Menu

Medical Whistleblower Advocacy Network

Human Rights Defenders

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

 Universal Declaration of Human Rights

Article 1

Visitors

611805

"Crime is contagious. If the government becomes a law breaker, it breeds contempt for the law."

Justice Louis D. Brandeis

Source: Olmstead v. United States, 1928

Choosing an Attorney or Law Firm

A


A person once told me that attorneys are paid gladiators to fight your legal case in court.  It is wise to remember that when you approach an attorney for legal assistance with your case that you are employing a person trained for a legal battle.  But also remember that just like medical professionals, attorneys are all individual people, with individual skills and experience and often different perspectives about how to approach legal issues and problems.   So just like a doctor, lawyers can be specialized in a particular area of law, they may have advanced training or have undergone a mentoring experience that prepared them for particular types of legal cases or they may have colleagues in their firm who give them advice regarding legal matters.  All these aspects of an attorney’s experience and training may have a bearing on how he/she would handle your case. 

So just like you wouldn’t go to a nephrologist or pediatrician for heart transplant surgery, you should consult the right type of legal expert in your case.  So during the initial interview you should ask about the attorney’s training and experience.

 

The 5th Amendment is an old friend and a good friend. One of the great landmarks in men's struggle to be free of tyranny, to be decent  and civilized.

William O. Douglas

Areas of Legal Expertise

These are some of areas of legal expertise that have been helpful to those who are human rights defenders, medical whistleblowers, mandated reporters, and medical professionals facing retaliation for patient advocacy.

Civil Rights/Constitutional Law

Employment Law

Medical Malpractice

Qui Tam

Sarbanes Oxley

Sherman Anti-trust

Mediation/arbitration

Educational Law

EEOC

Criminal Law

RICO – Civil or Criminal

Fraud

Administrative Law

Obtaining a Contract

 

Any attorney you hire should provide you with a copy of his or her standard contract at your interview.  During the initial interview you have your first opportunity to determine the credibility of the attorney so if the attorney is evasive, inconsistent, unwilling to answer your questions directly or glib, you would be well advised to consider hiring someone else.  The choice of attorney is critical to the success of your case.  Any ethical and competent attorney will be willing to openly discuss the financial arrangements of your attorney/client contract.

If an attorney refuses to give you his standard fee agreement at the first meeting – you should consider this a red flag. Lack of clarity over billing arrangements can erode the level of trust necessary for a meaningful attorney/client relationship.  This document, commonly referred to as a "fee agreement" or "retainer agreement," will spell out the terms of your relationship with your lawyer.  Although the actual amount that your case will be billed can usually not be foretold, this document should describe how you will be charged, what you will be charged for, what the billing rates will be, what the lawyer proposes to do, and what the lawyer expects you to do. The level of detail in this contract varies from attorney to attorney but it is important that the lawyer spell out what he anticipates as billing costs for items other than his or her time-such as postage, photocopying, computerized legal research, expert witnesses, detectives, word processing, travel expenses, and so on-these should be spelled out in the fee agreement.

Remember that your lawyer is a professional and does expect to be paid for his legal services.  You would not expect to present yourself to a hospital and expect services without paying through insurance or some other means.  You know that provision of medical care has direct costs, so too do lawyers have direct costs – court filing fees, copying costs, phone bills, staff costs etc.  So be clear about the financial terms offered by your attorney.  Recognize that your attorney may bill by the minute for talking on the phone to their client and also when the attorney is talking on the phone to the other side's lawyer. Billing in this manner is the norm. It is how lawyers earn a living.  An attorney who spends three minutes reading a note you sent him may actually bill you for his fifteen-minute minimum. The fee agreement should spell out the cost of time increments, if not ask the attorney about it and consider adding language to the agreement to cover this point.

As your cases progresses these costs mount up quickly.  Although a lawyer will not be able to quote you an exact figure because future expenses are impossible to predict and will certainly depend to a large extent on how the other side conducts its case. But it is not unreasonable to have an attorney give you a rough estimate of a range of monthly expenses you should expect to incur.  If you find a particular charge excessive (the per-page rate for photocopies, for example), discuss it with your attorney. Perhaps an adjustment can be made.  If not, at least you will have learned of the issue ahead of time and can choose a different lawyer if the problem is significant enough.

In many legal jurisdictions lawyers are required to have written fee agreements with clients, but even if your jurisdiction does not, it is still necessary for you to understand your and your lawyer's rights and obligations. These should be spelled out in writing at the beginning of your relationship so neither client nor lawyer can claim a misunderstanding later.

