What Should I Know Before I Hire A Lawyer In My Personal Injury And Wrongful Death Case

If you look around it seems like there are thousands of lawyers who say that they handle personal injury and wrongful death cases. In Tennessee and many other states, any lawyer, regardless of their experience, can say that they do personal injury and wrongful death litigation.  Thus, it is up to the consumer to figure out who should he or she should turn to for legal representation.

This Guide will help you conduct the right research and ask the right questions so that you can hire the best lawyer and law firm  for your case.

1. Is the lawyer a member of the American College of Trial Lawyers?

Answer: Look at the lawyer’s website and determine if he or she is a Fellow in the American College of Trial Lawyers. The American College of Trial Lawyers is a very prestigious organization that has less than 200 members in Tennessee. A lawyer who is a Fellow of the American College of Trial Lawyers has gone through a very rigorous, confidential selection process and is elected to the organization by other outstanding lawyers in the state. There are fine lawyers who are not members of this organization, but a lawyer who has achieved the status of Fellow has been recognized by his or her peers as among the finest trial lawyers in the state.

John A. Day was elected as a Fellow of the American College of Trial Lawyers in 2002 and serves as the Chair of the College in Tennessee.    There are less than 15 other lawyers in Tennessee who typically represent consumers in personal injury and wrongful death cases who have been elected to fellowship in this organization and are still practicing law.

2. Is the lawyer board-certified as a Civil Trial Specialist?

Answer: Look at the lawyer’s website and determine if he or she has been certified as a civil trial specialist. Tennessee recognizes a specialty in civil trial litigation, and there less than 160 lawyers in the state who have achieved certification (less than 1 percent of all licensed lawyers). Certification requires substantial trial experience, successful completion of an exam, and satisfactory references. A certified lawyer must be re-certified every five years. There are fine lawyers who are not certified specialists, but a lawyer who is certified has demonstrated that he or she has the experience and background necessary to meet state requirements necessary to meet that standards imposed by the Tennessee Supreme Court.

John A. Day has been certified as a civil trial specialist in Tennessee since 1992 and has just been re-certified every five years since 1992. In fact, John is a Past President of the National Board of Trial Advocacy, a division of the National Board of Legal Specialty Certification, the group that certifies trial and other types of lawyers across the nation. John is also certified by the American Board of Professional Liability Attorneys in the field of medical malpractice.

John earned the National Board of Legal Specialty Certification’s Lifetime Achievement Award in San Francisco in July, 2013.  The award was presented for John’s years of service on the Board and his efforts to advance the cause of specialization in Tennessee and across the United States.

3. Has the lawyer been recognized by “Best Lawyers?”

Answer: “Best Lawyers” is a national organization that recognizes outstanding lawyers in each state in a large number of legal specialties. Best Lawyers compiles lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. In the U.S., Best Lawyers publishes an annual referral guide, The Best Lawyers in America, which includes 43,629 attorneys in 135 practice areas, covering all 50 states and the District of Columbia. This publication is another way you can determine if the lawyer who you are thinking about hiring is respected by his or her peers.

John A. Day has been listed in Best Lawyers in America every year since 1993, when he was 36 years old. John has also been recognized on “best lawyer” lists selected by “Super Lawyers,” Business TN magazine, and the Nashville Business Journal.  John is one of the few lawyers in the state and nation who has been recognized by Best Lawyers  in five different areas of law.

In addition, John was recognized as the Best Lawyers as “Personal Injury Lawyer of the Year” in Nashville in 2009 , the “Medical Malpractice Lawyer of the Year” in Nashville in 2010, and the “Bet-the-Company Lawyer of the Year” in Nashville in 2012.

Once again, there are some fine lawyers who are not included on these lists. Nevertheless, it is fair to say that “best lawyer” lists are yet another way for a consumer to gauge the reputation of a lawyer in the legal community. And, if other lawyers recognize the lawyer’s work as deserving of such an honor, that is a good sign for a consumer looking for a lawyer.

4. What is the lawyer’s Martindale-Hubbell rating?

Answer: The Martindale – Hubbell publication has been around for many decades and assigns ratings to law firms and lawyers based on votes cast by other lawyers in the community.

