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Five questions you should always ask your lawyer June 19, 2008

Posted by Herb Chestnut in Uncategorized.

It is difficult enough to hire an attorney when you are familiar with the legal issue and the lawyers you deal with.  When an individual has been injured and needs a workers’ compensation or personal injury attorney for the first time, it is almost impossible to know if you are selecting the right attorney.  Ironically, in most cases, whether you have selected a good attorney will only be determined when the case is over.  The five questions below will not insure that your attorney is competent or the best lawyer for your case.  It will give you some insight into the type of attorney you are hiring.

The decision that you make in hiring an attorney will have more to do with the eventual result than any other decision you make on the claim.  Most people make this decision on the type of ad someone has in the phone book or what commercial they see or hear on television or radio.  Just because an attorney appears in these mediums is no reason to either hire or reject them.  Hire someone you feel comfortable with and confident in.  Hopefully, the suggestions above will be helpful.

Herbert J. Chestnut, Esq.

June 19, 2008

1.  How many years of experience do you have?  This seems to be an obvious question but it is amazing how infrequently it gets asked.  Experience is the key to the practice of law.  The old adage is that, with a lawyer, you pay for the grey hair.  The more experience an attorney has, the more likely that he or she has had a case similar to yours.  However, every professional must start somewhere.  If your case is assigned to a young associate, make sure that someone with experience supervises the case.

2.  What percentage of your practice is in this area of the law?  The practice of law is becoming more and more specialized.  It stands to reason that an attorney who chooses to concentrate his or her practice in a single area know that area better than one who tries to do a little of everything.  It is very difficult in this day and time to be a “jack of all trades.”  Also, relationships between opposing attorneys does play a part in the successful resolution of a case.  The more specialized an attorney is, the more likely he or she is to know the opponent if the case goes to litigation.

3.  Do you have malpractice insurance?  This question is almost never asked but should be.  However, if you have work done on your house, one of the first question you would probably ask is “Do you have insurance?”.   If the worst happens and your attorney commits malpractice, you do not want to try to collect from an uninsured individual.  Also, if he or she has no insurance, there may be a reason such as previous successful malpractice claims.

4.  When I call your office, will I talk to your or one of your staff?   While paralegals and secretaries are important to any successful practice, they are not lawyers and are not a fair substitute for speaking directly with your attorney regarding important issues in your case.  This is not to say that you should always expect to talk to your lawyer when you call.  However, some firms rely solely on paralegals after the case begins.  The client sees the lawyer when the firm is retained and maybe when the case settles.  You entrusted the attorney with your case, not his or her staff.

5.  Will you try my case yourself?  Often, high volume lawyers never see the inside of a courtroom.  If the case needs to be tried, they will either withdraw from your case or refer it to someone else.  In a “volume” practice, it takes too much time to try a case as opposed to settling it.  What they sacrifce as far as the recovery on a single case, they make up in sheer numbers.  These practices are referred to as “mills”, grinding out settlement after settlement.  However, when your opponent knows that your lawyer is not willing to take your case to court, the chances of you receiving maximum value for your case is far less.

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1. Marcie Hascall Clark - July 19, 2008

Thanks for making these vital questions available.
I would like to add a few more.

How many of your DBA cases, out of your total cases, ended favorably for your clients?

If the DBA insurance company hires professionals to testify on their behalf will I also have professionals to testify on my behalf?

I have a few more, like will you bother to read my file, will you prepare my case before my hearing date, will you read any offer presented by opposing counsel before sending it to me with instructions to sign, but certainly all this would go without saying??????

Thanks again bringing up this topic.

2. Aaron Walter - July 20, 2008


Thanks for the additional questions. Frankly, you can’t ask too many questions of your current/potential attorney. After all, they work for you.

Regarding the question about pertcentage of successful outcomes, it reminds me of a local attorney here in Atlanta, who boasts something like a 98.5 winning %.

While you don’t want the Bad News Bears lawyer who does nothing but lose, I am not sure what a high winning % really means, or what winning even means.

While our firm has never actually “lost” a DBA case I couldn’t imagine advertising an alleged 100% winning %. Unfortunately, “winning” in terms of going to court, in a DBA case or any other Workers Compensation case often involves having a judge issue an order in our favor after a long arduous battle in which the claiment has a tough time making rent while the employer/insurer withholds weekly benefits.

I think that the key is always to find an experieced attorney who shows a genuine interest in helping you through a difficult time. I think whether there was a win is something that needs to be decided by the client, not the attorney.

