Podcast Description
In this episode of It’s No Accident, attorneys Jaeson Homola and Mark Nonni address common misconceptions in personal injury law: How attorneys are paid and the likelihood of your case going to trial.
Many victims of car wrecks and other negligent acts often misunderstand how attorneys are compensated. At Nonni Homola, consultations are always free and if we believe you have a case, you don’t pay anything until we win. We front the expenses and you focus on recovering! There are no retainers or hourly rates. It’s simply not the way we operate.
If you do end up having a case, we like to explain to our clients that most cases are settled outside of the courtroom, and our clients have full control over whether or not they go to trial. With direct communication to our attorneys, you can take comfort in knowing your justice advocate is just a phone call away.
Tune in to learn more about your rights as a client and how we can help you get the recovery you deserve.
Episode Transcript
Nonni
Welcome to “It’s No Accident”, a podcast about the challenges of personal injury and wrongful death law in Florida, one of the nation’s most complex legal environments.
Homola
You’ll hear compelling stories about real cases from our law firm in Tallahassee, that will help you better understand your rights and protect yourself from the negligence of others.
Nonni
I’m Mark Nonni.
Homola
And I’m Jaeson Homola.
Together
And this is “It’s No Accident.
Nonni
So, I know a lot of times, it seems like people have some misconceptions about what we do and how it works in our practice and I know it’s something that you and I deal with a lot just in terms of potential new clients, friends, family, people we’re talking to.
What are some of the most common misconceptions that you see a lot that you’re correcting people or explaining to people?
Homola
I would say probably the biggest misconception or just something that people don’t understand or they just don’t know or haven’t been educated on is how we get paid for these types of cases, number one. And then number two, whether or not they’re going to owe anything if they call our office and set an appointment with us or talk to us on the phone if they’re going to owe us anything for that consultation.
And the answer to the latter is that we don’t charge for consultations. If you call into our office and you get one of us on the phone, you tell us what’s going on and we give you some information about what you should do and you don’t end up becoming a client, you’re not going to owe us anything for that phone call.
Nonni
You’re not going to get the bill in the mail.
Homola
You’re not going to get a bill in the mail. We offer free consultations. And then the second misconception is just the whole contingency fee and how we get paid in these cases. Do you want to handle that?
Nonni
Yeah. Because a lot of times, I think I hear people talk about, “Well, you know, I’d like to hire an attorney, but how am I going to afford it? How am I going to pay you?” People think about hiring an attorney in terms of the more, say, traditional, ‘I got to pay a big retainer and I’m going to have to pay them $300 or $500 an hour or something like that.’
And attorneys do work that way, but that’s not the way we work and that’s not the way most personal injury attorneys work. It’s a contingency fee contract like you just said. It’s a contingency fee basis, which is basically that, you know, the client doesn’t pay anything upfront to hire us. There’s no retainer, There’s no upfront money.
As we work on the case, we’re basically fronting the expenses. Like any expenses that come up along the way in terms of the case, we’re paying that money essentially from that money. And then at the end of the case, if we’re successful and we get a recovery for the client, we get a percentage of that as our fee.
And the client gets the rest, minus any medical bills that have to be paid or anything. And then the key to it all is if things don’t go our way and we don’t get to recover from the court for the client, then they don’t give us anything. And so it makes it a lot you could say lower risk for the client.
It’s easier for them to get the case going. And really what it is, it enables people, no matter how rich or poor you are, to be able to have an attorney represent you in a case. You don’t have to be rich to have an attorney.
Homola
And the contingency fee is pretty unique to the personal injury area of law. And it came about because people that are involved in car wrecks or they’re injured and they’re not able to work, they don’t have a paycheck coming in and they don’t necessarily have the resources to hire an attorney.
It gives them the ability to go up against some of these large corporations that have unlimited resources. You can go get an attorney and that attorney can sign you up and they’re invested in the case with you. And you’re working together to fight the insurance company or to fight the big corporation to extract money out of them, to get a recovery for our clients.