Law Offices of John Day P.C. is recognized by Martindale Hubbell as a Preeminent Law Firm. John A. Day earned an AV rating, the highest rating available at the time, in 1993 at the age of 36 and held that rating for almost 20 years. The rating system has now changed and John’s rating is “Preeminent,” with a rating of 5.0 out of 5.0, the highest possible rating.  Brandon Bass, another lawyer is the firm, also has a rating of “Preeminent,” and has a rating of 4.9.  Laura Baker has also earned a peer rating of 4.8.

Once again, the legal rating system by this organization is subjective. It is (and should be) very difficult for younger lawyers to get high ratings. Nevertheless, these ratings are another factor you should consider because it gives you some indication of the reputation the lawyer has in the legal community.

5. What is the lawyer’s AVVO rating?

Answer: AVVO is a relatively new attorney rating organization. It rates attorneys on a 1 to 10 scale, with 10 being the highest rating. A ranking of “10” is rated as “Superb.”

John Day, Brandon Bass, and Laura Baker  have each earned a 10.0 rating. 

At this point in time, an AVVO rating is less prestigious in the legal community than the Martindale rating.  The AVVO rating is not based solely on the opinions of other lawyers but on a multitude of factors that may or may not be as indicative of the lawyer’s legal ability.  However, a low AVVO rating for a lawyer with more than 7 years experience is a real red flag.

6. What role has the lawyer played in bar associations?

Answer: This may seem like an unusual thing to consider, but we bring it to your attention because sometimes consumers put too much weight on this factor and other times they put too little weight on it. Let us explain.

Many lawyers advertise that they are members of the Tennessee Bar Association, the American Bar Association, and / or their local bar association. Mere membership in these organizations tells consumers virtually nothing about a lawyer’s competence – all one needs to join these organizations is a law license and the money to pay the dues.

However, active membership in a bar association tends to indicate that the lawyer is interested in advancement of his or her profession. This is a relevant factor to be weighed by consumers because it indicates a passion for the law. A lawyer who has been active in bar associations will list those activities on his or her website. Those that do not list activities probably have not been active and are probably just dues-paying members.

Membership, particularly active membership in certain other types of bar associations is an especially important consideration for those who seek to hire a personal injury or wrongful death lawyer. A lawyer who does personal injury or wrongful death litigation on behalf of consumers should be a member of the Tennessee Association of Justice and the American Association of Justice. Once again, these associations have no entrance qualifications other than a law license and the ability to pay dues, but a lawyer who says he or she does personal injury and wrongful death work and does not belong to these organizations is, in our opinion, either not truly committed to protecting the rights of personal injury victims and their families or is too cheap to support the efforts of these organizations.

Both of these organizations work with legislators to help keep the courthouse doors open for ordinary people and work to educate their members. If a lawyer who seeks your case does not belong to these groups (both of them, not just one or the other), we respectfully suggest that you not even consider he or she to be your lawyer. If the lawyer is a member of both groups, then look to see how active he or she is in the organizations.

Those lawyers that are or have been committee chairs or members of the executive committee of these organizations have demonstrated that they are willing to volunteer their time to preserve the right of citizens to access the court system. Those who are merely members are at least saying that they will pay dues to support the organizations, but are unwilling or unable to make the sacrifice necessary to advance the goals of the groups.

All of the members of Law Offices of John Day P.C. are members of the Tennessee Association for Justice and the American Association for Justice. John A. Day has been President of the TAJ’s predecessor organization and has served on its Board for over 25 years. John has also served on the Executive Committee of AAJ’s predecessor organization and as Chair of the Council of State Presidents.  John has spoken at many national seminars sponsored by AAJ.

Brandon Bass has served on the Board of Governors of TAJ, the Board of Governors of the New Lawyers Division of AAJ, and the Board of Governors of the New Lawyers Division of the Tennessee Bar Association.   Laura Bishop serves on the board of the Lawyers’ Association for Women and will be the President of that group in the near future.  Burke Keaty is a member of the Legislative Committee of TAJ.

The lawyers at the Law Offices of John Day, P.C. are committed, active members of these professional organizations.

7. How many years has the lawyer been practicing personal injury or wrongful death law?

Answer: There are lawyers who have been practicing law for 20 or 30 or even 40 years who lack the experience to handle a complicated personal injury or wrongful death case. There are lawyers who have been practicing for five ears who have been fortunate enough to have worked in an environment that has fostered their ability to handle complicated personal injury or wrongful death cases.

