I am Clarke Kent Wittstruck, an Asheville personal injury and civil litigation attorney handling cases in Buncombe, Henderson and Madison counties. I represent individuals who have been injured - either physically and financially.
The Contingency Fee. A contingency fee contract is an agreement to take a percentage of the final reward/proceeds in a case. This is a standard arrangement for hiring an attorney in most personal injury cases. In theory this produces an incentive for the lawyer to get as much money as possible for the client because the lawyer also makes more money. This maximizes the return to both the client and the lawyer. And this is true if the client understands the true value of the case. But most clients rely completely on their lawyer to "price" this value. So are you getting correct compensation for your injuries? It's hard to say. There is no clear formula. But it is worth analyzing how your lawyer determines his compensation - whether the lawyer's percentage of the award is fairly related to the amount and speed of work performed, the stage of the litigation and the reputation of the lawyer. Cases involving financial disputes may also be handled with a contingency fee. But financial disputes - breach of contract, damage to property, collection of monies owed, etc - are usually easier to "price" than personal injury cases and as a result normally involve a mixture of fees, part guaranteed, part contingency or a straight hourly billing agreement.
Here is what I do: I break these cases down into parts which represent a certain amount of work - with the last part being a trial. Then, if the case is resolved by settlement, I price the contingency "fee" awarded to the lawyer based upon how many "parts" have been completed. What this means is I will charge you a lower percentage if the case is settled at an earlier stage. For example, if I believe a jury will reward you $30,000 at trial, and my percentage fee for a full trial is 33%, then - excluding costs - you would receive roughly $20,100 after paying the lawyer. But if the $30,000 is an accurate estimate of a reward at trial, an equally valid approach to settling this type of case is calculating a percentage backwards: what price can I settle the case for to put $20,100 in your pocket? And at what stage can this be accomplished? In this example, settling the case for 25,000 - a more likely possibility since this is less than the insurance company thinks it will pay for a trial - with me taking 20% yields you the same amount as winning the trial. I have taken a 20% portion instead of a 33% portion, but I have also not had to work as hard to so do. But the key is accurately "pricing" the case at a jury award of $30,000. An insurance company has a huge advantage in pricing a case - they have access to databases of jury awards from similar types of injury cases all over the country. But your lawyer will be limited to an incomplete knowledge of how local juries have valued similar cases in the past.
So how do I price these cases? I try to think like a juror and get you to also think like a juror. Jurors are smart, often harsh, and want to get to the point. They do not like the court system because it seems to try to hide the full story. And by the end of a trial jurors tend to view the entire process as wasting their time. They want to know why the case took so long and, when they allow an award, why the dispute was not settled much earlier. You need to understand this at the very beginning of your case. You need to understand that compensation for your pain may be in the hands of individuals who were simply not successful at avoiding jury duty, do not want to be there and are worried about missing work. They do not feel your pain, they will not care about you, and, if so inclined, will ultimately evaluate your pain and reduce it to a number. So it is important to base your damages on things jurors understand in a direct and honest manner jurors will believe. Overreach and you lose credibility. Lose credibility and your description of your pain and your problems will fall on deaf ears. My approach? I am conservative and cautious and believe reaching a settlement in a case produces "a certain result" while taking a matter to trial produces an "uncertain result", which may include an appeal and more time and money. I sit down with you and go through all the pros and cons of your case and try to get you to decide on an amount you believe would fairly compensate you for your injuries, your time and your pain, viewed from the perspective of an individual who does not know you. It is hard to sit down and calculate damages in pain cases, but it is important to do so as early as possible to provide you with a realistic assessment of what is cost effective and what is not. I do not over promise to get your case. Instead I will show you over and over again how a defense attorney will cut into your story in an effort to limit your award. And I will challenge you to prove your position over and over again until you see your case in the same manner a juror will see and value your case.
