Top 14 Reasons Why A Personal Injury Lawyer Won’t Take a Case
February 25th, 2018
Why Won’t A Personal Injury Lawyer Take My Case?
Sometimes people come to us after having talked to several personal injury lawyers who turned their case down and they ask us: “Why won’t a personal injury lawyer take my case?” They are usually frustrated because no one can or will give them an explanation of why the lawyer won’t take the case. Instead, they have simply been told “no” or sent a generic letter saying: “Sorry we cannot help you, you should talk to another personal injury lawyer.”
Why a Lawyer Won’t Tell You
The reason for this generic uninformative answer is simple. Different personal injury lawyers have different standards for what type or level of a case they will handle. Some personal injury attorneys do not have the time or resources to handle low value claims. Thus, just because a personal injury lawyer turns your case down, does not mean that someone else would not handle it. No personal injury lawyer wants to tell someone they have a bad case, then have the person let a statute of limitations run before talking to another personal injury attorney who says: “I would have taken it, lets sue the first lawyer for giving you bad advice.” It is safer for a lawyer to give you a generic non-committal answer and tell you to look elsewhere than it is to run the risk of getting sued over a case he did not even take.
You should always seek several personal injury lawyer’s opinions rather than accept the first one or two rejections. Also, be sure you are speaking to attorneys whose primary practice area is personal injury. After consulting with several personal injury lawyers, if you still cannot find a personal injury attorney who will take the case, the rest of this article may help you understand why.
Personal Injury Attorneys Weigh Risk vs Reward
Personal injury lawyers typically work on a contingency fee. This means that they invest their own money to bring claims. If they lose, it is their own money they lose too. Thus, in deciding whether to handle a case, attorneys must weigh the anticipated time and cost of bringing the claim vs the risk of loss and the anticipated recovery. A higher anticipated reward if the case prevails may justify a lawyer taking a more risky case, whereas a low anticipated recovery might not even justify the cost of filing a clear-cut liability lawsuit. Furthermore, while few factors (aside from the statute of limitations expiring) are a complete bar to finding a lawyer, the more factors there are reducing the likelihood of a positive and profitable result, the harder it will be to find a lawyer to take your case. These factors are often the reasons a lawyer declines or discontinues representation. With all of this in mind, here are the top 14 reasons why a personal injury lawyer may not take your case:
Liability is a big consideration in whether a personal injury lawyer will take your case. If liability is not reasonably clear, the likelihood of settlement is lower. This means the anticipated costs are higher. But many times, liability seems clear to the client when it is not. Examples of cases where liability is not clear that seem clear:
- If you are rear-ended by a another vehicle after the vehicle hydroplaned on ice or water, the driver of that car may not be found negligent and, thus; not liable. Just because you were not negligent does not mean someone else is. More on whether the person who rear-ends another is at fault.
- You slipped and fell on a wet spot on the floor in a place of business. Just because you slip and fall on a wet floor in a business does not mean the business is liable. You have to prove the store personnel either knew of the condition or the condition was around for sufficient time that they should have discovered it before the fall.
Additionally, there are red light swearing match cases where liability is wholly dependent on who the jury believes had the green light. The less clear liability is, the more risk there is in the investment for the attorney. The more risk involved, the harder it will be to find a lawyer to take your personal injury case.
2) Comparative Negligence vs Contributory Negligence State
Some states follow the rule of comparative negligence while others follow the rule of contributory negligence. In a contributory negligence state, a plaintiff is barred from making a recovery against someone else if his own negligence is found to have been any percent of the cause of the incident producing the injury. Under comparative negligence like Texas, a plaintiff can recover so long as his negligence is 50% or less–he just loses the percent of his damage award for which his own negligence is responsible. So, where your injury occurs matters and may be part of the reason that a personal injury lawyer won’t take your case.
3) Complexity of the Case
The more complex the issues are in a case, the more time a personal injury lawyer must spend on it. If the case will require several expert witness depositions and party depositions, it will consume more time than a run of the mill fender bender whiplash case. It will likely require more money to pay the experts for there expensive time. A complex case, such as a complex medical malpractice case or a plant explosion can run hundreds of thousands of dollars to take all the way to trial. If the recovery does not warrant this expense, it makes no sense for the personal injury lawyer to take the case.