Thus, while it is true that the number of years that a person has been practicing law is a relevant factor in determining whether they can handle a given case, it is only one factor. It is the actual experience of the lawyer, not the mere age or number of years of practice of the lawyer has, that is critical to understanding a lawyer’s competence.

So how do you determine that? Well, the best way, as we have discussed above, is the reputation of the law firm and the lawyers in it, as evidenced of how that firm and its lawyers rank in professional ranking organizations. The reputation of the firm among lawyers is a good way of determining the experience level and competence of the lawyers in it. Lawyers are simply not going to assign high ratings to other lawyers who lack experience or who do not do high quality work.

8. Does the lawyer have experience in the type of case you have?

Answer: As mentioned above, the issuance of a law license means you can practice law. Virtually any type of law. Legally, the lawyers of the Law Offices of John Day could practice tax or securities law, even though, quite frankly, we know little about either subject.

Thus, a lawyer who says that he or she accepts medical malpractice cases tells you nothing about the experience of the lawyer. Absolutely nothing. Why? There are no rules to stop a tax lawyer from advertising for medical malpractice cases. There is nothing to stop a lawyer who handles relatively simple car wreck cases from advertising that he or she seeks complicated medical malpractice cases. A license to practice law is a license to practice almost any kind of law (patent law is different) and unfortunately a lawyer can tell the public that he or she can do anything.

So, how can you tell what kind of experience a lawyer really has? It is difficult, but here are some tips.

  • Ask. Simply say, have you ever handled a case like this one before? Most lawyers will not lie about their experience.
  • Look at the lawyer’s website. Today, most lawyers will give an idea of the types of cases they have done in the past on their website. If they don’t have examples of your type of case on the website, they may well not have handled that type of case before. Likewise, if they describe themselves as practicing in every conceivable area of law, one must wonder if they have significant experience in any one area.
  • Look at the lawyer’s speeches. Most lawyers who are recognized by peers as having some degree of expertise with a given type of case are invited to speak about their expertise to other lawyers. The speeches the lawyer has given often will be listed on the lawyer’s website. Look at those speeches and you will often get an understanding of what areas the lawyer has some level of expertise in.
  • Publications in Legal Journals. Lawyers who are recognized by peers as having some degree of expertise with a given type of case are invited to write about their expertise to other lawyers.
  • What about amounts of verdicts and settlements? That may tell you something, and may tell you nothing. Lawyers tell an old joke that goes like this: Do you know how to get a $1,000,000 settlement? Mess up a $2,000,000 case. Experienced lawyers know that that the size of a verdict or settlement does not reveal much information on how well the case was prepared or tried. Indeed, a sizeable verdict or settlement could mean that the client had a good case and good have had even a better result if a more capable lawyer had handled the case. So, while the size of verdicts and settlements gives you an idea of the size of case the lawyers have experience working on, it does not tell you much about the quality of the work done on that case. That is why reputation is so important – other lawyers recognize a high-quality work product and ethical practice and reward those efforts with professional honors.

9. What staff support does the lawyer have?

Answer: Lawsuits of any size are a team effort, and each person in the office plays an important role in helping preparing the case and maximizing the recovery for the client. Thus, you should look at the other lawyers and staff in the office and determine whether they can work as a team to help you with your case.

On our larger cases we almost always have two or more lawyers working on every case. Why? Assigning two or more lawyers to every case means that if one lawyer is busy in trial or is out-of-state taking depositions in other cases work can still be done on your case.

So, we believe that a consumer thinking of employing a lawyer to help them should look at the experience of the entire firm. What should you look for? The same items on this list. The younger lawyers may not have achieved the professional recognition from peers that often comes with many years of sophisticated law practice, but you can often tell by their description of their experience whether they are on-track to achieve a reputation for professional excellence.

In conclusion, we believe that you should hire a law firm that has what a football coach would call “depth.” Any major case requires a team approach, and a review of the qualifications of the people in our firm reveals that we have a rock-solid team.