Nonni
That’s always what I explain to people. It’s like our interests are aligned. The way that contracts work, just to be blunt, the bigger the settlement is, the more money everybody gets. We’re aligned from that perspective.
And a lot of times, I’ll bring that up because sometimes you’ll hear clients talk about “You know, some attorneys, they just settle quick and for cheap just because they want to hurry up and get money.” And to me, it’s like it doesn’t make a lot of sense because the better the settlement you get for the client, the better you get.
Homola
Absolutely. And then, on top of that, we’ll get phone calls and we’ll get questions about how we get paid. And then I would say probably the second misconception or misunderstanding about what we do is the fact that a lot of people think that if you call an attorney and you hire an attorney for a personal injury case, that means that you’re going to court.
You’re going to have to go to court, you’re going to have to give a deposition. You’re going to open up every aspect of your life to the insurance company and the defense counsel, and they can nitpick everything about you. And it’s going to be a long, drawn-out process. And what’s the reality of that, though?
We know not every case goes to court, What would you say the the likelihood of a case going to court is?
Nonni
It’s low. A lot of times during the initial consultation where you can tell that the client wants to hire us and wants to move forward with the case. But they’re just worried, “Well, I don’t want I have to go to court.”
And the reality is and what I normally tell people is, “The odds of you actually going to court are real low. Very low.” Just statistically, a big percentage of these cases get settled without ever filing a lawsuit.
And even the lawsuits that do get filed, still a huge percentage of those cases end up settling. I’ve looked at numbers over the years where it’s something like 90, 95% of all cases where lawsuits were filed, end up settling. The odds of actually ending up in a courtroom are really low from that perspective, number one.
And number two, I always try to remind clients it’s whether or not you end up in court is in your control. Ultimately, you could settle. And if you settle, then we don’t go to court.
At least for us, it’s never a situation where you’re getting arm twisted into having to go to court. If that’s not what you want to do.
Homola
As soon as you file that lawsuit, you’re in what’s called the litigation process. And there are lot of steps during that litigation process that are set up specifically to try to encourage settlement. You had the mediation process and then you’ll have the proposals for settlement. You’ll have all those things that are happening throughout the litigation process that encourage settlement.
And I would say the deeper you get into litigation, the less percentage there is of cases that get there. A lot of cases will file the lawsuit and we’ll get it settled pretty quickly. And then if that doesn’t happen after depositions we’ll get to settle. And then if they don’t get it settled right after the depositions, we’ll have a mediation where the case could potentially get settled.
And then if the case makes it past the mediation, there are some things, we don’t need to get into the specifics of it, but there’s a process called offer of judgment or proposal for settlement, that encourages settlement. So, even if there is a lawsuit filed on your case, that doesn’t necessarily mean that you’re going to end up in a trial, sitting in a witness box, in front of a jury telling them about your injuries and how the collision happened, or the the fall happened, or the injury happened.
Nonni
Honestly, I feel like the cases that do end up in trial, it’s a situation where usually the insurance company or whoever’s on the other side or big corporation or insurance company kind of gives you no choice because the offer they made is so ridiculously low.
If they’re offering you less than what your medical bills are, it’s kind of like making the decision easy for you. Like, I guess we got to go to trial, even though I don’t want to. But as I said, it’s pretty rare.
So, I know another thing that I get a lot in terms of the different misconceptions that we hear, is basically how what we call “premises liability” cases work.
And usually what it is, is a situation where someone gets hurt, usually in a business. Whether it’s a grocery store or some other different type of store, they slip and fall. Something happens and they get hurt. And maybe they’re just thinking, “Well, I got hurt on this company’s property or this store’s property, so therefore they automatically owe me money.”
Homola
And that’s just not the reality of how it works. I usually explain that to people it doesn’t work like that at all. It is surprising that people are angry when they call in on these premises liability cases. And a lot of times when people call in on a trip and fall or a slip and fall or some sort of premises liability case, it’s a few weeks after it happened and they feel like they’ve been mistreated or they haven’t been called back or they’ve been slighted by the place where they were injured.
