Duckworth Law is almost entirely dedicated to representing people on injury and insurance cases. We occasionally other cases involving insurance claims, but most of our practice is dedicated to helping Montanans who are in the unfortunate position of being badly injured. Duckworth Law has represented hundreds, if not thousands, of Montanans over the years on insurance cases. There’s a ton to injury and insurance cases, but this article answers 3 of the common questions we hear up front.
1. How Much Will an Attorney Cost for Injury and Insurance Cases?
This question is relatively easy to answer because there are customary fee arrangements that nearly all lawyers use who do injury and insurance cases.
Injury and Insurance cases are done almost universally on a contingent fee basis. Contingent fee means that the lawyer’s fee is paid as a percentage of money recovered from the case.
For the vast majority of injury and insurance cases, the fee is 1/3, or 33%. This fee is customary throughout the country. Our typical fee agreement calls for the 1/3 fee, and we use it for most injury and insurance cases.
We do have fee agreement that vary for certain circumstances. For instance, most of our fee agreements have escalating fees if the case goes to trial. For instance, if a case goes to trial, the fee is 40%, and if it is appealed to the Montana Supreme Court then the fee is 50%. The reason is that trial, and Supreme Court appeals, are extraordinarily time consuming and typically require the lawyer’s full time attention for a month or so, meaning the lawyer cannot work on any other cases during that time. Cases rarely go to trial these days, so this escalating fee thing is largely a non-issue.
In rare cases, the fee is 40% from the start. We only use 40% in cases we know will be very expensive and challenging. One example is medical malpractice cases, which are notoriously difficult an expensive. It is not uncommon for the lawyer to have to spend tens of thousands, if not six-figures or more, to pursue. A 40% fee is the only way these cases are possible for the lawyer.
Workers’ compensation claims are different, and there is a statutory 20% fee agreement, that escalates to 25% if the cases go to a hearing. The reason the percentage is less than typical injury cases, is that workers’ compensation cases are slightly less involved. Work comp cases do not allow for a jury trial, and have a separate court system that is more streamlined and typically involve a little less attorney-involvement.
A final consideration is costs. We front or advance costs in our contingent fee cases (most lawyers do), meaning the lawyer pays out-of-pocket for all case costs. This commonly involves medical record costs, travel costs, expert witnesses, depositions, etc. The costs are recouped out of the settlement, in addition to the attorney fees. In most of our cases the costs are modest (in the hundreds), but it is not uncommon for costs to be in the thousands or more for injury and insurance cases.
It may seem at times that the fees are high, but it’s the only way the system works. Cases can take years to resolve, cost the lawyers a lot of money out-of-pocket, and have no guarantee of recovery. At the onset of a case, the lawyer does not know if they will recover anything, or how much, because cases are fluid. One case that seems good may be sabotaged a year into it due to unknown evidence — like a damaging facebook photo, or liability evidence that changes the case.
A lawyer is taking real risk when taking injury and insurance cases, and it only works if the lawyer’s fee recognizes the risks. Many lawyers have gone out of business doing injury and insurance cases.
2. How Much is My Injury Case Worth
A person might say they broke their arm, and what is a broken arm worth? Any lawyer worth his or her salt cannot answer this question honestly, and if one does, you may want to be skeptical. Here’s why.
When it comes to injury and insurance cases, those cases are ultimately decided by juries. Most cases settle, but settlements are still based on both parties’ predictions of what a jury is likely to decide. A lot of things can go into a jury’s verdict, and jury verdicts are incredibly case specific. Meaning, a broken arm for one person may be totally different from a broken arm for another person.
One reason is liability. In any personal injury lawsuit, a plaintiff must first prove that the other party is liable (i.e., at fault). Negligence is by far the most common legal theory of liability, although certainly not the only one. In a negligence case, the jury is asked to determine the fault of the defendant, any other defendants, and also possibly the plaintiff, by assigning percentages of fault. If it is crystal clear the defendant is totally at fault, perhaps the jury assigns 100% liability.
But many cases are more unclear. Perhaps the jury determines the defendant is 60% at fault, but that the plaintiff is 40% at fault. In that scenario, the plaintiff only recovers 60% of the damages. In Montana, the defendant (or collection of defendants) must be at least 50% at fault, or else the plaintiff recovers nothing, a concept known as comparative negligence. MCA, 27-1-702. There’s certainly more details to liability, but you can see how not every case is the same at all.
