If you’re considering hiring an ERISA attorney, it’s highly likely you’ve had a claim for ERISA governed benefits denied. These might include retirement, health, life, disability or long-term care benefits denied. The denial of a benefit claim will almost certainly cause you significant emotional and financial stress.
Navigating the intricacies of The Employee Retirement Income Security Act of 1974 (ERISA) is typically a formidable challenge for anyone, even many lawyers. With its web of regulations and time limitations, a denial of an employee benefit claim doesn’t just require a competent lawyer to assist you; rather, successfully navigating the intricacies of ERISA requires the assistance of an attorney with a deep understanding of the law—and the experience in fighting for your benefits.
In this guide, we look at the important factors to consider when hiring an ERISA attorney. From experience and reputation to fee structures and communication, each facet plays a role in recovering your employee benefits under ERISA. As you’ll see, retaining the right attorney can make all the difference.
1. How Much Experience Do You Have Litigating Erisa Disputes on Behalf of Employees?
Today’s legal world is one of specialization. Lawyers who draft wills and trusts don’t handle divorces, and lawyers who handle personal injury cases don’t handle bankruptcies.
The same is true of ERISA lawyers. ERISA is a highly specialized area of law—and if you have a dispute over the denial of benefits governed by it, you want a lawyer on your side who focuses their entire practice on employee benefit disputes.
The level of experience your attorney brings to the table can significantly impact the outcome of your case. They’ll review all relevant documents, including your plan terms, and the contents of the claim file created by the insurance company. Said attorney and their staff will also act on your behalf in gathering the essential documentation required to win your appeal.
2. How Do You Handle Appeals?
In the world of ERISA, appeals often serve as the critical bridge between a denied insurance claim and a potential lawsuit. Before heading to court, the initial denial must undergo a detailed appeal process. This is where the expertise of an ERISA attorney shines.
Consulting an experienced ERISA attorney for your appeal is critical. In most cases, only the information presented during the appeal will be considered by a judge. So, your attorney’s understanding of the subtleties of this process is crucial to maximize your chances of success.
Whether you’ve already initiated the appeal on your own, or you need guidance from square one, your attorney should be well-equipped to lead you through the process effectively. Their expertise in handling ERISA appeals can be the glue that secures the benefits you rightfully deserve. They also need to be well-versed in the area of medicine that relates to your claim and have knowledge of the best medical providers to support your claim.
3. Do You Litigate and Win Cases? Or Are You a Mere “Settlement Operation”?
The manner in which ERISA firms advocate on their clients’ behalf is almost certainly the single most important factor in deciding who to retain as your counsel. You need a lawyer who, at every turn, will take all reasonable steps to maximize your recovery. Of course, every lawyer will promise that—but in order for you to understand the nature of their promises, you may have to understand some basics about ERISA.
If an initial claim is denied, before proceeding to litigation, the US Department of Labor requires you to appeal a denial before going to court. Equally important, only the information provided by you to the insurance company before you file a lawsuit will be considered by the judge in deciding if you win or lose. For these reasons, the appeal is all-important.
Some ERISA firms offer to handle your appeal for free—sounds great, right? What do you have to lose if you aren’t paying for their services? The answer is, a lot.
Realistically, while law is a profession, it is also a business. Firms cannot put in the necessary resources to complete a top-notch appeal if they aren’t charging for their services. When Kantor & Kantor handles an appeal, we put in hours upon hours reviewing the claim file, speaking to doctors, vocational experts, and other witness to make sure that any evidence we can obtain to support your claim will be submitted as part of your appeal.
Firms who offer to handle your appeal at no charge simply cannot provide this level of representation. They are essentially offering to throw together a hurried appeal—which will likely be denied—in hopes that they can file a lawsuit and settle the claim without going to trial. But without having performed enough work to properly prepare the appeal, they will have to settle the case for whatever they can get. There is much truth to the adage that “you get what you pay for.”
These same firms may boast a 98% success rate. Again, that sounds great, but it depends on how success is defined. If any time they obtain a settlement for a client—even if it is pennies on the dollar—this qualifies as a “success,” you have a problem. The clients may well be having less “success” than they were entitled to.
How do you ensure you don’t hire an attorney whose practice is based on settling cases fast—and for whatever they can get?
Here are two simple tips:
- Never give your lawyer the authority to settle your case without your specific permission—and, more importantly, without your involvement in the process. If you do, you may end up with a lawyer who settles 20 cases in bulk without giving your particular case the attention it deserves. A discussion of the settlement of your case should involve you and the specific merits of your case.
- Ask for a list of the ERISA cases the firms have litigated and won in federal court. Many ERISA firms run on a business model of settling cases quickly for whatever they can get—meaning they don’t go to trial and win cases. If an insurance company is confident your attorneys will never take the case to trial, they have no incentive to offer a fair settlement. If you’re concerned that the firm you are talking to is a “settling” firm, it’s easy to find out. Reputable law firms should have a list of the cases they have won.
We are very proud at Kantor & Kantor of our track record in this regard. While we accept fewer clients than firms who spend their efforts mostly marketing rather than on zealous representation, over the last 20 years we have tried and won more cases than any ERISA firm in the country. In the last 18 months, not only have we won a number of cases, but we have also prevailed in six appeals to circuit courts. Many ERISA lawyers will go their entire careers without a single circuit-level victory, and we have six in the last 18 months. For more details on our recent victories, follow this link to our recent precedent setting wins.
