It takes courage to contact a lawyer to share your story and if a lawyer declines to take your case, it does not automatically mean you don’t have a valid claim or that no harm was done. Civil attorneys must assess not only whether something wrong happened, but also whether it can be proven in court and whether pursuing the case makes sense for the victim and the attorney.
Evaluating a Case
At Isenberg & Hewitt, our team conducts careful case evaluations to determine its viability. Things we consider:
- Is there a legally recognized claim?
- Is the case filed within the statute of limitations and are there any exceptions?
- Is there sufficient evidence?
- Who is legally responsible?
- What are the damages?
- Is financial recovery available?
- Are there legal barriers or immunities?
- Does this case align with the firm’s focus?
That last question might be confusing. What does the firm’s focus have to do with the victim’s case? The answer is everything. Lawyers often focus on specific practice areas just like doctors do. While attorneys may know many areas of the law, many concentrate their work on very specific areas of justice. If your case doesn’t align with an area of law the firm is confident in their ability to handle, the firm may decline representation because they wouldn’t be the best, most knowledgeable firm to represent you. At Isenberg & Hewitt, if we aren’t the best firm for what may be a viable case, we will refer you to a firm that can help.
7 Reasons Why a Case Could Be Denied
There are several common reasons a civil attorney may decline to take a case.
1. Statute of Limitations
Besides not aligning with a law firm’s expertise, a case can be denied for a multitude of reasons, including the expiration of the statute of limitations. But what is the statute of limitations in the particular circumstances? In a recent blog, we discussed the unique statutes of limitations in Georgia and how important those time frames are in a case.
For example, in Georgia, generally speaking, a personal injury case must be filed within two years of the injury. But there are exceptions: cases involving minors; cases involving the government where you have less than two years to notify the particular governmental agency of your claim; sexual assault and any case in which the injuries arise from the commission of a crime. No matter how strong the case is, a civil attorney will likely decline to accept representation if he or she has determined that the statute of limitations has run or expired. But keep in mind, a good lawyer will always tell you to get a second opinion.
2. Lack of Evidence
Unlike criminal cases, civil cases are not based on the “beyond a reasonable doubt” imposition. Civil cases require proof by a “preponderance of the evidence,” which means the evidence must show that it is more likely than not that a party, or even multiple parties, may be responsible. If the case presented lacks adequate support, documentation, witnesses, medical records, or when appropriate, expert support, that could cause the case to be rejected or not be accepted for representation.
In negligent security or many assault cases, proving foreseeability and a property owner’s or manager’s knowledge is critical. It is nearly impossible to know at the time of the initial consultation whether the facts necessary to get a case to trial are present, and experienced trial lawyers know what records to request review and those documents may reveal that there is no viable claim.
3. No Legally Responsible Party
To be a viable case, there must be someone you can legally sue. The attorney may ask questions like, "Is there a business entity, employer, property owner or property management company involved?” An experienced personal injury attorney must determine who had a legal duty to protect or warn and who breached that duty. Because civil law focuses on accountability, a business owner or property management company, a security contractor or even an individual may be held responsible only if duty and negligence are established. While the individual who committed the specific act that caused harm is always liable, it is rare that individual has assets to be able to pay a judgment without insurance.
4. Limited Compensation
Personal injury cases are generally contingent fee cases and just like the lawyers who advertise on television, the lawyers don’t get paid if they aren’t successful in both the case and the ability to collect on a judgment. You know – the ‘we don’t win if you don’t win’ thing. There is always the aspect of how limited, or even non-existent compensation might be even if the case is won. Not every person or entity has the ability to pay a judgment or settlement, and that is also a determining factor in a law firm’s case evaluation.
- Does the person or entity have insurance?
- Are there exclusions in a policy;
- Are there assets that can be liquidated?
- Are there assets accessible that can be levied upon?
5. Damages are Too Low
Every case is important because every victim’s suffering is valid and deserves adequate compensation. However, if the civil litigation is determined to be or is considered by the lawyer or law firm to be more costly than a likely resolution or award, a law firm may decide to not accept or refuse representation in a case. Experienced lawyers will almost always tell the potential client to seek at least one other lawyer or law firm’s opinion, and more often than not discuss options available in small claims or ‘magistrate court’.
6. Legal Barriers Exist
Between so-called tort reform restrictions, school immunity and governmental immunities, there are numerous legal barriers that might cause a law firm to withhold acceptance of representation. In some cases these immunity barriers and prior notice or ante litem notices can prevent some claims from moving forward. Again, only an experienced lawyer or law firm that knows their way around the systems preventing some of these cases to proceed can help you navigate this often very complex civil justice system to get the justice you deserve.
7. Client Concerns
Unfortunately, some clients have unrealistic expectations, want a guaranteed outcome, or are looking for revenge rather than legal resolution. There may be some red flags that cause some attorneys to shy away from a case, such as story inconsistencies, prior contradictory statements, or social media posts that undermine the claim. A victim’s credibility is always in question during a civil case and experienced defense lawyers will often go out of their way to create a credibility issue even if there really isn’t one. Be up front with the lawyer you are consulting. He or she is on your side - regardless of whether or not he or she accepts representation - and is bound by confidentiality. I personally often tell clients to make sure I know everything, even the bad stuff, because together we can manage it – but we can’t manage what we don’t know about beforehand. If a lawyer or law firm has serious concerns about whether client is telling the truth, this may cause a lawyer not to accept a case.
What You Should Do If a Lawyer Declines Your Case
Declining a case does not mean the lawyer or law firm believes no harm was done. At Isenberg & Hewitt we understand that being told your case isn’t viable for us can feel defeating. As the cost to bring and try cases has increased over the years, and as tort reform and immunities have expanded, we are forced to be more selective in the cases we can accept.
You always have options. Ask for a detailed explanation of why your case was denied and request referrals to other attorneys. Good lawyers will always encourage you to obtain a second opinion on your case, especially if it is time sensitive. If, for example, we don’t feel confident in our ability to go forward with the particular matter you came to us about, we will do everything we can to get you to the right place.
If you have questions about your potential claim, contact the Isenberg & Hewitt team for a free, confidential case evaluation. We are here to help you understand your rights and your options.