Understanding Attorney’s Fees And Expenses In Personal Injury And Wrongful Death Cases in Tennessee

1. Do I have to pay a consultation fee to meet with a lawyer about my personal injury or wrongful death case?

Answer: At The Law Offices of John Day, P.C., we never charge a consultation fee to a potential client who consults with us about a personal injury or wrongful death case. This is true for virtually every lawyer who regularly does personal injury or wrongful death cases, although it would always be wise to ask about the need to pay a consultation fee before meeting with any lawyer about any type of legal matter.

2. How do lawyers charge in personal injury and wrongful death cases?

Answer: Most lawyers charge what is known as a contingent fee in personal injury cases and wrongful death cases. A contingent fee is a charge based on a percentage of the recovery of money damages. The fee is “contingent” upon a monetary recovery, and means that if the case is unsuccessful there is no fee for the lawyer’s services.

Lawyers who do personal injury and wrongful death work usually also require the client to reimburse them for expenses they incur in preparing and trying the case. The fee agreement with the lawyer may require that the expenses be paid to the lawyer if the case is unsuccessful, or may provide that the lawyer will “write off” the expenses if the case is unsuccessful. You should ask the lawyer you are thinking about employing for a copy of written fee agreement and understand what expenses will be charged and what responsibility, if any, you will have for expenses if the case is unsuccessful.

The Law Offices of John Day, P.C.  typically accepts contingent fees in personal injury and wrongful death cases. However, at the request of the client we will work by the hour. We have learned that some clients have the resources to pay for our services by the hour (fees are billed monthly; retainer required).

The amount of the contingent fee we charge depends on the type of case we are asked to undertake. Some contingent fees are set by statute. For example, in worker’s compensation cases the contingent fee cannot exceed 20% of the gross recovery. Medical malpractice cases are much more complex, and the law requires that the maximum fee in those cases is 33 1/3 % of the gross recovery.

3. Do I incur any expense in litigation other than the attorney’s fee?

Answer: Most lawyers who do personal injury and wrongful death litigation ask to be reimbursed for expenses they incur in prosecuting your case. Some lawyers hold the client responsible for those expenses if the case is unsuccessful. Other lawyers will “write-off” some or all of those expenses if the case is unsuccessful. The written fee agreement between you and the lawyer should disclose whether the client will be responsible for expenses if the case is unsuccessful.

Here is a list of the types of expenses that may be charged to your case:

i. Expert Witness Fees. Some cases require, and many cases benefit from, the use of one or more expert witnesses. Expert witnesses charge by the hour – some medical experts charge as much as $1500 per hour to consult with a lawyer and give testimony at trial. In some cases there are no expert witnesses and therefore no expert witness fees. In medical malpractice cases expert witness fees frequently exceed $50,000. In products liability cases expert witness fees may exceed $150,000.

ii. Doctor Fees. In cases involving personal injury and wrongful death, a doctor must usually testify that the incident that is in dispute caused the client’s injury or death. These witnesses also testify about whether the injuries caused pain, suffering and disability and whether there is any permanent pain, suffering or disability caused by the incident. These doctors – usually the doctors who treated you in the hospital or on an out-patient basis – charge $300 to $750 per hour to testify in your case.

iii. Court reporter Fees. Court reporters transcribe depositions and trial testimony. Court reporter charges vary, but it costs about $2000 per day to have a court reporter present at a deposition or trial and to have a copy of a transcript prepared.

iv. Videographer Fees. Experienced personal injury and wrongful death lawyers know that video-taped depositions are very useful at trial and will ask that depositions of certain witnesses be video-taped if the dollar value of the case justifies the expense. Professional videotaping of a deposition costs about $1000 per day.

v. Demonstrative Aids (Exhibits). Some exhibits (photographs of a wrecked car or an intersection) are inexpensive. Other exhibits (computer animations) are very expensive. Experienced personal injury and wrongful death lawyers take the dollar value of the case into account in determining what exhibits are necessary to maximize the value of the case.

vi. Travel. Sometimes the case involves out-of-town witnesses and thus the lawyer must travel. The expenses attendant to such travel are charged to the client as case expenses. The amounts of those expenses vary from case to case. Two other points must be mentioned here. If you employ an out-of-town or out-of-state lawyer you may be charged for travel expenses for that lawyer to work on your case in Tennessee. This will decrease your recovery. Make sure you understand if you have to pay the lawyer’s expenses for traveling to see you or to work on your case and weigh that factor in determining whether you should hire that lawyer or a local lawyer. Second, some lawyers use the fact that they have private planes to impress clients. If you hire such a lawyer, make sure you understand how much you will be charged for use of the private plane during your case. Private plane expenses can be much higher than commercial air travel or ground travel, and you need to know how you will be charged. Responsible lawyers who use private planes in their law practice will charge you only the cost of what a commercial airline would charge for a pre-purchased, coach ticket on a commercial airline for the same flight.

viii. Miscellaneous expenses. Lawyers also include as case costs the out-of-pocket expense incurred for conference calls, long-distance calls, photocopies, postage and express delivery service.

4. I have heard that some lawyers charge their personal injury and wrongful death clients interest. Is that true?

Answer: As mentioned earlier, lawyers usually advance money to finance the costs of litigation. These expenses may be small – several hundred dollars in worker’s compensation cases to hundreds of thousands of dollars in certain medical malpractice cases and products liability cases. Our law firm almost always advances these expenses to its clients and does not charge interest or any other fees. In the event we win the case, we are repaid from the money we recover for the client. Expenses are deducted after the fee is calculated.

Some law firms require the client to pay the expenses or require the client to pay the first several thousand dollars toward these expenses. There is nothing wrong with a lawyer asking for a payment toward expenses, and the client simply must decide whether to employ a lawyer who makes such a request or hire a lawyer who will advance these expenses for the client.

Other law firms borrow money for the client and pay the expenses, and then charge the interest and fees incurred by the law firm to the client at the end of the case. Lawyers are permitted to do this as long as the financing arrangement is fully explained to the client at the time the lawyer is employed. However, a client thinking about hiring a lawyer who uses this method of financing cases must understand that (a) the effective interest rate and fees can be substantial and can be as high as the rate on a credit card; and (b) there are many good law firms that will not charge interest and fees and thus the overall charge for legal representation from a firm that does not charge interest may well be less.

5. Can a lawyer give me money for living expenses while my case is pending?

Answer: In Tennessee a lawyer cannot ethically pay for your living expenses or give you cash while a case is pending. A lawyer who offers to do so has committed an ethical violation and should be reported to the Tennessee Board of Professional Responsibility.

6. Does a contingent fee agreement with a Tennessee lawyer need to be in writing?

Answer: Yes, in Tennessee lawyers are supposed to document all contingent fee contracts in writing. If you do not have a written contract with your lawyer, you should ask for one to eliminate any possible future misunderstanding.

7. I think I have a personal injury case. What should I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the death will be working hard to gather that evidence, and you should have a lawyer doing the same.