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3.3. Selecting an attorney in a spinal cord injury case

In the aftermath of spinal cord injury, there are so many things to do. Among your challenges is the possibility of filing a lawsuit against those who may have contributed to causing your spinal cord injury. Don't face this challenge unprepared.

When you, or someone you know, has sustained a spinal cord injury, at first the world seems to have turned upside down. There are so many things to do, decisions to make... all the while you are grappling with overwhelming emotions such as anger, fear, depression, and loss.

At this worst possible time, you are called upon to make an extremely important decision about something you know nothing about.

Among all the critical issues vying for your immediate attention, there is the overwhelming concern about how the tremendous costs that go along with having a disability will be paid for.

Most people are not in a financial position to pay for essential needs such as a motorized or manual wheelchair, accessible housing, vehicle adaptation, medical supplies, and personal assistance services.

They will require assistance from their health and disability insurance companies and usually from the State or Federal Government as well. Even with these benefits, some people with spinal cord injuries may have to get along without a lot of the financial, social, medical, and rehabilitation supports they really need.

Among your challenges is the possibility of filing a lawsuit against those who may have contributed to causing your spinal cord injury. This prospect may seem daunting. This article is intended to offer some practical suggestions to help you evaluate your options.

All opinions expressed in this article, however, are intended for your general guidance only and should not be relied upon, or interpreted as a substitute for, specific legal advice in your unique circumstances.

To Sue or Not to Sue

Before you consider hiring an attorney, you should weigh the advantages and disadvantages of filing a lawsuit. You should consider the emotional and psychological price to be paid by all persons potentially involved. Civil litigation is typically time-consuming and emotionally-draining. It often takes years for a lawsuit to reach a conclusion.

A successful lawsuit, however, may provide you with a sense of justice as well as needed financial resources to meet the expenses created by your spinal cord injury. It may also help bring about a change in laws or in practices which might help make society safer.

While you may have had no choice in the circumstances which caused your spinal cord injury, you have a choice now whether to seek recourse through the law. Discuss this decision with your most trusted family members and friends. Your decision should be based on the best information and insight available. Ultimately, the final decision must be yours and yours alone.

You should not feel rushed when making your decision. At the same time, however, you should be aware of certain advantages in retaining an attorney as soon as practically possible. Promptness will enable the attorney to gather information more easily. Otherwise, as time passes after your injury, witnesses may become harder to find, physical evidence may be lost or damaged, and memories may start to fade. In addition, each state has its own statute of limitations establishing a certain deadline after which civil claims can no longer be filed.

You may feel unable to look for an attorney promptly after a spinal cord injury due to lack of physical energy or stress. Consider asking family members or friends to help. They can make some preliminary inquiries for you and gather some important background information.

Identifying Potential Attorneys

Word of mouth

Finding a good attorney is similar to hiring any other professional. You will ultimately want to hire an attorney who specializes in complex personal injury law generally and spinal cord injuries (SCI) specifically. Word of mouth is perhaps as reliable a method as any.

Seek recommendations from persons whom you know to have good judgment or to have had a positive experience using an attorney in a comparable case. Ask any judges or attorneys you might know who they would hire if they themselves were bringing a spinal cord injury claim.

Hesitate hiring an attorney who is a personal friend or family member, even if they have expertise in SCI cases. Although they might have a greater personal interest in you at the start, will you feel comfortable later on expressing disagreement with their recommendations or questioning them about billing matters?

Bar associations

Other resources for information on attorneys are local bar associations and professional organizations. Typically, a city or county bar association will provide you with a list of attorneys in your area who specialize in personal injury and SCI law. If this inquiry is not productive, consider calling your state capital and checking with a state bar association.

All factors being equal, it is probably better to hire a local attorney. Local attorneys are obviously closer in distance, reducing travel time and expenses. They are also more familiar with the judges and court personnel in your area and are generally considered more accountable.

Directory services

The leading national directory of attorneys is Martindale-Hubbell. It was first published in 1868 and is updated annually. This directory lists thousands of attorneys. It is available in book form in most local libraries as well as on-line at www.martindale.com.

Aside from providing basic address and telephone contact information, Martindale-Hubbell tells you when a lawyer was admitted to the state bar, where the lawyer went to law school, and in most instances his or her fields of expertise. This directory also includes a rating system which evaluates how peers have rated an attorney in legal ability and ethics.

Be wary of other on-line "directory" and attorney-locator services. Many of these services appear to provide objective, independent information about attorneys, their locales and fields of expertise. Listings in these services, however, are often determined solely by advertising sales – attorneys pay for the right to exclusive listings in, and referrals from, these services.

It is also somewhat risky to pick an attorney from the Yellow Pages or a telephone book. You cannot make many assumptions about an attorney just because he or she pays for a large advertisement.

Some attorneys and law firms advertise having an interest in particular fields of law simply because these fields are attractive and potentially lucrative, not because they have special experience in them. Spinal cord injuries represent such an area of desirable interest to personal injury law firms.

