I recently met with someone who had already met with one of the “TV law firms” that spends more than $10k/month in advertising. The potential client stated, “he told me it’s a great case! But he doesn’t have enough time right now to handle it.” Surprisingly, I have this type of conversation with a potential client every few weeks.
Sorry for the honesty, but lawyers rarely turn down a “great” case. Some do if it’s not the type of case they handle, but if it’s a case they handle regularly, that attorney wouldn’t hesitate to take the “great” case. The “not enough time” excuse is just that. It’s an excuse not to tell (aka a “white lie”) someone why the lawyer is actually not taking the case. This is frustrating because it gives the plaintiff false hope, thinking they have a great case. They then spend a lot of time researching their case and contacting more and more law firms.
Unfortunately, and in my view – unacceptable, many lawyers will not give you a reason, or at least the real reason, why they don’t want to take your case.
If you’ve called several lawyers about handling your legal issue and haven’t found one interested, it’s usually due to one of three reasons.
First, your case isn’t a “good” case. A “bad” case has poor liability or low damages. On the liability side, what did the defendant do to cause the accident? Did the plaintiff contribute to the accident? Low damages make it difficult to bring a valid case, but the time and money it takes to recover are more than what the case is worth. If I’m rear-ended on the way to work, but the driver behind me didn’t physically damage me but scuffed the paint on my tailgate, then it’s not a good case to get a lawyer involved. If your case involves under $10k in damages, consider filing it yourself in Small Claims Court.
Second, you want to sue someone that local lawyers don’t want to sue. This is unusual but not unheard of. The most common example I’ve seen is in a small town, and the potential defendant is often on multiple boards of directors for the local, prominent employers in the area. If this is a case, the lawyer you meet with will likely say that’s why they’re not taking the case instead of just saying, “They’re too busy.”
Third, your case involves an area of the law that the attorney is unfamiliar with. The case law is new, or the costs to bring the case are exorbitant. Product liability and medical malpractice cases are notoriously expensive to bring to trial because expert witness fees from engineers and medical doctors add up quickly. It’s not uncommon to have $100k in case costs by the time the case gets in front of a jury. Personal injury attorneys work on a contingency fee and most advance the case costs as they accrue during a case.
Hopefully, after reading this, you can figure it out and decide whether your case is still worth pursuing.
Lawyers Don’t Want Bad Cases
I know it’s mean to say a case is “bad,” but this is a common term lawyers use when describing a case with more problems than it’s worth. Insurance companies already make it hard to get fair settlements on good cases.
“Liability” refers to the “fault” aspect of the case.
If a jury is likely to find that you are partly or primarily liable for your injuries, most lawyers won’t take your case unless you have significant damages. In Oklahoma, if the jury finds that the plaintiff is more than 50% at fault, the plaintiff receives nothing. The statute is worded weirdly:
“… contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged or killed, is of greater degree than the combined negligence of any persons, firms or corporations causing such damage.” 23 O.S. § 23-13.
In normal terms: If the plaintiff is less than 50% at fault, they can still recover something. For example, if the jury awards the plaintiff $100k and finds that the plaintiff was 10% at fault, the judge would reduce the verdict to $90k. If the jury awards the plaintiff $100k and finds the plaintiff was 51% at fault, the judge would then reduce the amount to the plaintiff to zero.
In car accident cases, collisions at uncontrolled intersections and those involving rear-end collisions where the lead driver made a sudden stop often pose liability problems. “He said/she said” cases can sometimes be seen as “50/50” liability cases.
In “slip and fall” or “trip and fall” cases involving “open and obvious” hazards will often have liability problems. A grocery store has a strong defense if a plaintiff sees a wet floor sign, steps over it, and slips in the puddle. Businesses are generally not liable for “open and obvious” conditions. The most common is when it’s icy in the parking lot. There are some exceptions to this general rule, though. If there is “black ice,” there’s a chance the store is liable if it knew of the black ice before its customer became injured.
If you were in a car accident where you were cited by law enforcement as the “at fault” driver, expect most lawyers to reject your case. The only hope you have to remedy this is to beat the traffic court ticket; ideally, there was a witness who could verify how the wreck occurred.
“Open and obvious hazard” cases usually involve slipping on a colored substance visible on the floor (like spilled ketchup), tripping over a floor display, or changing floor elevation (like a painted curb) that anyone walking would see.
The key to these cases to potential lawyers is explaining why you didn’t see the obvious hazard. In stores, this can often be explained by the fact that you are looking at the merchandise on shelves. In parking lots, it can be explained by bags obscuring your view or that you were looking out for moving vehicles (if the lot was busy).
