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Legal guidance
Choosing the right solicitor
It is more important to instruct a solicitor with experience than to allow someone who is inexperienced to handle your case purely because he/she has an office close to your home. In seeking expert medical advice you would probably not hesitate to travel some distance to see the right specialist. The same considerations apply to brain injury compensation claims. Choosing the wrong solicitor could result in under-valuation of your claim. It is important that you choose a solicitor specialising in brain injury work.
Brain injuries are complicated and involve different considerations from other forms of injury. It is very important that the solicitor you choose to handle your claim understands the complexities of your injury and how your own injury is likely to affect your life. A specialist solicitor will know the right expert to instruct in your claim which will result in fair and just compensation to you.
The solicitor that you instruct will explain to you how your claim will be conducted. This advice could seem complicated, particularly following a brain injury. You must, therefore, always ensure that you take someone with you who will help you understand the questions and understand the advice and perhaps ask questions that may not occur to you. Never hesitate to take notes. The solicitor you instruct should send you a letter setting out the advice that has been given at your initial meeting. If you do not receive such a letter you must not hesitate to ask for the advice in writing.
It is common for claims for compensation for brain injury to take 3 to 5 years and in some cases longer. The reason for this is that it is important to ensure how your brain injury is going to affect your future and to assess all your future needs. This will enable your solicitor to value your claim properly. You should not, therefore, expect your case to be settled quickly - indeed, it is unlikely that a swift settlement would be in your best interests. Delaying the settlement of your claim should not prevent your solicitor from obtaining an interim payment for you in most cases.
The solicitor that you instruct will find it helpful if you can keep a record of important events in a diary and also keep a list of expenses that you incur.
It is important that your solicitor explains to you the various options for funding your claim, how costs can be recovered and how your position in relation to legal costs can best be protected.
It is hoped that you will find this list helpful to you in selecting a solicitor who is competent to handle your case.
There are three main elements of any claim for compensation. You will need to show that another person was at least partly to blame for causing your injuries, and this must be decided at the earliest possible stage. It is also necessary to prove that you (The Claimant) suffered an injury and that another person's (The Defendant's) actions caused your injury.
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The claim process
Whilst the main purpose of pursuing a claim is to receive financial compensation for your losses, it can also provide other positive benefits. For example, the Rehabilitation Code says that support should be provided to you and your family. This will usually be in the form of rehabilitation and treatment but can also include counselling or cognitive behavioural therapy or the appointment of a Case Manager, who can assess what support you need. In some circumstances, third party insurance companies will provide support and rehabilitation even when liability is in dispute.
The Solicitor will arrange for you to undergo medical examinations to determine the prognosis for your injuries. Any treatment needs and care requirements will also be identified during the examination. It will help your recovery if you are able to gain access to the recommended treatment as soon as possible.
In addition to the compensation for the injury itself, you are entitled to claim expenses. These may include loss of earnings, care, medical expenses and equipment. The Solicitor should therefore investigate all potential expenses claims and include a claim for any past expenses as well as a projected future expense claim for all expenses you will have once the claim is settled.
Meeting your solicitor
Before you meet your solicitor it is a good idea to get together any letters, documents or other paperwork which you think the solicitor might need to see. For instance, if you have been involved in a car accident the police may have given you a card or a letter with some details on about the accident e.g. time, place, reference number (if in doubt show the solicitor the document and they will decide if they need the document or not).
It is also advisable to take any insurance policies that you may have to the meeting so that the solicitor can check to see if you have any legal expenses insurance.
At your first meeting there may be more than one solicitor present. This means that, if your solicitor is not available to speak to you at any time during your case, perhaps because they are at a court hearing, you will still have someone you can speak to who is familiar with your case.
The solicitor will ask you to tell them what, if anything, you can remember about the accident. It may be that because of your injuries you cannot remember anything. If that is the case, do not worry. The solicitor will be used to dealing with this situation. If a friend or family member witnessed your accident, your solicitor will be able to speak to them and they can also obtain information from others, e.g. the police or the Health and Safety Executive.
Once the solicitor is aware of the facts of your case they will tell you whether they have enough information to be able to properly advise you. If the solicitor feels that you have a reasonable chance of winning your case (i.e. a greater than 50% chance), then they will tell you what investigations they need to do next. They will also discuss with you how to pay for these investigations.
There are a number of different ways to fund your claim such as Legal Aid in Clinical Negligence cases, legal expenses insurance, after the event insurance, conditional fee agreements ("no win, no fee") and in some cases funding from your trade union or the Legal Services Commission (formerly the Legal Aid Board). The solicitor will advise you which option is best for you.
Questions to ask your solicitor
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No solicitor who is prepared to act for you or your family should object to answering questions fully and honestly.
