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Ask the Judge

Here is a question/problem a reader asked:

My name is M.A.

I had an auto accident in 2014. The other driver was at fault.

I went to an attorney who advertises on billboards [I don’t want to mention his name].

My attorney said he won’t charge me a fee unless he wins the case. Then he said he wants 40 percent of what we win. Now it is two years later and he doesn’t always return calls. Last week he said I should not take this to trial and to settle for about half of what he originally said I would get. The settlement he said was all the insurance company will ever offer which is $200,000. [He gets 40 percent of that.] 

How do I know if this is fair?

With doctors you can get a second opinion, but my lawyer said he would be insulted if I got a second opinion from another lawyer. So I am asking you Judge Bayger- can you give me any advice?

Dear M.A.,

Your problem has many facets, so I will try to address the many aspects of your issue.

Your letter does not identify your age, which may be an important factor in determining the fee.  A driver under the age of 18 is considered an infant in the eyes of the law, and the fee would have to be approved by the court.

According to the Rules of the Unified Court System, an attorney can charge you if he or she wins the case.  That is called a contingency fee, and it is a percentage of whatever you get after a trial or settlement of your case.  The percentage is 33.33%.  When it comes to fees, all attorneys are governed by the same Rules of the Unified Court System.  No matter whether you get the most qualified or the least qualified attorney, they both must charge the same, which would be 33.33%.

Getting a second opinion is always a good idea when you are trying to make the right decision and for the sake of your peace of mind.  This applies whether you are hiring a doctor, lawyer, or anytime you are consulting a professional.  You can always change at no extra charge to you.

Remember, despite what work that may have been done by the first attorney, he or she will be paid out of the same 33.33% that any subsequent lawyer would receive.  The second attorney would receive the balance of the fee.  There is no additional fee to you for changing attorneys.

The biggest mistake people make after an accident, while in a state of shock and anxiety, is that they immediately retain a lawyer they’ve seen on TV or a billboard without checking into their qualifications.  Every lawyer has an obligation to supply an injured person with their educational background and experience.

My advice to you would be to get a second opinion from an attorney that you are satisfied is outstanding in the field. Only a highly experienced attorney in personal injury law can properly evaluate whether or not an offer is fair and reasonable based on the unique circumstances of the case.  Without knowing all of the facts, I cannot speculate whether to settle was the proper determination.

(Retired State Supreme Court Justice Frank 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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