3. contractor - April 24, 2009

I have a question as to how an attorney(you guys) in a DBA case is paid. Is it figured above the settlement amount? That is, not taken out of the amount you are awarded. If so, why wouldn’t a person hire an attorney in these cases? Thanks

Herb Chestnut - May 11, 2009

If we win your case in court or if we settle your claim, the insurance company, in most cases, pays our fee. We generally do not require any retainer and generally are paid by the insurance carrier.

Joshua Gillelan, Longshore Claimants' Nat'l Law Center - July 9, 2009

First, it is a federal crime for a claimant’s attorney to ask for or accept any payment for services except after approval by the district director, ALJ, Board, or court before whom the services were provided. The attorney may ask the claimant for and accept money from the claimant, without such approval (which comes only at the end of the case), only for expenses — typically only fees the attorney must pay expert witnesses (almost always doctors) for developing and presenting evidence, payment for transcripts of depositions of the claimant and doctors and of the hearing, and the like. Since the claimant is often not in a position to pay such expenses — often anywhere from a few thousand dollars to several tens of thousands — to meet and rebut the medical evidence on which the insurance company often spends more than that, one key question for an injured worker or survivor to ask a prospective attorney is whether the attorney will be able to pay such costs if you cannot, or will try to handle the case “on the cheap” — without expert witnesses to meet those bought by the defense. (Only the strongest cases have much chance of a favorable outcome if the latter course is followed.) If an attorney asks for or accepts any retainer for fees for services (rather than just for expenses), he or she should be reported to the OWCP, and should be “debarred” from representing anyone under the Act.

Unlike defense attorneys, claimants’ attorneys receive no fees for their work unless the claim is successful. If your case is handled by one of the OWCP offices on the West Coast (Seattle, San Francisco/Honolulu, or Long Beach), in almost all circumstances if the claim is successful the attorney will be awarded fees payable by the insurer. If it’s handled by the OWCP offices within the Fourth and Fifth Circuits (Houston, New Orleans, Norfolk, Baltimore), it’s much more complicated, and in many cases fees can only be awarded to be paid by the claimant, even though the insurer’s denial of the claim is not sustained. Your attorney can take steps to avoid this and ensure that fee liability remains on the insurer, but those steps will often result in additional delays. This is another topic to discuss fully with your prospective attorney before engaging him or her. (Even if you change attorneys before the case is resolved, the original attorney has a right to seek fees payable by you once it is resolved. You have a right to have another attorney oppose the fee request, but as a practical matter there’s no way for that attorney to be paid except by you, so . . .)

Finally, “contractor” refers to “the settlement amount.” A “settlement” under the Act is an agreement for the claim to be resolved without an actual decision, for an amount less than the claimant asserts is (and will be) owed, either by payment of a “lump sum” or purchase of an annuity that will pay out installments that bear some relationship to the continuing benefits that would otherwise be payable (often for life). In some instances this is a good idea for claimants, but usually not; insurers on average save a great amount by settling rather than seeing how an actual decision works out — otherwise they wouldn’t do it. If the claim really is meritorious, a settlement is almost never a good deal for the claimant. The only reasons to accept a settlement are (1) when you know, better than the insurer yet knows, of weaknesses in your case, and (2) when you just can’t survive another year or two until your case arrives at an ALJ decision that establishes the rights that the insurer is denying. Otherwise, DON’T be seduced by the offer of a lump-sum check that’s more than you’ve ever had in your bank account, in return for giving up lifetime protection against loss of earnings (either continuing or newly arising through worsening of your injury-related condition).

Finally, if you do decide to accept a settlement: my colleagues of the claimants’ bar will not necessarily appreciate me for mentioning it, but the insurer doesn’t really care how the money it offers to get the case out of its hair is allocated, as between the claimant and his or her attorney. If it offers $100K to wash the case out, that may be $95K to the claimant and $5K to the attorney, or $60K to the claimant and $40K to the attorney, and the insurer doesn’t care one way or the other. I certainly don’t mean to sow the seeds of suspicion of their attorneys among claimants, and most attorneys will respond to such offers with a fair allocation. Of course the attorney may have $30K in expenses he or she has already borne, in which event the latter allocation may be entirely reasonable (and indeed more than fair to the claimant — net of expenses, the offer is only $70K, and the attorney’s time invested in the case may make the $10K net attorney fee a less than fair payment). But the claimant should take a look at the allocation — and indeed at the attorney’s statement of the time and expenses invested, and not assume that the insurer’s settlement offer was based on the allocation between claimant and claimant’s attorney that is presented to the claimant for acceptance.

