Hiring a Lawyer

October 5, 2010

I Haven’t Heard From My Lawyer in Two Months!

I was hurt in a car accident early last year and hired a lawyer to help me with my case against the other driver. The case has been pending for over a year. There doesn’t seem to be anything going on. My lawyer said that there would be depositions but they haven’t occurred yet. We do not have a trial date. I have been calling the lawyer to find out what is going on but despite 5 calls in the last two months I have not gotten a response. What is going on? What should I do?

There may be a legitimate reason why depositions have not been taken if your lawsuit has been pending a year, but absent very unusual circumstances depositions of the plaintiff and defendant in a two-vehicle car wreck case should be taken within six months after the case has been filed unless they have been deliberately put on hold pending settlement discussions. However, if this is your lawyer’s plan, he or she should communicate that plan to you so that you know what is going on.

Likewise, there is no excuse for a lawyer (or someone on the lawyer’s behalf) not to return a phone call within one business day. If a lawyer is out of town or in a trial he or she may not be able to get back with you promptly, but should have an assistant call you and advise you of that fact.

October 5, 2010

Should I Hire the Lawyer Who Blogged About My Accident?

by The Law Offices of John Day, P.C.

I was in a tractor-trailer wreck a couple weeks ago and spent five days in the hospital. When I got out of the hospital I went on the Internet to see if there was any news articles about my case. I found that two lawyers had written about my wreck on their law firm blog. Why did they do that?

They wrote the blog post about your wreck in the hope that you would find it and hire them. That is the sole reason that the posts were written – marketing, plain and simple.

There is nothing unethical about this type of blogging. I have never engaged in the practice, even though I have been blogging for over five years and written over 2000 blog posts, because my idea of a blog is that it is a place to share information and help educate people.

September 30, 2010

My Lawyer Is a Member of the Tennessee Bar Association!

by The Law Offices of John Day, P.C.

I talked to a lawyer about a personal injury case. He has a sign on his wall that says that he is a member of the Tennessee Bar Association. What does that mean?

That means he almost certainly has a law license and the money to pay the dues. Not much more.

Don’t get me wrong. I am a proud member of the Tennessee Bar Association. I have been a member for almost 29 years. They do wonderful work and, in my opinion, every lawyer in Tennessee who can possibly afford it should be a member.

September 27, 2010

Can a Sibling File a Wrongful Death Lawsuit?

by The Law Offices of John Day, P.C.

My brother got killed in a car wreck. Can I file a wrongful death lawsuit for him?

You can file a wrongful death lawsuit for your brother under only limited circumstances. First, if you are named the executor of his will you have the right to file suit. Second, if the court names you the administrator of your brother’s estate you will have the right to file suit. Third, if you brother was not married, had no children, and your parents are dead you would be considered "next of kin" and you would have a right to file suit.

The right to file suit is different from the right to control the litigation. For instance, if your brother was married and his wife is competent, it is very possible that a court would let your sister-in-law control the lawsuit even if you were named executor of your brother’s estate.

September 23, 2010

Can My Lawyer Charge Me Interest on Case Expenses?

by The Law Offices of John Day, P.C.

I was hurt in a car accident. I talked to a lawyer and he sent me a proposed contingency fee agreement. The agreement says that I have to pay the expenses he incurs in prosecuting my case and that interest accrues on the expense money. Is that normal?

It is normal for a lawyer handling a contingency fee case to ask the client to re-pay the lawyer for the money spent on case expenses out of any settlement achieved in the case. It is not normal, however, for lawyers to charge interest on the expense money they advance for case expenses, although it seems like more and more lawyers are charging interest.

The lawyers who charge interest may have a contract with a private company that charges them interest, and then they pass the interest that they pay while the case is pending onto you as their client. The interest rate may be very high – much higher than the “prime rate.” The lawyer does not profit from this, but simply passes the cost of the interest on to you. Sometimes there are additional fees associated with this service that are passed on to you.

September 20, 2010

Can An Attorney Charge for Travel Expenses?

by The Law Offices of John Day, P.C.

My lawyer just settled my personal injury case. At the time the lawyer distributed my share of the money to me, he withheld $322.56 for airfare and $150 for a hotel bill. When I asked him what those expenses were for he said he had to travel to New Orleans to take the deposition of a witness in the case. Can he do that?

