Ten questions you must ask of any compensation lawyer
1.What area of law do you specialise in?
You must retain a lawyer that is a specialist in compensation law. Lawyers, like doctors or other professionals, these days will usually specialise in one particular area of law. Some lawyers will specialise in family law, criminal law or employment law for example. You need a lawyer whose practice is 100% compensation law.
Compensation law is difficult and expensive and needs an expert lawyer. If you go to your local lawyer who does your conveyancing and wills and he tells you he can do your compensation claim then you are not getting the best lawyer for the job. Some lawyers will accept any case that comes through the door but you must make sure that your lawyer practices almost exclusively in compensation law.
YOU MUST CHOOSE AN EXPERT COMPENSATION LAWYER
2. Are you an accredited specialist in personal injury law by the Law Society of New South Wales?
If the lawyer you are consulting is not an Accredited Specialist in Personal Injury Law by the NSW Law Society then you have the wrong lawyer. The Law Society of NSW gives specialist accreditation to those personal injury lawyers who have passed an exam demonstrating their skill and expertise and have also passed a peer interview with other expert compensation lawyers. Only lawyers who are really experts in this area are accredited by the NSW Law Society.
YOUR LAWYER MUST HAVE OFFICIAL ACCREDITATION AS A COMPENSATION LAW EXPERT
3. Who in the office will actually be handling my case and what are their qualifications?
This is the probably the most important question that you must ask. The lawyer you might be speaking with at the initial consultation, who could be a partner and an Accredited Specialist may not actually be the lawyer handling the case. Most of the larger law firms use the approach where you will be initially speak to a partner who seems impressive and is an Accredited Specialist but then your case will be handed to a more junior lawyer. This junior lawyer will not be an accredited specialist and will be inexperienced and will make errors on your claim. The junior lawyer may be using your claim to gain experience.
You need to know the name of the lawyer who is actually doing the legal work on your claim and if that lawyer is an accredited specialist in personal injury law. If not, you have the wrong lawyer.
This issue is simple – do you want a lawyer that you can call with experience who knows what they are doing and will provide value or do you want to be treated like a commodity or a number. The larger law firms tend to treat clients like numbers and farm out the cases to junior lawyers. You will have difficulty ever speaking to a senior lawyer, you will probably never hear from the Partner again and you will not get the result you deserve.
DON'T GET DELEGATED TO A JUNIOR LAWYER
4. Have you ever been disciplined by the NSW Legal Services Commissioner?
How calls and does not treat people fairly and openly. Legal costs are a big issue in compensation claims and some lawyers will overcharge. These lawyers have often been disciplined by the NSW Legal Services Commissioner and you should be aware of any such record.
DEAL WITH A TRUSTED PROFESSIONAL
5. What is the chance of success for my case?
The lawyer after discussing the circumstances of your claim with you should know immediately whether or not your case is likely to be successful. If the lawyer is an expert in compensation law, he or she should know how long the claim will take and whether or not you will succeed.
If the lawyer does not answer this questions directly or needs to do some “further research”, then he or she is not an expert in compensation law. If they tell you that they are “not really sure” if you will be successful then they are not an expert in compensation law.
No lawyer can guarantee you success in any claim however they should be able to give you a firm indication of success by giving you a percentage breakdown of the likelihood of success. i.e 70% successful vs 30% not likely to be successful.
KNOW IF YOUR CLAIM WILL CLAIM BE SUCCESSFUL
6. How much is my case worth?
Again, if the lawyer truly is an expert in compensation law he or she should be able to give you a dollar range for the value of your claim. After the first consultation it is usually fairly clear within $50,000.00 or $100,000.000 what the value of your claim may be. This of course can only be an estimate however your lawyer should be able to give you the estimated value of your claim almost immediately.
If your lawyer is unable to provide a guide as to the value of your claim from the start then they are either hiding something from you or are not an expert in compensation law.
KNOW HOW MUCH YOUR CLAIM IS WORTH FROM THE START
7. How long will my case take to complete?
An experienced compensation lawyer will be able to give you a very good guide as to how long the claim will take. It can only be an estimate however the lawyer should be able to give you a good idea at the very beginning how long the claim may take. If you don’t get a straight answer to this question is an indication that the lawyer is not very experienced.
KNOW THE KEY TIMELINE
8. How do you charge legal fees?
Most lawyers charge an hourly rate for their legal costs. Most compensation cases (but not all) do not require a lawyer to charge an hourly rate. Hourly rates cause a conflict of interest between you and your lawyer. An hourly rate also does not give you any idea of how much you are likely to pay in legal costs at the conclusion of your claim. Will it take 10 hours or 110 hours? You have no way of knowing.
If a lawyer is charging by the hour then he wants your case to be as complex as possible (so he can do lots of busy work) and to go for as long as possible (so he can charge more hours doing busy work). You on the other hand want your case to be simple and finalised as quickly as possible. This is in direct conflict with a lawyer who charges by the hour.
