In most cases, workers’ compensation lawyers in Delaware get a fee when your case closes, but only if they’ve helped you recover workers’ comp benefits. The amount of the fee will depend on whether your claim settles or goes to hearing. (To learn how much you might receive for your case, see our article on Delaware workers’ comp benefits.)
If your case settles and you don’t end up going to a hearing, your attorney will take a contingency fee. In a contingency arrangement, your attorney takes a percentage of your settlement, instead of charging legal fees up front. Unlike most states, Delaware law does not limit contingency fees in settled workers’ comp cases. In practice, it is common for Delaware attorneys to charge a contingency fee of 30% to 35%. This percentage will be deducted from your lump sum settlement at the end of your case.
Workers’ compensation cases often involve multiple hearings. If your claim is disputed by the insurance company, you might need to go to a hearing to address a preliminary issue—such as whether your injury was work-related. If you win at that hearing, the workers’ comp board will award your attorney a fee based on an hourly rate and time spent on the case. This will be paid by the insurance company.
Suppose that you then settle your case with the insurance company, rather than going to a final hearing on how much you’re entitled to in benefits. Your attorney will take a contingency fee (usually in the range of 30-35%) of the lump sum settlement.
In some cases, there will be a dispute about the extent of your permanent impairment. In the rare event that you and the insurance company cannot come to an agreement on the extent of your disability, you will need to proceed to a permanency hearing. If you win an award from the court, the judge will award you attorneys’ fees, which will be paid by the insurance company.
After you win at your hearing, your lawyer will submit an affidavit to the worker’s compensation board with his or her hourly rate and a detailed explanation of the time spent on your case. The court will then award a reasonable fee. Under Delaware law, the board-awarded hourly attorneys’ fees cannot add up to more than ten times the state average weekly wage or 30% of the award, whichever is lower. The current maximum attorneys’ fees are $10,341.80.
These court-awarded fees offset the fees you are required to pay your lawyer under your fee agreement.
Example: Let’s say David’s case proceeds to a permanency hearing. Per the Board’s decision, his case is worth $30,000 in benefits. Mary worked 20 hours on David’s case and charges $200 per hour, so the Board awards her a fee of $4,000. However, Mary and David agreed upon a 33.33% contingency fee at the start of the case, which would be $10,000. Mary subtracts $4,000 from $10,000, and collects a fee of $6,000 from David at the time of settlement. So, although the $6,000 is taken out of David’s settlement, he gets a “discount” because the insurance carrier already paid attorneys’ fees of $4,000.
Costs (also known as expenses) will also need to be paid in your case. Common legal costs include fees for medical records, photocopies, postage, trial transcripts, depositions, and more.
If your case proceeds to trial and you win, you won’t be responsible for costs. Costs, just like attorneys’ fees, will be paid by the insurance carrier.
If your case proceeds to trial and you lose, you might be responsible for costs. Some firms try to collect costs from the client after getting an unfavorable decision from the court, but many firms do not. You should speak with your attorney about how costs will be handled.
If your case settles, the costs will typically be deducted from your lump sum settlement. You should speak with your attorney about when and how costs will be paid.
It’s important to carefully read a lawyer’s fee agreement, so that you know his or her policy on attorneys’ fees and costs. However, you should never choose legal representation based on fees alone. The lawyer’s skill, reputation, and trustworthiness are much more important factors to consider. Focus on finding an attorney who understands the law and takes the time to explain the strengths and weaknesses of your case. For more information about how to choose the right attorney, read our article on how to find an excellent lawyer.