Yes, if the fee agreement that you signed provides that he is to be reimbursed for out-of-pocket expenses incurred in connection with the case. That type of provision is part of the typical fee agreement in personal injury cases and therefore I would not be surprised if the fee agreement you signed contained that provision. Your lawyer will give you a copy of your fee agreement if you cannot find the your copy.

Of course, the expenses incurred should be reasonable. What is reasonable? A Motel 6 is on the cheap end and a Ritz Carlton is usually too expensive. Something in the middle should do nicely. Most attorneys do not asked to be reimbursed for first-class air travel, although some may do so for international flights or cross-country flights. You shouldn’t expect that your lawyer is going to eat at Taco Bell, but you should not be asked to pick up the tab for a big meal and expensive wine at a five-star restaurant.

September 16, 2010

I Don’t Think My Lawyer Has Any Money!

by The Law Offices of John Day, P.C.

I was in a trucking accident some time ago and was badly hurt. I went to see a lawyer based on the recommendation of a friend at church. I don’t mean to be rude but the lawyer’s office was a disaster. The carpet was nasty, the place smelled like cigarettes, there were papers and books everywhere, and there was dust everywhere. The lawyer was eager to represent me and said he would work on a contingent fee, but said I would have to pay the fee to file the case in court. Is that normal? Should I be concerned at the look of the office?

First, it is not normal for a personal injury lawyer to ask the client to pay court costs or any of the other costs of litigation. Most lawyers in this type of case advance those costs, especially for people of low or moderate incomes, and you are appropriately wary of a lawyer who asks you to advance those costs.

That request, and the condition of the office, may indicate that the lawyer is having some financial issues. (Of course, it may just mean he is a cheap slob.) The financial condition of the lawyer you hire is important, because the lawyer must have adequate resources to finance your case and work without pay while the case is pending. A lawyer who cannot afford to finance the case may hire poor quality experts or not do things necessary to put your case forward in the best way, all of which can hurt your ability to recover the true value of your case. Likewise, a lawyer who is short on capital may recommend that you settle your case for a lesser amount than its true value to ensure that he gets paid for the work he has done.

September 15, 2010

Do I Need a Tennessee Lawyer?

by The Law Offices of John Day, P.C.

I live in South Carolina but was injured in a wreck with a big truck on Interstate 40 right outside of Nashville. Do I need a Tennessee lawyer?

You will almost certainly need a Tennessee lawyer. A South Carolina lawyer will probably not be familiar with Tennessee law and will not be able to file a lawsuit here. Quite candidly, an experienced personal injury lawyer from South Carolina would probably be able to negotiate a settlement for you, but once again may be hampered by a lack of knowledge of Tennessee law and procedure that could impact the value received at settlement.

If your hire a South Carolina lawyer he or she will probably ask the assistance of a Tennessee lawyer to help him or her with the case. I have helped lawyers from dozens of states in this situation, and it works quite well if the out-of-state lawyer calls us early enough to protect your rights. Tennessee law requires that such cases be filed within one year of the date of accident and, unfortunately, several times a year I get a call from an out-of-state lawyer who missed the one year deadline.

September 14, 2010

Why Was I Charged $5432 for Court Reporter Fees?

by The Law Offices of John Day, P.C.

I just settled my personal injury case. We were a week away from trial when we settled. When I got my money there was $5432 deducted for court reporter fees. What are they and why did I have to pay it?

The typical fee agreement in personal injury and wrongful death cases requires that the client reimburse the lawyer for out-of-pocket litigation-related expenses. Many times, the most significant of these expenses are fees paid to court reporters.

Court reporters don’t just write down and transcribe testimony in court. They also write down and transcribe the testimony of witnesses and parties during the discovery phase of a lawsuit. There is usually a court reporter at each deposition, and they charge not only for being present but also for writing down and transcribing testimony. In Nashville, a court reporter charges about $2000 for one day of deposition testimony.

September 7, 2010

Should I Pick a Lawyer Based on His or Her Age?

by The Law Offices of John Day, P.C.

I need to hire a lawyer in a personal injury case. Should I take age into consideration? I am worried about hiring a law who lacks experience.

I happen to think that 53 is a perfect age for a personal injury or wrongful death lawyer. In a couple weeks, I will think that 54 is the perfect age.

Seriously, age is a relevant factor, but age can be misleading in several respects. I remember about 25 years ago I was hired in a case and the opposing lawyer was at least 20 years older than I was. He was confident and forceful and attempted to use his age as an advantage. I looked him up in a legal directory and found out that he finished law school two years after I did – he attended law school after finishing another career.