Wednesday, 2 February 2011

My top tips for selecting a lawyer

IMPORTANT NOTE:  There were important changes to funding arrangements for Claimants introduced for Conditional Fee Agreements entered into after 1st April 2013.  The main changes are that unsuccessful Defendants will no longer be required to pay Claimant's success fees or After The Event Insurance premiums.  Conversely there is protection against the possibility of having to pay a Defendant's costs.  No injured Claimant or bereaved family should be denied access to good quality legal advice and representation and I remain committed wherever possible to providing my services to injured cyclists at no cost to them.

Take your time and avoid the ambulance chasers
If you have been unfortunate enough to have been involved in an accident your first priority is to recover your health as best you can.  There is usually no desperate rush to instruct a lawyer, so avoid a hasty selection of one who advertises in a hospital or on daytime television.  These may be suitable for your needs, but there are a large range of lawyers out there who are not all of uniform quality.  Take your time to select a lawyer that you are confident will do the best job for you.

Personal Recommendation
If you know somebody who has had to use a lawyer in similar circumstances, ask them how it went.  As with any profession or trade a personal recommendation from somebody you trust and who has no vested interest is very important.

Clubs/Organisations/Insurance
If you have had a cycling accident and are a member of a cycling organisation that offers legal expenses coverage, then you are unlikely to go wrong using this facility.  There are teams of specialist cycling lawyers who are used by the cycling organisations because they have proven expertise in this work.  On the other hand if you have legal expenses insurance of a more general type, very possibly included in your home insurance, exercise more caution.  You will, or should, normally be in a position to select a lawyer of your choice.  Go to the lawyer you wish to instruct, who may well not be the same lawyer as your insurer would wish to instruct, show them your insurance policy and ask your preferred solicitor to deal with your insurer.

No win/no fee
If you have no such insurance entered into before the accident, do not be put off contacting the lawyer of your choice.  If your case has at least a 50/50 chance of success (the vast majority of cycling accidents fall into this category), your lawyer will enter into an arrangement with you that means you will pay only if you win the case, in which event the costs will almost invariably be covered by the other side in any event.  Your risk of having to pay costs to the other side should you lose can be covered by a special insurance policy taken out after the accident usually also designed to cost you nothing since the premium is payable only should you win the case and is then recoverable from the other side.  Nobody should be deterred from seeking access to justice on grounds of cost.

Look for a lawyer with the best possible expertise
All lawyers have at least some knowledge of the law.  However if you have been knocked off a bicycle, it is obvious that of two similarly qualified lawyers the one with cycling experience will be better able to conduct your case.  No personal injury lawyer will tell you that he or she is not the best person to go to with a cycling case but there are specialist cycling lawyers out there and I would recommend you use them.  They will be very used to insurers who contend that, for example, you should have been wearing a helmet and other cycling specific issues.

Using a barrister
Historically barristers have been responsible for conducting cases in the Courts and have unrivalled experience of what Judges actually decide and what sums of money Judges actually award.  This remains generally true although some solicitors do now also have and exercise rights of audience before the Courts.  In all but the smallest or most straightforward cases I would recommend that you use a barrister.  Even if you do have a very experienced solicitor, a decision as to whether or not to accept an offer or to go to Court is likely to be of enormous importance to you.  Going to a barrister at the least provides an independent second view as to whether a proposed decision best serves your interests.  Barristers will also in appropriate cases act on a no win no fee basis so again, no one should be deterred from using a barrister on the grounds of cost.
Do discuss with your solicitor the choice of barrister; once again there are a very large number of barristers who specialise in personal injury work but far fewer who are active cyclists.  Bear in mind that the barrister best suited to your case may not necessarily be the barrister with whom your solicitor already has a close working relationship.
Usually a barrister will be instructed by your solicitor.  However it is now possible to instruct many barristers yourself under direct public access rules.  If you do approach a barrister directly and that barrister believes that your interests are best served by instructing a solicitor then he or she is obliged to tell you that.  Barristers cannot handle your money or serve documents on your behalf; they can however provide you with advice and conduct advocacy services for you.  You are potentially a consumer in a highly competitive market and instructing a barrister direct may be less expensive than instructing a solicitor.  Either way your lawyer should give you a very clear indication of charges before you make any commitment.
It is perfectly legitimate to instruct a barrister directly for a specific task, such as to give a second opinion, where you have existing lawyers.

Using a QC (Queen's Counsel)
A QC is a senior practising lawyer (can be a barrister or solicitor).  About 10% of barristers are QCs and a much smaller proportion of solicitors are.  It is appropriate to use a QC in cases of high value, complexity or importance.  In the cycling field I approach the following as suitable for the intervention of a QC:
1. Cases of high value (which will include significant brain injury or paralysis)
2. Cases arising out of a fatal accident
3. Cases where the other side are alleging contributory negligence on the grounds of failure to wear a helmet or high visibility clothing or not using a cycle track.

Finally, if you have been involved in a cycling accident, feel free to drop me an email.  I have a passion for cycling and will do my best to point you towards the best legal representation for you.