And what we hear a lot of times is “I didn’t plan on calling an attorney on this, but, you know, when I called and talked to them, they made me feel really bad about myself that I would even try to make a claim or they said they would pay my medical bills and now I can’t get them to call me back.”
There are all these things that typically happen in these premises liability cases. And I’ll look at them and I’ll be like, “Man, if they would have just called them back and paid his emergency room bill, we probably wouldn’t be here.
Nonni
Instead of insulting them or offering them a $20 gift card or something.
Homola
But from a legal standpoint, there are things that you have to prove. You have to prove that there was actual negligence on the part of the property owner before you can make a claim. And the legislature made it more difficult. There were some laws that were put in place probably about ten years ago that made it a little bit more difficult to bring these premises liability cases.
What do you have to show legally?
Nonni
I mean, the big thing that people don’t realize, is we got to prove what the dangerous condition that caused you to get hurt. Whether that’s a puddle on the ground, whether that’s a hole that was there that was covered up and you couldn’t tell it was there.
You’ve got to prove what the dangerous thing is that caused you to get hurt. And that’s usually the easy part. Usually, they don’t know what caused them to fall or trip or what fell on them or whatever. But then the hard part is you got to prove that the defendant, the company that, the grocery store, whatever, that they either knew about that dangerous condition before you got hurt, they had prior knowledge of it, or that they should have known about it.
And that’s where it gets tough because it’s like especially like in my classic example puddle of water in the middle of the floor of a store. How are you going to prove that? Number one, you don’t have to prove where the water came from, but it usually helps, right? If you could prove that, which is often difficult, but it’s really difficult to prove that they knew about that puddle being there before you ever got there and fell.
Unless someone spontaneously admits it after the fact, “Well, I told Bob to clean that up an hour ago.”
Homola
And that does happen. It happens, but not very often.
Nonni
So it’s either got to prove that they knew about it or that it was basically there for so long that they should’ve known about it. So like, if the spill just happened 2 minutes ago, then you fall. It’s not long enough for them to have done anything about it. We have to be reasonable and give them the opportunity to realize it and fix it.
But if the spill happened 2 hours ago, it’s just been sitting there, then that’s the evidence we would need to bring a case. But again, it can be difficult to prove. And know, that’s when surveillance cameras come into play a lot.
And we’ve had a lot of experience with surveillance cameras and how that works.
Homola
It’s interesting. It’s interesting how these surveillance cameras work. And one of the things that we always do in a premise liability cases…When we send out our letter of representation to the store or the insurance company or whoever it is, a premises owner… In our letter of representation, we ask them to preserve any video surveillance of the area where our client claims that they fell.
And what happens all the time is they say that either they don’t have surveillance video or we had a surveillance video there, but it wasn’t working that day or we didn’t get a good shot of that area on the surveillance video or in a case where they feel like they’ve got a really good argument that they didn’t do anything wrong, we’ll get the video right away.
You pretty much know if they’re telling you that or they’ll say that they do have the video, but it’s work product and they’re not going to give it to us. If they claim any of those things and they don’t give us the video, we know that we probably have a pretty good argument that they did something wrong.
If we just get an email with a video in it and they’re like, “Look, see, we didn’t do anything wrong”, they probably didn’t.
Nonni
And just to kind of put a finer point on it. We said in the letter telling them, to preserve the video, but they had no duty to give us the video before.
So we can ask them for a copy of the video before a lawsuit is filed. But they don’t have to give it to us. And it’s kind of like what you’re saying, if they do give it to us, it usually means it’s bad for us and they think it’s good for them. And if they don’t give it to us, it’s the opposite.
And then you don’t want to file a lawsuit because once you file a lawsuit, then you can essentially subpoena. It’s not really a subpoena, but request it from them. And get it from them. But then there are even battles over that too. In terms of whether you can get it for the deposition or not.
