When to hire an ERISA attorney (and how)
Basis Appeals handles most first-level and second-level appeals well. Some situations call for a lawyer. Here is how to tell, and how to find one who works on a contingency or at low up-front cost.
When to consider a lawyer
- The disputed amount is over roughly $10,000
- The denial is on a life-threatening condition
- Your plan has missed regulatory deadlines and you want to invoke deemed exhaustion
- Your plan is stonewalling on multiple appeals
- Your case involves a complex medical-necessity determination that would benefit from expert witnesses
- External review was denied and you have grounds to sue
- The plan is refusing to comply with an external review reversal
When not to hire a lawyer
- The disputed amount is under $2,000
- The denial has not been through internal appeal yet
- You are still inside your appeal windows and have not tried the DOI or DOL routes
Most appeals resolve at internal or external review without a lawyer. A lawyer's fixed costs make small-dollar cases unattractive to both sides.
What ERISA attorneys do differently
- File suit in federal court under ERISA section 502(a)(1)(B)
- Request the administrative record and use it to argue the plan's decision was arbitrary and capricious
- Negotiate settlements at scale the individual claimant cannot
- Recover attorney fees from the plan under ERISA section 502(g) if they win
How to find one
Search these directories:
- ERISA Attorneys at your state bar association (search "[state] bar lawyer referral ERISA")
- National Association of Consumer Advocates (naca.net) has a health-insurance-attorney directory
- Martindale-Hubbell and Justia have attorney profiles searchable by ERISA and health insurance
- State insurance department consumer resources often list ERISA attorneys accepting cases in the state
Look for attorneys who list "ERISA benefits denial" or "health insurance denial" specifically. Avoid general personal-injury or estate-planning attorneys for this.
What to ask on the first call
Most ERISA attorneys offer a free initial consultation. Ask:
- Do you take ERISA benefits-denial cases on contingency?
- What percentage do you charge on contingency, and does the plan typically pay attorney fees if we win?
- Have you handled cases against [my insurer or my TPA] before?
- What is your typical case timeline?
- What documents do you need to evaluate my case?
If the attorney charges hourly and asks for a large retainer, keep looking. Reputable ERISA attorneys often take cases on contingency (percentage of recovery) because ERISA section 502(g) allows attorney-fee recovery from the plan.
What to bring to the consultation
- Your full appeal file (see How to keep a paper trail that helps a future lawyer)
- The plan document (SPD or Certificate of Coverage)
- All denial letters, appeals, and responses
- A one-page timeline
- Your top questions
Cost expectations
- Contingency: 30 to 40 percent of recovery is typical, but ERISA section 502(g) fee-shifting can absorb some or all of that if the case wins
- Hourly: $300 to $600 per hour depending on market. Small cases can rack up quickly
- Flat fee for pre-litigation demand letter: some attorneys offer this at $500 to $2,000. Can be a cost-effective middle ground
Timing
- If your ERISA plan missed a deadline, do not wait past 90 days to call an attorney
- If you are approaching a statute of limitations (varies by state, usually 3 to 6 years for ERISA claims but the plan document can shorten it), do not wait
What you keep doing while the attorney takes over
- Do not talk to the insurer without checking with your attorney first
- Continue to keep your file organized
- Answer your attorney's questions promptly
We are not attorneys
Basis Appeals is a document assistant. We help you draft, file, and organize. When your case needs actual legal representation, we say so and we point you at the resources above. Do not ask us to render legal opinions; ask an attorney.