I love children (I have 5 or them myself) and love representing them, too. But representing an injured child is not the same as representing an injured adult. Here are the main differences as I have come to see them in my years as a Central and Syracuse New York accident lawyer:
1. The child can’t legally hire an attorney or sue in his or her own name. The parent or guardian must act for the child.
2. Children, especially very young children, can make poor witnesses. They can sometimes change their accounting of what happened without even realizing they are doing it. At deposition, when the defense attorney uses leading questions, which they are entitled to do, the child is more likely to want to “agree” with the lawyer, even if the answer is not entirely true. The child can easily be led into agreeing to untrue “facts” that destroy his or her case. A lawyer representing the child has to be on the lookout for this, and has to be prepared to “pounce” with appropriate objections to the questions.
3. There is a question of whether young children are capable of giving an “oath” when they testify. They must be able to know the difference between a lie and the truth, and that lying is wrong and that they cannot lie in their testimony.
4. A lawsuit for a child can be traumatic. I try to isolate my child client from too much “case stress” by calling him to testify only when he is needed. I don’t usually have him sit through all the depositions of the witnesses, as I would an adult client. I spend time with the child before his or her testimony making them feel relaxed and going over very carefully what happened to him or her.
5. The fee a lawyer charges in a case involving an injured child must be approved by the Court in a proceeding known as an “infancy settlement”. Unless the attorney has actually taken the case to trial, most judges will not permit a full 1/3 contingency fee. 25% or 30% is far more common.
6. The settlement money in a child’s case must be placed in a special bank account under Court order where no one can remove the money without a another Court Order. Once the child reaches 18 years of age, he or she can withdraw them money, which by then will have earned interest. A judge will only allow the parent or guardian to withdraw the money before the child’s 18th birthday if a “special need” can be demonstrated (i.e., medical necessity, educational needs).
I find representing injured children very rewarding. They are vulnerable, and if they were wrongly injured by the negligence of others, their case is very compelling to most juries. Most people have a natural protective instinct that makes them want to help the injured child. Juries are no different.
The child’s personal injury lawyer must also try to protect the child from the stress of testifying, and from being mislead into giving false testimony by wiley defense counsel. I believe this is an art that can be learned by patience and practice.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
Central NY Personal Injury Lawyer Michaels & Smolak, P.C.