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david giacalone

With an open mind, I went to the Miller & Zois website, hoping to find "real information of assistance to injured victims" on a crucial issue -- the amount of the fee to be paid. Unfortunately, but not surprisingly, there was not a word on how to negotiate a fair contingency rate (or even that such rates were negotiable). If injured victims or lawyers would like to learn about this topic, and find an ethically-appropriate Sample Form, I suggest they go to the Injured Consumer's Bill of Rights for Contingency Fees. More can be learned at this post and the linked materials.

Quick summary: the percentage fee charged should reflect how likely the client is to win, how much money is likely to be rewarded and collected, and how much work and expense the lawyer is likely to put into the case. The "standard contingency fee" that is charged by the vast majority of lawyers is usually the maximum fee allowed in the jurisdiction. Potential clients should negotiate for a rate in line with the criteria above, and the lawyer should give the client a good faith evaluation of the case, with all the information needed to be able to negotiate fairly.


David: I once heard someone say about someone else, "When it's one of his pet peeves, he loses all sense of objectivity or proportion."

That's how I feel reading your veiled criticisms of Miller & Zois. The firm does in fact provide lots of "real information of assistance to injured victims." That the firm has not provided exactly the sort of information that you demand about contingency fees on their website does not mean that they are not providing it to clients in another fashion.

Even though your comment amounts to comment spam,* I'll keep it up because I happen to agree with what you're saying. It's still unfair to Miller & Zois, however.

With all this said, thanks for reading and for your comment.

*I'm defining comment spam to mean the interruption of a thread to provide information unrelated to the thread that's of particular interest to the writer. It's well known that contingency fees are one of your principle areas of scholarship. In addition, you direct the reader back to your own site.

david giacalone

Evan, I think we should ask a few clients just how relevant my topic is for them, before deciding this is comment spam.

A potential client going to the M&Z FAQ page will find nothing about fees when clicking on "How should I choose a personal injury lawyer?". The only mention of fees comes in the Answer to "Do I have to pay you any money when I hire you?" M&Z says:

"No. Miller & Zois is a 100% contingency fee personal injury law firm. We are only compensated if we obtain a recovery for you. In fact, if you do not recover anything from your accident and we spend money preparing your case, we absorb that loss. Miller & Zois never asks clients to front expenses and costs."

By failing to inform the consumer that fees are negotiable and what factors are relevant, M&Z -- despite all the other good it may do with this site -- continues the conspiracy of silence among personal injury lawyers that allows the vast majority of them to charge the vast majority of their clients a "standard" fee that is the maximum permitted in their jurisdiction. That is not putting the client's interests first, and the idea that it's irrelevant to a website that purports to inform clients about personal injury cases is a sad comment on our profession.

By the way, you say you agree with my main point, and you praise the forms provided by M&Z, but you have never mentioned the Bill of Rights form that I created and that has now been up at my website for over 8 months, despite my having brought it to your attention more than once. It tracks the ABA's authoritative ethics opinion on contingency fees, but I would be more than happy to consider any changes that would make it worth a nod from your weblog.

p.s. The lawyers that need the kind of forms provided by M&Z are doing (I hope) the run-of-the-mill p/i cases that are particularly appropriate for fee negotiation. Yet, unlike lawyers who handle far more complex cases, they are the ones most likely to present clients with a Standard Contingency Fee contract as a fait accompli. Their clients are most in need of good information on this subject.


David: You write: "Evan, I think we should ask a few clients just how relevant my topic is for them, before deciding this is comment spam."

This weblog is for lawyers, not clients. I don't care if potential clients read it, of course, but they are not the intended audience. That's why in my opinion, you're hijacking the thread. You have your own weblog on which to present your information. I assume it's indexed by Google and other search engines. That means others can find it. For you to put your advertisement here is just plain rude no matter how well intentioned you think you are. By the way, are you also going to put your advertisement on My Shingle, or do you have some different standard for Carolyn Elefant? I'm not suggesting you do it; of course I think you shouldn't.

You also complain that I haven't mentioned your Bill of Rights form, but if you'll reflect a moment, you'll remember that I have engaged you again and again about contingency fees at the Legal Underground weblog. I even spent most of a day one weekend writing back and forth with you about contingency fees after you needled me for weeks or months about my "conspiracy of silence."

P.S. Here's another locale for your advertisement: Tech Law Advisor. Honestly, maybe I should just shut down this weblog and turn it over to you.


While it is true that contingent fees can be negotiated, as I have long indicated on an article I wrote which I [i]won't[/i] link, it is also true that many law firms have no interest in negotiating their contingent fees. Which means that such an explanation on their site would relate only to theoretica [i]other[/i] law firms, and could complicate their interactions with clients.

david giacalone

Evan, I've been trying for a few hours to post on my own website on this topic, but the webserver is not behaving. In the post, I link to you, Kevin and Carolyn. I learned about the M&Z website here, on your site, where you quoted M&Z as wanting to assist inured victims and lawyers. That is why, I wrote here.

