How Will My Lawyer Get Paid to Handle My Hernia Mesh Lawsuit?

How contingency fee agreements work, and how "costs" can affect your hernia mesh settlement.

As with the majority of injury-related cases, most lawyers will handle a hernia mesh lawsuit under a "contingency fee" agreement. That means the attorney's collection of a fee to represent you is dependent upon a favorable outcome to your case. It's important to understand how these agreements work, including the fine print on issues like "costs." (Get the basics on how an attorney can help with your hernia mesh case.)

What Is a Contingency Fee?

Under a contingency fee agreement, your attorney takes a percentage of any settlement or court judgment you receive, and usually pays for all costs as the case proceeds. If you do not receive a hernia mesh settlement, and there is no court judgment in your favor, you typically do not owe the attorney anything.

A contingency fee is often 33%. Some attorneys will handle a hernia mesh case on a "sliding scale," which works much the same way as a standard contingency fee arrangement, except the percentage goes up as the litigation progresses. For example, if the case settles before the lawyer has to file a lawsuit, the fee percentage might be 25%. If the plaintiff (the client) wins after a lawsuit is filed and the case goes all the way through trial, the attorney’s fee might be 40%.

Some attorneys may have a policy of raising their contingency fee percentage once a hernia mesh case is assigned a trial date, because at that point the case begins to demand more time. If an appeal is necessary, the attorney’s fee might go up as part of the contract, or the attorney might want to draw up a new contract—that is, if you decide to use the same attorney for the appeal.

(See a timeline of a typical hernia mesh case.)

"Costs" in a Hernia Mesh Case

Costs and fees are two different things in a hernia mesh case. Costs are the expenses that the attorney or firm pays in order to move the case along toward settlement or judgment. Costs typically include:

  • filing fees (for the initial complaint, subsequent motions, and such)
  • the cost of serving documents on defendants
  • charges for obtaining medical records
  • deposition transcript fees, and
  • payment to medical experts (these fees can easily amount to thousands of dollars in a hernia mesh case).

Most plaintiffs' attorneys will try to keep costs down and not spend any money unnecessarily. If unable to settle, the attorney will usually be responsible for the costs. But it's important to make sure that ultimate financial responsibility for costs is spelled out in your fee agreement with your lawyer. (Learn more about costs in a personal injury case.)

Different from costs, an attorney's fees are paid to compensate the attorney for his or her time, as well as the time of any support staff. Included in this fee is compensation for researching and drafting the complaint and motions, appearing in court, calling witnesses, reviewing documents, taking and defending depositions, and preparing for and putting on a trial.

Calculation of Costs in a Hernia Mesh Case

An important point to consider when it comes to costs: If you win your case, you will usually be on the financial hook for costs. But whether your attorney takes his or her contingency fee percentage before or after these costs are paid can make a significant difference in how much you ultimately receive.

For example, let’s say your hernia mesh lawsuit goes to trial, and the jury awards you $200,000. Your litigation costs are $25,000, and your attorney’s contingency fee percentage is 33%. If your litigation costs are paid before your attorney takes his or her contingency fee percentage, the attorney gets $57,750 (33% of $175,000) and you get $117,250 ($175,000 minus $57,750).

But if you pay for litigation costs after your attorney takes the contingency fee percentage, your attorney gets $66,000 (33% of $200,000) and you get $109,000 ($134,000 minus $25,000). The timing here results in an $8,250 difference in your settlement.

Again, these kinds of financial details—and whether you could be on the hook for any expenses if you don’t end up with a settlement or judgment—should be clearly stated in the agreement you sign.

Switching Attorneys

Let's say that sometime after you hire Attorney A, you decide to end the attorney-client relationship (for whatever reason) and take your hernia mesh case to Attorney B at a different firm. Attorney A probably has a "lien" on any costs advanced toward your case, and on any proportional fees for representation, which will likely come out of any settlement or judgment Attorney B obtains on your behalf. The attorneys will sort this issue out between themselves, but it's something to keep in mind, and to discuss with a new attorney if you change representation.

Learn more about finding and hiring the right lawyer for you and your hernia mesh case.

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