How Do Wrongful Death Lawyers Get Paid? (EXPLAINED)

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Wrongful death lawyers get paid the same way lawyers get paid in other cases: on an hourly basis, flat fee basis, or on a continency fee basis.

However, it is common in high stakes (high dollar) wrongful death cases for the lawyers to agree to work on a contingency basis.

Let us explain.

How Do Wrongful Death Lawyers Get Paid? (EXPLAINED)

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What Are The Ways Lawyers Get Paid?

The primary ways lawyers get paid in either on an hourly basis, flat fee basis, or on a contingency basis.

A contingency fee agreement is an agreement that the attorneys will not get paid up front or on an hourly basis as they do the work.

Instead, the attorneys will do whatever work is necessary for the case.

In the event that the case/lawsuit is successful and there is money recovered, the lawyer will take an agreed upon percentage of those funds to pay himself for the work performed.

This is regardless of the amount of work performed.

There might have been a little work, or a lot of work.

The percentage does not change based upon hours expended.

If the case is not successful, then the attorney does not get paid for the hours invested in the case.

That being said, the attorney fee agreement will likely still require the client to reimburse the attorney for expenses incurred in the case such as witness fees that they attorney already paid for.

The attorney does not always track his time that carefully (like he might in an hourly case) because the hours don’t really matter as much unless it is needed for internal firm administration purposes.

An hourly fee arrangement is where the attorney gets paid for every hour they work, down to the .1 of an hour (6 minutes).

The attorney gets paid regardless of whether the case is successful or not.

The attorney will likely require that the client place what is called a “retainer” in trust with his firm.

This basically means that the client will give the lawyer a lump sum of money.

That retainer is then deposited into the attorney’s trust account, which is a holding account, not the attorney’s operating account.

The attorney cannot use the money in the trust account until the funds are earned.

To “earn” the money, the attorney must work, prepare a bill, and then submit the bill to the client detailing the work performed and how much of the retainer has been earned.

Once the bill has been submitted to the client, the attorney can pay himself into his operating account the funds in the trust account.

If the client terminates the lawyer, he is entitled to a return of any funds that the attorney has not earned.

The money in the trust account belongs to the client until the attorney earns it and moves it into the operating account.

A flat fee agreement is where the attorney gets paid a lump sum up front at the beginning of the case.

The client and attorney agree upon the sum.

This sum is to be the only funds paid to the attorney for the attorney’s time.

This fee is to be paid before the attorney begins work, and is considered earned upon receipt.

The flat fee can immediately leave the trust account and be paid to the attorney’s operating account.

There will be no more money paid to the attorney for the attorney’s time.

The client will still have to pay for case expenses (document fees, filing fees, witness fees, etc) as the case goes on.

The attorney will still submit bills to the client for payment of those fees, and may require that the client pay money into trust to cover those expenses.

A flat fee is paid regardless of whether the case is successful or not.

Why Do Most Wrongful Death Lawyers Get Paid On A Contingency Fee?

Most wrongful death cases you hear about are handled on a contingency fee.

There are several reasons for that.

But the primary reason is that the average plaintiff(s) in a wrongful death case can rarely afford to pay the attorneys their hourly rate on a case.

For example, if a wrongful death plaintiff wanted to hire a firm to handle a wrongful death case on an hourly basis, the firm would likely demand a huge retainer fee deposit to cover the first few months of work.

This could require that the client deposit anywhere between $10,000 to $25,000 in the attorney’s trust account.

Most wrongful death plaintiffs do not have this kind of money set aside, nor do they budget for this kind of case.

By definition, a wrongful death is a death that wasn’t supposed to happen absent someone’s wrongful actions.

Plaintiffs are just average people living their lives, and a retainer deposit for a painfully expensive wrongful death case is not something they will be able to do.

Can You Hire A Wrongful Death Lawyer On An Hourly Basis?

Yes, absolutely.

In many situations, it might be the best option financially to hire a wrongful death attorney on an hourly basis instead of a contingent fee.

For example, in a case that is clear-cut and the fault is obvious, the insurance company might be excited and ready to quickly pay the limits of the insurance proceeds to the plaintiff to avoid spending money trying to fight it.

In that situation, the attorneys earn their 30-40% contingent fee quickly, without having to do much work.

