Is it ethical and ok to use a contingency fee based evidence producer for a personal injury case.
9 attorney answers
It sounds like the "evidence production company" may be a "trial consulting" company? In selected cases (e.g., large damages and/or tough liability or causation cases) I use trial consultants to video record depositions, prepare exhibits, produce mediation videos, assist with focus groups and mock trials, and other pre-trial and trial activities. The benefit is that the contingency fee is usually small (average of 5%) and is often less than what would be charged by outsourcing the services to various vendors individually. If the attorney is not burdened with the huge out of pocket expenses for pre-trial litigation and production of exhibits and evidence for trial, he/she may be better able to afford the costs and fees charged by experts and pay deposition and other litigation expenses. If there is no favorable outcome there is no cost to the client or attorney. Regardless of whether a trial consulting firm is retained, the client is responsible for out of pocket expenses advanced by the attorney when a favorable recovery is obtained. I've found that the 5% contingency fee is often less than what would have been charged by various vendors for the same products and services. With this being said, not every case needs or warrants a trial consulting firm.
Sometimes, in very serious cases, a day in the life/before and after an injury can make a very big difference. In such cases, the cost might be well worth it. As long as the people involved are not witnesses, then there are not generally ethical issues with using someone under these circumstances, but that can certainly vary by state.
If you have concerns, you might consider getting a second opinion from another lawyer, someone to whom you are able to tell all of the details, about whether this kind of cost is necessary in your case.
And no, I would not expect the attorney's fee to cover the expense, regardless. The attorney's fee is separate from any expenses. The fee covers his or her time as well as the risk involved in laying out expenses and potentially getting nothing back.
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Without knowing more about your damages, the liability, and the available coverage for your claim, it's hard to give a good answer. It does sound unusual. There are companies that will make great videos for a flat fee. Also, there are many cases where no video is necessary. Again, it depends on the client, the accident, the injuries, and a variety of factors that attorneys weigh when considering whether to use such a video. When you ask if 40% covers such a cost, it sounds like you are represented by an attorney and are referring to his or her fee. Costs, like copies, deposition transcripts, experts, etc. are in addition to your attorney's fee. That should be spelled out very clearly in your contract. I do find it a bit odd that the attorney would be so keen on using this awesome video production but wants you to bear the risk, instead of him/her paying the cost up front for you. When I litigate a case (which is most of my cases these days) I pay all of the costs up front for the client and then the costs are paid back out of the recovery. It is part of the risk associated with our line of work. There is always a chance we will not recover and lose the money we paid in costs on behalf of our client. In any case, I wish you the best of luck!
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You can certainly find a new attorney with a reasonable fee. Avvo has the best "find a lawyer" tool to locate an attorney nearby.
Speak to your attorney again about this. It sounds like they are producing this for trial. Your attorney fronts the costs of these demonstrative aids in preparation for trial. If you go to trial and lose, you get nothing, but your attorney is out all of the costs including this before and after video. If you win, the money awarded goes toward costs, and then 40% goes to your attorney as the fee for the work. This is the standard fee for trial (33.3% pre-trial). Have faith in your attorney's judgment, so that they can help you get the biggest reward. The before and after demonstrative aids are very powerful and more likely to help a jury understand your injury. Best of luck.
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As long as the videographer does not testify as a witness I do not see any ethical prohibition against the videographer charging a contingent fee. However, that approach is very unusual. Typically, the lawyer advances the case costs and then recovers those costs from the client in addition to the attorneys fees at the conclusion of the representation. Alternatively, the client can pay the costs directly.
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This issue has been raised before on this forum, also I believe in FL. I would say it is a red flag in many respects, including possible ethical issues. I would suggest a second opinion from an experienced FL personal injury attorney.
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This type of evidence is frequently presented in higher value cases. Your attorney is providing you with evidence that they believe will help a jury evaluate your damages. In that regard, it would certainly be beneficial. The method of payment, contingency or otherwise is your attorney's decision as they are advancing the costs to bring your case to trial. There is no bar against this type of arrangement that I am aware of, however most of these are done on an hourly or flat fee charge. The contingency would be a cause for concern if the percentage was too high. Discuss this in detail with your attorney.
I have never heard of these production companies charging a contingency fee. I have used production companies to do before and after videos and to do videos for mediation. These are professionally done and can cost around 10,000 to 15,000 thousand. I think most attorneys would advance this cost and then take it out of the settlement as a cost item. If the case has significant value and your attorney thinks it will be helpful then he/she will front the costs for this video production. I would have to know more about the contingency fee they want to charge over and above the standard 40%. Although these videos can be helpful there use or lack thereof isn't going to take a great case and reduce it to a minimal value or a bad case and substantially increase its value. Talk to your attorney and get more details and ask why he is not just going to front this cost. Good luck with your case.
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