Beware of any language in the fee agreement that gives a lawyer a "lien" or other right to your house or other assets. Such language could entitle your lawyer to encumber your house or bank accounts. Also be wary of language that permits a lawyer to obtain a "confessed judgment." This could enable your lawyer to sue you for unpaid fees and win automatically without your being able to put on a defense.

 

Make sure you really know what the contract means.  Do not sign an agreement you do not understand. If you have a problem with specific provisions in the contract, ask the lawyer if they can be changed.  You should assume that if it is stated in the legal contract, the lawyer will hold you to it.

Caution

Have  a clear understanding of what you want to accomplish with your legal case.

Be polite.

Please do not use your attorney as a therapist.  Although, personal problems may be overwhelming, it is not helpful to burden your attorney with them right when he/she is in the middle of the action.  Attorneys are ill equipped to deal with those kind of problems. 

Please realize that  although you might have the belief that going to court will get you justice, many times a court case will not obtain the outcome you most wanted.   Be aware that  just getting a judge to listen to you doesn’t guarantee a positive outcome.


Action or Stragegy Plan

A good attorney will be able to give you a clear and detailed understanding of what he/she intends to do to win your case.  This is a strategy of how he will approach your legal problem, it will contain what actions he intends to do to further your interests in litigation.  He/she should list all planned activities and also the known deadline dates that apply.  You can not expect a positive outcome if your attorney does not do careful advance planning.  This planning should also entail if you lose at certain legal junctures and have back up contingency plans if that occurs.  If your attorney or law firm has previously handled this kind of case, they might actually have preprinted forms and letters.  Some attorneys actually take the time to provide their clients with educational materials to help their clients better understand the litigation process.  Tell your attorney you want to know how he/she plans to win your case.  If an attorney doesn’t take the time to be organized enough to create a focused strategy at the very beginning that will help guide his/her legal actions then he may not be focused enough to navigate the legal challenges ahead. No attorney can absolutely predict or guarantee what will happen in a legal case but he/she should have a good legal action plan of how to win your case.

"A law embodies beliefs that have triumphed in the battle of ideas."

Oliver Wendell Holmes

Source: The Supreme Court in American History pp 109

Strategic Control of the Case

You want to choose an attorney who strategically controls the litigation process rather than letting the actions of your opponent or the case control them.  A passive attorney might seem to be cheaper because he/she does nothing unless it is absolutely necessary and doesn’t initiate anything.  A passive attorney responds to what the other side does and will spend his/her efforts answering the interrogatories of the other side.  On the other hand a  controlling lawyer will typically be the first one to serve interrogatories (written questions) on the other side and ask to take the depositions (sworn, transcribed interview) of the other side's witnesses.  Meanwhile, this lawyer will typically have done nothing assertive to make progress on your behalf. Both types of lawyers have plenty of things to do to keep them busy, responding to the other side before the deadline. The difference is that the assertive, controlling lawyer is making things happen, while the passive lawyer is simply reacting to what the controlling lawyer does. A passive lawyer will have difficulty giving you a detailed, written plan of action for your case. This is because passive lawyers don't know what they are going to do until they see what the other side does. Controlling lawyers, on the other hand, don't really care what the other side is going to do, because they are too busy planning what they are going to do. A controlling lawyer has an agenda, and the items on it get accomplished. A passive lawyer waits to find out the other side's agenda items and then either follows along or argues with them. A passive approach will often leave you at a disadvantage when the trial is upon you.

Ways to Bill

Flat Fees

Flat fee arrangements are for relatively simple legal matters.  For complicated matters involving professional employment matters or complex civil rights issues a flat fee is rarely used.  Recognize that a flat fee arrangement may not include appeals or other legal related matters not covered by the flat fee contract.

Retainer

For complex cases most attorneys will demand a retainer fee.  The retainer fee is a form of pre-payment which is usually based on the lawyer's hourly rate.  This is an advance payment to the attorney who will be  providing certain legal services on behalf of the client. This retainer fee is done to ensure legal services as is a sort of down payment.  The retainer fee is usually non-refundable, is placed into the lawyer's or law firm's business or trust account where they have access to it to pay any upcoming expenses associated with the services that are rendered on behalf of the client. If the fees go above the retainer amount, the client must pay that amount. So the retainer fee is just to get the ball rolling and not a complete payment for legal services rendered. The retainer fee is just an initial estimate and it prohibits the lawyer or his firm from representing a competitor of the client. Additional fees beyond the retainer are often required when a matter must go to court.  A legal retainer is also used by those who have need for a lawyer on a regular basis and in some cases is paid on a monthly basis thus ensuring access to an attorney when legal guidance or assistance is needed. Before accepting to pay a retainer fee, get the fee, terms and conditions in writing.

