical malpractice, catastrophic accident and wrongful death attorney based in Philadelphia, Pennsylvania. I am licensed in Pennsylvania, New Jersey, California and West Virginia. Members of my firm are licensed in various states, including Pennsylvania, New Jersey and New York. We handle cases involving personal injury (car accidents slip and falls, etc.,) medical malpractice, nursing home abuse, workers' compensation and social security disability. This post is not legal advice, but instead contains general educational information. Please do not act or refrain from acting based upon what you read in this post. Also please remember that this post does not form an attorney/client relationship between you and me. If you have specific legal questions, you should contact an attorney in your state for assistance.


  18. Most attorneys do prefer to take a case all or nothing because of the responsibility involved. It is very difficult to just assist with a just a few, but a very important few, tasks. Understanding and preparing the case as a whole is important to strategy and approach. All that said, I am glad you are thinking of asking attorneys to actually assist with responses to discovery and expert retention. These are important aspects of any case and should have the input of an experienced attorney. To do this piecemeal, though, as proposed, will be very difficult and costly; and it will probably be to your disadvantage to some degree. The attorney will have to review everything to be familiar enough to competently assist.
    If the case is really "open and shut", the defendant(s) should be offering settlement that would make it impractical to prosecute the case, a settlement that would make it better for you to settle than to take it into further litigation. If that is not occurring (settlement offers), you might think about what you might be missing (and hire an attorney and experts to help you with that analysis).
    I wish you the best.


  19. Please be careful, as medical malpractice cases are highly technical and generally challenging to prove. An "open and shut" case may be anything but. For a number of reasons, most attorneys would rather not be retained on such a limited basis and I'd suggest you at least consult with qualified counsel to discuss matters further.


  20. You're the most dangerous kind of client - you only want SOME legal help, seemingly so you don't have to pay a contingency fee, so you're doing this on your own. Few lawyers will want to work on cases they specialize in for a low hourly rate.

    It's not worth it on many levels, the prime being that if you screw up your case after I spent 5 hours pointing you in the right direction, will you come after one of us for malpractice later? The other is that these cases *are* time consuming and risky--getting paid hourly isn't very appealing in such a situation. That's the point of having a formal retainer in cases like this: everyone is protected and you get the lawyer's best work. I don't think you can get anyone very good to help you on the terms you suggest.

    By the way, what if this isn't an open and shut case? I'm sure the defense doesn't agree that it is. What if you mess the case up by making so little as one mistake? What if it goes to trial?

    Doing this without retaining a lawyer is risky and unwise. All the best.


  21. There is no such thing as an open and shut malpractice case. Even if the hospital admits negligence they have causation and damages defenses. If a client wishes to pay me on an hourly basis, I am more than happy to do that. Even doctors I have represented against other doctors, never want to spend their own money. if you can find someone willing to do that, it is a potential option.


  22. Do not handle this one on your own. There are many nuances to a wrongful death or medical malpractice case which practically speaking require hiring competent legal counsel. In addition, in my experience, plaintiffs fare far better with an attorney on their side. Nothing is "open and shut" in the law. Even the greatest cases can be lost without proper handling and an expert attorney on your side. At the very least, take the time to consult with an attorney regarding your case. Our office, and a number of lawyers on this site do not charge for an initial consultation. Take advantage.

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