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Posted in Personal Injury on March 17, 2021
Following a car accident, pedestrian accident, or other accident in which you were injured in New York City, you may wish to hire a lawyer to file a lawsuit. It is always recommended that you do so, since hiring a lawyer can make the difference in whether or not your case succeeds. However, there are a number of reasons an attorney may not agree to help you seek compensation simply because you have been hurt.
What does it mean to “mitigate” your damages? Under the law, you have a duty to take reasonable precautions to prevent your damages, whether physical injuries or property damage, from worsening.
After a physical injury, you might mitigate your damages by:
Your duty to mitigate requires you to take steps that a reasonable person would take to prevent the injury from getting worse.
When you fail to mitigate your damages, they usually get worse. After that, it can be really hard for anyone, even a skilled attorney, to obtain the best possible compensation for you. Why?
The at-fault party, and the insurance company ultimately liable for the damages, will blame you for the condition of your injury. They will say there is no proof that the injury was caused by the accident in question.
A knowledgeable attorney may be able to scrape together the evidence to prove that your injuries were, in fact, caused by the accident. However, it can still be difficult or even impossible to establish how much of your injury is because of the accident versus the extent to which your own failure to mitigate has made your injury worse.
The assignment of fault is a key element of personal injury claims. Without a clear path to show that the at-fault party is responsible for the entirety of your injuries, a personal injury attorney may simply decline to accept your case.
In New York and many other states, personal injury attorneys work on a “contingency fee” basis. When lawyers use a contingency fee contract, the client does not pay the lawyer as the case progresses. Instead, the lawyer takes their fee from the ultimate recovery, usually in the form of a percentage of the total amount of compensation.
When lawyers do this, they are taking a financial risk. They are betting on the strength of your case and their own legal skills. If you and your attorney do not win the case, the attorney will not recover any attorney fees for their work.
An attorney may pass on the chance to represent you if they don’t think your case is very strong or they believe the total value of your case, and the percentage they would get, is not worth the months or years of work required to win it.
This might be especially true if you are partially at fault for your injuries. Since New York is what is called a comparative fault state, the extent of your recovery is reduced if you are partly at fault for your injuries. Since this reduces the total recovery, it likewise reduces the total potential contingency fee available to the attorney, and may not be worth the risk involved.
New York attorneys have a duty not to accept cases that will create a conflict of interest. To comply with this duty, they must consider how representing you could affect:
If accepting your case will create a conflict of interest, the attorney may decline to take your case.
Let’s say you were injured in a workplace accident, such as a construction accident. Unbeknownst to you, the attorney represents your employer in their legal matters or is close friends with the owner of the property where construction was underway.
It would not be fair to you, the employer, or the property owner for the attorney to accept your case. Many law offices perform “conflict checks” before they meet with potential clients. If they find that they have a conflict, they will decline the representation.
Many personal injury attorneys offer free consultations. If one lawyer turns down your case, it may be tempting to take advantage of these offers by meeting with multiple attorneys.
However, if the attorney discovers that you have met with multiple personal injury attorneys in the surrounding area, they will probably consider why it is that you have not found an attorney to take your case. If multiple attorneys refuse to take a case, it can signal that your case is not a strong one, and you may not be able to find an attorney to help you.
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