When to Call a Lawyer, and the Mistakes That Cost People Their Cases

I say this constantly, and I'm going to say it here too. Call an attorney.

Not because every case needs one. Plenty don't. But because an attorney does this thing for a living, they breathe it in and out, and whatever information you think you have, they can see so many different possibilities around it. You take that education and then you decide whether to hire somebody or handle it yourself. At least you should know what your rights are.

It's free. That's the part people don't believe until they do it.

This chapter is about when to make that call, what it costs if you do hire somebody, and the mistakes I watch cost people their cases, most of which happen before anyone ever picks up a phone.

Anytime before talking to an insurance company, you should consider talking to an attorney. Especially before opening up the claim, because it's nice to have the attorney do it for you so you don't have to worry about saying anything that might hurt your case.

If it's a case they want, they'll tell you to sign up. If it is not, they'll tell you that too, and they'll usually point you somewhere else.

And if an attorney is honest, a lot of times they'll say, hey, you might not need our help for this, you might be able to do it on your own, rather than take you on and charge you a fee just for the sake of it.

Don't get discouraged if one firm passes. Call around. Some attorneys only take catastrophic cases. Some don't have the resources for a particular matter. Some other attorney might look at it and say, you know what, I like this case. If you put 10 attorneys in one room and ask them one question, they'll all have 10 different answers. The only annoying part is you'll probably have to repeat everything each time, because they'll all ask you the same questions.

The incentives here are not adversarial, and I would rather say that plainly than have you guess at it. Attorneys are designed to maximize your recovery, because the more they can get for you, the more they're getting for themselves. It's a win-win situation.

And here's a small tell worth knowing. If an attorney is trying to get you to hire them, that's usually a good sign about your case. It means they see compensation worth their time and their energy. If they take it but tell you there are obstacles to overcome, take the obstacles seriously, because that's probably not something you're going to get past on your own.

When somebody calls, the first thing I look at is probably the date of the accident.

Sometimes people call and say they got into an accident and it was a year ago, and I get a little worried. My worry is what has already been done on their end without any attorney guidance. Any kind of statement you make to an insurance company gets used against you whenever they can. If there's anything you've said and they can twist it, they'll twist it.

So when an accident happened a long time ago, I do worry about what has already been said, how the car was fixed or not fixed, and above all whether the treatment has been consistent.

We believe our clients. A client will tell me they're feeling this and experiencing that, and that's all good and dandy. But these insurance companies want proof. They want to see you had treatment, that it was consistent treatment, and that you were putting in the effort to get better.

Fresher is better. But an older case is not automatically a lost cause. I took on a case that was over a year old because she had been going through her health insurance the whole time, treating, doing everything she needed to do, and trying to avoid having an attorney.

Most clients are like that. They don't want to cause trouble and they don't want to cause issues. And sometimes that can actually be a disservice to them, and a benefit to the insurance company, when they try to lay low and minimize everything they're going through because they don't want to burden anybody.

The way I see it, we're just asserting our rights and getting everything that's owed to our clients. It's owed to them. So we take it and we give it to the clients.

Part of why the consultation is low risk is the fee structure behind it. Personal injury attorneys in California work on contingency, which means no upfront fee and no payment unless the case recovers.

Typically attorney's fees in California on personal injury cases are 33 and a third. If it goes to litigation, ours goes to 40 percent.

A lot of firms out there raise it to 45 depending on how deep into the litigation they get, and 50 if it goes to trial. I have actually seen firms raise their fees after three months from the date of loss, which is pretty gnarly, because most cases don't resolve in three months.

That rising percentage is also why the negotiation-versus-litigation decision is a real decision and not an automatic one.

For me, when an insurance company lowballs and the gap feels too wide, I have to take into account that our fees do go up to 40 percent. If we're only a couple thousand dollars apart, it's probably not worth litigating. You're incurring, let's say, $500 just to file the lawsuit. Then another couple hundred dollars to hire a private investigator to go serve it, and then the whole litigation process for many months after that. And at the end of it the client sits through a deposition that could be anywhere between four to seven hours long.

No need to cook them through all that over a couple thousand dollars. It has to be worth it.

When the gap is big enough, that math flips, and that's when filing suit beats accepting a lowball offer. The mechanics of what happens next are in Chapter 11.

If you end up filing without representation, there's a middle ground I use with clients.

File the claim online through the carrier's own portal instead of talking to a live agent who can trick you on the spot. And as you're going through the prompts on your phone, send me a screenshot, so I can see what you're putting in before you submit it.

It's a small habit and it takes two minutes. It exists because an insurer's forms and phone scripts are built to collect information efficiently, not to protect you, and a second set of eyes catches things you wouldn't know to look for.

An honest attorney also knows when a case needs more than their own office can put behind it.

When I was younger and had a case I didn't feel I had the resources to handle, I would refer it out to the big trial attorneys, the ones who are famous in our world. And I started noticing a pattern. They always portray this image, that they help the underdogs and take cases all the way to the end, and that's why they try cases and get all these verdicts.