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The following questions are blunt, but you should not be afraid to ask them. Take a written list of questions when you see a solicitor for an initial interview, and make a note of the answers given. You may want to ask the person accompanying you to ask the questions. If a solicitor objects to the questions or to your note making, you should ask yourself why.
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Q How long have you undertaken brain injury work and how many cases are you handling at the moment?
A. The answer will give you a good idea of the individual's experience, and their familiarity with brain injury work, i.e. whether or not they deal with such cases on a regular basis.
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Q What proportion of your present workload is brain injury? What does the balance of your workload comprise of?
A. The answer to this question will tell you whether or not the solicitor you are instructing is a specialist in brain injury and is capable of handling a serious injury claim.
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Q Will you be dealing with my case personally?
A. You may choose a specialist solicitor who is experienced in dealing with brain injury work. If, however, that solicitor is not going to handle your case personally, it is possible that your case will be passed on to a more junior solicitor who may not necessarily be a specialist. You must, therefore, establish from the outset that the solicitor you are instructing will deal with your case personally and will be available for you when needed.
It is not unusual for solicitors to delegate or teamwork, but the solicitor instructed by you must have the time to properly assess your case and be involved in all the important steps.
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Q Do you belong to the Association of Personal Injury Lawyers (APIL)? Do you belong to the Law Society's Personal Injury Panel?
A. Membership of Professional Bodies is an indication of special interest, and also that there are reputable organisations to contact in the rare case of a complaint being necessary.
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Q When will you be able to apply for an interim payment?
A. Compensation claims, especially potentially large or complex claims, may take some time to conclude. In the meantime you will need to pay for rehabilitation, aids or adaptations or additional family expenses. Your solicitor should be aware of these likely needs and know the system for getting a result. Your solicitor should be able to advise you whether yours is a case in which an early interim payment was likely and if not why not.
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Q What are the options for funding the case? (e.g. "no win, no fee"; legal expenses insurance; legal aid)
A. You must feel confident you understand the fee structures and the potential risks involved. This will help you make a decision on the right choice of legal representative for you.
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Q Are you prepared to visit us at home if necessary?
A. There may be difficulties travelling to the solicitor's office. Also, visiting a solicitor can be an intimidating experience at the best of times. The individual with brain injury may feel more at ease in their own surroundings.
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Q Can we phone you if we have any problems?
A. Yes! You should also have a contact to whom you can speak in your solicitor's absence - even solicitors fall ill and have holidays but you should feel confident that in these circumstances, there is someone in the legal team who can take on your enquiries and address your concerns.
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Q Will you keep in regular contact with us, and how will this be done?
A. Your solicitor should be prepared to keep in contact on a regular basis. Most of the misunderstandings between clients and their solicitors arise from poor communication.
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Q Do you have links with your local Headway groups?
A. A solicitor with links to Headway will not only be an ideal source of information about local support, but will also have opportunities to hear news from the wider world of brain injury research, support and development.
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Q Do you have experience working with brain injury professionals?
A. The term "brain injury professionals" covers a a wide range of different expertise from benefits experience to neuro-psychology. You should be able to have confidence in your solicitor's knowledge of the kinds of professionals who might be consulted about the support necessary for you or your family members.
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Q On average, what settlements do you achieve for your clients and what investment advice do you give?
A. Once your compensation award has been finalised you may need advice on how to financially manage large sums of money. If your solicitor regularly deals with large claims, the better knowledge and access to appropriate financial guidance he or she will have.
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Q Would you be happy for us to take up a reference in relation to your ability to handle my claim?
A. A specialist solicitor will have satisfied clients and family members and will be known to professionals specialising in brain injury work. If you would feel more comfortable with speaking to someone about the solicitor you have instructed you must not hesitate to ask this question.
Remember! You are free to seek an initial interview with more than one firm. Visit two at least. Gaining some knowledge about the solicitors and their different ways of working is an important step to making a choice of legal representative that suits you.
If, during the course of your claim, you realise you are unhappy with the choice you have made, you have the right to change your solicitor. However, before doing so you may like to discuss this with someone else, for example Headway, your case manager or some other independent person.
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Q If my case is funded by way of a “no win no fee” agreement, will you charge a success fee? If so, how much will the success fee be and how is it calculated?
A. A solicitor can charge a success fee to reflect the financial risk in taking your case on a “no win no fee” basis. The success fee only arises if your case is successful however it will be deducted from your compensation. It is important that you ask the solicitor whether a success fee will be charged, and if so, the amount. The success fee will be a percentage of your compensation (capped at 25% of compensation for your injuries and past losses).
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Q Will there be any other cost deductions from my compensation?
A. You should ask your solicitor to clarify whether there might be additional deductions, such as for any shortfall in the recovery of their basic charges or for After The Event insurance.
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Headway Coventry & Warwickshire can help you find or meet with a suitable solicitor if you would prefer to have support to do this.
07752 167075 or enquiries@headway-cw.org.uk
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