Instead you should ask your lawyer if they will charge a lump sum amount either for stages of preparation or an agreed up front amount. This provides an incentive to your lawyer to finalise your claim quickly and for the right value. It is known as value billing.
If a lawyer tries to charge you a percentage of what your claim is worth, run. This is known as a contingency fee and is banned in NSW and Australia. Lawyers are not allowed to charge you a percentage of your settlement.
The lawyer might object to agreeing on a lump sum amount on the basis that they do not know how long the case will take or what work will be required, this is nonsense. If they are an expert in compensation law they should know precisely the issues in your claim, how long it will take and what they need to do to win. This can easily be assessed and agreed to at the beginning of the claim as a lump sum amount which is payable at the conclusion of the claim for stages of preparation.
AGREE ON THE TOTAL COST FOR THE CLAIM.
HOURLY RATES ARE DANGEROUS, MORE COSTLY AND DO NOT RETURN A BETTER RESULT
9. Please explain no win no fee cost agreements?
You should always understand the costs agreement that is provided to you. They can be confusing. Ask your lawyer to explain the terms contained in the cost agreement, in particular a no win no fee agreement.
Most compensation lawyers will charge on a no win no fee basis. This means that you do not pay any legal fees unless your claim is successful. What it does not mean is that you do not pay any legal costs at all. Legal costs are still payable but they are payable at the conclusion of the claim when you obtain your compensation. You will still be required to pay your lawyers legal costs.
Some lawyers also fail to explain that if you should lose your case, no win-no fee means that you do not pay your own lawyers legal cost, but you are still required to pay the insurance companies legal costs.
This could amount to thousands of dollars.
Before you enter into a costs agreement with a lawyer you need to make sure you understand the following:
- How your lawyer will charge legal costs, hourly rate or some other method?
- Is it a No Win No Fee agreement and what does that mean?
- If you lose will you be required to pay the defendant’s legal costs?
NO WIN NO FEE DOES NOT MEAN FREE. UNDERSTAND WHAT YOU ARE BEING CHARGED
10. Is the Lawyer willing to fund payment of the disbursements (the cost of medical reports) in the case or is it funded by an outside company or do I have to pay up front?
Disbursements are payments for medical reports, expert reports and court fees which need to be paid as your claim progresses. A well established and experienced Compensation lawyer will fund these disbursements on your behalf.
The disbursements will need to be paid back with a small amount of interest at the conclusion of the claim. Usually you should not have to pay for these expenses yourself upfront. A lawyer who doesn’t specialise in compensation claims will ask for payment upfront.
Some law firms use a litigation funding firm to pay for disbursements on your behalf. You will usually have to sign a separate document agreeing to refund the disbursements at the conclusion of the claim as well as payment of interest to the funding firm. This interest rate can be quite high so be careful what you are being charged. Sometimes the litigation funding firms will charge as much as 12% - 17% interest!
If your lawyer is paying for the disbursements you should not be charged more that the bank is charging your lawyer usually around 7%.
Make sure you understand what you need to repay at the conclusion of your claim.
WHO IS PAYING FOR THE DISBURSEMENTS
Now you have the power!
Now that you are armed with these ten questions you will be able to cut through and recognise the instant hype and be able to choose the best lawyer for your case. Do your research, ask the questions we have outlined and choose wisely.
Here are 3 more things to think about when choosing your lawyer;
- Make sure you are getting straight answers and make sure you like your lawyer. You will be spending a lot of time talking to your lawyer so make sure it is someone you will be able to get along with and someone your trust. This is very important.
- Don’t choose your lawyer because his or her office is close to home and is convenient. This is one of the best ways to get a lawyer who is not a specialist personal injury lawyer. The best lawyers usually work in the CBD as this is where the Supreme Court is located and where they spend their time. Whilst a lawyer may be convenient, you must make sure they can answer all 10 questions.
- An experienced lawyer even if they charge more will always be more worthwhile over a less expensive, inexperienced lawyer. You only have one chance to obtain proper compensation and it must be done well. The more experienced lawyer whilst charging more will get you a result that more than makes up for the added expense and in less time. An inexperienced lawyer will be charging you to learn on the job, that’s not who I would want handling my case.
The most important decision you can make in your compensation claim is choosing the lawyer. Don’t just go for the first lawyer you find. All lawyers are not the same. There are good lawyers and bad lawyers. If necessary you need to interview a number of lawyers before deciding on the one you want to represent you.
Make sure the lawyer actually handling your case is a NSW Accredited Specialist in Personal Injury Law.
You can receive a no obligation FREE CASE ASSESSMENT HERE.
Matthew Garling, Founder of Garling & Co is a NSW Law Society Accredited Specialist in Personal Injury Law. He specialises in compensation law and has acted on behalf of thousands of injured people in work accidents, motor vehicle accidents and negligence cases over the last 20 years.