Contingency

A contingency fee is a fee that is not earned or paid until and unless a certain event occurs - in injury cases this means there has to be a monetary recovery for the injured person's damages.

A contingent fee arrangement provides that the lawyer does not get paid unless the client recovers money, in which case the lawyer gets a portion of it. Contingent fees are common in cases where an injured client is unable to pay a lawyer but a relatively large recovery is anticipatedCourts may not allow attorneys to provide services based on contingency when such an arrangement might bias the attorney to not provide services that would be in their clients best interests.The legislatures and courts in most states have become very involved in regulating and overseeing contingency fee relationships between attorneys and clients. In New York, for example, court rules provide that in personal injury and wrongful death negligence claims, any fee charged or paid to the injured party's lawyer in excess of certain schedules is unreasonable and unconscionable (subjecting the lawyer to disciplinary proceedings that can result in disbarment and  the forfeiture of the excess fee, if not the entire fee).

A contingency fee agreement is a payment arrangement that allows a plaintiff who has been injured and is seeking legal remedy to obtain legal representation even if they do not have money to pay a lawyer at the beginning of the case. A client does not have to pay a contingency fee up front, agreeing instead to pay an attorney a percentage of the client's award should they win the case. The contingency fee agreement will dictate the circumstances of payment, and how much an attorney is owed. The rules governing lawyers in your state will frequently determine when contingency fees are appropriate.

Contingency Fee Basics

The basic concept of the contingency fee agreement is that the client is out little or no upfront expenses; you as a client do not pay legal fees unless and until you win, and then the lawyer receives a percentage of your recovery as his or her fee. If you lose your case, there is no legal fee at all for the lawyer. Contingency fee agreements are customarily used for cases wherein a plaintiff is seeking money damages for some sort of injury. Depending on the nature of the case and the damages claimed, lawyers will not always accept a contingency fee arrangement.

Most states permit contingent fee agreements; however, some state bar organizations have become critical of contingency fee agreements as excessive fees and have worked to place limits on their use.  Advocates of contingency fee agreements argue that they provide a motivation for the attorney to obtain the best possible settlement for their client and provide a way for those who could not ordinarily afford to do so, to access the justice system. Visit the state bar website in your state or consult an experienced local attorney to find out if limitations have been placed on the use of contingency fees in your state.

Operating Under a Contingency Fee Agreement

After a contingency fee agreement is reached, the attorney will pay the expenses of the lawsuit. Expenses can include paying filing fees, arranging for payment of depositions, and paying for copies of medical records or reports. If your attorney is successful in obtaining a judgment or settlement on your behalf, the written contingency contract will control how your funds are dispersed. Some contingency fee agreements will operate under a graduated percentage contract.  For example, if a litigation lawyer has to file a lawsuit and go to trial, his or her agreement may provide for a higher percentage because more effort is required for litigation. If the attorney does not have to file a lawsuit, but instead resolves your lawsuit through mediation or another form of alternative dispute resolution, the contingency agreement may provide for a smaller percentage. Some contingency fee contracts provide for expenses plus a percentage. 

These are the fees permitted in the state of New York:

  • Flat Fee (most typical): 33 1/3% (one-third) of the sum recovered
  • Sliding Scale: 50 % of the first $1,000 recovered, 40% on the next $2,000, 35% on the next $22,000 and 25% on any amount over $25,000

In either event, the percentage fee is calculated on the net sum recovered, meaning that the expenses and disbursements that the lawyer advanced for the case are deducted "off the top" and repaid back to the lawyer. The expenses and disbursements get deducted from the settlement amount and then the percentage is applied to the net amount.

 

Pro-Bono

Pro bono public means "for the public good". The term is generally used to describe professional work undertaken voluntarily and without payment as a public service.  Pro bono legal counsel may assist an individual or group on a legal case by filing government applications or petitions.  Pro bono counsel is sometimes paid for by private non-profit organizations who specialize in taking civil rights, constitutional law or human rights law cases.  In these situations the organization is often very selective about what cases they take.  Do realize that attorneys must be paid for complex cases.  Volunteer pro bono attorneys only handle simple legal advice and usually when complex litigation is involved there must be an organization or agency that pays the attorney fees - even though services might be a low cost or no cost to you. 