10. Understand how the lawyer charges for time and expenses.

Answer: Ask the lawyer how they charge for their services. We believe that you will find that the most experienced, highly regarded lawyers and their firms rarely charge a higher contingent fee than less-experienced lawyers. Indeed, we are aware of many lawyers with no- or little-experience in a particular area of law who actually charge more than those who have experience. A reasonable consumer would ask this question: why should I pay the same fee (or more) for a lawyer with less experience?

11. What is the disciplinary history of the lawyer?

Answer: Lawyers are regulated by the Tennessee Supreme Court through the Board of Professional Responsibility. The Board of Professional Responsibility investigates lawyers that are accused of violating the ethical standards of the legal profession, which are set forth in Rule 7 of the Rules of the Supreme Court of Tennessee. A lawyer who violates the rules can be sanctioned by the Board of Professional Responsibility. The sanctions can be a private reprimand or as serious as disbarment, which means that the lawyer is prohibited for practicing law for some period of years or even life.

Lawyers and non-lawyers can file complaints with the Board about the conduct of a lawyer. The mere fact that a lawyer has had a complaint does not mean that the lawyer has done anything wrong – anyone can file a complaint about anything. Indeed, the clients of criminal defense lawyers not infrequently file complaints against their own lawyers, and people involved in divorce cases may file complaints against their spouse’s lawyers that have little basis fact. Thus, it is the substance of the complaint, not the facts of it, that is important.

You can look at the Board of Professional Responsibility website and see if a lawyer has received sanctions for violating a disciplinary rule. If you learn that your lawyer has had a disciplinary complaint filed against him or her, ask about it. If they deny it and you know it occurred, the denial says something about their integrity. If they explain what happened, use your common sense to determine whether the lawyer’s error was serious or minor or whether it is likely to happen again.

For example, some lawyers have had disciplinary complaints filed against them for not filing a lawsuit on time, with the result that the client has lost a right to bring a lawsuit. This is almost always a mistake that should not occur. However, most lawyers believe that if the lawyer readily admits the mistake, tells the truth about what occurred, and turns it over to the lawyer’s malpractice insurance carrier so that the client can be treated fairly the lawyer should not be judged too harshly. Lawyers are human, and mistakes will happen.

On the other hand, if a lawyer covers up or lies about a mistake, or makes repeated mistakes of the same type, one must question the integrity and competence of the lawyer or, at a minimum, his or her attention to detail.

You should be very concerned with a lawyer who has an extensive history of complaints found to be valid by the Board of Professional Responsibility.

12. Does the lawyer have malpractice insurance coverage?

Answer: Believe it or not, there is nothing in the law that requires lawyers to have malpractice insurance coverage. As has been explained earlier, any lawyer can make a mistake, and he or she should have malpractice insurance to protect a client from harmed by the mistake. Feel free to ask the lawyer you are thinking about hiring whether he or she has malpractice insurance coverage and ask them to confirm their answer in writing. If they don’t have it, hire a different lawyer.

Law Offices of John Day P.C., and its predecessor firms, have had malpractice insurance coverage since the firm was founded in 1993. We will continue to do so. In the unlikely event that we make an error that causes harm to a client (none of the lawyers in the firm have ever been sued by a client for legal malpractice) we want the client to have the benefit of the insurance coverage we purchased to protect them.

13. What is the size of the lawyer’s caseload?

Answer: Lawyers maintain different numbers of cases, and their ability to do so is dependent on several factors. First, the type of case is a very relevant. One lawyer can able do very competent, timely work on 75 or 100 worker’s compensation cases at one time if he or she has well-trained support staff. One lawyer would have a very difficult time working doing very competent, timely work on ten medical malpractices cases on behalf of the patient at one time, even if he or she has well-trained support staff.

Thus, a consumer should inquire about the lawyer’s caseload and case-mix (the type of cases) in an effort to determine whether the lawyer will be able to give the consumer’s case the attention it deserves.  Also inquire whether the lawyer is handling his or her case load on his own or is assisted by capable paralegals. To be sure, it will be difficult for the consumer to evaluate the answers to these questions, but the way the lawyer responds to these questions will give the consumer a better understanding of the lawyer’s practice and personality.

