WHITEBOARD WEDNESDAY (July 12, 2017): The most common type of car accident is a rear-ender at low speeds that results in whiplash, but finding a personal injury lawyer to take your low-impact, soft-tissue personal injury case on a contingency fee may be a lot harder than you think… In this week’s Whiteboard Wednesday (Part 1 of 2), Matt explains why attorneys may not be interested.
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<a class=”embedly-card” href=”https://youtu.be/FNXKA8fsiUM”>PART 1: My Frustrating Low Impact, Soft Tissue Case (July 12, 2017)</a>
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Video Transcription
Hi, Matt Quinlan here. Welcome to this week’s edition of #WhiteboardWednesday , where we tackle real-life issues that are our clients face and answer questions that we get from people that call our office. This week we’re gonna be doing a two-part series on a very frustrating type of case: low-impact, soft tissue injury cases. They’re probably the most common type of car accident. The nature of them is typically a rear-ender at low speeds, a very minor property damage to one’s bumper, someone gets whiplashed or somehow aggravates their neck, and obviously they’re hurt and liability is very clear because you’ve been rear-ended and you set out to find an attorney. You call around and to your surprise no one seems to be interested.
I have found that probably the main reason why people get so frustrated about these types of cases is that lawyers aren’t straight with people about why they don’t wanna take their case and instead they make an excuse and say that they don’t handle those types of cases or that their caseload is too full and they’re not able to take on new clients, or something like that. They kick the can down the road and then they leave the potential client out there hunting around without answers and without knowing the thought process of the lawyer and they’re invariably gonna waste a bunch of their time trying to find an attorney and no one’s gonna shoot straight with them.
So, this week and next week I’m gonna be talking about these types of cases. I’m gonna let you in on what goes on in the mind of a personal injury lawyer when you’re trying to get an attorney to take on your soft tissue, low-impact case on a contingency fee. So, let’s get started.
Part one, why can’t I find a lawyer? So, you’ve called around. You get the runaround like I’ve mentioned. You’re confused about why it is. You know that it’s a very clear liability case. You know that you’ve been injured and it seems to you like the type of case that any attorney should want to snap up because it should be an easy thing to resolve, is straightforward, and there won’t be any problems.
But, ironically, that’s actually far, far from the truth and these are the types of cases that are the biggest headaches for personal injury attorneys. They are the biggest potential risks to personal injury attorneys and they offer low financial upside for a lawyer that’s working on a contingency fee.
So for that reason, often times people won’t take them. Certainly, if you have a…you know, a bigger book of business with larger injury cases that you’re handling on a contingency fee you would rather, as a lawyer, spend your time on those cases than a smaller case that is a low-impact, soft tissue case.
Juries Don’t Respond Well to Low-Impact, Soft-Tissue Cases
So, the primary reason why, kind of the state of things are what they are with these low-impact, soft tissue cases is juries don’t like them. You know, you could present your case to a jury and you will find that the jury is not gonna be responsive to your case. You will be shocked and probably offended that they are going to come into the trial with the presumption that you are probably faking it, that you are probably bringing a frivolous lawsuit and they will also have the opinion that I, as a personal injury lawyer, are some kind of ambulance chaser.
So, these things work against us. They’re completely unfair and there’s a lot of economics and business reasons and political reasons behind this phenomenon. Insurance companies have spent hundreds and millions of dollars over the last 30 or 40 years to taint jury pools, to make the public believe that there is a rash and an epidemic of these frivolous lawsuits that are nonsense, that drive everybody’s insurance rates up and that a lawyer like myself is some kind of unscrupulous, unethical, ambulance-chasing, creepy, slimeball of a lawyer, which is obviously very offensive to me.
And so, it’s a shame that that is what has gone on but there is no doubt that it has…I’ll get into it a tiny bit here in a bit to explain kind of the financial motivations for insurance companies and big business to have society at large thinking that I am not to be trusted as a personal injury lawyer and you are probably trying to get some free money on a case that’s not fair or warranted.
Because Juries Don’t Like Them, Insurance Companies Aren’t Threatened By Low-Impact, Soft-Tissue Injury Claims
So, that gets us to a place where you are in front of a jury of your peers and they are already viewing you like this probably isn’t worth their time. It’s probably nonsense. I don’t like the lawyer. I don’t really like this person who’s claiming these injuries and because juries don’t like them, insurance companies aren’t threatened by them, okay?
They’re not threatened because there’s very little upside in them. They know that juries don’t get carried away with the values of these types of cases and so, you know, they can take a really hard line with you on settling your case pre-litigation without having to file a lawsuit.
Now, I have kind outlined here at the top, just a really standard, really basic, low-impact, soft tissue case and that typically involves low-speed rear-enders, probably at a stop sign or at a stoplight where you’re rear-ended by somebody maybe going 5 or 10 miles an hour, very little property damage, probably just a bumper, you know, some minor damage to the bumper which requires a bumper replacement, which is usually $1,500.
You know, the plaintiff ends up with whiplash or some sort of injury to the neck that requires chiropractic care only and it’s kind of a two-month treatment plan that somebody gets on with the chiropractor. The bill is typically about $2,500 and so this is like really a basic, common, very common set of facts that are presented to lawyers all the time, okay?