4) Anticipated Damages/Recovery
Every case has a damage model. Nobody can tell you exactly what a jury will award in a case because everyone’s pain is perceived different and there is no such thing as a pain and suffering calculator. However, an experienced personal injury trial lawyer has a good guess of what a case is likely to be worth on average. If the anticipated recovery is not substantially more than the anticipated cost, a lawyer probably won’t take the case. In this situation, the case is more likely to take up a lot of his/her time and end with an unhappy client and little to show for the time invested.
There are several things that can affect the anticipated recovery of an otherwise good case, thereby making it not worth the time and expense involved. Some of these things are:
- Hospital Liens. Anytime you are seen in a hospital as a result of an injury, many states including Texas, allow the hospital to file a lien. What that means is that they are entitled to be reimbursed out of any recovery against a third-party such as an insurance company before anyone else gets money. While most hospitals will negotiate when there are limited funds, some will not. The lawyer can get sued directly if he fails to pay a hospital lien, so he has no choice. More on how hospital liens affect your personal injury case.
- Bankruptcy. If you are in certain types of bankruptcy, your assets, including the right to bring a personal injury claim, belong to the bankruptcy estate. Not you. The cost of a lawyer getting approval from the bankruptcy court to handle the case can be substantially high and the time required is greater. You must get the bankruptcy court’s approval to handle the case, settle the case and distribute funds. Additionally, the money that the client would get may well be taken and distributed to the creditors—which means the client is less likely to be happy with the outcome. More on how bankruptcy affects your personal injury case.
- Medicare/Medicaid. When your medical bills are paid by Medicare or Medicaid, they get a drastically reduced rate. This means your damages that you can ask for and expect from a jury for are lower. But, you have to reimburse them. Additionally, if there are future medical expenses anticipated, you may have to do a Medicare Set Aside. That requires a significant amount of time and expense to set up. More on how Medicare or Medicaid affect your personal injury case.
- Insurance Policy Limits. No matter what your damage model may look like, the case value is often limited by the amount of insurance available. Texas Homestead Law and Bankruptcy Law makes it very difficult to pursue a judgment against the average person and collect on it. Many can simply file bankruptcy and discharge the debt. This is what is known as being “judgment proof.” Having a million dollar damage model in a car accident where there is only a minimum limits liability policy and no assets or other potential corporate defendants means that the lawyer will likely do a ton of work trying to settle out all of the medical liens from a $30,000.00 policy, probably not get paid, and probably not have a happy client to show for it. Having insufficient insurance can make it hard to find a lawyer to take an otherwise high damage model case.
A lawyer has to consider what the real anticipated recovery is and whether it will cover all of the liens and obligations that come out of the proceeds before he and the client get anything. If that number is too low, it makes no financial sense to take on the case.
5) Tort Reform and Damage Caps
Tort reform has destroyed the value of many legitimate claims in many states. In Texas, for example, caps on damages that you can recover in medical malpractice claims as well as certain hurdles you must jump through just to bring a claim, make many legitimate medical malpractice cases uneconomical. You will simply spend more money than you are allowed to recover in many of these cases. Thus, personal injury lawyers will be very picky about what they take a risk on when tort reform has ravaged those kinds of cases. This is why many personal injury lawyers no longer take medical malpractice cases in Texas–even ones where there is clearly negligence.
6) Severity of Injury
Generally speaking, the more severe an injury, the more likely a jury awards a high verdict. Potential for a high verdict also equates to more risk that a personal injury attorney is willing to take in many cases. But remember, severity is in the eye of the beholder. What seems severe to you, may not be seen as severe to the average juror or lawyer. An attorney may not take your case if she feels that your injuries are not substantial in the eyes of others. Furthermore, a high verdict is worthless without a deep pocket to recover it from. Thus, this is not the sole consideration.