Sample Case. Let's say you are stopped and waiting on the light to change and someone - maybe a decent kid who is texting a friend while driving - roars in and hits you from behind. The force of the collision is not life threatening, but it sends a shock wave through you as your body instinctively freezes up, and scares you to a point of panic. Then things calm. Your 3 year old car is totaled. The police come, get information and ask if you need an ambulance. You seem ok and just want to go home so you call your spouse to pick you up. You think you got lucky. The next day you wake up with a headache, but go to work anyway. After lunch your head is hurting more, so you go home early and go to bed. The next morning your whole body aches, especially your neck. But you just take some over the counter pain killers and try to sleep it off. The next day is Saturday and you are absolutely dying. You call your doctor, but you get an answering service and they say either go to the ER or come in Monday morning. You decide to go skip the ER and go in Monday. On Monday your neck is killing you, and your doctor, seeing you whence in pain, decides you need a specialist and sets up an appointment for later in the week. You meet with the specialist and he schedules you for a MRI the next Monday. You spend another week in considerable pain unable to go to work. You have the MRI and the specialist calls you that evening with a new pain prescription and tells you to come back to his office next week for more tests. The MRI shows disc damage which may need surgery or may be helped by physical therapy and time. You elect to try physical therapy. But you cannot now drive while taking the new more powerful pain medication. And so it goes until 6 months later, after trying physical therapy twice a week to avoid surgery, you have your neck/back operated on and miss 3 weeks of work. You go back to the doctor and report that your neck/back still hurts, but not as much. You are told to give it time, maybe things will get better. A year later you are sitting at the table with your spouse looking over $44,000 in medical bills of which your insurance paid $35,000. Your neck/back never feels right and you have used all your vacation time and there are problems at work because you now work slower and in pain, although you never complain because your employer has already laid off other workers due to a fall off in business. Your spouse asks what your lawyer is doing about your case and you respond that your lawyer says you need to reach a "level of maximim improvement" but you wonder what this means and why you have not heard from your lawyer in months.
Pricing the Case. What is the "value" of your case? How much will it cost you to prove it? Why does the insurance company want your medical records for the past 10 years? How will you get the records from Texas, where you used to live? Why do you have to give the insurance company 5 years of your tax returns? Why is the lawyer worried that, after the accident, you did not go directly to the hospital in an ambulance? And then your lawyer calls and says the insurance company has offered you $50,000 to settle. Is this a fair offer? How much of this do you get to keep? Do you have to reimburse YOUR health insurance from these funds? What percentage is fair to pay your lawyer if you settle and do not go to trial? And what about the "costs" - those funds advanced for the medical records, and medical consultations, and the $500/hr you paid the specialist to read his medical notes at his deposition, etc? Do you divide the money with your lawyer before the payment of costs or after? And are you responsible for payment of these "costs" along the way or after the case is finished? And what if the jury comes back with no award? Do you still have to reimburse your lawyer for the "costs"?
So, lots of questions. I suggest you get the answers from your lawyer before you formally hire him.
Civil Litigation
Civil Litigation is part guerilla warfare and part accounting nightmare. Usually such cases are arguments over money - for damages done to your enjoyment of your property and/or your opportunity to make money, Again, it is really important to stop, step back from the situation and "price" the value of the case. Then subtract the cost of getting there. Litigation always must be approached from a "cost effectiveness" - even if you will ultimately lose money. And understand this: if you are in a lawyer's office complaining about not being fully compensated for your "agreement" - whatever it is - you have already lost something important and valuable: your time. And you need to fully think this matter out before rushing into the court system. Have all other options been exhausted?
You can view my pricing guidelines at the link below. And please understand these are guidelines because every case is different. Some can be handled as a flat fee, some can be handled as a partial contingency fee, some can only be handled with an hourly billing agreement. Some cases are very cost effective, some are only marginally so. And some cases simply must be taken to court on principal. So, yes, the pricings are guidelines. And if you are interested in me assisting you with your dispute, let's talk about your damages, go through the numbers several times and decide whether hacking your way up hill through the underbrush of the court system is a good idea.