It may be helpful to have someone who is familiar with the legal system - including the criminal process and “no-fault” insurance if your state has that - to advocate on your behalf.
While you do not have to hire an attorney immediately, or at all, many of our members have found it helpful to do so. Deciding whether, when, and how to choose a lawyer with the appropriate background and knowledge for your case can be challenging. This section provides some guidance if you decide to hire one.
Take all the time you need to find and hire an attorney. Do not feel you need to decide right away. If an attorney or “investigator” who is not a police officer appears or presses you before you are ready, you do not have to speak with them. They may not have your best interests at heart. It is considered unethical legal practice for an attorney to solicit clients at the scene of a crash or in the hospital. If someone on the scene or at the hospital attempts to give you a business card, you do not have to accept it.
Your insurance and the driver’s insurance will be an important part of the post-crash process. It is helpful to have a knowledgeable attorney walk you through what will happen. Your auto insurance, if you have it, might be important even if you are not in a car. The level and kind of insurance that the driver has may affect decisions about filing a civil claim or, if the driver is uninsured, what financial recovery you might get. Note that if the driver has minimal insurance or assets it may be hard to find an attorney, as the chances of a financial recovery may be slim.
REASONS TO consider hiring AN ATTORNEY
It will always be free to consult with an attorney, and we recommend contacting at least two attorneys.
You will be looking for a personal injury or tort lawyer. Below are questions to consider when interviewing attorneys. “No fee unless successful” - personal injury lawyers often work on a contingency fee basis, meaning they are paid only if they collect money for you. Contingency fees range from 20% to 50% of the recovery amount. Professional responsibility rules require a contingency fee agreement to be in writing and signed by you, the client.
The agreement must:
State the methodology for determining the fee
Set out any other expenses that you may be required to pay (Note that there may be some fees you will have to pay whether you collect money or not).
FINANCIAL BASICS OF HIRING AN ATTORNEY
You are looking for a lawyer who specializes in personal injury cases. A common legal term for this area of the law is “tort.”
Your state or local bar association will have a list of personal injury lawyers. We recommend speaking with at least two possible attorneys. Once you have a list, you can use these questions to help you choose one that is right for you.
This will be a difficult process so you need someone you trust, even when the information is not what you want to hear. Experience is important here, as is commitment. Pick someone you are comfortable with.
how to find an attorney
There are hundreds of lawyers who help families with compensation claims after the injury or death of a loved one in a traffic crash.
Many may contact you, or someone may recommend a person they know. If you are a union member, your union may have a list of recommended lawyers.
It is a difficult choice, but there are questions you may want to ask before you hire an attorney. You likely want a lawyer who has significant successful experience with your type of case and can provide additional support if, in addition to a civil court proceeding, there is a criminal court proceeding (if this is something you want to pursue or participate in).
suggested questions
The following questions can be used to evaluate an attorney. Feel free to tailor these to your specific situation.
things to consider when choosing an attorney
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What percentage of your practice is personal injury/wrongful death cases?
How long have you been doing this work?
How many cases have you brought in the past five years similar to mine? (Ask the attorney to be specific.)
How many No-Fault claims have you arbitrated in the past three years, and what was the outcome?
Have you taught, written or lectured on local Vehicular and Traffic Laws? (If yes, ask the attorney to explain further.)
What experience do you have in relation to [insert own situation]? (e.g.transit, taxi, hit-and-run, etc.)
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During the last three years, approximately what percentage of the personal injury cases at your firm have you settled and how many went to trial?
When did you last go to trial? Did you try your own cases? What percent were successful?
In what percentage of cases have you obtained personal payments from defendants in excess of available liability or other insurance?
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Can you please describe any successful, relevant experience in wrongful death cases that you have had in the past three years?
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What is your experience and success related to cases against the municipality for driver negligence (police, sanitation, etc.)?
What is your experience and success related to cases against the municipality for road defects?
What is your experience and success related to cases against the transit/public bus system?
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What will you do if the driver only has the minimum liability insurance and there is no one else to sue?
How many low-insurance claims have you brought to trial in the past three years?
What experience does your firm have with the uninsured motorist fund or the state office of crime victim services (if applicable)?
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Will you assist with the criminal charges, if this is something I want to pursue?
How many times in recent years have you assisted with bringing criminal charges?
What specifically will you do?
Will you attend meetings with the District Attorney’s/local prosecutor’s office?
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Will you assist with the local administrative option if this is something I want to pursue?
How many times in recent years have you done this
What specifically will you do?
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Is your practice primarily a plaintiff practice (meaning do they only represent people like me)?
Do you also represent the interests of insurance companies or corporate defendants? (If so, how often?)
