Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 29, 2019

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Medical malpractice attorney fees are often negotiable. Many lawyers will take a malpractice case on a contingency basis, which means that if the case is successful the lawyer will keep a percentage of the settlement, usually between 20 and 40 percent. Many states place a limit on the contingency percentage in medical malpractice cases. Most of these states use a sliding scale based on the amount of the settlement or judgment. For example, fees are allowed up to 33 1/3% for the first $300,000, 25% for the next $300,000, and the percentage then continues to decrease as the plaintiff’s recovery amount increases.

Billing options can be creative. For example, you could propose monthly bills or because your case could drag on for several years, you should negotiate a tiered fee so that you pay increasing percentages as your case progresses towards trial. For example, you would only pay 25% if your case settles before trial, 33% if it goes to trial and 40% if it goes up on appeal.

You could also negotiate fees based on the settlement total. For example, you would agree to pay your lawyer 33 1/3% for the first $300,000, 25% for the next $300,000, and the percentage would continue to decrease as your settlement amount increased.

Additionally, if you demand that the advanced expenses be paid before the lawyer’s fee is calculated, your recovery may significantly increase. For example, suppose your settlement is $500,000. Your medical expenses, expert fees, court costs and other expenses equal $100,000. Instead of paying the attorney a percentage of $500,000, subtract the $100,000 of expenses first and pay the attorney a percentage of $400,000.