4. Anonymous - September 23, 2009

I do not know if I have hired the correct attoney.I have not spoken to him directly until today. I was injured in Iraq the middle of 2008.Workmans comp. paid me benefits and medical expenses for aprox. 5 months. I went thru 2 surguries on my knee and during physical therapy I started having extreme pain in my legs, back and buttucks.After physical therapy my doctor released me at 100% to go back to work, stating he did not have the authority to look into my other problems.My benefits were terminated and I hired an attorney. I finally got a court date in Oct. and my attorney already has a case schelduled so now it has been put off until Jan.2010. I have not been able to work or pay for M.R.I. and other test necessay that two medical doctors say I need. I was sent the discovery package and I sent all the info. back to my attorneys office and I also had a IME schelduled that has been cancelled. I spoke to my attorney today and was asking him how he was going to prepare my case and the first words out of his mouth was if I might be interested in going out of state to meet with a mediator. It seems he is only interested in himself and not concerned about my health and well-being.He does not even know all the details of how I was injured and did not even present my medical records or therapy records to dept of labor for informal hearing. I ended up sending these records 2 weeks later and finally got a recomendation that insurance carrier pick me back up but they did not. There is more but I really do not know what to do.

Herb Chestnut - September 23, 2009


From what you describe, it appears that you may have suffered an additional injury either due to your original injuries or the treatment you received. If your doctor will back you up, you probably have a viable claim. It would be nice to have an MRI but I understand if you cannot afford it. I would ask your attorney about having the MRI done on a lien basis.

I would suggest having a long talk with your attorney, face to face, to get these issues ironed out. If you decide to terminate your attorney, he can file a fee petition which will be considered either at the settlement of the claim or after a decision has been made by the judge.

I wish you luck. If we can help you in the future, please let us know.

Herb Chestnut

Anonymous - September 23, 2009

Wow! It is good to hear from someone that cares.I have spoken to my attorney about the MRI about 3 months ago and he says he can not help me. It makes me wonder if he is interested in taking this case to trial or just putting me off untill I have to take a settlement. My pain management doctor has written statements about my condition and the necessity of further testing. There is also physical therapy paper-work stating the problems I was having during my sessions.I notified my case worker and all he wanted to know was if I still had my pain meds.I know now that he did not have my best interest in mind, I found this out from the dept. of labor. It puzzles me that if I had these problems when I was still in the care of my doctor how I could have possibly been released to return to work in Iraq doing construction work unless this doctor was a insurance doctor and pressured to release me.

Herb Chestnut - September 24, 2009

I think you hit the nail on the head as far as the doc is concerned. I would suggest a 2d opinion with an orthopedist or neurologist who will give you an honest opinion. Even though it is important, your case is secondary when it comes to your health. Find out what is going on medically and the truth will come out at the hearing.


Anonymous - October 28, 2009

I am the anonymous from above.I was compensated for my knee injury,and now my case is about my back.I was finally sent for I.M.E. and the doctor said that he was to evualate my knee,I don’t understand my back is the problem. Also I am schelduled for a vocational rehabilation specialist meeting.I have not even had the medical test that are necessary to determine what is wrong,or to fix what is wrong.Could you help me to understand what is happening.Thanks

5. Anonymous - September 23, 2009

Thanks for all the info,this is a great site. I have a question,who starts the process for a possible settlement, the claimants attorney or the defendant and how does it work. Thanks,Roger

Herb Chestnut - September 24, 2009


Either side can start the settlement process. Generally, the claimant makes the first offer.


6. Jeff - June 19, 2010

Not having to deal with such an insurance claim ever before in my life, I must say that this DBA stuff was and continues to be very confusing. Howver, here I go but before I do, I would first like to thank you for such open advise to all us injured contractors.

I reached MMI last September (2009), with an 11% upper left extrimity (shoulder) Permanent Disabilty (PPD). I have been receving my DBA compensation every two weeks from the date I returned back home in early 2008. In the same MMI letter that my current DBA Doctor wrote, he also wrote that I should have continuation of care for a maximum of 3-4 Doctor visits a year for two years, two MRIs, up to two EMGs, and continued medications (x2), etc… My question here is that since the insurance company has not changed me from TTD status to PPD status, the way I understand from reading the DBA law, Is that if I get hit by a truck tomorrow and die, and the insurance company finds out, they will stop my compensation and my wife will not continue to get my compensation benfits, because the insurance company and DOL have not changed or officially recognized me as PPD. Is this correct or ?