Because lawyers do indeed have an ethical duty to charge a percentage contingency fee that meets the criteria listed in the Bill of Rights, the Form is quite relevant to this thread. Lawyers would not have to negotiate, it they offered such a fee (appropriately tailored to each case), but since they seem to want to start with the Standard Fee, they need to inform the client of the relevant factors, give them the information and be willing to negotiate.

There is a very big difference between the two of us "debating" the issues surrounding contingency fees (it's been a long time in weblog years) and you specifically saying, "here's a link to a Bill of Rights for Contingency Fees that I recommend be given to clients by personal injury lawyers." If you agree with the position, have the courage to act on that belief in public.

Blog knows, I would hate to be rude. It is so difficult for your readers to skip my Comments if they are offended or made guilty by what I have to say. Please send me a bill for the percentage of your bandwidth that my Comments are utilizing.

david giacalone

p.s. "Advertisements" are used in commerce to sell things; as you know, I have no financial stake in the ethics of contingency fees. I'm afraid it is those who do who don't want to hear my message.


David: Luckily, I have some binding authority I can cite to you on the issue of comment spamming. Remember when I took Christopher King to task for using my posts as a jumping off place to write about his own burning issues? Here's the post? "Get Yourself a Weblog, Mr. King." Here's what you said in the comments to that post in response to my question as to whether I was being too harsh:

No, you're not being too harsh about Lawyer King, Evan. He's appeared at my website recently. I think I'll drop a blurb about him at f/k/a today and help him find his way into the e-shame hall of infamy.

At your own website, you said this:

I'd like to join with Evan Schaeffer and tell lawyer Christopher King that his Comment Spam -- such as here -- is not welcome at this website. Mr. King, feel free to leave Comments that are on-topic, but please use your own website to promote your pet peeves. Of course, neither is any other kinds of comment spam welcome (that means you, cialis sellers).

I feel like in these comments, you're promoting your own pet peeves at a time when I was trying to point out something good that Miller & Zois was doing for other lawyers that had absolutely nothing to do with the issue of legal fees. You can rag on me or my firm all you want about fees, since I'm asking for it with a public weblog. But here you've added your off-topic comments to a post about a third party--the Miller & Zois firm--and it makes me feel like a terrible host and has me wishing I wouldn't have done the post at all.

david giacalone

I am truly sorry that this has upset you, Evan. As I said in the piece I finally was able to post tonight at f/k/a:

Of course, I have no way to know what Miller & Zois tells their own clients about contingency fees. That is not my point. M&Z has built a website aimed at a statewide and nationwide audience. It says "we get thousands of hits every day to this area of our site." The Help Center presents a golden opportunity to give lawyers and clients important information about reasonable contingency fees -- or, to continue to allow lawyers to be in ethical denial and clients to be in ignorance of their rights.

Please note that my first Comment is 200 rather-mild words. It states my disappointment that one issue that is crucially important to p/i clients (and, clearly, to p/i lawyers) was not addressed on the website. I then gave a very succinct summary of the important information that I believed was missing, linking to a useful Sample Form, and more discussion. [Yes, like M&Z's documents, they were materials that I created, but I'd be very pleased to instead link to better matterials created by others, if you let me know where to find them.]

Evan, you could have ignored my first Comment, or simply said "I consider it a little off-topic, but I still believe the M&V Help Center is a great resource." That would have been the end. Instead, you ratcheted up the tension, and surely must have known I would reply.

One last point: I disagree that a comprehensive overview of the running a p/i case has nothing to do with fees. I don't plan to Comment further on this post, so I hope you can salvage your weekend in Wherever County.


Evan -

Thanks for sharing the link. I think it is important that attorneys in a practice area share information. This is especially true for solos and small firms. Lets face it: we are battling big firms with unlimited budgets who have access to millions of forms and prior research. Kudos to Miller and Zois for sharing this information!



Jonathan -

"Lets face it: we are battling big firms with unlimited budgets who have access to millions of forms and prior research."

Perhaps you are thinking of a different practice area. Or making excuses for yourself in advance. But that certainly isn't true of auto torts. It would be foolish to have an "unlimited budget" for a low-impact soft-tissue injury case. Insurance companies make money by being stingy, not by being foolish. And their stingingess extends to the hired help (i.e. defense attorneys), not just claimants. Why do we put up with it? Volume. And stability. (Perhaps David should ask some insurance companies to share their fee negotiating tips).

I don't know. Maybe you're thinking of a different area of law. But when it comes to insurance defense, I find plaintiff attorneys have some strange ideas of what it's like on this side.

I'd also like to thank Evan for sharing the link. It's a real hoot.

"This will help prevent the large gaps in treatment, missed appointments, no-shows and the failure to be properly discharged. If you, or a staff member, is monitoring their physical therapy appointments, MRI appointments, etc., you are less likely to be faced with large gaps in treatment and no-shows on doctors' visits."

