Attorney’s Fees and Injured Minors

Children are notoriously accident-prone, and when another party’s negligence contributes to an accident, the resultant injuries can be even more serious. The state of California works to protect children’s best interests in personal injury cases. Because children are not in a position to negotiate for and protect themselves, the state has policies and laws to ensure that children recover the damages they deserve in personal injury lawsuits.

Any personal injury suit involves the payment of attorney’s fees. Generally, attorneys and their injured clients enter into fee agreements before beginning the settlement or litigation process. In personal injury cases, a contingency fee agreement is often used, in which the victim pays a certain percentage of the final settlement or judgment to the attorney as compensation.

Adults can generally enter into whatever payment contract they consider to be fair. Contingency fees are typically around 33 percent, and can go as high as 50 percent. But when a minor brings a personal injury claim, the court must approve the amount of attorney’s fees, including contingency fee contracts.

California law includes other protections for children bringing personal injury suits. Because children are incapable of exercising equal bargaining power when deciding on a fee arrangement, there are limits and protections for any fee contract into which they may enter.

Formerly, in California, an attorney was not permitted to charge more than a 25 percent contingency fee. Exceptions to this rule were rare and required court approval. Generally, the attorney would be required to show that he or she provided extraordinary legal services.

Now, however, courts must use a reasonable fee standard when deciding whether to approve a fee agreement. This standard trumps any local rules and applies across the state. Often, the fee will depend upon how much work the attorney put into the case. The final fee agreement, however, still must be approved by the court. If the court does not approve the fee contract in advance of a judgment in court, the court will determine a fair fee at the time of the judgment.

The new reasonableness standard exists to avoid discouraging attorneys from taking child injury cases because of an arbitrary fee cap. In practice, the new standard means that children will get more often be able to retain competent representation and thus obtain higher settlement or judgment amounts.

Additionally, California law requires the court to approve all litigation costs in a minor’s personal injury matter. Litigation costs are those expenses incurred in the process of litigation or settlement other than compensation for an attorney’s time. They may include:

• Filings with the court;
• Deposition costs;
• Jury and witness fees;
• Expert witness fees;
• Copy fees;
• The costs of any study, report, or analysis necessary for the case; and
• Any other costs related to litigation.

Before recovering litigation costs, the attorney must itemize the costs for the judge to examine and approve.

If your child has been injured in an accident because of another’s negligence, you need the experience and dedication of a lawyer who will work tirelessly for your child’s interests. Please contact the skilled San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. to schedule a consultation.

• Family Code - FAM
• 2018 California Rules of Court