Adequate funding is almost as crucial to litigation as the competence of the attorney defending you. There are an array of costs associated with prosecuting a claim, rather, with prosecuting it well. An investigation is a multifaceted endeavor, requiring the consult of expert witnesses who paid by the hour. There are filing and other court-mandated fees at almost every turn. Voluminous medical records must be obtained from the hospital and possibly shipped back and forth between parties. Lawsuits are document intensive and record-keeping is crucial; court reporters are usually present at depositions and must be compensated. A medical malpractice lawsuit is no small undertaking, and it is critical that you secure the services of a law firm that will not run out of resources mid-suit. This could jeopardize the fate of an otherwise meritorious claim.
Advancing Costs of Medical Malpractice Litigation
‘Advancement of costs' is a phrase with different meanings, depending on the context. In corporate lingo, it refers to the insurance company's contractual obligation to pay the legal fees of the physician whom they have insured. This prevents the defendant physician from paying out of pocket for the legal expenses of defending the claim. For the purposes of a medical malpractice plaintiff, advanced costs are the funds readily available at the beginning of a lawsuit, to begin and carry out litigation. In a malpractice suit, the defense's costs are advanced by the insurance company - but the plaintiff and their attorney are not so fortuitous.
Funding Medical Malpractice Investigations
They must fund the investigation and prosecution of the claim on their own, and the plaintiff is not usually in a circumstance to make substantial financial contributions to the case. Personal injury cases have the unique benefit of contingency fee arrangements, which means that the case will be prosecuted at no cost to the claimant until damages are awarded. This is why plaintiff attorneys hammer the point that they get nothing unless they win you the case. Their fee is conditional, it is contingent upon whether or not they win the case. This way, pursuing a claim is more or less free to plaintiffs. The fee to which they will pay the attorney will be deducted from the damages awarded, so attorney services come at no immediate cost to them. However, without the ability to explicitly ‘price' the services of a prospective attorney, it may be difficult for some prospective claimants to know if they are getting a skilled, competent one. Or more importantly, if they are getting a firm with the resources available to fund their case.
Newer, less experienced firms run the risk of sloppy litigation; they may not have access to the same financial resources as a more established firm, with a solid reputation. As mentioned above, the costs associated with a claim are numerous. Expert witness fees account for one of the chief expenses; a medical malpractice lawsuit cannot be won without them and they are well aware of the demand that exists for them - and they charge accordingly. Sometimes more than one expert witness may be needed to ensure the claim retains credibility before the jury. These claims are incredibly complex and prosecuting them not only requires adroit legal skills, but also comfortable excess funds to cover the costs these cases carry. With expert witness fees running anywhere from $350-$1,000/hr, you want to be entirely assured that your attorney is able to cover these expenses. Running out of funds could stall a lawsuit until funds are gathered, or it could lead to the dissolution of the entire case.
Contingent Fee Agreements
Contingency fees are decided upon between plaintiff and attorney after a completely transparent discussion of its provisions. The fee will amount to a figure anywhere between 33 1/3% to 45% of the total damages recovered if they win the case. The plaintiff and attorney will also decide how to deduct the costs of prosecution from the damage awards. Depending on the agreement, the plaintiff may opt to be charged as the case proceeds. They may be deducted at the end of the case when damages are awarded. It may be a separate deduction from the contingency fee, or the attorney may have already factored in the litigation costs when calculating their contingency. The fee agreement will state explicitly how costs will be handled and deducted from the eventual damage award, ideally, there should be no ambiguity.
It should be noted that most attorneys may prefer an arrangement in which the litigation costs are deducted separately from their contingency fee. This way, they are not put between a rock and a hard place where the costs of litigation come directly out of their own paycheck for the case. This may discourage the attorney from running the most thorough investigation or litigating to the full extent of their capability. For example, an attorney may want to secure an additional expert witness to attest to a different aspect of the claim. However, the expense of hiring an additional witness will further reduce their share of the damages they are fighting to receive because in this arrangement the expert cost is funded directly by the attorney's share. To spare on expenses, the attorney may be inclined to work with just the one expert witness, despite the potential to bolster the case with two. In the best interest of the case, attorneys usually opt for an agreement in which litigation expenses are deducted separately.
Ultimately, the costs of litigation are usually advanced by the plaintiff attorney who takes on your case. Have an open dialogue with a prospective firm as to whether or not they can handle the myriad costs that come with prosecuting a medical malpractice. It is critical that the firm you eventually hire for your case is established, experienced in the field of medical malpractice and financially equipped to take on the case. Preparing and litigating these cases is as complex as it is costly, and you do not want a firm that will run out of resources just as your case is getting off the ground.