This is kind of a ramble, but I met with someone recently that had already met with one of the “TV lawyers” that spends a couple 100 thousand a year in marketing. The potential client stated, “he told me it’s a great case! But, he doesn’t have enough time right now to handle it.” Sorry for the honesty, but lawyers rarely turn down a “great” case. Some do, obviously, 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.
If you’ve called several lawyers about handling your personal injury case and you haven’t found one who’s interested, it’s usually due to one of three reasons. First, your case isn’t a “good” case. Second, you want to sue someone who local lawyers don’t want to sue. Third, your case involves an area of the law that few lawyers want to deal with. 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.
Hopefully, after reading this, you can figure it out for yourself, and decide whether your case is still worth pursuing.
Lawyers Don’t Want Bad Cases
I know it’s crude to say that a case is “bad,” but this is a common term lawyers use amongst ourselves when describing a case that has more problems than it’s worth. Insurance companies already make it hard to get fair settlements on good cases. Bad cases usually have one or more of the following three issues:
- Liability
- Damages
- Insurance
Liability problems
“Liability” refers to the “fault” aspect of the case. If a jury is likely to find that you are partly or mostly liable for your own 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 kind of weird, “… 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. The counter to this is that if the plaintiff is less than 50% at fault, they can recover something. For example, if the jury awards the plaintiff $100k, but find that the plaintiff was 10% at fault, the judge would reduce the verdict to $90k.
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. In “slip and fall” or “trip and fall” cases, cases involving “open and obvious” hazards will often have liability problems.
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. Really, the only hope you have to remedy this is to beat the ticket at traffic court, and ideally, there was a witness that can verify how the wreck occurred.
“Open and obvious hazard” cases will usually involve slipping on a colored substance that is clearly visible on the floor (like spilled ketchup) or tripping over a floor display or change in floor elevation that anyone looking down would see. The key to these types of 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 were 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). Quickly explaining your reason for failing to see the hazard to a potential lawyer can be the difference between getting an appointment versus an instant rejection.
Damages problems
A case with clear liability, but little to no damages, is akin to a tree falling in the woods with no one to hear it. Because personal injury lawyers work on a contingency basis, they can’t afford to take cases without significant damages. Bumps and 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 by no means suggesting that you over-treat for your injuries in order to drive up your medical bills. This strategy is sure to backfire, and will likely result in a case that 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 on your own 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. Keep that in mind when deciding whether small claims court is a good option for your case. 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 on your own.
Insurance problems
There’s really only one type of insurance problem that 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 which insure bars now exclude coverage for any injury resulting from assault and battery (including the bar’s own negligent security). While it’s true that you can still sue uninsured defendants and try to recover your judgment from the defendant’s personal assets, most lawyers don’t want to risk suing a defendant that may lack the ability to satisfy 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 own personal assets. The near guarantee of having to take the case to trial, coupled with no guarantee of ultimately being paid, make these cases extremely unattractive to lawyers.
The verdict against an uninsured driver is commonly referred to as 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), could 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.
Libel and slander cases more often involve hurt feelings than real damages. False arrest and excessive force cases require knowledge of federal civil rights laws, with which the vast majority of personal injury attorneys are unfamiliar. It’s simply not worth most lawyers’ time to learn a new area of law for just one or two cases.
BUT! An attorney should refer you in the right direction to a law firm that is familiar with that are 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 surprised at the number of times I’ve heard a potential client tell 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 just be straight forward with people. They don’t want to tell the client that the case is bad and maybe spend more time explaining why, while also risking an unpleasant argument over the merits of the case.
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.
Unfortunately, this leaves the client completely oblivious as to the true problem with 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 that will take their call.
I think it makes more since to just tell the truth and use brutal honesty in telling clients why I’m not willing to take their case. I’ve had people whose cases I’ve torn to shreds thank me for my honesty afterward. I’ve also been able to send people to lawyers who are more likely to take their cases just by taking a few extra minutes to hear them out.
If you find that you are running into the “conflict of interest” or “too busy right now” excuse, it may help if you just ask the lawyer if he or she is really 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.