New York law allows attorneys to retain clients on a contingency fee retainer for many types of cases. The law specifies the fees that can be charged for different types of contingency cases, and how the disbursements, liens and other financial aspects of a contingency fee retainer must be handled. This arrangement allows people that cannot afford a lawyer to have access to representation for many types of civil claims including car accidents, slip and falls, dog bites, assaults, medical malpractice, construction accidents, discrimination, nursing home abuse and neglect and many other types of civil claims. The contingency fee attorney is taking a financial risk with these cases, and will only accept cases that are likely winners.
Contingency Fee and Pro-Bono Lawyer are Very Different Things
A pro-bono attorney is an attorney that is not being paid by a client. This does not necessarily mean that the attorney is not being paid. The attorney may be an employee of a not for profit organization that provides legal services such as Legal Aid or the NYC Department of Human Rights. Large law firms sometimes have a “pro-bono” division where lawyers work on cases at no charge to clients. Clinics at law schools may provide the services of students (under the direction of lawyers) pro-bono. Sometimes an attorney will take on a case free of charge because of their belief in a cause or client.
A contingency fee attorney expects to be paid out of the proceeds of a settlement or verdict. This is why these attorneys can only take cases where damages can be collected, and cannot handle cases for injunctive relief. Claims such as pain and suffering and lost earnings have dollar values that can be applied to the client’s compensation and attorney fees. When “injunctive relief,” such as requested orders from a court to force somebody to do something (asking a school to expel a bully or an office to build a wheelchair ramp) there is no money to pay attorneys fees, so this type of case cannot be handled on a contingency fee basis.
No Fee Unless They Win – But They Might Not Take Your Case
Just because you had a car accident or slipped and fell, doesn’t mean that you will be able to find an attorney willing to handle your case on a contingency fee. The first thing the attorney will look for is whether the liability is clear and provable. Attorneys will be happy to take car accidents where the victim was hit in the rear or pedestrians standing on the sidewalk hit by an out-of-control vehicle. If you slipped and fell because there was oil on the floor of a supermarket for many hours or there was a missing step, you won’t have a hard time finding an attorney.
The severity of your injuries will also impact your likelihood of finding an attorney to accept your case. Most attorneys will take a case with a fracture or surgery, but might not take a case with mild neck and back pain. At the very least, you must have an injury that will require a substantial amount of medical treatment and/or lost time from work. Attorneys understand that some injuries are not clear from the onset, and will take some cases on a hunch that the injuries may be more severe than they seemed at first. Psychological injuries can be the basis for a case, but they must be provable with treatment with a mental health professional.
The nexus between the difficulty of proving liability and the severity of the injury will be how the attorney determines whether or not to take your case. For example, with a catastrophic traumatic brain injury, it would be worthwhile for the attorney to invest substantial resources to prove liability, including the hiring of experts, and the amount of damages claimed would be ample to cover the cost, plus payment to the client and the attorney. With difficult liability (you went through a stop sign, but claim the other car was speeding) and minimal injuries (stiff neck and chiropractic treatment), most attorneys will turn down your case.
Why a Lawyer Might Drop Your Contingency Fee Case
A contingency attorney will probably drop your case as soon as evidence arises that substantially impacts the value of your case. If your medical testing is negative for serious injuries and/or you stop going to the doctor for treatment very soon after your accident, your attorney is likely to drop your case. If an eyewitness disputes your version of the accident, saying it was your fault, your lawyer might not want to continue the case.
When Would They Charge an Hourly Rate?
For some types of cases, such as employment discrimination, an attorney may only be willing to handle your case on an hourly rate basis, due to the risk and the limited amount of damages to collect. It might be worth it for your to invest money in your case if it means that your work record is corrected or you get your job back, so this is something to consider if you can afford it. Always be skeptical and get more than one opinion before agreeing to pay an hourly rate for cases that are usually handled on contingency. If the attorney doesn’t want to take the risk, maybe you shouldn’t either.
Wittenstein & Wittenstein has been handling contingency fee cases for generations. We are one of the most reputable firms in New York City. Please call us for a free consultation at 718-261-8114.
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