7) Government Defendants and Sovereign Immunity
When your case is against a government entity, it will be limited in two major ways. First, each state and the federal government have their own set of rules called the Torts Claims Act that defines exactly what you can and cannot sue the state for. If your case is not permitted by the Tort Claims Act, you have none. Second, Torts Claims Acts set caps on damages. These vary not only from state to state but within each state depending upon whether the government branch is local or state. For example, in Texas these caps may be as low as $100,000.00 for local county government agencies or as high as $250,000 for state agencies. You may have a clear case of negligence, but if it is not permitted under the relevant Tort Claims Act or the damages are so severely capped that you cannot legally recover enough to cover the damages, this is a common reason why a lawyer won’t take your case. More on suing the government.
8) Medical Care Issues
The type and timing of your medical care can affect the strength and/or value of your case. You are allowed to ask a jury for reasonable and necessary medical care caused by another person’s negligence. This is a question for juries to decide, however, and the defense can bring their own doctors to challenge the care you receive. If your doctor’s bill is higher than most, they will challenge this. Here are several medical care issues that can weight into an attorneys decision not to take your case:
- Experimental or New Medical Procedures. If you sought questionable or experimental types of medical care or care for unrelated matters and you claim it was necessary due to an injury, the jury is less likely to believe you not only about this, but about anything else you claim.
- Delays and Gaps in Care. Jurors tend to think that if you are in pain, you will find a way to go see a doctor. Thus, delays and gaps in receiving medical care often raise doubt with jurors as to whether or not you were really “all that hurt.”. Defense lawyers know this. As a result, they will argue you did not seek care immediately because you were not really hurt.
- Who Provides the Care. Who you seek care from matters. If you see a doctor who has been investigated for Medicare fraud, the insurance company is going to question the bills. If you see a provider who has been reprimanded by the medical board, your bills may get questioned. Even an inexperienced doctor can raise questions and doubts.
9) Proximity Issues
Proximity can be a factor in whether a personal injury lawyer will take your case—particularly low value claims. If you live out-of-state, your medical providers are out-of-state, or the defendant is out-of-state, these factors can increase the cost of pursuing a lawsuit. Proximity issues include:
- Client Lives Out-of-State. If the client is out-of-state, often the client’s personal injury attorney gets stuck paying to fly them in and out for depositions, mediation and trial. The personal injury lawyer also often gets stuck with hotel bills. Furthermore, if the client saw doctors out-of-state, then the personal injury lawyer has to fly there to take doctors depositions and may have to fly there to take witness deposition as well. This can drastically increase the cost of bringing the claim and the time it takes to handle it–which may discourage a personal injury attorney from getting involved.
- Defendant Lives Out-of-State. When the defendant lives out-of-state, there are two considerations. 1) Your personal injury lawyer may have to fly there for his deposition and/or witness depositions. 2) If the case value exceeds $75,000.00 and the defendant lives out-of-state, then the defendant can have the case removed to Federal Court on a technicality called “Diversity Jurisdiction.” The Federal Rules of Procedure are very different than the State rules in many states. So this will require more time and attention for an attorney who does not often practice in Federal Court. Additionally, this can substantially increase the cost of bringing the claim. For a better understand of this, read “Is it time to repeal 28 U.S.C. Sec. 1332 – The Federal Diversity Rule?” Some personal injury lawyers won’t take your case when it is likely to take them out of their local court element.
10) Unrealistic Expectations of the Client
Personal injury lawyers usually try to take on cases likely to make money. Most cases settle before trial because trials are risky. In many cases, at some point there will be a settlement offer that the lawyer believes is an offer that makes sense to accept. If you are a client that “doesn’t care about money and just want your day in court,” or if it is “just about the principle of the matter” to you, then there is a greater likelihood that a personal injury lawyer won’t take your case. All a jury can do for you in a personal injury case is award you money or not award you money. Your ‘principle’ doesn’t pay the lawyer’s overhead.