You should probably avoid an attorney who lists a plethora of specializations, since no individual can remain truly current in all kinds of law. The web sites of individual law firms can also offer some useful background information. Be aware, however, that the content of such sites is largely unsupervised and unregulated.

Interviewing Potential Attorneys

After you have narrowed your list of potential attorneys, call them to set up appointments. When arranging an interview, ask if there will be a consultation fee. While most attorneys do not charge for a first visit, some may do so.

Gathering relevant records

Bring all documents related to your spinal cord injury to the first interview. Such paperwork may include: all relevant medical records; the names of, and contact information for, your health care providers; records of any additional out-of-pocket expenses related to your injury; any police and accident reports, photographs or witness statements in your possession; any record of lost wages from your employer.

If gathering this information seems overwhelming, do not let this feeling delay your interview. While these documents will help the attorney evaluate your case, if it is too difficult for you to gather this information, the attorney can do it himself or herself after first obtaining your authorization. If you ultimately decide not to hire the attorney, you may request that he or she return these records to you.

Questions to ask during the interview

Your goals in interviewing are to determine whether your case has merit, whether the attorney is qualified to handle it, and whether you are comfortable with the attorney and his or her law firm. You or someone accompanying you to the interview should be prepared to take good notes.

There is no ideal checklist of questions in each instance, but some key questions you might consider asking include:

• Do I have a case worth pursuing? What are my case's strengths and weaknesses?
• Do I need the services of an attorney in order to assert my rights?
• What is your legal experience in this field?
• How many cases like mine have you handled? What were the results?
• When did you graduate from law school? Have you received any professional honors?
• Have you ever been cited by an ethics committee or sued for malpractice?
• Will you personally be working on my case or will you delegate responsibility to others?
• How long do you expect this matter to take?
• Are there any pending deadlines which are important to preserve my claims?
• How will you keep me informed as the case progresses?
• Are there any alternatives to litigation? Do you suggest mediation or arbitration?
• Can I help with some of the work? What additional information do you need?
• What are your rates and how will this matter be billed? Do you require any retainer fee up front?

Contingent fee arrangements are the norm for plaintiffs in SCI litigation. This fee arrangement is attractive because it does not require you to pay any money up front. The attorney shares in the risks of recovery and agrees to be paid only if the client's case is ultimately successful by virtue of a settlement or a judgment. Under this arrangement, the attorney receives a percentage of the final amount recovered -- most commonly one-third for cases resolved before an appeal, or 40 percent for cases resolved after an appeal.

The attorney should be willing to itemize all out-of-pocket expenses in your case (such as court filing fees, transcripts, photocopying, and expert witness expenses). It is important to ask whether these expenses will be deducted before or after the contingent percentage is applied.

Another important question to ask is who will be responsible for paying litigation expenses in the event that your case is lost. These questions are especially important in SCI litigation because expenses are almost invariably high. Likely expert witnesses may include: physicians, a vocational rehabilitation consultant, a life care planner, an economist and separate liability experts.

Some plaintiffs with SCI feel reluctant hiring an attorney who has also represented defendants and insurance companies. The choice is yours. Realize, however, that attorneys who have represented both plaintiffs and defendants may have first-hand insights into claims handling practices and may possibly offer a more objective perspective.

Making a Final Selection

After you have interviewed several attorneys, you should be ready to make your choice. Review your notes and assess how well you related to the attorneys involved. Before you hire anyone, make sure that you feel comfortable speaking honestly and openly with him or her. Consider whether the attorney was able to answer your questions clearly and directly.

Make sure that you understand the ground rules for a professional relationship. Does the attorney understand how you wish to be informed as your case progresses? Will you receive periodic updates in letters or over the telephone? Make sure that you have a clear understanding about fees and expenses.

Memorialize your final agreement in a written contract. The document should include all of the essential terms that you and the attorney discussed. Review the contract in the comfort of your home. Read it thoroughly before signing it. If the contract omits any terms that are important to you, ask the attorney to change it to include these terms specifically.

Responsibilities during litigation

The basic responsibilities of you and your attorney will be set forth in your written contract. In addition, you should expect that your attorney will always be willing and able to tell you the status of your case as it develops. He or she should discuss with you the laws which are relevant to your claims and how your own ideas may fit in relation to the law and court procedures. He or she should advise you of your strategic options so that you will be able to make informed decisions as your case proceeds.

You will have continuing responsibilities as well. You should promptly inform your attorney of any new facts in your case and if your medical condition or needs change. Remember that your communications with counsel are confidential. Strive to be as open and thorough as possible. Try not to be influenced by reports of verdicts or settlements in other cases because each individual situation is unique.

Ultimately, our system of justice is human and thus imperfect. While you may never feel fully compensated or restored for the difficulties caused by your spinal cord injury, hopefully you and your attorney will feel at the conclusion of your case that you both did your best in the circumstances.

David G. Geffen, Esq., Leonard Zandrow, Esq. and Jack Dahlberg contributed to this article.