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Judge and Gavel
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  • Richard L. Duquette

Bicyclist's Guide to Hiring an Injury Lawyer: Part 2 of 3


Every week I receive calls from injured bicyclists looking for an experienced injury lawyer. My intention herein is to help bicyclists and their families select the best lawyer. Each client has specific goals based on their case. But just as every case is different, so is every client. People need to hire a lawyer because they have a legal case and need professional help. But clients choose to hire a specific lawyer because of their unique motivations, values, and concerns.

In the many years since I began practicing in 1983, I’ve identified several overarching concerns that clients bring to the decision to hire an attorney. I call these the “reasons to hire a lawyer” because anyone faced with a situation where they need a lawyer is likely feeling one or more of these feelings.

If you feel any of these reasons have relevance to you, please read this guide for truthful insight into protecting your interest.

…continued from part 1

Asking the right questions, you get what you pay for:

  1. The inexperienced “marketing discount lawyer” to clearly define in writing their “fee structure” offered to secure your business. Here’s how the bicycle victim is deceived.

    1. The “marketing” lawyer will offer to discount their fees to 25% to “save you money.” But the ultimate question is, “25% of how much?” The problem with discounts are that they incentivize a quick volume turnover of your case, instead of fully investigating all of your damages. There’s less incentive for the lawyer to care and dig into the bicycle victim’s case because discount marketing lawyers depend on volume, not quality or trials. They fail to repeatedly meet with clients, go to the crash scene, and try the case. They turn over cases like a waiter in a coffee shop turning tables to maximize tips.

    2. The second problem with discounts, is when the client refuses to settle or give in to an insurance “low ball” settlement offer, the inexperienced discount lawyer is stuck. He won’t try the case, nor will he be able to find another lawyer to associate into the case and jury try it with the “discount fee structure”. No respected trial lawyer will associate into a trial when he has to fee split discounted fees. There is no financial incentive to competitively work up and try the case. So, the client’s case suffers. Your case loses power and value with the inexperienced “discount lawyer”, because the insurance company will press your lawyer to trial and call your “bluff”.

    3. The discount lawyer will also make fake promises that he will “net” you more than other lawyers by gambling on a reduction of medical lien claims by subrogation (claw back/balance billing). When the medical lien recovery companies fail to reduce their liens, you have been sucked into a losing fee agreement, because the attorney fees come off the top and the case costs and medical liens eat up the bulk of the remaining recovery, leaving the bicycle victim with no net. Again, the illusory “promise” of high “net” recovery appeals to a victim’s greed, but this strategy can and does backfire. You may only pay 25%, but you’ll never know if you got the best recovery you could get. Instead, refuse to hire a charlatan. Tell the "discount" lawyer to specifically put in writing and define what is deceptively promised, a “high net recovery”. Beware of inexperienced discount lawyers who “over promise and underdeliver”.

  1. Group Referral Programs:

Ask if the lawyer is part of a “group referral marketing program.” A group referral marketing program is where one company, who does not handle your case, does all the advertising. So, you call them, but then they just send you to the next attorney in their group. To join these groups, the attorneys just have to pay the monthly fee. Basically, the firm you thought you were hiring is just a front man for a bunch of smaller, inexperienced attorneys who pay for the referrals. Many of the inexperienced “marketing” lawyers rely on group referral programs to bring in bicycle injury business. This is because dues and money fee splits (with non-participating administrative lawyers) take place behind the scene in order to gain placement in such group referral programs and ride on the credibility "coat tails" of such 501(c)(3) non-profit organizations. This often includes payments and dues to principle marketing law firms who never go to court or touch your file. They are deceptive "endorsements" of the “bicycle injury lawyer,” by administrative lawyers who bear no real responsibility for your case.

In other words, these group referral programs are thinly disguised unauthorized lawyer referral service programs. Most states like California, have qualified lawyer referral service programs run by legitimate legal bar associations that annually vet the lawyer’s skill through a panel of qualified trial lawyers. The qualified trial lawyer must carry malpractice insurance and meet threshold levels of trial and continuing education reviews. So, ask if the referral program or association is annually vetted by a qualified legal bar association. Qualified legal referral services are unlike the “group referral marketing programs.”

When you hear the marketing bicycle injury lawyer say things like, I belong to this “XYZ association of bicyclists,” think twice. Ask questions.

Again, such “group marketing referral programs” rarely contain stringent annual reviews of the lawyers. Instead, the participating lawyer simply pays a fee to a principal marketer who secures a “deal” with a bicycle association, who receive fees or dues in many cases.

Instead, the “group marketing referral programs” should refer their bicycle injury victims to qualified trial lawyer organizations who stringently vet their membership per State law.

In fact, the law requires these non-profit 501(c)(3) group referral programs fulfill their fiduciary duty to protect their membership. This is the highest duty by law to place their members interest ahead of their financial or political interests, or face class action liability, and a referral to the attorney general "non-profit" consumer enforcement units in their states for investigation and prosecution.

  1. Does your lawyer ride or race bicycles? Test his knowledge.

    1. This is critical to understanding the “bicyclist’s perspective,” so their story can be convincingly told a jury. During litigation, depositions, answering discovery questions, and consulting with experts, personal experience on a bicycle in a variety of conditions gives your lawyer an advantage over insurance company lawyers; by knowing what’s reasonable and the opposite while on the road, understanding human factors, rider behavior, and proper equipment. There have been many instances where having road, mountain bike, racing, and touring experience has allowed me to spontaneously find the truth in cases and court. Thereby saving my client’s cases from unfair attacks by insurance defense lawyers.

    2. Further, does your lawyer really understand the "loss of a bicyclists lifestyle" which is a non-economic head of damages that is the lion's share of a settlement.

In part 3 we’ll discuss “What is a contingency fee” and “What are out of pocket costs”?...stay tuned!

Ride safe! Ride strong!

©Richard L. Duquette, Esq. All rights reserved 2018 – LEGAL ADVERTISING

Contributors: Justin Nelson, Esq., Michael Norton Esq., Clayton Griessmeyer, Esq. * Podcast: Bicycling and The Law

The information in this article is for general information purposes only. The focus of this article is on California Law. You should contact an attorney in your state for case specific advice, as details of the law and procedural requirements vary from state to state. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship; and the receipt, reading, listening, or viewing of this content shall not constitute an attorney-client relationship. Nothing in this article shall be construed as a warrant, promise, or guarantee about the outcome of your case or any other matter. This information may contain personal impressions or statements of opinion on a subject that do not apply in your case. Further, statements of law reflect the current state of the law at the time of writing and/or recording and may not reflect subsequent changes in the law.


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