Litigation
Serving Montgomery County and the Surrounding Areas
765-362-8168
Serving Montgomery County and the Surrounding Areas
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Litigation

Beginning Considerations

Any case that actually needs to have a contested trial to be resolved, is what I mean by “litigation”. Many lawyers don’t really like the work and pressure required to successfully litigate a case. While I don’t claim to be the world’s best trial lawyer (or even the best in Indiana) I’m pretty competitive, and experienced, and if the facts and the law are in your favor, I’ve yet to meet the lawyer who has intimidated me from taking a case before a judge or jury. I’ve routinely fought Indianapolis and Lafayette attorneys for 35 years, in addition to most attorneys in Montgomery and surrounding counties.

Once I understand the facts and the law of your case, I will tell you if I am willing to work on a contingency (percentage) basis of any judgment, or whether I will quote you a minimum retainer (based on $250/hr), or a larger set fee if that is your preference. If you don’t like either option, you owe me nothing. Depending on the complexity of your case, sometimes I will change an initial retainer just to investigate the legal viability of your position.
 
Consulting an attorney before a formal complaint needs to be filed can be worthwhile, to focus on what documentation or other evidence can be accumulated before the actual lawsuit process begins. Gathering persuasive evidence prior to formal legal “discovery’ can be the difference between winning and losing in many cases. You knowing something is true, is not the same thing as being able to prove it in Court. Being aware of what is allowed and/or required by the rules of evidence, and documenting that, before the lawyers are officially involved, can be very helpful.

If I don’t think your case will be successful at trial, I will tell you why. If you still wish to pursue your case in Court, I will respect your gamble, and so long as your aims are not illegal or unethical, I will do my best to win. In fact, successful outcomes in cases I thought the odds of winning were low, can be the most rewarding. But any attorney who guarantees victory is probably not being honest.  Legal processes can be expensive, with no guarantee of the outcome.
Successful litigation generally has four major requirements:
1. Legal basis of liability - Either negligence, contract, statute, or intentional behavior. Even if you know something is true, evidence must be able to be provided that will convince (at least a 51% likelihood)  a judge or a jury of a factual legal basis to assign liability or responsibility on the part of a specific defendant.

2. Proximate causation - You have to be able to prove the other party's (the "defendant's") failure to meet a legal basis of liability, is the proximate cause of the loss or injury for which you want compensation. Proximate cause includes not only proving physical, actual cause of the injury ("but for" the defendant's actions), but also that the cause is recognized by law as being "proximate" or within the realm of consequences that responsibility is imposed under public policy. This is in addition to dealing with any defenses the opposing parties may try to claim. 

3. Injury - Of sufficient magnitude to justify the expense and effort that litigation will require. Small injuries may be more economically pursued in small claims court ($6,000 limit), without an attorney, or with less involvement by counsel.

4. Ability to pay - If you win, does the defendant have insurance, or sufficient assets to be able to collect a judgement, and not file bankruptcy. 


The costs of actually going through a jury or a judge tried case is usually substantial, but many times a client can assist in providing evidence that will not only increase your chances of success, but reduce the cost of the process. 

When we discuss the details of your case, we are likely to spend a great deal of time on what evidence you need, and how to prove your case. I certainly recommend you make written outlines of what evidence you have, or think may be obtainable.

The Value of Your Injury or Damages

If there is an insurance company representing the other side, their procedure many times is not to make their maximum offers until right before the trial. If your goal is to get as much as you can as quick as you can, don't expect a full value recovery unless liability against their insured is obvious and easy to prove, and the value of your damages is clearly defined and not subject to dispute. Sometimes the best strategy is for me to assist you with your negotiations with the insurance company. Once they claim to be making their best offer (in the same amount) at least twice, then at that time, I can usually motivate an insurance company to give you a further increase; but it will not be the real top dollar unless and until you push your case toward trial. I am very aware of the impact an injury or loss can have on a person's life, and more often than not I am quite willing to gamble with what a judge or jury will do, if my client does not want to accept whatever settlement is being offered. At the same time, there is never a guarantee of success at a trial and I will make you aware of what risks might exist. 

