Does My SIRVA Injury Attorney Really Represent Me For Free?
The answer is yes. They do. But make sure you choose an attorney wisely.
The Vaccine Injury Compensation Fund currently has over four billion dollars in it set aside to compensate individuals who have been injured by vaccines and the administration of vaccines. That money comes from a seventy-five cent excise tax that the vaccine manufacturers pay for every dose of eligible vaccine that they sell. (An excise tax is a tax paid by the seller of a good at the time of the sale). So, for example, when you go to the pharmacy and get a flu vaccine, the manufacturer of that flu vaccine has already paid seventy-five cents into the vaccine injury fund for that dose.
Attorneys in Vaccine Injury Compensation Programs (“VICP”) get paid out of that same four billion dollar fund that the injured person gets paid out of. In fact, under federal law, attorneys are not allowed to charge their clients for representing them in a VICP claim. Instead, attorneys who represent individuals in VICP claims have strict guidelines set out by the court about how they get paid, but essentially the vaccine injury attorney is supposed to keep detailed and contemporaneous track of the time they spend on a case. At the conclusion of the case, they are allowed to submit their time and expenses to the court for reimbursement.
The rationale behind this is that the VICP is designed to compensate individuals who have legitimate vaccine injuries and that people who have legitimate vaccine injuries should have access to quality legal representation for their claims. If attorneys were allowed to charge clients, on say an hourly basis, that cost would likely be prohibitive to most people, and they would not be able to pursue their claim. If attorneys were allowed to charge their clients on a contingency fee basis, where they take a portion of their clients recovery, injured people with less significant injuries or questionable claims would have trouble finding attorneys who were willing to invest the time and money into pursuing their case.
Vaccine injury attorneys do not actually have to “win” a client’s case to get paid. They must meet the standard that the case was brought with a “reasonable basis.” This allows vaccine injury attorneys to represent clients in cases that might not warrant the risk involved if it were a contingency fee where if the client didn’t make a recovery the attorney would not only be out their time but also the potentially thousands of dollars they spent in costs pursuing the case. Finally, providing “free” legal services to individuals strongly discourages people from pursuing their vaccine injury case on their own or pro se. This helps the court twofold. First, courts generally don’t like dealing with people who are representing themselves pro se because they are not familiar with how the judicial system works. Second, by giving access to “free” representation, the attorneys act as the “gatekeeper” to the vaccine court and in theory prevent the filing of frivolous claims. The attorneys know that a case must have a “reasonable basis” if they are going to get paid. Accordingly, they are not going to file cases that they don’t believe have a “reasonable basis.”
The most important thing to understand is that VICP cases are unlike typical personal injury or medical malpractice cases. VICP cases are not brought in the state where the person lives or where the injury occurred, rather they are brought in The Federal Court of Claims. To represent an injured person in a VICP case, the attorney must be licensed to practice in The Federal Court of Claims. Only a tiny percentage of attorneys are licensed to practice in The Federal Court of Claims and amongst those attorneys an even smaller number specialize in representing individuals in vaccine injury cases. To put it into perspective, there are currently one hundred fifty members of the Vaccine Injury Petitioner’s Bar Association, the group of attorneys who specialize in representing people with vaccine injuries in the VICP. There are approximately 1.3 million attorneys in The United States. The American Bar Association has over sixty thousand members. The bar association in the county I live in has over two thousand eight hundred members. Heck, there are 435 members of the House of Representatives so the ratio of Congressmen to vaccine injury bar members is almost three to one.
When you choose an attorney to represent you in your vaccine injury case, make sure choose one who focuses on this area of law. Look at their website. Ask them if they are a member of The Vaccine Injury Petitioner’s Bar Association. If they are, you are in good hands and should have nothing to worry about. They will be incredibly familiar with how the VICP works and the rules for attorneys getting paid. If you have any questions about their Representation Agreement or how they will get paid, simply ask them. I’m sure they will be more than happy to explain it to you. My colleagues who focus on this area of law are all people who are very professional, and I have the utmost respect for them. If the attorney you are speaking with asks you to sign something that charges you hourly or says they are going to take a percentage of your recovery or if they have never heard of The Federal Court of Claims, it’s probably time to find someone else. It doesn’t mean they aren’t a good attorney; it just means they are not familiar with this very niche area of law. You wouldn’t go to the world’s greatest oncologist to treat your broken leg.