In evaluating a personal injury case in terms of whether it is worth pursuing, and if it is, what would be a fair fee arrangement between the client and the attorney, at least three factors should be considered: liability, damages, and solvency of the defendant.

No matter how great one’s damages might be, no matter how solvent the tortfeasor (the defendant – the person at fault), if there is no liability the case is simply not worth pursuing. Further, if liability is in question, it can have a significant impact on the out-of-pocket expenses that may be incurred. For example, in any suit against a health care provider, the plaintiff must present opinion testimony from a witness of the same profession as the defendant that the defendant breached the standard of care for that profession. Such witness testimony is very expensive to procure.

In a motor vehicle accident one might have to hire the assistance of an accident reconstructionist, engineering, etc. So considering the issue of liability, we also consider the out-of-pocket expenses which might be incurred in proving fault.

Washington has enacted a comparative fault statute. If the plaintiff is partially at fault, his or her damages are reduced by that percentage. For example, if a jury determines that the damages are $10,000, that the plaintiff is 30% to blame and the defendant 70% to blame, the plaintiff would receive a $7,000 judgment.

Even if the defendant is admittedly at fault, are the damages that are likely to be recovered sufficient to justify the expense of a potential jury trial. It takes about as much time to pursue an injury claim through a jury trial whether the amount sought is $10,000 or $100,000. What is the extent of the plaintiff’s injuries? Will there be residual problems? Will it have an impact on employability? Will there be any permanent limitation on one’s activity? What are the amount of the medical expenses incurred to date? What are the lost wages incurred to date? What is the property loss incurred to date? What future expenses are likely?
Will we be able to collect any judgment entered? No matter how liable a defendant might be and how significant the plaintiff’s injuries might be, can the defendant pay a damage award? This usually depends on what liability insurance applies to the situation. In Washington all drivers are supposed to have liability insurance but not all do. And the amount of coverage required may be less than the potential damages. In this situation one would look to see if the plaintiff’s own automobile insurance, the underinsured motorist (UIM) coverage, applies.

These factors, liability, damages and solvency of the defendant, should then be considered in arriving at a reasonable fee arrangement between the attorney and the client. In Washington a client has a right to have the fee determined by the court, regardless of what fee arrangement is initially agreed to. Usually, the client prefers what is known as a contingent fee agreement – no attorney fees are owed unless an amount is actually collected and if an amount is collected, the client is obligated to pay a certain percentage. A one-third contingent fee agreement is fairly typical, but the percentage can go up or down depending on the foregoing factors.

If the client would prefer to pay an attorney strictly on an hourly rate most attorneys would be so agreeable. Attorney fees range from $100 to $150 an hour in this area. The attorney fees involved to take a case through a three to five day jury trial would probably be in the $10,000 to $25,000 range. Thus, contingent fee arrangements are usually the norm.

First Party Insurance

Initially, one’s medical expenses are often paid by their own healthcare insurance company. This is true even if the injury is the result of the fault of another person. This type of insurance is referred to as “first party insurance”. First party insurance is not based on fault. If you are injured in an automobile accident and have health insurance through your employment, that insurance is required to pay your medical expenses. However, your company will claim a right of reimbursement – if you collect damages from the person who is at fault, your company will demand reimbursement.

In Washington the law now provides that as a condition of obtaining reimbursement the first party insurance company must pay a portion of the attorney fees you incur in collecting damages from the at fault party. The same rule would apply should your company pay the cost to repair your vehicle and with the assistance of an attorney, you eventually recover for that loss from the person at fault.

Underinsured Motorist Coverage

Most people who have automobile liability insurance also pay for coverage known as underinsured motorist coverage (“UIM”). Here is a typical situation. You are injured in an accident, it is the other person’s fault, but they only have $25,000 of liability coverage. Your medical expenses add up to $10,000, your lost wages are $5,000 and you claim $50,000 in general damages (pain and disability). The company for the person at fault will offer to pay the policy limits of $25,000. But this does not provide you with a complete recovery – your damages exceed that amount. In this circumstance, you will then look to your UIM coverage.

Your UIM coverage applies to the extent that your damages exceed the amount of insurance available from the person at fault.

We urge clients to review their insurance coverage. In many situations adequate UIM coverage is more important than life insurance. What if you are severely injured, disabled, kept from working and the person who caused this damage does not have adequate insurance? You don’t want to be in a situation where your UIM coverage is modest – $25,000 to $50,000. It costs very little to increase your UIM coverage to $300,000 to $500,000 which is the minimum range an employed person with children or a spouse should have.

If you are injured at work, due to the negligence of a fellow employee, the negligence of your employer or through your own fault, you are eligible to have your medical bills paid, have some of your lost wages paid and receive a certain sum if you have a residual injury through the worker’s compensation system administered by the Department of Labor & Industries. In this situation your claim is limited to the benefits allowed by the worker’s compensation system, you are not allowed to sue your employer or employee.

If you are injured at work but the injury is the fault of a non-fellow employee, you may pursue a private cause of action. For example, if your are operating a company vehicle and another motorist runs a stop sign and injures you, not only are you entitled to pursue a claim through the Department of Labor & Industries for workman’s comp, you could pursue a private action against the person at fault. In this situation Labor & Industries would claim a right of reimbursement similar to what your private health insurance company might do as described above. If injured by a third party, you may pursue the third party claim on your own, or you can waive your right to pursue the action on your own and assign your claim to Labor and Industries. Issues concerning third party claims are discussed here.

In Washington, a lawsuit for personal injuries caused by negligence must be filed within three years of the date of injury or it is too late to pursue the claim. In Idaho, a lawsuit must be filed within two years of the date of injury. There are certain exceptions to this rule. If you have been exposed to a situation that results in harm to you but you did not discover the harm until later, the statute of limitations might not begin to run until the time of discovery.
The majority of personal injury cases are settled through negotiation. But unless the defendant faces the potential of a jury verdict, it is unlikely that an appropriate settlement can be achieved. Thus, we take every personal injury case with the idea that we might have to prove it to the satisfaction of a jury. You should ask yourself, what experience do these lawyers have? Before hiring a lawyer on a personal injury case, you should ask what jury cases have you actually tried? What jury results have you actually obtained?