And in that particular case, from my experience, if the insurance company were to offer you $7,500 to settle your case after all liability is crystal-clear, you were rear-ended, you know, you were injured, you got the treatment immediately, you had two months of care, you have $2,500 in medical bills that you need to pay, and if insurance companies would offer you $7,500, that would be fair. That would be fine.
We’re not gonna throw a party about that settlement but it’s the type of thing that you can take. You can move on your way. Everybody’s happy enough. Your lawyer gets a third of it. You end up getting a third of it and as it were, the chiropractor also gets a third of it.
You know, that would be fair. That would be a way to walk away and kind of be done with it and move on with your life. But insurance companies typically aren’t gonna do that, all right?
If I knew that an insurance company would offer you $7,500 to settle that…this case that I’ve just described, I would take your case and we would be able to resolve it. It would be a pretty straight forward deal for me. I wouldn’t have to spend a ton of time on it and it would be worth my time as a business owner and an injury lawyer to handle your case, to make a third of the total settlement, and then, you know, you’re happy enough you end up with something in your pocket. Your medical bills get paid and that’s the end of it.
But, I know that that’s probably not gonna occur, okay? And the insurance company is going to force you to file a lawsuit. So, if you have to file a lawsuit, I’m working on a contingency fee, which means I’m advancing all of my time. I’m not gonna get paid unless the result is positive at which time I’ll get a percentage of the recovery either a third or 40%.
And I also agree, me personally, to advance all of the costs necessary to pursue your case, okay? So I’m going to come out of my pocket with my own money to pay for things along the way and if and when we have a positive result I get reimbursed for that in addition to the contingency fee.
So I have to, as the lawyer, assess…do a risk-reward analysis on whether or not I should be taking on your case. If I’m forced to file a lawsuit and take your case all the way to trial, I might spend 100 hours in total between me and my office staff working on your case, okay?
So 100 hours in an effort to try to get something that I know a jury might award you $7,500 for, you know, it starts to…when you do it by hour, the math on this type of thing, it starts to make you wonder if you couldn’t, as a lawyer, be spending your time in more productive ways, right, more efficient ways, more ways with more financial upside because we are, you know, business owners. We’re attorneys that are in the business of, you know, practicing law and we’re trying to make money.
So, you have to do this analysis and as a lawyer, you think, “I don’t know that I want to spend 100 hours rather trying to make $2500.” As a matter of fact, the answer is, “I don’t want to do that,” all right? And so, if I think I’m gonna be required to spend 100, then I’m not interested in the case.
Making matters worse, much worse, is the fact that I am going to have to take on financial risks, actual dollars out of my pocket to prosecute your case because the insurance company wouldn’t offer you a fair settlement in your straightforward, clear liability case.
Now they might offer you $4,000, let’s say, instead of the $7,500 that would be perfectly acceptable. And if they were to do that, my attorney’s fees would be a third. So…and plus I would have some costs, let’s say that totals about $1,500 and you owe the chiropractor $2,500.
So you would end up with nothing in a situation where, given these facts, an insurance company offered you $4,000 to settle your case. I will call you. I would explain to you their offer and of course, you would say, “No, I don’t want to accept this money. I’m not gonna end up with anything. Why would I do that? Just so the lawyer can get some money, the chiropractor can get paid, and I’m the one that went through all this.”
So you’re not gonna accept $4,000, right? So, if the insurance company were to offer you something like that, here we are in a position where you’re unhappy and we are forced to file a lawsuit because that’s the only other recourse, you know, except for settling pre-litigation.
So back to the financial risk, all right? So now I have to file a lawsuit because the settlement is not practical. There’s a filing fee, okay, about $500. I have to advance that. We get it filed. We go through a discovery process. I’m spending hours now working with you to work up your case.
If, in fact, we are required to go all the way to trial, I’m gonna have to hire an accident reconstructionist because they most certainly will…that will testify that the forces involved in the accident were so minor that you could not have been injured. Okay? The forces were just completely inadequate and therefore, you must be faking it.
So, I’m gonna have to hire an accident reconstructionist to combat that, right? My own accident reconstructionist, your accident reconstructionist which will say, “No, the forces involved were adequate to cause an injury. The person was actually injured.” And I’m gonna have to pay them one, to review the file. I’m gonna have to pay them to prepare for it and I’m going to have to pay them to show up to trial and give testimony.
So, if I were to do that on the cheap and find somebody very reasonable, I could spend probably about $4,000 of my own money just to get this expert in place to testify at your trial. So, that’s $4,000 that I’m gonna need to spend.
Now, your chiropractor is also gonna need to come to trial. I have to establish the injury causation. I have to present your chiropractor to the jury so that the jury can understand what your injuries were and feel confident and I will have need to meet the legal threshold that the injuries were a result of the auto accident and your chiropractor will be the one that would give me that testimony.
So, your chiropractor obviously has an incentive to get paid on the bill, assuming it’s outstanding, and in that situation I can probably haul in the chiropractor into trial and I might have to pay about $1,500 for your chiropractor’s time as well.
