Christina M. Habas, a plaintiff’s personal injury attorney with Keating Wagner Polidori Free in Denver, estimates that “only about 10 percent of the cases [people want to retain me for] are accepted.”
Why do personal injury lawyers decline so many cases?
So how do you know if you have a personal injury case?
The four things
“When we’re screening the case of a potential client, we look at four things,” says PI attorney James H. Chalat of Chalat Hatten Koupal & Banker in Denver.
- “One is the claim on liability under the facts of the applicable law,” he says.
- “A case that would attract a settlement or a verdict.”
- “Collectability: whether they have the assets or the insurance.
- “The fourth element is much more subjective: whether or not the plaintiff is a likeable person. If someone is very wealthy and comes off as entitled, it could be off-putting.”
Chalat often deals with suits involving Colorado ski slopes—generally stemming from, he says, “two skiers or snowboarders that collide into one another.” He estimates there are about 12,000 such cases in Colorado each year.
Fault can be difficult to prove.
Who’s at fault?
Ditto auto accidents, says trial attorney Michael Burg, of Burg, Simpson, Eldredge, Hersh & Jardine.
“We hear all the time: ‘I went to make a left-hand turn, the car was far away, then next thing I know they hit me,’” he says.
A speeding car can be at fault, but an inattentive driver can also be at fault. “Under Colorado law, if that fault is 50/50,” says Burg, “you don’t have a case.”
Often, liability is determined only after a great deal of effort and deliberation.
“There isn’t an exact science to it,” Burg says, adding that it can require an investment on the part of the attorney to pay for expert analysis of the case—an accident reconstructionist, for example, to analyze the finer details of a car crash and determine which party was at fault. If the amount of liability doesn’t warrant a settlement large enough to justify the investment, most attorneys turn it down.
It’s all about the math of the free market. “The business side of a law practice eliminates frivolous cases,” says Habas,”because lawyers cannot stay in business by filing those types of cases.”
So how much money are we talking about?
The extent of the fault can determine the size of the settlement, but there are limits.
“The current amount for a cap on noneconomic damages is $468,010, which may be increased on clear and convincing evidence to a maximum of $936,030,” says Habas. “For medical malpractice claims, there’s a $300,000 cap on non-economic damages and $1 million for all combined damages.”
“Then there’s a category for ‘disfigurement or physical impairment,’” he adds. “And that is not capped.