If you’re speaking with an attorney and trying to get a sense of whether or not this is somebody you want to work with on an ERISA case, there are certain things you should be asking, and you should be comfortable with the answers that you’re getting as well before you move forward. The first question you should ask is, “How much experience do you have handling ERISA cases?” As I’ve mentioned before, there are a number of attorneys who dabble in this area of work, but it’s not their primary area of focus. ERISA is a sufficiently niche practice that it’s important that you work with somebody who has a lot of experience handling ERISA cases.
A second question you should ask is, do you handle ERISA appeals? Your appeal of the denial of your claim is a critical stage in successfully litigating an ERISA case. In a perfect world, you win the appeal. If you don’t win the appeal, you want to make sure that the appeal has been handled in a comprehensive and thorough way that puts you in the best possible position to litigate the case in federal court, because that appeal is going to provide the record that the court is going to look at in deciding your case. It should concern you if an attorney says that they don’t handle the ERISA benefit appeals and that they only litigate the cases.
The next thing you should be asking is what the attorney’s approach is to litigating these cases. Have they ever taken one to judgment? If the law firm simply settles every case and they settle it at a deep discount, that should be a red flag. These cases can be settled for reasonable amounts, and they can be litigated in one, and anybody who tells you that you can’t win an ERISA case in court is mistaken. Now, you can’t win every ERISA case in court, and there are some cases that should settle because they have significant defects, but you should be interviewing attorneys and only working with attorneys who are prepared to take your case to judgment if necessary. You want to ask about the attorney’s win-loss record.
What kind of outcomes have they had on behalf of their clients? Are all of those outcomes settlements? Have they lost more cases than they’ve won? What’s happened? You want to ask about their bar-related activities as it relates to ERISA. Are these attorneys speaking at conferences or writing on the topic? How are they keeping abreast of developments in the law? And are they helping to craft the law, not only for their own clients but also for other individuals, and to expand knowledge of the law?
Those are just some of the many questions you should be asking. Another important question you should ask is, who will be handling my case on a day-to-day basis? Will it be a legal assistant? Will it be a paralegal? Will it be the attorney? There’s nothing wrong with a legal assistant or a paralegal working on somebody’s case. That’s an important part of delegating work in a law office. That said, you want to be able to speak to your attorney if you have a question about the case, and you want to be confident that your attorney is up to speed on your case and that you have not simply been handed off to a paralegal or a legal assistant who’s managing your case. The attorney should be engaged. There are many strategic decisions that the attorney needs to make at all phases of an ERISA case. And it’s important that your attorney is engaged and involved in that process. At our firm, for example, all of our clients are able to reach the attorneys at the office if we are at our desks and not on the other line or not in a meeting.
We are available and accessible and take our clients’ calls when they call, and we’re typically in a position to answer just about any question a client may have about his or her case.