Hiring Counsel for an Environmental Toxic Tort Case - Part 3

Posted on October 28, 2008 by Gail Wurtzler

Continuing with my series of posts on “Hiring Counsel for an Environmental Toxic Tort Case,” this week I address the third criterion - FAIRNESS

The criterion of Fairness is slightly different for plaintiffs than for defendants, but it essentially relates to whether you are charged a fair price for the lawyer’s help. Three thoughts:

  1. For a plaintiff, if you are agreeing to a contingent fee arrangement, take a hard look at the terms of proposed agreement, especially the treatment of expenses (expert witness fees, travel, document management, etc.) and the percentage of any verdict or settlement that the lawyer will take.   Although expenses usually come off the top of any recovery, it can have a huge impact on the amount of your and your fellow plaintiffs’ recovery if the percentage for legal fees is calculated before or after expenses are deducted. A 30 percent contingent fee is typical, so ask for an explanation if the percent is higher.
     
  2.  For both plaintiff and defendant, ask for a budget for expenses. Expert witness fees, travel and document management costs can be substantial. For example, in an environmental toxic tort class action that is tried, expenses could easily top a million dollars. Up-front understandings on these expense categories help avoid unpleasant surprises. In addition, it may be appropriate for you to participate in some of the major decisions on expenses such as whether to retain an expert on a particular topic, whether to select a particular expert from several candidates, or whether to pay for a Cadillac-type document management system as opposed to a Chevrolet-type system.
     
  3. Talk to the lawyer’s clients from prior cases about whether they felt they received fair treatment.

The bottom line for choosing a lawyer is to do your due diligence on each of the candidates (and you will likely have several to choose from for one of these cases) and then select the one that best meets the three criteria I addressed in these posts (Expertise, Commitment, and Fairness) as well as any other criteria you identify.  

My next series of posts will addressthoughts about working with your lawyer going forward with one of these cases.

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