Depositions, gonna need to take some depositions. This is more money out of my pocket. I am going to have to take the deposition of the defendant, the person that rear-ended you. That will probably cost me $600 or $800.
I’m gonna need to take the deposition of their accident reconstructionist. So I’m gonna have to pay their accident reconstructionist, who’s an expert, their hourly rate, take…have access to their time and I’m gonna also have to pay a court reporter to come there, do the transcript for me and I’m gonna have to order a copy of the transcript.
So that could end up costing me, you know, maybe $1,500 in total. I am going to have to take the deposition of the doctor that they’re gonna hire that’s gonna testify that you were not injured. They’re gonna examine you, by the way, and I’m gonna have…and write a report that’s gonna be damning to your case and downplay or completely try to eliminate your injuries. I’m going to have to take that person’s deposition, that doctor, that M.D., what’s called an independent medical exam and his report or her report.
So, that is going to cost me some money because I’m gonna have to pay for the doctor’s time plus the deposition expenses with the court reporter so that might be another $1,500 or so. And then, of course, I’m gonna need to order a copy of your deposition which the other side will take and pay for and then I’m going to have to also have a copy of our accident reconstructionist.
Long way of saying, I’m gonna spend at least another $4,000 on depositions and I’m gonna advance that. We’re working our way towards trial and these are necessary expenses.
And then, you know, there’s obviously gonna be some other miscellaneous expenses that will come up along the way. Service fees, various other expenses that escape my mind now but suffice it to say there’s gonna be jury fees, you have to pay jury fees. There’s fees that come up along the way that aren’t included in some of these things and that I’m guessing will cause something like $1,000, okay?
So in this circumstance to take your case to trial, I have to advance out of my pocket $11,000, okay? That’s in addition to all my time I have advanced. So, if we get a result, I’m entitled to be reimbursed for this, obviously, I’m not in the business of burning money or giving it away. So we would have to get a verdict so large in this particular circumstance and the number actually shakes out to $22,500. That’s the verdict that would be necessary for me to be repaid for my out-of-pocket expenses.
My attorney’s fees would be 40% on that and the chiropractor obviously is owed as well, $2,500. So, you would end with nothing in that particular circumstance. Now, I know that the odds of getting a verdict more than $22,500, given these facts here that I’ve already described, are almost zero, all right?
So it is completely nonsensical to file a lawsuit, in your case, and take it to trial. The insurance company knows that. They’ve done this math. They’re more willing to spend an inefficient amount of money defending the case because they realize…and they have economies of scale, right? They handle these by the hundreds of thousands every year throughout the country.
And so, they have the resources and the economies of scale to force the issue with any one individual personal injury lawyer like me who doesn’t have that kind of volume that I can spread my risk over. So they would rather lose money on any one case and make money on the whole, right? So, they know that and for that reason it’s infrequent that they’ll be willing to offer you a fair settlement without litigation.
So, all of these things ultimately are gonna lead to an unhappy client, right? So as a business owner, if I have unhappy clients, I have an unsuccessful business, right? So when I say no to cases like this it’s because I don’t want unhappy clients, right?
So let’s say they offered you $4,000 in the beginning, pre-litigation, and I explained to you that after your fees and costs and you pay the chiropractor you get nothing. And I say, “Well, that’s all I’m willing to do because I’m not willing to get into a situation where I’ve got $11,000 of my money tied up, which is completely exposed, right? I’m not entitled at all to even get that money back.
Plus, I’m gonna have to spend all this time trying to chase down a verdict that is probably something I cannot achieve for you and you’ve hired me because I’m the expert. I’m the guy that’s gonna solve all your problems. I’m the guy that’s gonna get it done for you and I’m gonna fail in your eyes, right?
It’s not my fault. I haven’t done a poor job. It’s just the circumstances. So, at the end of this you’re unhappy because you don’t end up with any money. You’re unhappy because, potentially, I applied some pressure on you to accept this settlement that’s lower than it should be because I’m unwilling to do all these things which makes you think I’ve failed you in some kind of way.
Or we go all the way to trial and we present the case, we spend the money, we take the chance and we get a verdict that’s less than $22,500. That means you get nothing. It means I’ve lost something and then I failed again and I’ve got an unhappy client again.
So all roads here lead to unhappy clients and so for that reason, I can’t take cases like this, right? Unless I feel certain that I can get the settlement without having to file a lawsuit.
So that’s the real reason why personal injury lawyers tell you no when you call with facts, similar to what I’ve just discussed here. And I just want to be able to share that information with you and give you a different perspective about what goes on in the mind…in the business mind of a personal injury lawyer.
And so, that’s the nature of the problem that we find ourselves in and obviously there are solutions to what you should do because you may find it completely impossible to find a personal injury lawyer. And in part two of this particular Whiteboard Wednesday, I’m going to be addressing those things, how to handle this situation when the lawyer says no, all right?
So, please stay tuned next week for the follow-up to this for the Whiteboard Wednesday, addressing what you should do if a personal injury lawyer will not take your low-impact, soft tissue case.
I appreciate you watching Whiteboard Wednesday this week and I will see you next week.