Time Limits to Sue

Suing a government agency usually requires you to give formal written notice of your intent to sue, within 180 days of the cause of your claim (within 270 days against the State of Indiana). Most general liability, personal injury and medical malpractice suits must be filed within 2 years of the occurrence. Minors and other incapacitated persons have 2 years from when their incapacity ends. Generally speaking, written contracts have a 10-year statute of limitations and verbal contracts must be sued upon within 6 years. 

Length of Process

Depending upon the complexity of the facts and law of your case, and in which court you must file your complaint, most substantial litigation cases will take 6 months to 2 years to get to trial. The busier the court (i.e. large cities) your case in is, the longer it takes to get to trial, generally. If you can show the court a true time emergency, this can usually be used to get a quicker trial date. 

Fees and Costs

On many personal injury, medical malpractice and some other cases, I am willing to work on a percentage of your recovery (a contingency fee) if there is sufficient pre-filing evidence of liability, causation, damages and the defendant's ability to pay. This of course means that if we are not successful, no attorney fees would be owed. Once I have assessed these issues, I will quote you the percentage upon which I will work. The more difficult the case, the higher the percentage. I go as low as 20% on some fairly simple cases and as high as 50% on the most difficult. 

All cases will include a written contract, so there will not be any confusion. By law, all costs of a case must be paid by the client. If your case appears strong enough, I may initially advance these expenses, but when the case ends, the law requires that all of these costs will come out of the client's share. These costs include, but are not limited to depositions, trial exhibits, expert fees, records, travel, copies, etc. You will be kept informed of all such expenses. 

If your case appears to have sufficient problems or weaknesses such that I am not willing to work on a percentage (contingency) basis, I will many times be willing to work on an hourly rate or set fee basis. This will usually require you to pay a substantial retainer upfront and all future billing before the trial. 

Injury and Death Cases

From a car wreck that resulted in a father's death, to medical malpractice that resulted in a 5-year-old losing both of her legs, to slip and falls, I have tried and settled numerous injury cases that benefited my clients by millions of dollars. On large cases, I may associate with a particularly qualified co-counsel (at no extra cost to the client), especially if the number of defendants means more than one team of defense lawyers. 

Every case stands on its own facts, and without detailed information about how the injury occurred, and exactly the nature of your injury, and how that injury affects your life, realistic estimates of your expected recovery cannot be made. Until you have experienced maximum recovery from your injuries, it may not be possible to determine the full value of your case. 

I began my legal career in Indianapolis working for a law firm where I mostly worked for insurance companies trying not to pay, or to pay as little as possible. Most, if not all insurance claims adjusters work on a bonus system based upon how little they pay you. Claim adjusters are usually very friendly until they make their settlement offer, at which time their sympathy for your situation generally takes a colder, business attitude. 

Even if you settle with the insurance company, it is usually worth getting a "ball park" lawyer's opinion of your case's value. Many times I will work on a percentage of the increase in your recovery, above any offer of settlement you received before you hire me. 

Working on a percentage fee basis gives us the same motivation. You more you get, the more I get. Except in rare circumstances, I will not agree to accept representing you on a case unless I'm willing to take it to trial. I tend to be fairly liberal in valuing my clients' damages, and insurance companies tend to be much more conservative or lower. If the attorney for the insurance company can tell your attorney isn't really preparing for and ready to actually go to trial, their settlement offers are considerably lower than if they believe you're actually preparing for trial.

If your "comparative" fault is deemed to be more than 50% of the cause of your injury, you will receive no recovery at trial. If your "comparative" fault is below 50%, your total damages will be decreased by the percentage of fault you are assessed. You will receive no recovery for the pre-existing injuries or conditions, but can receive compensation for aggravating or worsening a pre-existing condition, especially if a doctor is able to define or quantify how much worse the problem has become. 

Being an honest, hard-working patient to rehab your injury can also be very important. Doctors and nurses who think highly of their patient's credibility and the effort they've made to improve their medical condition, are much more convincing witnesses than medical personnel who are suspicious that their patient's complaints and efforts may be  influenced by their desire to maximize the results of an insurance claim or lawsuit. 

I would also tell you, that even if you don't hire me, I would discourage you from hiring attorneys who do a lot of TV advertising, and mail solicitations, as they have a tendency to settle many cases below their actual value in order to cover their huge monthly advertising and other overhead expenses. 
Call 765-362-8168 to Schedule Your Appointment
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