4. What Is Your Reputation as an Erisa Attorney? Where Can I See Client Reviews?
An attorney’s reputation can paint a clear picture of your legal journey. Before hiring someone, please do your research to get a sense of who they are.
In addition to reading online reviews, look for past client references to gain a clearer understanding of how your potential attorney operates. Look at their track record, focusing on the quality of their victories rather than just their claimed “win percentages.” Some lawyers count every settlement as a win, even if they recover mere pennies on the dollar.
Be very wary of ERISA lawyers with no track record of winning cases in court, as they are likely attorneys who always settle their cases. When insurance companies have no fear that the lawyers they are up against will take the case to trial, they have no reason to offer fair settlements but will rather lowball the plaintiff, knowing they can be coerced to settle for whatever they can get. Huge cases loads and very fast turnover of cases may benefit the lawyer financially, but that type of lawyer is rarely going to best serve the client’s interests.
Opt for ERISA attorneys who specialize in litigation and consistently secure favorable outcomes for their clients. You want a lawyer who understands ERISA regulations, is well-versed in federal court procedures, and is unafraid to fight diligently on your behalf. Choosing an attorney based on their reputation for excellence can be your path to a successful ERISA case.
5. Where Are You Based?
ERISA is a Federal Law, and it is applied mostly uniformly in all states. However, the insurance company must consider certain State Insurance Laws in deciding claims or a Federal Court Judge if a claim ends up in litigation. Certain limited insurance laws govern even ERISA claims.
For example, if an insured doesn’t file their original claim “timely” as set forth in the policy, some States will allow the claim to be denied strictly on timeliness grounds. However, many states, including California, will not allow a claim to be denied for that reason unless the insurance company can prove it was prejudiced by the late claim submission. This is known as the “notice-prejudice doctrine.”
It is not an ERISA law, but a law imposed by nearly half of the States. Only a lawyer well versed in ERISA and state insurance law can properly advise you of your rights. Understanding the local landscape is crucial. An ERISA attorney’s familiarity with judges, defense lawyers, and mediators in the area can prove to be helpful.
Some lawyers have websites that suggest that they have offices right in your area; if you have doubts, ask if you can come in and meet with them. If they say no, they are likely not practicing in your area.
6. How Do You Keep Clients Informed as to What Is Happening With Their Case?
Establishing a good communication system with your ERISA attorney can both reduce your anxiety level and also impact the success of your case. While lawyers are often engrossed in their work, they are responsible for ensuring that you stay informed. Your attorney should provide updates, especially as your trial date approaches.
A responsive attorney will efficiently address your questions and concerns and ensure they remain familiar with all the details in your situation. Open communication should go beyond office meetings and telephone calls; the firm should be available during reasonable hours. Understanding whether multiple individuals within the firm will work on your case also establishes comprehensive attention to detail.
Equally important is making sure your attorney is listening to you! They need to hear from you about the facts underlying your claim. If they don’t have a full understanding of your particular situation, they won’t be able to properly represent you. For that reason, it is essential that when you are hiring an ERISA attorney, you are comfortable that the attorney will be listening to what you have to say about your case.
7. How Do You Stay Updated on ERISA Law Changes?
Since its inception in 1974, ERISA has gone through many amendments, from COBRA to the Affordable Care Act. These revisions have consistently expanded protections for plan participants and beneficiaries. So, it’s crucial to have an ERISA attorney who keeps well-informed about these changes.
An attorney who stays up to date with evolving ERISA law, and the latest technologies, ensures you’re working with someone well-versed in the protections you may rightfully receive.
8. Fee Structure: What Is Your Compensation Structure?
Before hiring an ERISA attorney, talk with them about their fee structure. Attorney fees may vary based on factors like experience, reputation, or the firm’s size, or history of success.
Common legal fee structures include hourly rates, flat fees, and contingency fees.
- Hourly rates involve payment for the time an attorney spends on your case.
- Flat fees entail a predetermined sum for specific legal services.
- Contingency fees tie the attorney’s compensation directly to the case’s outcome, encompassing both litigated wins and settlements.
Understanding the fee structure is essential—it impacts your budget and serves as a guarantee for the attorney’s services. Be sure to discuss and clarify fee arrangements with your ERISA lawyer to ensure a transparent and mutually beneficial partnership.
Find Your Expert ERISA Attorney
In the intricate world of ERISA cases, your choice of attorney can make or break your chances of success. The critical factors outlined in this guide can help you select the right legal expert for your ERISA case.
Willingness to take a case all the way to trial, experience, reputation, fee structure, staying current with the law, and effective communication all contribute to a strong attorney-client relationship. Remember, ERISA’s complexities demand specialized knowledge. The right attorney can be your key to unlocking the benefits you deserve.
If you aren’t sure, and the information you find on the internet is confusing, ask an attorney who doesn’t handle ERISA cases who they would hire if they needed an ERISA attorney. If they don’t know, they can help you find an attorney who can best serve your needs.
Kantor & Kantor has an impressive track record with ERISA cases. Throughout your case, we will be both your legal representation and your strategic partner, seeing you across the finish line. Reach out to us today to learn more about our services.