On a similar note, clients who make the personal injury lawyer’s job unnecessarily difficult may be less likely to get the lawyer to litigate their case. Trial lawyers spend a lot of time at out-of-the-office depositions, mediations, arbitrations, trials and meetings. Clients who show up unannounced and expect their lawyer to drop everything make a busy personal injury lawyer’s life unnecessarily difficult. Clients who expect a lawyer to take calls at all hours of the weekend and week nights make a lawyer’s life unnecessarily difficult. There are very few problems an attorney can solve for you at 3 a.m. If you are this type of client, your personal injury lawyer may choose return the case rather than file a lawsuit and have to put up with it for another 1-2 years.
11) Client is a Poor Witness
Justice is blind, jurors are not. Credibility is of absolute importance. If the jury thinks the client is not honest and believable, they may not award them money even when the law says they ‘deserve’ it. If the client appears to be on drugs or has a history of drugs, this can make it hard to convince a jury to award the client money. Jurors do not like to give money to people whom they believe will spend the money on a drug habit.
Additionally, if the client has a criminal history of convictions in the last 10 years of felonies or misdemeanors involving theft, dishonesty, violence against women or lying, that comes into evidence on the issue of credibility. A bad criminal past can really make a jury distrust the witness. An experienced personal injury trial attorney will recognize this and often choose not to gamble his money on the case.
12) Low Property Damage Car Accidents
Juries sometimes have a hard time believing that people are hurt when the car is not mangled up. Defense lawyers are often well-versed in how to argue these facts. If your injuries are whiplash back and neck injuries and there is not a lot of visible damage to the car, it can be difficult to convince the jury that you really injured. For more information, read: What Constitutes a Minor Impact Collision?
13) Preexisting Conditions
Preexisting medical conditions that relate to the same area of the body a plaintiff (injured claimant in the lawsuit) is claiming injuries to can confuse a jury and drive up case costs. The plaintiff bears the burden of proof. Thus, the plaintiff must convince 10 of the 12 jurors that the aggravation of the preexisting condition warranted medical care that was not otherwise needed and/or warrants compensation. It may require expert testimony or ordering old medical records just to make a jury understand this. The cost of the evidence that must be obtained and the increased risk of a reduced reward are factors an experienced personal injury lawyer will consider in deciding whether to take on your case. For more information See: Aggravation of a Preexisting Condition.
14) The Client Waited Too Long
Time is a defense lawyer’s best friend. The longer a plaintiff tries to handle his own case, the more evidence that can be lost. A personal injury lawyer can send letters to defendants that place a burden on them to preserve evidence. Individuals generally do not know to do this. Additionally, the longer a plaintiff delays in seeking advice, the more likely he is to do something to harm his case such as give a recorded statement to the other side, create gaps in medical care, or even commit a crime that ruins the client’s credibility.
Lastly, if you wait to long to act in some cases, you can forgo your rights entirely. Most personal injury cases have a 2-year statute of limitation. But that doesn’t mean you should wait to hire a personal injury lawyer. If it is a case that needs investigation to determine if it is a good investment, the lawyer will not want to take it on at the last minute. If it is going to require the lawyer to drop everything and try to find the right parties who have moved or are shielded behind corporate entities, a personal injury attorney is less likely to want to take your case on at the last minute.
Further, there are some cases with shorter deadlines. You must give notice to the City of Houston and Harris County within 90 days if you intend to make a claim. The State of Texas must be given notice of a claim in 6 months. Failure to do so means you may be completely barred from bringing a claim.
All of the above factors are things that a personal injury lawyer will consider when deciding whether to take on a case and/or litigate a case. No single factor is decisive. Similarly, there is no magic case value number that means a personal injury lawyer will or will not take your case. Every personal injury lawyer has his own situation, case load, resources and considerations. Thus, you should always seek second and third opinions if the first personal injury attorney won’t take your case.
At Simmons and Fletcher, P.C. we practice personal injury law exclusively. We also offer a free consultation, regardless of how many other personal injury lawyers have turned the case down. Call us at 1-800-298-0111. We cannot promise to take every case, but if we do take on your case, we work on a contingency fee basis and charge you no fees or expenses unless we make a recovery.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.