Think about it.
Imagine if a teacher only got paid if her students got into Harvard University.
Imagine if a baseball player only got paid if he hit a certain number of home runs each year.
Imagine if any athlete got paid only for performing at a certain level by scoring a number of goals or baskets each year.
Imagine if an accountant only got paid if he saved you $100,000 in taxes.
Imagine if a police officer only got paid for preventing a crime.
Imagine if a news reporter only got paid if she had an exclusive interview.
Imagine if a cardiac surgeon only got paid if his patient survived his heart transplant.
The more I think about it, the crazier this fee system really is.
I've been in practice for 26 years handling medical malpractice cases, accident cases and wrongful death matters here in New York. The attorneys who handle these types of cases, at least during my career, have always worked on a contingency fee.
That means that we only get paid if we get a good result for you, the injured victim. We toil and work for years and spend our own hard-earned money to prosecute each of these cases. The amount of money to prosecute each case can be in the thousands and multiple thousands of dollars depending upon the complexity of the case.
What other business or service do you know agrees not to get paid for three years, and then you only get paid if you win.
Every provider of a service usually charges you money to utilize his or her service. Doctors get paid at the time they provide a service. A plumber gets paid at the time he fixes your sink. A jeweler gets paid at the time he fixes your jewelry.
A supermarket gets paid at the checkout line as you are purchasing your groceries. Your hairdresser expects to be paid after your hair is done. Same with the carpet cleaner. Same with any service or business.
The fact that an attorney will work for two or three years without getting paid a dime is actually mind-blowing.
While some people will complain that if we are successful the amount of money that we can achieve as our fee can be very significant. That is true.
The alternative is that if we lose a case, we have now spent two or three years of our lives prosecuting a case and have nothing to show for it. The fact remains that if we lose a case, we have spent a considerable amount of money that we have paid out of our own pocket to prosecute the case and bring to trial.
Imagine an obstetrician agreeing not to get paid for three years and only if the baby turns out to be healthy after the age of three.
Imagine a shoe store agrees not to get paid for an entire year and then only if their shoes withstand a brutal winter would they get paid.
Imagine a computer company agreeing not to charge people until an entire year goes by without any glitches in their software or hardware.
Imagine an SAT tutor who agrees not to get paid unless the student gets a perfect score on the SAT.
It simply doesn't happen.
The fact that attorneys in New York not only have agreed to do this but eagerly do this is astounding.
This concept is actually very eye-opening for me.
Years will go by where we will work on a client's case and spend thousands upon thousands of dollars for experts, pretrial testimony transcripts and other necessary fees to prosecute a case.
Those critics who claim that there are frivolous lawsuits in New York should pay closer attention to how an attorney gets paid when talking about frivolous lawsuits.
There is no attorney that I know who would willingly bring a frivolous lawsuit since they are required to pay tremendous amounts of money to prosecute a case with the hope and expectation that they will generate a positive result for the client.
An injured victim who tries to bring a frivolous lawsuit is doing a disservice to the attorney, to the court system and to the experts who are coming in to testify. It's a lose-lose-lose situation for everyone involved. No attorney worth their salt would be willing to invest their time, energy and money to prosecute a case that has no merit.
That means he has spent years toiling on this case and he will never get paid for the time he invested to prosecute this case. That means that all the money he paid for expert witnesses and all the other ancillary fees necessary to proceed forward with the case will never be reimbursed to him and his law firm.
The attorney takes a huge risk by bringing a lawsuit. The onus to prove that we have a successful case, is on us. We must show that we are more likely right than wrong that what we are claiming is true.
While having dinner with my family tonight, I asked them if they could think of any other business or service provider that follows the same type of payment schedule.
Remember, we're not talking about eating what you kill in the form of commissions. Were not talking about achieving certain quotas and then getting a bonus if you hit those quotas.
Yes, it's true that many salesmen work only on a commission basis. They only will get paid if they make a sale. However, those salesmen don't wait three years in which to get paid after making a sale.
Why do we attorneys accept this fee arrangement?
This is clearly an altruistic payment model. It truly allowed anyone, of any financial means, to find the best lawyer for them to represent them in their accident or injury case. The upside is that the attorney who takes on such a case does so with the knowledge that he will receive a percentage of any positive result that he is able to obtain for an injured victim.
Some could argue that the percentage is much higher than an hourly fee would be to prosecute the case. Yet on the other hand people who do not have the financial means to hire an attorney at an hourly rate would then be left without the best possible representation to try and obtain compensation for all of the injuries of harms they suffered because of someone else's carelessness.
How then can an attorney make a living and be able to pay his bills and expenses if there is no consistent income coming into his office?
That has always been the dilemma of personal injury attorneys for as long as this type of payment schedule has been around. Since the litigation cycle lasts 2-3 years, there are periods of time where the attorney will not have a continuous stream of income and positive cash flow.
In those instances the attorney must either rely a line of credit or dip into his own personal savings to continue moving his cases forward and be able to pay all of his bills and expenses.
Because every lawyer who handles accident cases has the same exact fee.
Because every lawyer who handles medical malpractice cases has the same exact fee.
If every lawyer charges the same fee for a specific type of case, how then can an injured victim choose which attorney is right for them?
Well, since every lawyer has the same fee then the payment schedule will obviously not be the criteria upon which they are going to base their decision to hire an attorney. Instead, they will have to look to other criteria to see which attorney is best for them.
If a consumer or client asked you to hold off on taking payment for three years unless you can get them a good result, would you do it?
If you wouldn't do it, why should personal injury and medical malpractice lawyers do it?