How to Hire a New York Medical Malpractice Lawyer Without Paying a Dime (upfront)

Fact: You have been injured as a result of improper medical care. You are now looking for an attorney to help solve your legal problems. How do you hire a medical malpractice lawyer in New York without having to pay a penny (upfront)?

The answer is simpler than you think.

Before I get to the answer, it's important to understand how lawyers were paid 100 years ago. When someone had a legal problem and they went to an attorney, the attorney expected to be paid for the time he spent working on their legal matter. In some consumer-oriented types of law, many consumers did not have money to pay for legal services. In some cases lawyers began to barter with clients; they'd exchange goods and services, in lieu of cash. For complicated cases, unless the attorney was willing to take on the case "Pro Bono," which means free of charge, the client would be unable to hire a lawyer if he did not have sufficient funds to pay.

In the mid-20th century, lawyers realized, especially in accident and medical malpractice matters, that many injured victims simply did not have the finances to hire an experienced trial attorney. In order to get around this problem, lawyers developed a formula that would allow injured victims to hire the best lawyers they could find without having to pay a single dime upfront. What was this plan?

This was the birth of the "contingency fee." This meant that people who could not afford to hire a great trial lawyer could now walk into their office, and if they had a valid case that the attorney was willing to accept, they would not have to pay the attorney a single penny to prosecute their case. The lawyer would pay all of the expenses to prosecute a case involving negligence or medical malpractice. At the end of two or three years, when the case finally concluded, either by settlement or by jury trial, the lawyer would accept a percentage of whatever money he could recover for the injured victim.

This created a "win-win" situation for both the attorney and the injured client. Why?

Simple. The attorney would be the one taking on the biggest risk if he accepted a medical malpractice case on contingency. This meant that he would have to make an educated business decision at the beginning of the case to determine whether it was worth his time and money. If the attorney made a bad investment choice, then the lawyer would be the only one to suffer the repercussions which involved a waste of his time and his own money. If on the other hand, the lawyer was successful in obtaining compensation for his injured client, the client would now receive a substantial portion of the proceeds and the lawyer would be rewarded for his efforts with a percentage of what he was able to recover.

The contingency fee arrangement has remained in place for more than the 21 years I have been in practice here in New York. Many people do not realize that in a medical malpractice case, an attorney's fee is calculated based on a sliding scale. This means that the more money we recover for our client, the less fee we recover. The thinking is that the injured victim should retain more money. This is entirely different than if we represent somebody in a car crash case, where the lawyer's fee is one third (after attorney's expenses).

As an example, if I am able to obtain a $5 million settlement in a medical malpractice case, the total attorney's fee may be around 15%. This is significantly less than in an accident case. Nevertheless, there is still a great incentive for an experienced attorney to take on a significant case. What is the incentive? The incentive is that without an experienced attorney's guidance, the injured victim may be unable to recover any money at all. And without having a contingency fee, where the lawyer's fee is contingent upon success, there is no way that an ordinary person would be able to pay a lawyer an hourly fee for all the work that is necessary to prosecute a medical malpractice case.

The bottom line?

Contingency fees work. They allow people without financial means to hire the best attorney they can find to prosecute their case without ever having to lay out a single penny upfront.