Do I have a case? A personal injury lawyer's perspective.
This guide will help you understand how a personal injury lawyer may view and consider your case during the intake process (your initial call to the lawyer).
DamagesThe first factor a personal injury lawyer will consider are your injuries. What are they? The more serious the injuries, the more likely the lawyer will view your case as worthy of taking. The reason behind this is manifold, but most importantly the more serious the injuries the more likely the attorney will recoup the time they will put into the case. For example, the average time a personal injury claim takes to litigate to trial in New York is two to three years. On a run of the mill personal injury claim, an attorney will spend about $20,000 to $50,000 in time during all those years. Thus, to make back his time, the injuries at stake must be valued between $60,000 and $150,000. One third of those amounts (which is the usual contingency rate) will allow the attorney to recoup his time. Injuries worth less will not allow the attorney to recoup his time. He will not be able to keep his lights on, pay his employees, or his vendors.
Keep in mind, at this stage of an attorney's analysis, whether you do or do not have a case has not been determined. The attorney is simply doing a mathematical calculation to see if they should proceed to the next step. It is the next step, where that determination is made to some degree of reasonable certainty.
LiabilityThe second factor a personal injury lawyer will consider is whether there is liability. Liability in its simplest form means fault. Who is at fault for your injuries? Tort law, which is society's interpretation of who among us should bear responsibility for certain conduct or injury, sets the standard for determining fault in the personal injury context. The lawyer you contact will review the law, along with the facts of the incident that caused your injuries, and determine whether someone can be found at fault for your suffering. While this is usually a time intensive process (often requiring an investigation by the attorney and his staff), a good lawyer should be able to make a preliminary determination right away.
For example, in the case of a car accident, if an intake informs the attorney that he was hit from behind while waiting at a stop light, liability can be confidently determined right away. This is because, in New York, based on the laws governing driving, in particular the rules governing safe distance when driving, rear-end collisions are usually found to be the fault of the rear driver. If the injuries are serious enough, a good attorney should be able to determine right away whether to take this case or not.
Other ConsiderationsWhile damages and liability are the most important factors a personal injury attorney will consider in determining whether to take your case, there may be other factors. Some laws for example, such as certain civil rights laws, are written so that attorneys can by-pass a damage analysis when considering whether to take a case. Also, some incidents result in such serious damages that the analysis on liability may be by-passed so that the attorney can test the law. Perhaps he or she thinks, for example, the law does not go far enough to protect victims. The attorney may want to proceed with the case notwithstanding the fact that liability may be difficult to prove.
These are two examples where the two factor analysis may give way to a more deeper analysis. But for most situations, the two factor analysis will be sufficient.
One final word: attorneys are trained to conduct this analysis. The average citizen is not. Thus, notwithstanding the steps laid out in this article, every person who has suffered an injury and believes someone else may be at fault should speak with an attorney. They should not determine for themselves whether they have a case or not. Attorneys are here to help. Give one a call today.