But when it came down to the case itself, if there was anything that looked like a blemish on it, they wouldn't accept it. They get all those verdicts because the case is perfect and wrapped in a bow and there's nothing complicated about it. Naturally they take it, try it, and win. If it's complicated, they don't.

So I got turned down by a lot of those attorneys. The one I continue to work with is a lawyer named Grayson Goodie, out in Malibu.

Sometimes it is not about knowledge at all, it's about resources and manpower. And the client only benefits from it. You end up with a team of attorneys on your case. It means the attorneys have to split the fees, and I think that's better. You have to do what's right by the client. You can't be greedy and keep a case for yourself just because it's a great case. If it's going to be litigated, it needs to be in the right hands.

Number one, not seeking prompt medical care.

Number two, missing deadlines, like filing the SR-1 or the government claim in time.

Three, giving recorded statements to insurance companies, or telling them you're at fault when you didn't think that's what you said. If you say it in a way where they can cut and paste it to sound like an admission, they will.

Number four, failing to document evidence.

And number five, delaying medical care because you can't afford it. That one is the hardest, because it's completely understandable and it still hurts you. Even though you're genuinely going through it, if there's no third party documenting it in your medical records, it gives the insurance company an out to start poking holes and say something else could have happened during that time.

Always try to use your health insurance or pay out of pocket first. If you can't, and it's going to cause a delay in care, talk to an attorney and have them find you a doctor who treats on a personal injury lien.

Don't post. If you're somebody who likes to post, then private your account.

Let's say somebody you don't recognize tries to follow you or send you a friend request. There's a very good chance it could be the other side. Don't add them, and don't let them follow you.

Beforehand it does not affect things much. It matters when you go to litigation, and specifically after your deposition, because they'll hire a private investigator to start following you around.

During that deposition you may have testified that you can't do something anymore because of the accident. The moment you say that, they'll hire somebody to follow you around and catch you doing that exact thing. Then they bring it into court and show it to everybody. You have just told the jury you can't do this anymore, and they say, oh, is that so, and play it.

The investigator also digs through your social media. If your account is private, they can't really dig through it.

Since it keeps coming up, here's what one is.

A deposition is a recorded interview that the other side's attorney does. Sometimes in person, though after COVID most of it's on Zoom. They sit there and drill you for anywhere between four to seven hours, asking all these million questions about the accident, about your injuries, and about how those injuries affect your day to day.

People get nervous. People don't want to go through that. People get panic attacks.

That's why we talk to clients about the deposition well before it happens, and it's also why I gauge whether somebody can handle one at all. Based on the relationship we build during a case, I can usually see whether they're going to be able to do it. And if they are not, then regardless of what I think the case is worth and what I think we should do to get proper compensation, pushing them through it can hurt their mental and emotional health. That's a big no-no for me.

There was a situation where we had an offer around 50 grand, and in my head I said, this case is worth a hundred. I talked to the client about going through litigation and what it entailed. And she said absolutely not. So I told her plainly, if that's the case, we won't be getting what I think you deserve, we'll be leaving money on the table. And she was okay with that.

As long as a client is well informed, knows what path A versus path B versus path C means and what the end result looks like, and they're happy with the choice, then I'm happy. And of course we still get the most we can within that circumstance. We scrape off as much as we can without adding the burden onto them.

Hiring an attorney does not mean losing your voice in your own case. Every client is different, and we keep them in the loop as much as they want to be kept in the loop.

Some people, typically engineers or accountants, are very into the details, the nitty gritty. They want to know everything. They want to know our strategy, why that strategy, and how it compares to a different path we may or may not take.

Then there are clients with more of an anxiety type of personality, who are more worried about things, and that's why they hired us in the first place. They're freaked out and overwhelmed and they don't like all this information being spewed at them at one time. With those clients we're more tactful, and we give them the significant updates, the moments where they need to make a decision or know the next step.

The shape of that first conversation depends on what's actually worrying you. If your car is in a tow yard and you have to move next week, the conversation is not going to be about your medical treatment, even though that matters too. It's going to be about fixing that problem first.

Then it usually goes like this. Okay, that means your options are A, B and C. If you go option A, these are the pros and cons. Option B, these are the pros and cons. Option C, same. I recommend option A because of X, Y and Z. What are your thoughts?

And you always want to hear their thoughts. Most clients are calling because they have no idea and they trust you. But they can only trust you if you spend the time to care and listen.

One more thing, and this is why some people end up in my office in the first place. We take on cases where a client was already represented, and the reason they're looking is that they reached out and nobody responded. Clients hate being left in the dark, and I understand that, because this is the first time they're going through it.

A lot of the bigger firms have case managers handling day to day communication, and those case managers have a ton of cases to manage. So it becomes impossible to communicate. Either way, the client feels like their case is not being worked on and their questions are not being answered.

I think the client should always know what's going on, what to expect, and when to expect to hear from us next. If your case has gone quiet, that's reason enough to get a second free opinion somewhere else.