14. Does the lawyer have the ability to finance the litigation appropriately?

Answer: As discussed in more detail in another Law Offices of John Day, P.C.  Legal Guide, the litigation of certain types of personal injury and wrongful death cases, particularly medical malpractice, products liability, and tractor-truck cases, can be very expensive. A lawyer who accepts those cases for consumers must have the financial ability to advance money for those expenses because most consumers are unable to do so. Some lawyers are very under-capitalized, i.e., they lack the ability to adequately finance a case to completion. The lack of financial resources can affect the outcome of the case, because the lack of financial resources can impact the quality of expert witnesses the lawyer employs to assist in the case, the number of expert witnesses, the number of depositions that are taken (court reporters are paid to transcribe depositions, and they are expensive), the quality of demonstrative exhibits at trial, etc.

So how does a consumer evaluate this factor? It is very difficult. Most lawyers will not turn over their balance sheets to prove to you that they have the financial resources to finance the case.  

However, one way to determine whether a lawyer has the financial ability to finance your case is whether he or she asks you for money to pay the expenses.  For example, some lawyers who say they do medical malpractice work will ask for $5000 or $7500 in “up front” expenses to acquire medical records and pay reviewing expert witnesses.  Other lawyers will tell the client that the client must pay for court reporters and filing fees as the personal injury case progresses.  Absent unusual circumstances, a client should not hire a lawyer who makes these financial demands in a personal injury or wrongful death case.  If you have a good case there are very good lawyers who will represent you and never ask you to advance one dollar of case expenses.

Another way a client can gain information about this issue is by determining if the lawyer is asking the client to borrow money or pay interest on the money the lawyer borrows to finance case expenses. This indicates one of two things: either the lawyer lacks the ability to finance the case, or the lawyer has the ability to do so but is shifting the cost of financing case expenses to the client (which increases the total cost of hiring that lawyer and increases the lawyer’s profit). If a lawyer asks you to borrow money to finance the case, make sure you understand the total cost of borrowing. Many of the companies who do financing for lawyers have charges in addition to interest that greatly increase the effective interest rate charged to the client.

Once again, the consumer must ask why one would hire a lawyer who refuses or lacks the ability to finance a case when there are highly-regarded lawyers who do not do so.

At Law Offices of John Day P.C. we have never charged interest or required our clients to borrow money to pay case expenses. This means that the total cost of our legal representation is less that lawyers who charge the same contingent fee but also charge interest or force the client to borrow money for expenses.

15. What is the personality of the lawyer?

Answer: Lawyers are people (really!) and have different personalities. There are some inaccuracies in every generalization, but most lawyers would agree that lawyers who successfully try personal injury and wrongful death cases tend to more aggressive than passive, more self-confident (or perhaps even arrogant) than unusually humble, and better communicators than certain other types of lawyers. Frankly, lawyers who lack self-confidence do not belong in courtrooms.

Thus, before you hire a lawyer you need to meet the lawyer. Do not rely solely on a commercial or a website description of the lawyer or the lawyer’s firm. Sit down and talk with the lawyer, preferably in the lawyer’s office, and try to figure out if (a) the lawyer is the type of person you want to work with during the pendency of your case; and (b) the lawyer is the type of person you want as your advocate before a jury if your case has to be tried? Use your common sense in making this decision, considering all of the other factors that are mentioned above.

Why do we recommend meeting the lawyer in his or her office? It has nothing to do with the convenience of the lawyer. A lawyer’s office may provide valuable information about the lawyer. Does it appear well-organized? Is it clean? Does it present a professional appearance? Are you treated with respect by other employees of the firm? Does the lawyer meet with you at the appointed time? Is he or she prepared for the meeting? Are you given the opportunity to ask questions? Are those questions answered in language you can understand?

This is not to say that a lawyer needs to have a fancy office in a fancy building to be a good lawyer. Indeed, a fancy office may just be a sign that the lawyer spends money on material things that make it appear that he or she is knowledgeable and successful when the reality is quite different. That being said, the appearance of a lawyer’s office says something about the lawyer.

Many lawyers offer to visit with you at your home or even if the hospital if your circumstances are such that you cannot come to their office. This is often an offer made for your convenience, and should be viewed as such. However, unless you or a trusted loved one has researched the other factors on this list carefully before a home or hospital visit by a lawyer, most lawyers would recommend that you not to hire a lawyer simply because he or she advertises or offers to visit with you at your home or at the hospital.

