How to find and evaluate a birth injury attorney

Building your own shortlist

Do not start with an advertisement. Adverts tell you who spends the most on marketing.

Sources worth using

Your state bar association. Confirms who is licensed and in good standing, and many run a referral service. ¹

Other parents. Ask in a condition-specific support group, and ask what the experience was like rather than what the outcome was. Process tells you more.

A lawyer you already trust. Any lawyer, in any field. Referrals between lawyers tend to be well informed, because their own reputation is attached.

Your state's parent center or Family-to-Family center. They will not recommend a firm, and they often know which families have been through this. ^{3 4}

Court records. Public dockets in your county show who actually files and tries these cases.

Aim for three

Speak to at least three. Consultations are free in this field, and the comparison is the point. You will not know what a good answer sounds like until you have heard a weak one.

The questions to ask

Ask every one of these, of every firm, and write the answers down. The attorney interview scorecard gives you a printable sheet.

Experience

1. How many birth injury cases have you personally handled?
2. How many have you taken to trial, and when was the last one?
3. Have you handled cases involving my child's specific injury?
4. Who in your office will actually work on this case day to day?
5. Will you be the person at trial?

This case

1. Having heard the outline, what are the main questions you would want answered?
2. What records will you need, and will you obtain them?
3. What kind of experts would you need, and how do you find them?
4. What is the deadline in my case, and what is your basis for that?
5. What are the weaknesses you can already see?

Money

1. What is your contingency percentage, and does it change if the case goes to trial?
2. Are case costs deducted before or after your fee is calculated?
3. Who pays the costs if we lose?
4. What is a realistic estimate of costs in a case like this?
5. Does my state cap fees in medical malpractice cases?

Process

1. How long do cases like this usually take?
2. What will be asked of my family, and when?
3. How often will I hear from you, and from whom?
4. Who do I call with a question?
5. What happens if we disagree about settling?

What a strong answer sounds like

You are not scoring confidence. You are scoring specificity.

Weak: "We have handled hundreds of these cases." Strong: "I have personally handled about fifteen HIE cases in the last decade. Two went to trial. Here is roughly how they went."

Weak: "You have a strong case." Strong: "I cannot tell you that yet. I would need the monitoring strips, the cord gases and the MRI, reviewed by an obstetrician and a neonatologist. That takes a few months."

Weak: "We will handle everything." Strong: "You will need to sit for a deposition, probably in year two. It usually takes a day. I will prepare you for it over several sessions."

Weak: "Standard fee." Strong: "Forty percent, and costs come out before the fee is calculated, which means the percentage is applied to a smaller number. Here is a worked example on paper."

Weak: "These cases are worth millions." Strong: "The value depends on a life care plan that has not been written yet. Anyone giving you a number today is guessing."

The pattern is the same throughout. A lawyer who gives you specifics, including uncomfortable ones, is telling you how they will communicate for the next four years.

How contingency fees actually work

A contingency fee is a percentage of what is recovered. If nothing is recovered, no fee is owed. ²

Professional conduct rules require the agreement to be in writing and signed, and to state how the fee is worked out and how expenses are handled. ²

The part that catches people

There are two separate things: the fee and the costs.

Costs are what it takes to run the case: obtaining records, expert review and testimony, depositions, filing fees, exhibits. In a birth injury case, experts alone can be a very large number.

The order matters enormously.

If costs come out first, the percentage is applied to what is left.

If the fee is taken first, the percentage is applied to the whole recovery, and costs come out of your share afterward.

The second arrangement leaves you with less from the same settlement. Both are used. Ask which one, and ask for a worked example on paper before you sign.

Other things to settle in writing

• What happens to costs if the case is lost. Many firms absorb them. Some do not.
• Whether the percentage rises if the case goes to trial or to appeal.
• Whether your state caps fees in medical malpractice cases. Several do. ²
• Who approves a settlement for a child. A court almost always has to, and that hearing reviews the fee too. See settlements.
• What happens if you change lawyers. The first firm may have a claim for work done.

Read the agreement before signing. Take it home. A firm that will not let you take it home has told you something.

Red flags

• A guarantee, or a number, at the first meeting. Nobody can value a case before the records are reviewed and a life care plan is written.
• Pressure to sign today. There is no legitimate reason for that, and the deadline is a reason to be prompt, not to be rushed.
• Contact you did not initiate, particularly soon after a birth. Some states restrict this and it is a poor sign regardless.
• Refusing to say who will do the work. Some firms sign cases and refer them elsewhere. That can be fine, and you are entitled to know.
• Vagueness about fees and costs, or unwillingness to give a worked example.
• No answer on trial experience. Most cases settle. Cases settle better when the other side believes the firm will try it.
• Dismissing your questions, or making you feel difficult for asking.
• Any suggestion of altering or withholding records.
• Not licensed in your state, without a clear explanation of local counsel.

One that is not a red flag

Being told your case is weak, or being turned down. A firm that declines is telling you something useful, for free. Ask why. If two or three firms decline for the same reason, that is real information.

Comparing two firms

Once you have the answers, compare them on paper rather than by feel.

Score each one on:

• Specific experience with this injury.
• Trial record, and how recent.
• Who actually does the work.
• Clarity about fees and costs, including the order they come out.
• Whether they told you something you did not want to hear.
• How they answered the question they could not answer.
• Whether you understood their answers.

That last one matters more than families expect. You will be talking to this person for years, sometimes about your child's future, sometimes when you are exhausted. Being understood matters.

The attorney interview scorecard gives you a printable sheet to score against. It scores the answers, not the firm. It does not recommend anyone, and it does not send anything anywhere.

What to expect from the first meeting

It is free. Consultations in this field are almost always free and carry no obligation.

Take the records if you have them. If you do not have them yet, that is fine. See how to get your medical records. ⁵

Take your timeline. The delivery timeline builder prints one.

Take your questions, written down.

Take someone with you if you can. Two people remember more than one.

Do not sign anything at the first meeting. Take the agreement home and read it.

Ask what happens next, with dates.