Legal Question in Legal Ethics in California

Re: contingency fee

You have raised several issues. The first is whether your attorney acted appropriately in handling the case. Should the attorney have ordered a police report? Generally, the attorney is not in a position to order a police officer to prepare a police report. The officer decides whether there is sufficient damage that s/he should prepare a report. The attorney can usually only order a copy of a report, if the police officer prepared one. If the officer did not prepare one, then there's really nothing that the attorney can do to make the officer prepare a report. You could have gone to the police station and asked them to prepare a "counter report", i.e., one that is prepared based on your coming in to the police "counter". However, it is not likely that this would be very helpful since it merely is a reiteration of YOUR statement which your attorney is already getting when you testify.

The issue then is whether there is a dispute over liability. Was the other side claiming that the accident was your fault or partially your fault? If not, then the issue of a police report is irrelevant since the other side is not disputing liability.

If the other side does dispute liability the police officer, as a witness to the accident occurring, could be very important. Did your attorney contact the police officer? Do you really know what the police officer was going to say about who was responsible for causing the accident? If the police officer was not going to give favorable testimony, or could not recall the details of the accident, there would have been no point to calling the officer as a witness.

Finally, there is the issue of what you received. You need to check your written fee agreement to see what percentage your attorney would receive. It is likely, however, that the attorney advanced costs on your behalf, i.e., s/he paid money out of his/her pocket for costs that YOU are responsible for paying. These might include court filing fee for filing lawsuit (currently around $300), costs to serve the lawsuit on the defendant, deposition costs, etc.

If your medical bills were not paid by you or by insurance and the doctor(s) agreed to accept payment on a "lien" meaning that they agreed to hold off on receiving payment until your case resolved, then once the case resolves, your attorney is required to pay the doctor(s) out of the proceeds of your settlement. Thus, you need to make sure of what proceeds the attorney is getting as an attorney fee and what amounts are being paid back for costs that the attorney is to be repaid and what amounts were to be paid to your doctors.

J. Caleb Donner

DONNER & DONNER

LEGAL WARRIORS�

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Thousand Oaks, CA 91360

Tel: 805-494-6557

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Re: contingency fee

A personal injury attorney really needs to order the police report in an accident case to evaluate and determine how best to proceed. Failing to get a police report or failing to advise the insurance adjuster that the police witnessed the accident is unusual.

There really may be a question as to whether your attorney fully represented your legal interests.

The fact that he advised you not to go to trial is not shocking (if it was advice and not an order). Remember he needs to fully inform you of your options and ultimately you are the person who chooses how to best proceed.

The fee agreement governs how the money is divided. Many contingency fee agreements call for 1/3 of the total amount recovered plus costs (filing fees, medical bills/records paid by attorney, police report copying fees etc.) I cannot say that the breakdown in your case is totally inappropraite because there are many times where the costs incurred are high but the award is low. It is the reality of litigating small minor soft tissue injuries.

Good luck to you. I would consult with an attorney in your area if you wish to more fully evaluate your situation.