PERSONAL INJURY FAQ

Most Maryland personal injury attorneys are paid through contingency fees. A contingency fee basically means that the client does not pay anything to the attorney unless there is a settlement with the insurance company or judgment from the court. When there is a settlement or judgment, the attorney is typically entitled to a percentage of that total settlement or judgment amount. When an injured person is considering hiring a lawyer, he or she should read the fee agreement very carefully. Before signing the fee agreement be sure to check what percentage of the settlement the attorney is charging as a fee.

Some attorneys will charge fees that are too high. If the fee agreement includes a fee of more than 33% for a case that settles, that lawyer is a rip off artist. Most Maryland accident injury cases settle and a fair law firm, like the lawyers at Portner & Shure, charge a 33% fee for a case that settles.

Usually, a personal injury lawyer's fee agreement will have a different fee for a case that goes into litigation. When a case goes into litigation that means that the case did not settle because of a disputed issue. Common issues insurance companies dispute are low property damage, liability, and reasonableness of medical treatment. A case that is put into litigation will be decided by a judge or jury. Litigation requires much more work including pleadings, discovery, trial preparation, travel, and trial. The additional work often increases the attorney fee to 40% of the total judgment. If your accident lawyer is charging you more than a 40% fee for a case in litigation or more than a 33% fee for a case that settles, that attorney is ripping you off.

The concept of "assumption of the risk" is fairly basic. For example, beekeepers assume the risk of being stung and rock climbers assume the risk of falling to their death. Simply put, a person who engages in risky activities cannot complain when the result is injury or death. The legal concept of "assumption of the risk" is based on the same principle but does require a more detailed explanation.

In Maryland, a person assumes the risk if that individual voluntarily engages a particular action or inaction known to that person to be inherently dangerous. If that particular action or inaction leads to an accident which results in injury there can be no claim of negligence. For example, if a person is having a particularly good time and decides to dance on top of the bar, that individual cannot claim negligence if he or she slips on a spilled drink and falls.

The assumption of the risk is a favorite argument of defense lawyers in Maryland, however, it is seldom applicable in an auto accident, malpractice and product liability cases. The assumption of the risk defense is often utilized successfully in Maryland slip and fall cases.

In order to establish the defense of assumption of the risk the defense attorney must establish two elements:

• Cognizance of a danger (plaintiff's knowledge and appreciation of the danger)
• Volition in encountering it (plaintiff cannot be forced or compelled)

The requirement that the action or inaction is voluntary makes the assumption of the risk defense inapplicable in intentional tort cases. Assumption of the risk is frequently confused with contributory negligence. The difference between the two concepts is that contributory negligence bars recovery because it is a cause of the accident, whereas assumption of the risk bars recovery because it is a previous abandonment of the right to complain if an accident occurs. Assumption of the risk involves the negation of a defendant's duty, but contributory negligence is a defense to a breach of duty.

Maryland is one of five states that uses contributory negligence instead of comparative negligence. The majority of states use the doctrine of comparative negligence which means, when both the victim and the defendant contributed to an accident by failing to exercise a reasonable degree of care and caution, each party's degree of liability is apportioned. The total amount that an accident victim is awarded is lessened in direct relation to his or her own negligence. For instance, if a jury found that an accident victim was entitled to $1,000,000.00 in damages but found that the victim was 20% at fault, the jury award would be $800,000.00.

Maryland's contributory negligence doctrine is more cutthroat and can be a complete bar to an injured victim's recovery. Maryland personal injury attorneys often struggle to help clients because of this all or nothing rule. Under contributory negligence, the accident victim's failure to exercise a reasonable degree of care and caution, no matter how slight, is an absolute bar to recovery. If the defendant's lawyer can convince a jury that the victim was only 1% at fault, that individual will not recover any damages. Lawyers have been struggling against the doctrine of contributory negligence since it was adopted by the Maryland Court of Appeals in 1847. In 1868, accident victims received some reprieve when the Court of Appeals adopted the last clear chance doctrine. The last clear chance doctrine allows recovery by an accident victim, who would otherwise be barred from recovery due to contributory negligence if the defendant had the last chance to avoid the accident. When the defendant is negligent and the victim is contributorily negligent, the Plaintiff can still recover damages if there is a showing that something new or sequential affords the defendant a fresh opportunity to avert the consequences of his original negligence.

In most cases no. As long as there is a police report in your favor and/or witnesses, the insurance company will in most cases accept responsibility (liability). Then any dispute concerns solely the amount they will pay for your automobile accident damages. Assuming there was damage to your automobile, and you sought medical treatment immediately, litigation can usually be avoided.