Though there are many factors in choosing a good attorney in a medical malpractice case, one of the trickiest is whether to choose a lawyer who works on contingency, that is, on contingency of a recover, or one who charges by work on an hourly basis.
In medical malpractice cases, people are probably most familiar with a lawyer who works on a contingency basis. As he will describe it to you, this means he doesn’t get paid unless you actually collect a judgment or settlement.
Though this is an attractive option to those strapped for cash, it should be noted that such an attorney is highly motivated to make a settlement as large as possible and may make decisions that will be in his best interest rather than yours. For instance, you’re interested in suing the doctor who failed to set your leg properly. Your contingency fee lawyer however may look at the doctor who is just out of medical school, swamped in educational debt, and who owns about 0% of the practice and wonder what’s really in it for him.
What happens next, is the lawyer starts asking about the accident. So you slipped on the banana peel in the parking lot of the major deep-pocketed superstore? Well, why didn’t you say so!
And the next thing you know, you’re suing a multi-national corporation for millions of dollars of which your lawyer is taking a “customary” 90 percent.
These are the lawyers you’ll find advertised on TV and in your local yellow pages, usually on the back cover, and in full-page, full-color ads on the inside. They’re generously lathered with sympathetic platitudes about your pain and suffering and how they only want to “help.”
A simple word of advice here is that if you can only afford to sue on a contingency basis, call around and find a lawyer who will do it for less than half of the settlement or judgment. This is more than reasonable and should help you weed out the real parasites. Also make sure that the attorney in question doesn’t express an interest in going after parties other than the one that caused you grief. Remember, it was the doctor who set your leg improperly, which led to complications, which led to surgery, etc.
Ideally, and if you can afford it, it is definitely best to hire your malpractice attorney the same way you’d hire an attorney on any other basis, and that’s hourly. Yes, this runs into quite a bit of cash at first, but you’ll have to keep the lawyer on less of a leash, and you’ll be able to trust his advice a little more easily as you won’t constantly be wondering if his advice is in your best interest or his.
Overall, a hourly-paid lawyer is probably going to be more trustworthy than his contingency-fee counterpart (though that doesn’t mean you don’t look over those billing records with the proverbial fine toothed comb!) and you’re less likely to be dragged into quixotic legal forays with a cash-hungry shyster.
On the other hand, if it’s the only affordable solution, shop around for a contingency-fee lawyer, making sure the one you choose is taking less than 50 percent and is willing to focus on the party that actually caused you the pain and suffering, not an oblivious third party with deep pockets. Under these conditions, you should do fine.