Prison litigation is a highly specialized area of legal practice. In order to successfully litigate claims related to a denial of access to medical care or an inmate death, an attorney must have a thorough understanding of how jails/prisons provide medical care, who is responsible for providing it, and what jails/prisons do to cut corners. Although we’re not affiliated with any law firm or individual attorney, the simple truth is that you’ll need to hire an attorney to file a case and get it in front of a judge. And you don’t just want any attorney. The importance of choosing an attorney with the right expertise and experience cannot be overstated – it’s crucial and a choice that can make or break a case before it’s even been filed.

The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishments. In a series of cases spanning the last thirty-five years, the U.S. Supreme Court has not only ruled that all prisoners, including those awaiting trial, have a constitutional right to receive medical care and treatment, but the Court also held that a prisoner’s Eighth Amendment rights are violated when jail/prison administrators and medical staff are deliberately indifferent to their serious medical needs – that is to say when jail/prison personnel refuse to provide treatment, delay treatment, or interfere with treatment. The key term is “deliberate indifference.” So, when a prisoner is injured or they die while they’re incarcerated or in custody awaiting trial – because of poor jail/prison conditions or because they didn’t get adequate medical care – their constitutional rights may have been violated and they may have a federal civil rights claim under Chapter 42 Section 1983 of the United States Code.

Selecting an attorney with the right expertise and experience is the tricky part because they’re few and far between. A deliberate indifference claim involves constitutional rights and federal claims that can be filed in a federal court. A deliberate indifference claim is not a negligence claim, nor a medical malpractice claim, nor a personal injury claim. Rather, it is a case involving a violation of fundamental rights guaranteed by the U.S. Constitution, not state law. That makes it a special type of case with special considerations and unique elements to prove. Nine times out of ten, the attorney that amended your speeding ticket, handled your neighbor’s divorce, or got a settlement for your friend’s automobile accident is not going to have either the expertise or experience to assess your case, represent you competently, and hold responsible parties accountable.

Because knowledge is empowering, as a consumer, you should be aware that not all attorneys are forthright in their advertising practices. They will embed terms related to a hodgepodge of areas of the law that they don’t actually practice in for the purpose of getting their firm listed in as many internet search results as possible. An internet search for “constitutional law attorney,” for example, my lead you to a firm whose practice areas include personal injury and criminal defense. Similarly, a search for “civil rights attorney” my lead you to a firm that handles employment discrimination and civil contracts. The key is to know what to look for and what questions to ask, and that brings us back to the critical term: deliberate indifference – that’s the phrase that pays. If an attorney can’t explain to you what deliberate indifference means, they can’t handle your case. It’s really that simple.

As a consumer, there are a few other things you should be aware of. First, when you’re interviewing an attorney, remember that you are hiring them, not the other way around. Ask the attorney pointed questions about: the types of cases they’ve handled, the outcomes of those cases, and the strengths and weaknesses of your case. Second, not only can deliberate indifference cases go on a long time – often a year or more – but they can also get expensive. With respect to the length of a case, retaining an attorney is like buying a pair of shoes; it has to be a good fit. So, you have to ask yourself whether the attorney is someone you can work with over a long period of time. Are they knowledgeable? Empathetic? Committed? Are they just in it for a quick buck? Do they return calls? Communicate well? Will they keep you informed? And third, contrary to popular belief, you can fire your attorney and get another one if the representation isn’t meeting your expectations. While the decision to fire an attorney, especially after a case has been filed, should not be taken lightly, it is an option nonetheless.

To reiterate, the Wrongful Death & Injury Institute is a consulting firm dedicated to those who are sick, dying or who have died within the U.S. jail and prison system, hospitals and nursing homes across the country. We consult with those who are looking out for the lives of their loved ones, and educating inmates and their families so they are able to make informed decisions and assert certain rights from a position of strength, not weakness. We have no attorneys on staff, nor are we associated or affiliated with any specific law firm or individual attorney. We do refer qualified attorneys who specialize in this area of the law. As such, it is not our intent to provide legal advice – only an attorney can do that. To that end, we have attempted to give you both a lay of the legal landscape, so to speak, and the tools you need to identify and retain effective legal counsel. We can help you find the right attorney for your case—we know the right questions to ask, we know the skill sets required.