If the clients had had some money to pay for the retainer up front, they could have earned a lot more money for themselves and for the estate.

But again, most plaintiffs do not have the money to pay the initial retainer in such a case, and end up choosing to go with the contingent fee arrangement.

Can You Hire A Wrongful Death Lawyer On A Flat Fee Basis?

Flat fees can be closely regulated by state bars, because they can and have been abused by attorneys.

While it might be nice to be able to hire a wrongful death attorney on a flat fee (you’d know how much the attorneys would cost one way or another), most wrongful death attorneys will not be interested in a flat fee.

In a flat fee situation, the attorney takes a gamble that she has estimated a flat fee that would make the case somewhat profitable for her firm.

At the very least, she hopes to break even with her and her staff’s time.

What she wants to avoid is having to dump hours and hours into a case that is costing her firm money in terms of an attorney’s time.

After all, if an attorney is working on one thing, she can’t go and earn money with that time on something else.

A wrongful death case (unless extensively researched in advance) is really difficult to estimate for a potential flat fee.

The reason?

No one necessarily knows how long the case will take or how much effort it will take.

If the attorney is wrong in her estimate, she might have just signed up her firm to take a lump sum up front on a monster that could take years to resolve.

At least on a contingent fee, there’s the promise of a large percentage recovery at the end, right?

But to make that same estimate up front (and to get the client to pay it in the form of a flat fee) is really difficult and unlikely to lead to an attorney-client relationship.

What Else Should You Know About How Wrongful Death Lawyers Fee Arrangements?

The Wrongful Death Fees May Not Cover Probate Attorney Fees

It is important to understand the scope of what the wrongful death fee arrangement is intended to cover.

Many wrongful death cases involve a probate or estate case.

Other wrongful death cases need a conservatorship or a proceeding to appoint a guardian.

Your attorneys may intend to handle that under the umbrella of the wrongful death case, while others will not.

Find out from the attorneys what “other” court proceedings will be required and whether the fee arrangement covers them.

How The Fee Arrangement Handles Costs/Expenses

Clients often struggle to understand how attorneys fees and costs/expenses are different.

They will be upset to receive a bill at the end of the month, demanding that they pay for hundreds of dollars of case expenses.

Attorneys may or may not demand that the client reimburse (or even pay up front) the non-attorney-fee costs of the case.

But the client should find out what the estimated costs are for the case and when the attorney expects to be paid for them.

The Client Can Dictate How Much The Attorney Can Spend

Since the client has to pay for the expenses incurred by the attorney, the client has the power to tell the attorney “yes” or “no” for expenses.

The client can instruct the attorney to get advance approval for expenses of any dollar amount, or just those to exceed a reasonable amount (like $50, $500, $1000 and so on).

The client has much more input and control than they might feel like in the beginning of a wrongful death case.

Are There Any Reasons Why A Wrongful Death Attorney Wouldn’t Want To Take A Case On A Continency?

Yes, there are many.

But the primary reason that a firm might pass on a wrongful death contingency case (and demand an hourly arrangement) is risk.

Lawyers like to get paid, and prefer to work all their cases on an hourly basis with a big retainer in trust.

This type of fee arrangement situation isn’t as exciting as a contingent case, but it makes it easy to pay bills and salaries.

In a contingent case, attorneys bear the risk that they might lose the case.

This would leave them without funds to pay for bills and salaries.

It big loss on a contingent case could even mean the death of a law firm, if the firm doesn’t have sufficient cash flow coming in or reserves to handle a long period between contingent wins.

If the case doesn’t look like a slam dunk, or the firm isn’t willing to bear the risk of a loss, they are not going to be interested in taking on the case on a contingency.

Sometimes firms will agree to do the initial investigation on an hourly basis, with the ability to elect to convert to a contingency later after the investigation reveals more about the situation.

Other reasons include: impending statute of limitations, difficult clients, bad facts, available firm resources, case location, case complexity, incompatibility, and more.

Looking For More Information About Wrongful Death Cases?

We are building up a library of articles intended to assist people facing a wrongful death lawsuit from any angle.

The Wrongful Death Article Library is intended to help make your first conversation with a lawyer, prosecutor, defense attorney, insurance adjuster, or other involved party easier.

You can find the growing Wrongful Death Article Library here.

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