Homola
Yeah. There are always battles over it. And I’m glad you brought that up. That’s another misconception that people have when they come in, is that we can just ask the store for the video and they have to give it to us. “There’s a camera there. Let’s just get the video and look at it.”
It’s just not that easy. The harder they fight to give you the video, the better the information on the video usually is for us, which is how that typically works.
Nonni
For sure. And I’m in a fight right now on one of my cases where like I said, once you filed a lawsuit, then you can request the video, but then the fight becomes they want to take my client’s deposition before they’ll give us the video. So they want my client to go under oath and give sworn testimony without having the benefit of being able to see the video that the other side’s already seen.
And then after the depositions are over, once you have given all your sworn testimony, then they’ll try to give you the video. And the law doesn’t say it works like that. But basically, it’s a fight. And I’m in a case right now, where we’re following motions about that. We’re going to probably in a few weeks, go to have a hearing and the judge is going to decide if we get the video before or after. And at that point, it’s just up to the judge. And some judges go one way and some go another.
Homola
It just depends on how the judge sees it. And I’ve had it go both ways. Sometimes they say, “Give him the video before the depositions.” Sometimes they say, “The deposition’s scheduled, go to the deposition, and then you can have the video.” And what happens in that situation if you don’t have the video, is your client will go in there and they’ll give a pretty accurate representation as to what happened. But there are these fine points that they don’t necessarily remember. And then, of course, the defense attorney… It’s their job to do it, but they want to nitpick every little thing that they got wrong because they don’t remember exactly what happened 18 months ago when they fell or tripped in the store on this property.
But they’re difficult cases. Premises liability cases are difficult and they’ve been made more difficult because as we’ve talked about on this podcast, there’s been changes in the legislature recently and it’s the comparative negligence change that was made.
It’s made these cases a lot more difficult to bring. Attorneys aren’t going to take as much risk on these cases as they may have in the past.
And what’s the reason for that? What was the change that was made?
Nonni
It was back in March that part of the law changed. The easiest way to explain it is if the case goes to trial, which we talked about, it’s not super common. But if it does go to trial, the jury has to decide who’s at fault and they get to basically give a percentage of fault to the defendant and to the plaintiff.
So they have that up to 100% So they can say it’s 100% defense, 0% the plaintiff, and vice versa. They can say 80, 20, 50, 50, whatever. And under the old law, whatever percentage gets applied to our client, to the plaintiff. So like if the jury says it’s 50% our client’s fault, then we basically still get 50% of whatever money that the jury awarded.
You take the money that the jury awards and you subtract out the percentage that gets applied to the plaintiff. You still get the other part.
Under the new law, the way the law was changed, now to make it so that if 51% or more of the fault gets apportioned to the plaintiff, to our client, then we have $0.
So previously if our client’s, 51% at fault, we still get 49% of the money. Right now, if our client’s, 51% at fault, you get zero.
And that’s a big deal in these cases because I think every trip and fall case I’ve ever seen that’s gone to trial, there’s always some percentage that gets put on the plaintiff inevitably, no matter what, and almost no matter what the facts are, people are just like, “Well, should have been watching where you’re going better” or something like that.
And so it makes it more scary, like you were just saying in terms of taking those cases and going to trial and running the risk that the jury says 51% your fault, you get $0.
Homola
And you have no idea. You get a jury, you can try a premises liability case 100 times. And you could probably get 100 different results as to what the percentage of each party was. You just never know what a jury is going to do and it makes it a lot more risky for us to take those cases.
Mark continued his studies at Florida State University College of Law, graduating cum laude in 2008. While in law school, Mark was a member of the Journal of Land Use & Environmental Law and the Journal of Transnational Law & Policy, as well as a certified legal intern with the FSU Public Interest Law Center, where he assisted low-income clients with a wide range of family law issues. He also served as a law clerk intern to The Honorable L. Clayton Roberts of Florida’s First District Court of Appeal.
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