Yes, heaven forbid the mild nature of your client's injuries be revealed by the failure to get treatment. Treatment. Treatment. Treatment. Whether you need it or not. Everybody loves a trip to the chiropractor! While you're there, have him run some of those $500 tests that don't seem to effect the treatment but sure help the value of your case.

And the last sentence here is an excellent save:

" If you get a call from a potential client very shortly after an accident, make sure you impress upon him the importance of getting checked out right away. I explain to my potential clients that I am not a doctor, and I am unable to diagnose why he or she is feeling pain following an accident. It is in your client's best interest to be examined as soon as possible following any accident. I know some attorneys are uncomfortable recommending that their clients visit the ER for many reasons. Fear of this referral becoming an issue in front of a jury is outweighed by the real need for people in pain to be examined by a doctor."

Generally, people in real pain don't need to call a lawyer to know to go to the doctor. It really is that simple. But it is an excellent line of BS.

I don't mean to be overly snide, but there are a few elements of that site that are more excellent tips for creating the appearance of a valid claim than tips for actually dealing with a valid claim. I'm not suggesting that the plaintiff's bar is solely responsible for this state of affairs (settlement offers being determined by multiples of specials). I'm just slightly amused by the somewhat shameless fashion in which it was presented.

And, of course, I'm completely opposed to any effort to make plaintiff attorneys better at their jobs. (I'm kidding.)

On that note, I will offer a tip that some of my plaintiff attorney friends have learned the hard way - as a reward to anyone who has read this far: When you're negotiating write-offs with the chiropractor, always get it in writing. Those guys can be ruthless.

Dave Swanner

I think it's great attorneys sharing information through the internet, rather than only through organizations.

I don't feel it's a big deal that they don't have David's Bill of Rights on their website.

I understand that David considers the way the ethics rule is written and the general practice is at odds. It's a valid point of discussion.

As a plaintiff's attorney I know that I discuss this with my clients any time where it appears that the attorney's fees would be inappropriate. (Although there is nothing on my website about it).

Ron and Lois have great forms and have done a good service to other attorneys by making these forms available.

Ron Miller

I just signed on - as I do regularly - to read this excellent blog. I am amazed that our website, which continues one our mission statements to continue to give back to the legal community, has generated such interest. I want to briefly comment on the two issue that are raised:

1. The suggestion that a garden variety personal injury case is particularly ripe for fee negotiation is incorrect. Fifty percent of our injured clients do not have an objective injury. These clients make up less than 10% of our fees. We want to keep handling these cases because these injured clients deserve compensation and, frankly, it expands our client base (because we fight for them like we do every other case). Because of the way we pay our employees and effort and attention we still pay to the smaller cases, they are simply not profitable for us. I just got a recent email from my partner asking for my thoughts on whether we should start referring all of our smaller cases out for this very reason.

We don't feel an obligation to discuss fees on our site. We do not negotiate fees on our cases. We tell clients that our fees are in line with what other lawyers charge but that I can guarantee them we could call a few lawyers and find someone who would do it for a lower contingency fee.

Many lawyers negotiate fees. We do not. I am the(absentee)owner of a health club. Everyone pays the exact same monthly fee there as well. I think negotiating fees is great when buying a car but not when you have an ongoing relationship with someone. In that case, the person who pays X fee is always mad at themselves (and us) for not negotiating harder to get a "better price." I think it is a bad model for a relationship that has to be based on consistency and trust.

We do not address this on our website. I certainly do not think it is fair to write that our site "disappoints" regardless of quality because we did not address a pet topic of one reviewer.

2. The suggestion made by "Mobar" that the article he quotes from encourages unnecessary treatment is incorrect. That article, written by my partner and distributed by the Maryland Trial Lawyers Association to all lawyers who join the auto negligence section, does not do that. It blows me away how many people with serious (and objective for the skeptics) injuries do not seek emergency medical treatment. It also amazes me how many people who have serious injuries do not get the therapy they need. If you assume this language is in an effort to encourage treatment for those how are not injured, well, if you are holding a hammer in your hand, you tend to see more things as nails. I would encourage "Mobar" to review our entire site.

If anyone out there has any material they would like to put up on our site, particularly motions in limine and other motions, please send them to us.

Evan, do us all a favor and keep on doing what you are doing. This is a great site.

Ron Miller

Moe Levine


Your comments will go right over the head of david giacalone, whomever he happens to be.

I am sure he has never considered that what he proposes "is a bad model for a relationship that has to be based on consistency and trust."



It's a shame Ted is no longer practicing. I need someone to defend me from "Ron Miller" and his scare quotes.

Mr. Miller, I did peruse your site. I won't claim to have read the entire thing, but I did look to see if you had any tips for evaluating clients. The advice given assumes an injured client (more of that hammer and nail stuff, I suppose). It is, by and large, excellent advice. But it's also excellent advice for creating the appearance of a valid claim.

I know that not all people get the treatment they need. That's why I started my sentence with "generally." And I think most reasonable people can agree that generally, an injured person doesn't need to call a lawyer in order to know they need to see a doctor.

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