Questions & Answers

Q. Do I have a case?

A. Every client's story presents a new and different challenge in answering this question. Typically I follow a very painstaking process to determine whether a client has a case. First, I take detailed information from the client. Next, I obtain the relevant medical records or other documents that relate to the incident. If the case involves a birth injury, for instance, I would need to obtain the mother's prenatal records, her hospitalization records, including fetal monitor strips and also the baby's hospital records. If the case involves a consumer product defect, I would want as much information about the product as I could obtain from public sources, including government agencies, reference texts, independent consumer agencies, and other attorneys.

Once I have obtained the relevant records, I review them with the assistance of qualified experts to determine:

At trial, Keith was extremely well prepared and presented a persuasive account of the facts with integrity and emotion.

The opposing lawyer often looked embarrassed when Keith's far greater preparation was obvious to the jury.

Drew Durlacher
Brooklyn, NY

  1. Does the client have a meritorious claim?
  2. Are the damages sufficient to warrant the time and expense of litigation?
  3. Who are the individuals and/or entities who should be named in the lawsuit?
  4. What are the theories of liability, i.e., what do we say the defendant did wrong?
  5. Where should the case be brought, i.e., in state or federal court?; which county?

Q. How long is the process of determining whether I have a case?

A. Sometimes I can tell right away, just by speaking with the client, or with a quick review of medical records, that the case has merit. For example, take a case in which my client is suffering complications after her physician left a sponge inside her following a surgical procedure. In a case like this, the real question is not "is there a case," but rather "what are the damages." Most of the time, I have to do extensive homework to determine whether there is a case and this means ordering records and documents, a process that varies in duration depending on the specifics of each case. Sometimes obtaining medical records comes easily, sometimes not. Typically, I receive records within several weeks of when I send out requests, but it can take longer. Once I have the records, I then retain an appropriate expert – and sometimes more than one expert is needed – to review the records, a process that can take several more weeks or longer, depending upon the type of expert required and the expert's schedule.

Although it is not possible to give a definite answer on how long the evaluation process lasts, it is time well spent. It makes no sense to rush to the courthouse to file a lawsuit unless I have done the work necessary to make me feel confident in the merits of the case. I do not believe in filing suit and then "seeing what happens." I do not file lawsuits figuring "they will pay us something to make the case go away." When I file a lawsuit, I know that we have a reasonable basis for filing the case. I know the strengths and weaknesses of the case. And I have an expert willing to support the case. This all means that I have a reasonable basis for believing that I am not wasting my time or yours.

Q. Will my case go all the way to trial?

A. Statistically, the chances of a civil case going to trial are slim. Excluding medical malpractice cases, approximately 90% of civil cases settle before trial. The figure is closer to 50% for medical malpractice.

My focus is on preparing cases for trial. This does not mean that every case goes to trial. It does mean that I prepare every case for trial. Everything I do during the preparation and litigation of a case is with an eye to the courtroom. When I interact with defendants and their lawyers, they know that I will be ready, willing and able to take the case to trial. In my experience, this is the best way to get the best results.

If insurance companies and their lawyers think that the other side is not prepared or not confident in front of a jury, they will take advantage of that. I believe that when I work hard to prepare a case for trial, the case has a better chance of resolving favorably for my client, either because the defendant makes a reasonable settlement offer, or because I take the case to the courthouse.

Q. How long will my case take?

A. Every case is somewhat different. Medical malpractice and product liability cases filed in Massachusetts usually reach trial within two to three years from the date of filing the Complaint. In less complex cases, it can take less time. Cases can be "fast-tracked" for a variety of reasons, including the advanced age or poor health of a party. As part of your initial meeting with me, I will try to give you a rough sense of what to expect.

Q. What is a contingent fee?

A. I handle most of my civil cases on a contingent fee basis. This means that my fee will come from the recovery I obtain for the client. I usually will advance all of the costs of the litigation, including such things as the cost of ordering records, obtaining experts, filing suit, and so on. When I obtain a recovery for the client, either by settlement or at trial, I take a percentage of that recovery plus the costs of the lawsuit. If I evaluate a case and decide not to pursue the matter, or if there is no recovery for whatever reason, then the client has no obligation to me for fees or costs. Occasionally, in medical malpractice cases which I regard as particularly speculative, I will request that the client pay for the initial expert evaluation of the records. If the expert concludes that the case has merit, then I will advance all of the expenses from that point on. The specifics of this will be contained in a simple "Contingent Fee Agreement," which I will discuss with you.

Q. What will the costs be?

A. This varies greatly with the type of case. For a relatively straightforward medical malpractice case, the costs usually are in the range of $10-20,000. Costs in a car accident case are likely to be much lower. The costs increase if the case goes to trial. Most of the expenses relate to experts who expect compensation for the hours spent reviewing documents, preparing written opinions and offering their testimony at deposition or trial. In most situations, it is not possible to prove a case without one or more expert witnesses, so this is a necessary expense. In a very complex case, the costs of litigation can be in excess of $50,000.

The high cost of litigation is another reason why I am careful during the evaluation stage.

Q. Will I be able to speak to you if I have questions?

A. Yes. I will be available to answer any questions you may have. Sometimes, there are quiet, slow periods during the life of a case, so there is not much need for communication. When there is such a need, even if only because the client has a question or concern, I am available. I try very hard to return all calls in a timely fashion. Some clients check in by email. Some clients call ahead and then stop by the office for a quick update on their case.

Q. How do you bill in criminal cases?

A. I try to be flexible, and offer my clients a choice between a non-refundable flat fee and an hourly fee billed against a refundable retainer. The flat fee option provides the client with certainty. The retainer option enables the client to pay only for the actual amount of time spent on the case. I believe that most clients are better served when they pay at an hourly rate. The amount of the flat fee or the retainer will depend upon the complexity of the case. In addition to my fees, the client is responsible for expenses, including investigators and expert witnesses. These expenses are reviewed in advance with the client.

Q. What are the advantages of being represented by a solo practitioner?

A. I believe the greatest advantage is that my clients have the benefit of my ability, experience and commitment at every stage of their case. I could not possibly count the number of times that I have scored critical points in a deposition in which the opposing attorney was not the partner assigned to the case, but a less able associate. Similarly, it is simply not possible for an attorney to have as sure a grasp of a case when they are handed the file a few weeks before trial. I routinely am better prepared than my opponent, whether at a deposition or at trial, because it is my case, and only my case, from start to finish.

My overhead is less than a larger firm. I have greater flexibility in deciding what cases to take. This is particularly significant in the areas of medical malpractice and product liability, where larger firms frequently reject cases which appear to be worth less than $1 million. I have achieved many recoveries in excess of $250,000 in cases which were turned down by larger firms.

I thrive on going up against larger opponents, whether a law firm or a prosecutor's office.