It depends on the state where the accident happened. I will speak for personal injury cases in Florida, which is where I'm licensed. In Florida, there are two requirements for an attorney's fee of 40% of to be reasonable in a personal injury case. First, the lawyer must have sued. Second, the defendant must have denied liability or the time to file an answer has passed. That said, a personal injury lawyer should use his or her best efforts to settle the case without a lawsuit. For one, this results in a lower fee for the client. The injury lawyer's fee will be capped at 33 1/3% of the total settlement. Second, settling a case without a lawsuit is often much less stressful and may save time. You should only hire a personal injury attorney who has sued before. Otherwise, the insurance company may not take your lawyer seriously. I'm proud to say that I've sued many times before.