If you really believe that an insurer will defend a $100k claim with same vigor as a $1M claim where, in both cases their precious behinds are on the line for whole amount . . . uhhh, ok.
I think this is more suited to IMHO than GQ.
Colibri
General Questions Moderator
Seconded. Find a lawyer who’s right for you, and for the kind of case for which you need him or her, when the occasion arises. No point in paying one just for bragging rights.
What you are apparently missing is that the insurer’s “precious behind” may be on the line for considerably more than the policy limit. An insurer which breaches its duty to defend is subject to a bad faith action by its own insured.
Seriously? You see no difference between lazy lawyering and bad faith? :rolleyes:
Sure, but you appear to have been talking about the insurer, not the attorney it hires.
“Retainer” sometimes means different things to different people.
In criminal defense, attorneys routinely bill by the case, not by the hour. So it’s like if you call a plumber and he says “I charge $200 to fix a toilet. It’s the same if it takes ten minutes or ten hours.” Sometimes they call that a “retainer”, but its really not. It’s just a flat fee.
Sometimes in civil cases, an attorney will want an advance fee, which he’ll put in his IOLTA account, and then bill against it as he works on the case. If he finishes the matter, he returns the unused part of the fee to his client. If the money runs out, he either quits, or gets more money from the client. Attorneys like this arrangement when their clients’ finances are chaotic or unreliable - like in divorce cases, for example.
A true retainer, to my understanding, is where you get money in exchange for a promise to be available if and when your client needs you. Nobody does this, but I guess it’d be nice if you could get it.
When I talk about an attorney prosecuting a case with more or less vigor I assume you know what that means and realize that there is a swath of territory literally light years wide that it covers - that being the boundary between malpractice one side and perfection on the other. So when I said that an “insurer,” i.e., their attorney, might not defend one case as vigorously as another, that simply means that they would be operating within that swath.
I don’t know how arrangements are made between insurance companies and law firms, but since you do, please explain. How can a firm justify doing accident reconstructions with CGI or hell, even having a jury trial on every . . . single . . . case, whether the policy limit is $30k or $30M? I know from my own experience that those cases are handled very, very differently. Unfortunately I was always on the more academic side of things and never cared much for the mechanics so I can’t easily come up with a list of my own as to why that is in fact the case.
In insurance defense, it’s fairly simple. Your insurer assigns a case to a law firm. The law firm handles all litigation subject to broad policy decisions of the adjuster and insured. They get paid a prearranged hourly rate. It’s not at all unusual for an insurer to spend more than its policy limit on attorneys’ fees alone, let alone on litigation costs (though accident reconstructions are rarely done even in big-money cases because they’re really just not that helpful).
You’re avoiding the question. Your point is that the $30k case and the $30M case will be handled the same. How can that be justified? I don’t see how you’ve answered that unless you’re saying that an insurer will ALWAYS give you the best POSSIBLE defense. Is that really the argument you want to make?
There’s no such thing as a $30M case, at least not in the same context as a $30k case. A $30M per-instance policy limit is the sort of thing a crane rental company might have, not a private citizen with car insurance.
The point is that the insurer doesn’t decide how strong a defense is presented. The attorney’s job is to represent the client zealously, and as a result the insurer concedes much control over how a claim is litigated once it retains counsel. The attorney is as responsible to the insured as he is to the insurer. The insurer does retain control over how much to spend on things like expert fees, but frankly those are not critical to the outcome.
If you want to hire your own attorney to represent you at the outset of a civil suit, you have the right to do so. However, it’s a complete waste of money.
Is that $30M figure bothering you? Let’s make it $300M since your position is that the amount doesn’t matter. That is your point, right?
So are you saying that an attorney representing an insurance carrier on a $300M claim will represent the insured as zealously as they would were the claim only for $30k?
I think I can be forgiven some theatrics in asking for a yes or no answer here.
Yes. He’s getting paid the same in both instances.
Then clearly you have no idea whatsoever of how things really work.
edit: I’m sorry if that was harsh, but having been in practice for several years, I can tell you for a fact that you are very much incorrect. The level of representation may not vary in a mathematical way with the claim amount, but there is most certainly a relationship and to deny that is, well, I’m not sure how to characterize it.
You said yourself that you “don’t know how arrangements are made between insurance companies and law firms”. I do; I’ve been working for an insurance defense firm for six years.
Then it would appear that one of us is incorrect. However I think the notion that a firm in the employ of an insurer would handle a case several orders of magnitude greater in terms of claim amount IDENTICALLY to the lesser claim is sufficiently ridiculous on it’s face so as not to require an appeal to authority for validation.
A retainer agreement is typically instituted when there is an actual, ongoing matter in existence. You pay the retainer and the attorney works on your case, as set forth in the engagement letter/retainer agreement.
A generalized retainer, that is, where I pay you some money and then you exist as my attorney (even if there is no particular matter pending) is an artifice of television (to initimate that the character is formidably rich, powerful, and litigious). It doesn’t really happen in the real world.
Some people, real estate developers, movie producers, etc., will have need to consult with an attorney on a variety of matters from time. The retained attorney will make it a point to learn his/her client’s business and the like. Outside of these specialized circumstances, the average person, who works in a typical employee context, who has no outside business concerns, will not need to retain an attorney absent a particular matter. And once the matter is the concluded, the unused portion of the retainer will be refunded and the retainer agreement will end.
It is free of charge to have some idea of well-regarded attorneys in your locale who might want to engage should certain eventualities come to pass.
The guys I used to work for never refunded retainers, but that was in criminal cases. I don’t see why that would be any different on the civil side except for the fact that a lot of stuff is done on a contingent fee basis there. But otherwise, once you paid their exorbitant rates for a fixed number of hours, that money was gone regardless of whether those hours were ever used. However that WAS spelled out in the retainer agreement.
In terms of ordinary people having lawyers on retainer, I don’t know if they’re still around, but there used to be law firms that advertised for this sort of thing. It was sort of like an autoclub and I think someone mentioned this upthread. I guess it was a scam of sort though or they got shut down on ethics violations or something because at least here in the NE, I haven’t heard any ads like that in many years.
I didn’t say they would be handled identically. I said there was no incentive for the attorney to half-ass on the smaller claim. Despite your obvious certainty, you can’t actually point to any reason why this is not the case. I have pointed to several reasons why it is. I did note that the insurer is likely to limit the non-fee cost of litigation on a small claim.
Remember, your original point appeared to be that you need your own attorney because the insurer didn’t care about your interests. As I have pointed out, the insurer is contractually and statutorily bound to care about your interests.
Anyway, even if the insurer wasn’t buying you a vigorous defense, it’s still a silly idea to retain your own defense attorney in a civil matter where your insurance policy already provides you with representation.
Contingency arrangements are for plaintiffs, not defendants.
I’m not even going to bother with the first part so if you need to feel like you’ve won, congrats.
As to this, bummer. I was really hoping that I could get my attorney to take 33 1/3% of the loss in my current suit.