You should also pay careful attention to whether and how the lawyer explains the law and what he or she will do to investigate your case. Your lawyer should be able to articulate the law to you in words you understand. If the lawyer cannot do so you will understandably question whether he or she will be able to articulate your position before a jury. You should ask the lawyer questions about anything you do not understand, and if the lawyer will not take the time to answer your questions, or does an inadequate job of answering them, you need to be concerned. Communication is a key part of the attorney client relationship, and a lawyer who cannot communicate effectively at the initial client meeting may have difficulty communicating with you as the case progresses and difficulty communicating with a judge or jury.

You should also be very wary of a lawyer who offers only positive thoughts about your case. This is a difficult thing for some people to understand, but excellent lawyers strive to be objective during their conversations with their clients. That is, these lawyers understand that it is their job to learn, evaluate and communicate the strengths and weaknesses of every case, and not just tell the client or potential client what they want to hear. Almost every case has a weakness, and the lawyer should be able to articulate those the weaknesses in a case very early based on the information that is available. You want to know about both the strengths and weaknesses of your case because both impact the value of your case. A lawyer who does not discuss case weaknesses either does not recognize them or is afraid of hurting the client’s feelings by having an open and honest discussion about the case. Excellent lawyers know that such conversations are an essential part of the attorney-client relationship, and know how to communicate their concerns without offending the client.

In summary, you want a lawyer who will be your effective advocate, but you also want one who can recognize and appropriate handle any negative aspects of your case. You also want a lawyer to tell you the truth about the positive and negative aspects of your case so that you have a full understanding of what is necessary to win your case and how any negative aspects of the case will affect your ability to do so. Finally, you want a lawyer who has compassion for your situation, the ability to communicate the law to you, and a professional appearance.

16. The lawyer’s early evaluation of the dollar value of your case.

Answer: You should not hire any lawyer who tries to tell you that he or she knows the value of your case the very first time you meet with them. Never. Under any circumstances.

Why? Because experienced lawyers know that an investigation must be undertaken before a value can be put on a case. Lots and lots of factors impact the value of a case, and no lawyer can honestly, accurately evaluate a case the first time they meet a client, particularly if they have not done an investigation of the case before meeting the client.

So why do some lawyers do so? These lawyers want you to hire them and they think that if they tell you the value of the case and the dollar value meets or exceeds your expectations you will hire them Stay away from these lawyers. They are too eager for your case.

In fact, if you meet such a lawyer, ask them this question: Are you willing to guarantee that the settlement or judgment in my case will be $X (the amount they suggested earlier)? Almost all of them will quickly back off their previous number, and will quickly say that there are lots of different factors that can impact the value of the case. (If that is so, why didn’t they just say that earlier rather than give you a number?) I repeat: do not hire a lawyer who tries to tell you that he or she knows the value of your case the first time you meet with them.

16. What about a lawyer who suggests that they have a special relationship with the judge and that  you should hire them because they have such a relationship?

Answer: Lawyers who say such things are scumbags. 99.9% of judges would never allow their personal feelings for a lawyer to directly affect the outcome of the case. To do so would be unethical, and 99.9% of judges would never consider acting in such a fashion.

It is true, of course, that judges tend to respect lawyers who are prepared, who show up to court on time, who understand law and court procedure, and who answer the judge’s questions directly and honestly. And judges, like every other human, would tend to more readily accept the word of a lawyer who earned respect than a lawyer who demonstrated that he or she was not entitled to respect. But disregard the facts or the law simply because of a personal relationship? No, folks, it rarely happens.

Finally, think about it this way: If you were a judge and learned that your lawyer “friend” was going around telling people that he or she could improperly influence you in a case, how would you feel about it?

No, stay away from this type of lawyer. Like the lawyer who evaluates a case too early, this lawyer is trying too hard to get your case and, at the end of the day, you are very likely to be disappointed in the service you actually receive.

17. Thinking About All of These Things is a Lot of Work.

Answer: Yes, it is a lot of work to hire the right lawyer for your case. But these are the things that other lawyers take into account when hiring a lawyer, so it just makes sense to go through the same process for yourself. Hopefully, you will only have to hire one personal injury lawyer in your entire life (you certainly don’t want another injury!) and therefore you should do the work necessary to make the right choice.

© 2013, Law Offices of John Day P.C.