Are you or your firm a member of any plaintiff attorney organizations (e.g.American Association of Justice)?
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Are you involved in safe streets advocacy?
Are you on the board or active in any organization that promotes street safety?
Have you provided any pro bono work on behalf of any street safety group?
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Can you share more about your firm’s history and experience?
How many attorneys work on car crashes? How many attorneys are there overall in your firm?
Navigating your state’s court system can be confusing for non-lawyers. Every state’s system is different, but there are some commonalities.
There are several kinds of state courts.
Criminal Courts hear cases in which the government - the district attorney, D.A., prosecutor, county attorney, or state attorney - has charged, or filed a case against someone, called the defendant in court, for committing a crime.
Every state defines crimes differently. There are generally two levels of criminal charges: misdemeanors, a crime punishable by less than 12 months in jail. Other punishments for misdemeanors, either alone or in conjunction with jail time, include community service, probations, or fines. Felonies carry stiffer penalties, including jail time of more than 12 months. Law enforcement will determine if the driver committed criminal acts that led to the crash. Factors that may contribute to a criminal charge of the driver include speeding, driving while intoxicated (DWI), roadworthiness violations, and hours of service (i.e., whether a commercial driver has been operating the vehicle in excess of permitted time). Law enforcement will also consider whether traffic and weather conditions may also have contributed to the crash.
Civil courts hear cases in which one person, the plaintiff, has sued (filed a case) against another person, the defendant, because of a non-criminal issue or dispute between them. Civil courts can hear cases about injuries from crashes; they can also hear cases arising from insurance claims. Courts often charge filing fees when a lawsuit is filed in court
State courts may have different names, and there may be different levels of courts, depending on the seriousness of the crime charged (criminal courts) or the amount of money sought (civil courts). This nomenclature can be very confusing. The main trial court in New York State, for example, for both civil and criminal cases, is called the Supreme Court even though it is not the top court in the state.
Many states and large cities have separate courts, called Traffic Court, that adjudicate traffic tickets. You may be able to find information about your state’s traffic court here.
Finally, some states and municipalities have set-up restorative justice processes through their criminal court or independently where the parties involved talk about what happened and collaborate on an appropriate solution — with accountability and fairness — outside of a more adversarial court proceeding.
what you need to know about the court system
“My daughter Bethany was killed by a speeding driver who broadsided her car. She never regained consciousness and died four days later, leaving behind a young son, a grieving husband, and devastated parents.
With a court date set, I prepared my Victim Impact Statement. It could be no more than five minutes. I had to carefully consider language, focusing on the driver’s actions. I explained that the driver’s speed had doubled the crash’s impact. I characterized her actions as willful and careless. I included the driver’s prior convictions for these same violations - information the prosecutor and detective had failed to investigate. The judge ordered this entered as evidence, and in the final ruling, quoted my statements verbatim.
While the sentence was in no way proportionate to our loss, the careful and painful preparation of a statement sharing Bethany’s story resulted in a small measure of justice.”
—Patty Avery, mother of Bethany Schklar
“My husband Hutch and my 16-year-old daughter and her friend were doing their normal everyday walk to take the subway to school and work when Hutch was hit by a speeding driver. He was thought to be dead at the scene but he survived. He sustained a significant traumatic brain injury and has lost a third of his brain. But somehow he has made tremendous progress and is an active FSS member who inspires others who’ve had serious brain injuries. The person who hit my husband was a man of means, but he hid his assets and tried to declare bankruptcy in order to not pay any of the suit even though we continue to have medical expenses that aren’t covered. Our lawyer advised us to settle without a trial, so the driver was not held accountable for anything. My advice is, make sure to pick a lawyer who will do what you want and what is best for you.”
—Donna Ganson, wife of crash survivor Hutch Ganson
“I kissed my 12-year-old son Sammy goodbye the morning of October 8, 2013, and I never saw him again. Sammy was kind, bright, and caring and had a dimpled smile that lit up a room. His life was cut short in an instant.
For me, the traffic court hearing held to determine if the driver’s license should be suspended was important. I wanted to make sure they set an example and started to get dangerous drivers off the road. I had already been quite public in fighting for change. But even I had no idea how painful it would be to sit in a small conference room across the table from the reckless driver who killed my son. My advice would be to be emotionally prepared if you give a personal impact statement and have someone you can lean on come with you. Please know, we at FSS have experienced these painful hearings and can support you through the process.”
—Amy Cohen, mother of Sammy Cohen Eckstein
FSS NATIONAL RESOURCE GUIDE
We are here for you.
We are here for you.
Please contact us at any time at info@familiesforsafestreets.org
or (844) 377-7337