"All progress is precarious, and the solution of one problem brings us face to face with another problem."

Martin Luther King, Jr.

If you are a Victim/Survivor of Abuse

What can you expect from a lawyer?  

A lawyer is there to help you with your legal problem, but you must present your own case in a clear and concise manner.  The lawyer’s time is valuable so be organized and respectful when first introducing your case.  Take the time to research the basic legal issues of your case so that you can choose the correct type of attorney for your case.  Realize that individual attorneys have expertise in different areas of law, not every attorney will be fully competent in every aspect of every nuance of the law – especially in areas of legal issues in which they have not actively practiced.

Remember that it is up to you to satisfy yourself to the competence of the attorney of your choice.    The lawyer will want to interview you and see the relevant documents on your case so that he/she can have a basic grasp of what has happened to you. Sometimes they ask you to fill in documents or legal aid forms before you go. If you do this it saves an enormous amount of time, and helps the lawyer to concentrate upon the main issues. It helps a great deal to put the main points down on paper. You no doubt have many questions you want to ask. Write them down and make sure ask them.  If your case if a complicated one legally or has an involved history you may not be able to tell your whole story at the first visit.  Try to clearly tell the basic points of your case and answer questions put to you by the attorney.  

The lawyer’s job is to advise you upon the law, and to be your advocate through any mediation, arbitration or legal proceedings including a trial in court if necessary.  The lawyer will be accessing whether your case is a good case to go to trial or whether it would be more appropriate or expedient to settle the situation out of court.  The lawyer has to analyze the legal situation objectively if he/she is to help you properly.  A lawyer is not a therapist or psychological counselor.   A private practicing attorney does not usually get involved in a criminal prosecution of an abuser except perhaps in Qui Tam, Civil RICO cases.  Generally criminal prosecution is the job of the Department of Justice – State, Local or Federal, so initial investigation is usually the job of the police, investigating agencies and the Attorney General’s Office in conjunction with the US Attorney’s Office.   The District Attorneys or US Attorney prosecutors decide based on the strength of the evidence whether to bring a criminal case in front of the court.

Remember

  • Law is complicated and is a time intensive process, presenting a case legally is never easy and there are bound to be frustrations along the way.
  • It may take years to get progress in a legal case, meanwhile life as it exists goes on – often the situation for the survivor/victim can worsen before there is any legal headway gained.
  • Many have devoted great effort and financial resources to a legal battle and still not won their case.
  • There are statutes of limitation on when you must proceed legally with your case or lose the right to take the defendant to court at all.   If you were a child when you were abused and now are an adult, you have many difficult legal hurdles before you can bring your abuser into a court of law.  Evidence will have disappeared, witnesses will have forgotten or been intimidated, reconstructing events can be very difficult and the trauma will have changed the victim in ways that make it difficult for the survivor/victim to testify.
  • Civil Action – you may be entitled to sue someone for the personal injuries you have suffered as a result of the abuse. But the cost of this litigation must be paid – the loser pays the court costs.
  • You have to show someone is to blame. You have to show negligence, or sue your abuser for the assault. You have to show that the negligence caused the injury.
  • Courts have jurisdictions or areas that they cover - you must present your case to the court that has jurisdiction. 
  • Sometimes cases are settled out of court between the two parties – if they can reach a reasonable settlement the victim may never have to go to court and give evidence.
  • The Civil Court can order the defendant to pay compensation and court fees.  The Civil Court has no power to punish the abuser.  That function is reserved for the Criminal Court.
  • Although legal aid is available in some locations – it is very limited and usually does not involve taking cases to court.
  • There are non-profit organizations that offer legal assistance but they are extremely selective about what cases they take and usually decide based on a major legal issue that they wish to pursue and the case that best represents that issue. 
“Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around.”

― Leo Buscaglia

Medical Whistleblower Advocacy Network

MEDICAL WHISTLEBLOWER ADVOCACY NETWORK

P.O. 42700 

Washington, DC 20015

MedicalWhistleblowers (at) gmail.com

CONTACT


"Never impose on others what you would not choose for yourself."  Confucius

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

Theodore Roosevelt- Excerpt from the speech "Citizenship In A Republic", delivered at the Sorbonne, in Paris, France on 23 April, 1910