Replies

Mfreddy:

As you can tell by now -- some folks who post on this site lack intellect, compassion, and common decency. I am sorry for your tragic situation, and on behalf of those posters here who have not the upbringing to know better, I apologize for the foolish and unhelpful remarks. Posters such as these are why Free Republic is no longer the site it one was -- where intelligent, substantive thoughts were exchanged on difficult ideas. Now, one must weed through the kids, crackpots, and fools for an occasional nugget. It's tiresome -- though I still do it because I can pick and choose my threads.

Anyway -- A case such as yours will almost certainly be one where a contingency fee is appropriate. (Under a contingency fee, most states still require that Plaintiff's pay costs, such as filing fees, deposition fees, and other nonlegal fees. Some states will permit these costs to be advanced).

The important part for you is to select the highest quality attorney, with the best experience, who is well-known and practices in the jurisdiction in which the case will be brought. You should ask him or her about the fee structure, though they are required to tell you. (Anyone who is not painfully upfront about the structure, is hiding something.)

Most attorney's on these type of cases have set fee structures. Of course, you can always attempt to negotiate. There is nothing wrong with that, but recognize that in the end, the goal is to get the best representation you can -- to increase the chances at a recovery that will meet the needs of your family moving forward.

Also -- be sure that the attorney evaluates this case upfront -- explaining the strengths and weaknesses. Also, find out with whom they have consulted, and against whom and why they believe their is a claim for malpractice. Sadly, catastrophic injury is not always the result of medical malpractice. You must seriously consider the strain of pursuing a case that may not be strong.

In the end, some fee structures are determined by states. NJ, for example, used to put caps on the fee percentage based upon the demand. The higher the demand, the lower the percentage. (I don't know if that is still the case in New Jersey).

In addition, ask counsel what caps might be in place in the state in which you sue. For example, if you have a 1.2 million dollar cap on all forms of med-mal actions, a 40% fee may not be appropriate. On the other hand, if there is no cap, and the claim could be 5 million or more, 40% might be very appropriate.

Ask about the experts the attorney uses. What are there qualifications and reputations? Are they "mill doctors" who make their living appearing in med-mal cases as experts for Plaintiff's lawyers? If so -- you might want to look elsewhere.

None of these decisions are easy, and you are wise to explore your options. Don't be afraid to ask questions, and don't be afraid to ask for a lower fee. Ask the lawyer to value the medical costs and care costs both owed and moving forward. If a verdict will not sustain those fees, he should cut his percentage. Ask him what recent verdicts are and have been in the jurisdiction on cases that may be similar. Ask him if he is in a Court with tough juries or more sympathetic juries. (He should know). Ask him if the Court in which the suit is to be filed has a judge or judges that may be difficult on experts, or who have a propensity to exclude evidence. All of these factors may reduce your chances of winning, even a meritorious suit. (Yes -- there are plenty of meritorious suits out there, and many deserving Plaintiff's go home with no money -- contrary to the silly and uninformed beliefs of some on this site.)

I am not a med mal expert -- but I litigate large commercial cases for fortune 500 companies. Almost all of my work is on the defense side -- so I am not terribly sympathetic to Plaintiff's lawyers. Having said that, the system is here for people with legitimate claims to seek redress. And no case is more compelling and difficult than one where a child suffers catastrophic injury. If your case has legal merit -- you are right to thoughtfully pursue a remedy that will help you to bear the cost and burden of providing care and support for your child.

My very best to you.

Bless you for wise words, Iron Eagle.

What disgusts me is how a person can come here looking for help, and then be questioned and doubted as if they are out to get somebody or something. A terrible thing happened, no matter who's fault. Cynicism has it's place, this is not it.

Excellent.

Thank you.

I had an accident a few years ago that was clearly a manufacturing defect. However an attorney on contingency would have required that I "scatter-shoot" all parties that "could" be liable. This would have forced me to include a friend in the suit so I didn't pursue it. I had a legit case but couldn't handle the collateral damage to my buddy.

Thanks again for your wise words, especially coming from the other side of the aisle.

Iron Eagle,

If you walk through a field, you're bound to step on a turd. I just walked through the field. I stepped on several.

Thanks for your words of advice. My goal tonite was to develop the context in which to approach this subject. We may find that our situation was not the result of anything other than God's will. If that is the case, we will be satisfied with the answer and live our lives with our son to the fullest. To be a parent is among the greatest gifts the creator has bestowed upon us. We value every day with our son but live with an intense reality that has changed our lives forever. Everything happens for a reason and I do have questions after I leave this earth.

Everything is revealed in time. We are trying to answer the questions we can.