Because personal injury lawyers work on a contingency basis, they can’t afford to take cases without significant damages. Bumps, bruises, and pulled muscles aren’t pleasant, but they also don’t result in huge settlements or jury verdicts. If you don’t have at least a few thousand dollars in medical bills, expect most lawyers to reject your case. But, a case that size should be handled on your own. I am not suggesting you over-treat your injuries to drive up your medical bills. This strategy will likely backfire and can result in a case you can’t afford to settle (your bills and medical liens will eat up your entire share of the settlement).
If you have a case with clear liability but low damages, it may be worth pursuing in small claims court (if you can’t find a lawyer). In Oklahoma, the small claims court limit is $10k (this will vary by state), meaning that you will never be able to recover more than $10k. Some attorneys don’t mind trying cases in small claims court, so it’s still worth calling around if you don’t want to handle it alone.
Only one type of insurance problem will make a lawyer instantly reject your case: the defendant doesn’t have any. Most often, this will arise in the context of an uninsured driver (which can be solved if you have UM insurance). It also arises in cases involving bar fights, as many companies that insure bars now exclude coverage for any injury resulting from assault and battery (including the bar’s security personnel). While it’s true that you can still sue uninsured defendants and try to recover your judgment from the defendant’s assets, most lawyers don’t want to risk suing a defendant who cannot pay the judgment.
Also, cases involving the uninsured are nearly impossible to settle, as the defendant does not want to agree to pay a large sum of money from their assets. The near guarantee of having to take the case to trial, coupled with no guarantee of ultimately being paid, makes these cases extremely unattractive to lawyers.
The verdict against an uninsured driver is commonly called a “paper verdict” because it’s only worth the paper it is printed on.
Lawyers May Reject Your Case if it Involves a Legal Niche They Don’t Want to Touch.
Personal injury cases aren’t limited to car accidents, medical malpractice, and slip and falls. Product liability, libel and slander, false arrest, and excessive force, among other things, fall within the purview of personal injury lawyers. However, not all personal injury lawyers take these types of cases.
Product liability cases, especially isolated cases (not mass torts involving hundreds of plaintiffs), can be too expensive or time-consuming for many lawyers. Product liability cases almost always require at least one expert witness. This costs thousands of dollars just for the initial opinion from an engineer and can run over $30k if the case gets close to trial – just for one expert. It’s common to need more than one expert witness in a case.
Libel and slander cases more often involve hurt feelings than actual damages. False arrest and excessive force cases require knowledge of federal civil rights laws, which most personal injury attorneys are unfamiliar with.
BUT! An attorney should refer you in the right direction to a law firm familiar with that area of law.
Lawyers Aren’t Always Straight-Forward About Why They Aren’t Taking Your Case
I touched on this at the beginning of the article, but I am constantly surprised at how often I hear a potential client tell me why the previous lawyer they talked to didn’t take their case.
Some will say a potential “conflict of interest” or they “don’t have enough time” when, in reality, they are rejecting a case because it falls into one of the above categories. I know why they do it, but it makes more sense to me to be straightforward with people. They don’t want to tell the client that the case is bad and maybe spend more time explaining why while risking an unpleasant argument over the case’s merits.
So, why do they claim to have a conflict of interest? Two reasons: (1) lawyers won’t have to explain how they have a conflict because in cases of a real conflict of interest, attorney-client privilege would preclude them from discussing it with you, and (2) because they legally can’t explain the conflict, they get off the phone with you in the shortest amount of time, and without any hard feelings. It’s also surprising when these attorneys get the potential client to leave a Google Review that states (paraphrasing here), “___lawyer is great, I just wish they had time for my case.”
Unfortunately, this leaves the client oblivious to the problem of finding a lawyer for his or her case. It also wastes a lot of other attorneys’ time, as a person with a possibly awful case now thinks they have a “great case” and then calls every lawyer around town to take their call, only to get brushed off by a dozen lawyers until one finally tells them the truth.
It makes more sense to tell the truth and use brutal honesty in telling clients why I’m not willing to take their case. Some are thankful I’m honest about it, while others disagree and are initially mad but end up thanking me for my honesty afterward.
If you find that you are running into the “conflict of interest” or “too busy right now” excuse, it may help if you ask the lawyer if he or she is turning down your case because, in their opinion, it is a “bad case.” Explain that you’re not going to argue with him or her over their opinion, but you don’t want to waste your time and a bunch of other attorneys’ time shopping around a case no one wants. If enough potential clients do this, maybe lawyers will stop lying about why they aren’t taking cases, and clients can more easily find a lawyer who likes their case.