Even if you could theoretically say a broken arm is worth $50,000 (we will show shortly why that isn’t even true), it depends on the liability analysis. But let’s agree for a moment, hypothetically, a broken arm is worth $50,000. In a case involving a defendant that is 100% negligent, the plaintiff would recover $50,000. Yet in a case where the defendant was only 60% negligent and the plaintiff is $40,000 negligent, the plaintiff would only recover $30,000 (60% x $50,000).
The other reason every case is different is the damages. In a typical injury case based on negligence, a person can claim both special and general damages. Special damages are one that are easily quantifiable, like medical bills and lost wages. General damages are the human losses. The pain and suffering, the loss of your hobbies and activities (ie, loss of enjoyment of life), mental anguish, etc. Different people will have different damages for a similar injury.
In the broken arm example, if two people suffer a similar broken arm, the only damage that might be the same for both is the medical bills, assuming similar treatment. Even that’s not entirely true, because perhaps one has a slightly different break that requires surgery, and the other doesn’t. As for wage loss, if one is a lawyer (like me) they may not really suffer any wage loss because the person can likely still perform the job of a lawyer with a broken arm (I’ve actually had this happen!). On the other hand, someone who works construction may be entirely unable to work for months, losing out on tens of thousand in income.
The human losses vary wildly and depend on healing. Perhaps one person may love golfing and playing with their kids, but their broken arm heals poorly and they are never able to do those activities well again. They may have a significant general damage claim. Whereas perhaps the other person may heal just fine and have no real permanent problems. One case might be arguably a six-figure case, and the other may be much more modest.
One final point is the availability and amount of insurance coverage. This is a complicated topic and this article will not cover it all (read here for more info on car insurance) but from a practical perspective insurance coverage has a huge impact on case recoveries.
First the question is whether insurance even exists to cover the at-fault party. If there is not insurance, it is often impractical to pursue a case at all, and there might be no recovery. If there is insurance, the limits could vary wildly from as little as $20,000 to millions. If a persons damages are large but there is only $20,000 in coverage, that person might only recover $20,000. It’s critical to have a lawyer investigate the insurance situation, because it plays a major role in actual money received in injury and insurance cases.
3. How long do I have to Act on Injury and Insurance Cases?
All types of injury and insurance cases are subject to what’s called a “statute of limitations,” (SOL) which refers to a the time period you have to file a lawsuit. Generally, SOL’s are hard and firm deadlines, meaning that once the time is expired you forever lose the right to file a claim. Thus, for injury and insurance cases, you absolutely must be aware of the applicable SOL, or else you risk missing it and losing the right to file a claim entirely.
Statute of limitations for injury and insurance cases can be complicated, thus this article is not meant to give specific advice as to what the applicable SOL is for a given situation. You must call and lawyer to discuss your specific situation, in order to get a valid opinion.
Generally, most injury and insurance cases based on negligence have a 3 year statute of limitations, under Montana law at MCA, 27-2-204. This 3 year SOL applies to most car accident cases, and many other personal injury case. But here’s the thing, there are exceptions and this is why you (and lawyers) have to be very careful.
In a straightforward car accident case where John Doe from Missoula is drunk and hits and injures Jane Deere from Bozeman, the statute of limitations is almost surely 3 years. But what if John Doe is a mailman driving a mail truck for the United State’s Postal Service (USPS) at the time of the crash. If so, John Doe is likely deemed a federal employee, making the claim fall under the Federal Tort Claims Act, which is subject to a 2 year statute of limitations (and other strict administrative and jurisdictional questions beyond the scope of this article). It can get complicated, which is why you must talk to a lawyer who routinely practices injury and insurance cases.
Here’s a few common limitations periods we run into, but always talk to a lawyer to make sure there isn’t a quirk:
Insurance bad faith: 2 years for first party, but 1 year for third party. MCA 33-18-242.
Medical Malpractice: 2 years. MCA 27-2-205.
Workers’ Compensation: 1 year to file an Injury claim. MCA 39-71-601.
Wrongful Termination: 1 year from date of discharge. MCA 39-2-911.
This is certainly a simplified explanation of statute of limitations, because there are exceptions and unique circumstances. In some cases, latent injuries (delayed onset) toll the statute, and there are often question as to when a claim actually accrues (clock begins ticking). Make sure to contact a lawyer who specializes in injury and insurance cases.