There is a historical baseline in California personal injury work, and knowing it is the single most useful piece of information a person can carry into a fee conversation.
The old general rule was that before a lawsuit was filed, the fee would generally be one-third, or thirty-three and a third percent. When the case went to litigation, which is a separate topic covered later in this book, the fee would increase to 40%.
That is the baseline. It is the contract that The May Firm has used since the inception of the firm, unchanged since day one.
The reason the number steps up at litigation is that the work steps up at litigation. Filing a lawsuit means pleadings, discovery, depositions, motion practice, expert disclosure, and court appearances, and it means the firm is now advancing significantly more costs against an outcome that is further away. The percentage reflects a different phase of work, not a penalty for the case continuing.
I have, however, seen contracts that are far, far beyond that. I would never advise anybody to sign those contracts. So make sure you review any agreement you sign with a lawyer. Get a second opinion even before you sign anything, it would be my advice.
What to Watch For in an Agreement
Agreements exist that depart from the baseline in both magnitude and mechanism, and I have seen them.
I have seen litigation fees run as high as 50%. I have seen legal fees that change automatically after sixty days, meaning the percentage escalates on a calendar trigger rather than on a change in the work being performed. Those are the terms to look for, because they are the ones that do not announce themselves. A percentage is easy to compare. A clause that moves the percentage on a date is not.
And so my advice is the same regardless of which firm you are considering. Review any agreement you sign with a lawyer. Get a second opinion on it, even. Before you sign anything.
That is advice against my own interest at intake, and I give it anyway, because a client who understands the agreement they signed is a better client to work with for the next eighteen months.
The Percentage Is Not the Only Variable
It is worth noting that comparing firms based solely on percentages is a narrow way to make this decision.
Two firms at the same percentage can produce very different outcomes, because the percentage applied to the recovery is not fixed. A firm that investigates early, preserves evidence, builds the damages record properly, and is credible about trying the case is operating on a different level than a firm that sends a demand and waits. Chapter 10 covers what to actually evaluate.
The percentage matters. It just matters less than what the percentage is applied to.
Common Questions
- What percentage do car accident lawyers take in California?
- The historical baseline is one-third before a lawsuit is filed, moving to forty percent once the case goes into litigation. The May Firm has used that same structure since the firm started. Agreements go beyond this, and I advise against signing them without a second opinion.
- Why does the attorney's fee increase when a lawsuit is filed?
- Because the work and the risk both increase. Litigation brings discovery, depositions, motions, expert costs, and court appearances, and the firm advances substantially more money against an outcome that is further out. The step up reflects a different phase of work rather than a penalty.
- What should I look for in a contingency fee agreement?
- Look at the percentage at each stage and identify triggers that automatically change the percentage. Robert May has seen litigation fees as high as 50% and fees that automatically escalate after 60 days. Read the document before signing and get a second opinion if anything is unclear.
- Can I negotiate a contingency fee percentage?
- Yes, and your agreement says so. California law requires every contingency fee agreement to contain a statement that the fee is not set by law but is negotiable between attorney and client. If the document in front of you does not say that, it is a problem with the document. An agreement that does not comply can be voided by the client, and the lawyer is then limited to a reasonable fee. Whether you should negotiate is a different question. Personal injury lawyers are unique in that their interest in maximizing a client's cases is perfectly in step with a client’s interest in maximizing the value of their own cases. A reduced fee on one case disincentivizes an attorney from fully investing in a case and maximizing its value. The fee percentage is the easiest thing to compare across firms, but may be the least useful. At the start of a case, the fee percentage is applied to a hypothetical future settlement amount. We believe it is best to spend time and energy focusing on what happens at each stage of the case, what happens to advanced costs if there is no recovery, and how liens will be handled at the end of the case.
Chapter Reflection
One third before suit, forty percent in litigation, stated in writing, and capped there. That is the shape of the California baseline, and anything materially outside it deserves a second set of eyes. The percentage, though, is only a component of what a case costs. The other component is legal costs, which are separate from attorney fees.