Also, I have a buddy who is also MMI with a shoulder injury and his insurance company recognized that and started talking with him about a settlement. His DBA lawyer sent the insurance company a demand letter, asking for them to recognize him as PPD status and also, had some calculations for his LWEC. He was shocked for two reasons, first, isn’t the lawyer suppose to run something that important by his client first, before sending it in ??

Also, the calculations for the negotiations “starting” point amout concerning the overall settlement amount was approximately 24% of what the insurance company would pay, should he chose to just keep getting a check every two weeks. Isn’t that real low or is that normal practice?

His lawyer said that it is not a good idea to keep getting the bi-monthly check for the rest of your life because the insurance company can make him go to an IME every 6 months and get re-rated, etc..basically just hassle you and even stop paying you by saying that they feel you are no longer PPD, etc. Is that true !?

Sorry, just wondering as not taking a settlement did seem to be a better way but, not with all the hassles the insurance company will start doing!

Thanks up front again…

Herb Chestnut - September 20, 2010


Thank you for your post. As you probably know, shoulder injuries are “unscheduled” which means the insurance company has to prove your wage earning capacity to either reduce or eliminate your benefits. The decision on whether to settle depends on several factors which vary case to case. It can also make a difference how you were injured, as the insurer may be entitled to pass your case along to the federal government under the War Hazards Act. Of course, your own personal situation, financial and otherwise, will be the most important factor in determining whether or not to settle.

Feel free to call for a no charge, no obligation consultation.

Herbert J. Chestnut

7. Lynn - October 25, 2010

I turned in that I had numbness and locking of my hand, along with tingling and burning in my palm and wrist on 06/2009. I have underwent carpel tunnel therapy, and thoratic outlet therapy. The last made my condition extremely worse. I have just went through thoratic outlet surgery 3 months ago. I was given coumadin “blood thinning shots’ in my lower abdominal. This caused a rubbery mass in my stomach. I gained 30lbs in my 5 day stay and was released. Following release, I had ecoli in my urine. Treated. 3 days after release I started having major trouble breathing. More than I was after surgery. I have swelling in my legs, feet, and lower abdominal. I have had ekg, echo, and stress and all are normal. I am now 3 months out after surgery and am following a PMA instructions for medication. I just had a follow up and my doctor wants me to have physical therapy to get range of motion back.
I was sent to a IME doctor, and now the insurance has dropped me, stating they no longer will cover me from yesterday of the conversation and forward, but will pay for all my medical expenses and back. I am looking at physical therapy, possibly another surgery, and lots of problems caused by this surgery. Oh, and the doctor punctured my lung during surgery. The IME doctor stated that I could go back to work doing clerical work using my left arm, and I would probably need physical therapy and more surgeries to correct my hand. Need advise, I am at a loss of what to do. I have yet to return to work. I am off work until 01-2010 per doctor orders. He won’t even let me go back with restrictions. I am to talk to a lawyer, but don’t really know what to ask, or do. Any help would be greatly appricated!!! Thank you.

Herb Chestnut - October 26, 2010


Before I answer your questions, let me ask you where you were hurt? In the U.S or overseas? It is important to know in order to determine what compensation act covers you.

Herb Chestnut

8. Lynn - October 25, 2010

This is Lynn again, I almost forgot,
I work for a retail chain doing cashier work for 6 years. Anything you can think to tell me or things you think I should ask the attorney would be greatly appricated.


9. Ernesto - March 2, 2011

Am waiting on a trail date already went to a hearing what was in my favor.My lawyer file for a speedy trail,and I know winch till might take a year but is he suppose to help with my medical or am I just suppose to wait to see what tail judge says.Are there any other ways for me to seek medical help.like social security.I was working for Fluor over in Afghanistan.

Herb Chestnut - March 2, 2011


If you are waiting on a hearing date with the Office of Administrative Law Judges and the insurer refuses to comply with the Department of Labor’s recommendations, then yes, you do have to wait for the judge to rule on your claim. You can, however file for Social Security Disability benefits. If we can help you in that regard, please contact Tommie Beller in our office. Tommie is a Social Security lawyer and will be happy to speak with you free of charge. Our toll free number is 800-881-4892.

We look forward to hearing from you.

Herbert J. Chestnut

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