Ask the Judge


Judge Frank R. Bayger

A question from one of our readers in a quandary.

I had an auto accident about a year and one half ago and I went to an attorney who is seen on billboards in this community.

I was told that I would pay a contingency fee and not an hourly rate. Could you explain what that means. [I think I know but I am not sure] If I do not get a settlement or win the case, will I have to pay any money? What other expenses should I expect to pay? My lawyer said I might expect to win an award of $1 million.

How much would I take home after legal fees and expenses?

The reason I am asking these questions is that when I first went to see this attorney he was very forthright and took my calls but once I signed the retainer agreement it is very hard for me to reach him and he does not return my calls.

Is this usual?

Also he is not handling the case and an assistant is taking care of it and the assistant is very young. I feel a little bit chagrined since I thought I was hiring the main attorney and now I have a young man who is nice but can’t answer any of my questions. That’s why, judge, I have turned to you to ask you these questions.

Had I known about you at the time of the accident I would have gone to you.



Dear Caroline:

I certainly understand your situation, so allow me to explain what is supposed to happen.

The fee is called a contingency because it is contingent, or depending upon, a particular outcome.  In these cases, the fee only comes into play if you win your case.  So you only have to pay the lawyer if you win after trial or receive a settlement.  If that happens, you would only pay your attorney one-third or 33.33% of the award.  The remaining 66.67% is yours.  That is true even if you were to drop this lawyer and retain new counsel.  The lawyers would have to determine how to split the 33.33%; the rest is still completely your property.

That is how the legal fees should be addressed.  Expenses may be handled somewhat differently, depending upon the preferences of your attorney.  Some lawyers may require you to come up with the funds for legal expenses yourself.  Obviously, that is not ideal for everyone, and may discourage you from pursuing your case.

In my practice, I believe the poorest person is entitled to the same access to justice as the richest person.  The contingency fee is well suited for this because it does not require any up-front cash from you.  When I take on a case, I take on all of the risk of losing.  The costs of court fees, preparing the case, (including obtaining witnesses) is borne initially by my firm.  If we win, we will recover our costs out of your share of the settlement, but that is only if we win.  If we lose, you are not out-of-pocket for anything.  All of this should be disclosed to you when you initially consult with an attorney after an accident.

It is unfortunate that you have been poorly treated by your attorney.  I believe every phone call should be returned because this is your life that is effectively on hold because of this accident.  The assurance of your attorney should go a long way to alleviate your anxiety, and being ignored at this time only increases your stress.  A good attorney will always care about your physical and emotional needs, as well as your legal concerns.

(Retired State Supreme Court Justice Frank R. Bayger is inviting you to submit legal questions pertaining to personal injury or wrongful death cases to him for a published response.  Email your questions to Judge Bayger, a Hall of Fame trial lawyer, and the judge will respond in writing in the Niagara Falls Reporter.  Send your email to

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