Finding the Best Lawyer for Your Claim
Do I need a lawyer?
Yes. Although the language of the False Claims Act does not specifically require that a relator engage a lawyer, courts have thrown out cases where the relator attempts to proceed without one. The courts have reasoned that the relator is effectively acting on behalf of the government, and the government is entitled to be represented in court by a lawyer.
It is also a good idea to retain a lawyer. The False Claims Act has many technicalities and failure to comply with even one of them might result in you losing your rights. A lawyer experienced in False Claims Act litigation also will help determine the best arguments and evidence available and the best presentation of those arguments and evidence. Due to the number of cases that are presented to the US Attorneys and to the State Attorneys General each year, and the limited number of government lawyers available, only those cases that are presented effectively are likely to be joined by the government.
In the past, when the government has chosen to join a case, the likelihood of achieving a victory or settlement is over 90 percent. But the government only joins about 20 percent of the cases that are presented.
Can I afford a good lawyer?
Yes. False Claims Act lawyers generally work on a contingency fee basis, which means that the client does not need to pay any fee at all unless there is a recovery, and then the fee comes entirely from the money paid by the defendant. The lawyers fee is generally in two parts. First, the lawyer receives a share of the money that the relator collects from the government (which the government received from the defendant). Second, the lawyer receives statutory fees, costs and expenses directly from the defendant.
The lawyers in False Claims Act cases frequently perform a tremendous amount of work with only the possibility of ever receiving any compensation at all. Some cases can go on for several years. During that time, the lawyers can participate in depositions across the country and can be involved in the review and analysis of hundreds of thousands, if not millions, of pages of documents. That evidence must be analyzed or organized, and then presented to the Court. Moreover, some lawyers bring valuable experience and judgment.
What questions should you ask when selecting a lawyer?
1. Is the law firm experienced with the False Claims Act?
The False Claims Act has many technical requirements. If a lawyer fails to follow even one of these requirements, the relator might lose all of his/her rights. For example, the federal False Claims Act requires that a whistleblower serve the complaint on the Attorney General before filing the lawsuit. Some lawyers have not done this, leading to the argument that the whistleblower is entitled to absolutely nothing, regardless of how much time, money and effort the whistleblower spends or how many hundreds of millions of dollars the whistleblower recovers for the government. Law firms who have experience with the False Claims Act know the requirements of the law.
2. Is the law firm experienced in litigating complicated lawsuits?
Many defendants vigorously defend against a whistleblower's allegations. The result is frequently a complicated lawsuit about events that may have taken place over a series of years. Lawyers who have experience with only employment discrimination cases or personal injury cases can be much less effective than lawyers who litigate complex fraud cases.
3. Does the law firm have the necessary resources to take the case all the way to trial if the government chooses not to intervene?
The government intervenes (i.e., takes over) about 20% of the False Claims Act cases that are filed. In the other 80%, the whistleblower can still move forward if the government does not intervene, but doing so requires a very significant investment of time and resources. For example, in the Tyson v. Amerigroup case, Goldberg Kohn (the whistleblower's lawyers) participated in more than 70 depositions and reviewed more than one million pages of documents. Goldberg Kohn was able to do that because it is a firm of nearly 100 lawyers, and it had the resources to devote to the case. A smaller firm might not have been able to pull together the necessary resources to move the case forward or to achieve a judgment of more than $300 million.
4. Has the law firm achieved exceptional results in the past?
Some law firms have proved their qualities by winning tough cases. While past wins do not guarantee future success, a law firm's successes can be a valuable indicator of quality.
5. Does the law firm have a good working relationship with the government?
The False Claims Act envisions a partnership between the whistleblower and the government. A whistleblower brings important information to the process. The government, however, has many important roles to play, and maintaining a positive and trustful working relationship is critical to achieving positive results.
6. Have independent organizations endorsed the law firm's work?
It can be difficult to reach a reliable conclusion about the quality of a law firm, especially for someone outside of the legal profession. Several organizations, such as the Public Justice Foundation, Taxpayers Against Fraud and the National Law Journal, perform rigorous analyses to identify the most effective trial lawyers in the country. These organizations provide unbiased and independent information. All three organizations have named Fred Cohen and David Chizewer as being at the very top of the qui tam profession.