Whether to sue and whether to hire a lawyer are difficult decisions. There are several considerations that you should keep in mind when determining if you want to hire a lawyer or file suit.
- Cost of Suing.
By and large, the question I get asked most frequently by people wanting to sue or looking for an attorney is "how much will it cost?" This is often a difficult answer for attorneys to give due to the unique situation most cases have.
I have compiled a list of prices for many types of legal services that you can reference to get a general idea of what it costs to have an attorney do something. If what you are looking for is not on the list, feel free to give me a call.
- Your Damages.
How much are your damages? Damages can often include things you may not have thought of. Talk to an attorney to make sure you are getting all of the damages you are entitled to at law. The amount of damages you have incurred is the largest factor in determining whether your case is worth pursuing.
If you have only a few hundred dollars in damages it is not likely worth hiring an attorney to collect. Most attorneys will not take a case on a contingency basis (getting a percentage of the recovery instead of charging you up front) when the damages are only a few hundred dollars.
Litigation is always risky, and often everything rides on which witness a jury will believe more. It is generally not wise to risk thousands of dollars in order to have a chance to win a few hundred (even if you can win your attorney's fees). In these instances, it is often better to let the few hundred dollars go.
On the other hand, if you have many thousands of dollars in damages, more attorneys will be willing to take the case on a contingency basis, and even if you hire an attorney on an hourly basis, your risk of a few thousand dollars to recover many times that will be worth it
- Attorney Fee "Shifting" Availability.
Texas law is very favorable to Plaintiffs when it comes to who pays for attorney's fees. Under the current law, attorney's fees can potentially be recovered by a winning party at trial against a defendant for various types of cases, including breaches of contracts, consumer law, warranty breaches, certain civil rights violations, and for many other types of cases. Your attorney should be able to tell you whether attorney fee shifting will be available to you.
If you can get your attorney's fees shifted to the other party, then even a small recovery for you can be a win, and you could get your small amount of damages plus your attorney's fees, even if they are higher. However, there are always limits to the attorney fee-shifting provisions. Make sure to talk to your lawyer about these.
- The Defendant's Assets or Insurance.
Even if you get a judgment of $1,000,000.00 against someone, it will be worthless if the defendant has no assets or insurance. You could be spending thousands of dollars in attorney's fees just to have the defendant declare bankruptcy and make your claim disappear.
As far as insurance goes, lawyers have strategies that can potentially make an insurance company liable and have to pay for more than the insurance policy limits, if the right steps are taken. Whenever dealing with an insurance company, always get a lawyer if possible.
- Contingency Availability.
If your attorney is willing to take your case on a contingency basis, then that is a good sign that you have a good case. Contingency is usually where the lawyer will not charge you any attorney's fees up front (the attorney may ask for a deposit for costs, like court filing fees or postage), and if you lose the case the attorney will not typically take any fee (you may still have to pay for costs even if you lose). Because of the amount of an attorney's time involved with each case in litigation, attorneys avoid cases that are not clear victories or have high amounts of damages.
Contingency means you will spend less money up front, but it also usually means that if you do get a settlement or win a judgment, that you will have paid more to the attorney than you would have paid on an hourly basis. The attorney is taking the risk of not getting paid for their work, and so they get rewarded for it. What this means, typically, is that if you can afford to pay an attorney on an hourly basis, do it.
- Going it Alone
Going to court or negotiating with an insurance company without an attorney is like going to a gun fight with a knife. Chances are you will lose or be taken advantage of.
Some people opt to attempt to negotiate with an insurance company without an attorney or file suit against someone and try to prosecute the case themselves. This is usually the easiest way to lose your case. Legal procedure is extremely important, and the slightest mistake can automatically lose your case. From knowing when to file, what to file, what motions to make, what to argue, how to get evidence into court, and how to keep opposing evidence out of court, these issues are ones that attorneys studied in law school and deal with on a daily basis. There is a reason attorneys charge hundreds of dollars per hour. Going to court without an attorney is the fastest way to lose.
Having an attorney provides you with protection, especially when dealing with insurance companies. Insurance companies make money by denying claims. Every claim they do not pay is more money they can give to their shareholders. For this reason, every question the insurance company asks you is meant to find a way to avoid paying your claim or to pay less on your claim.
Insurance companies are very skilled at finding ways to deny claims or to pay less than what your claim is worth. I cannot tell you how often people contact me after they accepted a settlement that was far below what their claim was worth, and at that point there is often not much I can do to help. I also cannot tell you how often people have their claims denied because they said the wrong thing at the wrong time, and the insurance company jumped all over a statement that was made and twist it out of context in order to deny the claim.
Having an attorney is the best way to stop the insurance company from getting you to say something that can potentially damage your claim. Once you have an attorney the insurance company cannot talk directly to you any more without the permission or presence of your lawyer.
Additionally, attorneys are skilled and typically have a lot of experience knowing exactly how much your case would be worth. Most of us have never purchased an airplane, and so we would not know what a good deal is. People who have experience purchasing airplanes will be better positioned to know if a deal is good or not. Likewise, most people do not have much experience valuing personal injury or other claims, and so they are not as well positioned to value the claim as a claims adjuster or a lawyer who deal with these types of claims on a daily basis.
There are a few times when going it alone may be the best option: (1) If your claim is very small and attorney fee shifting is not available; (2) if the defendant does not have assets and you are not likely to recover anything from the defendant; (3) if you cannot find a willing attorney; or (4) if you cannot afford an attorney and cannot get a court appointed attorney or a pro bono lawyer to help and have exhausted all other options.
In these instances, avoid the district and county courts if possible. Small claims courts will often be cheaper, less formal, and more lenient on mistakes and proper procedure.
Finally, it is never wise to go it alone if there is an attorney on the other side.