As an attorney (and, for full disclosure, someone who was formerly an independent program attorney for Texas Law Shield), it is abundantly clear that the legal system puts self-defense shooters in a bad spot. It is costly, time consuming, slow, and worst of all, the legal system decides whether you keep your freedom after you have defended yourself. To make matters worse, this system is, from what I’ve seen, biased against gun owners. From my own experience, many law-enforcement officers, district attorneys, and even jurors seem to think that if you own or carry a firearm, you are inherently guilty in some way. They believe that even though you were actually carrying your lawfully owned firearm, you were really looking for trouble, you wanted an excuse to shoot someone, or similar mental fictions. I’ve honestly lost track of the number of times a gun owner was arrested after a lawful incident of self-defense. Accordingly, due to the nature of our legal system, individuals are purchasing legal protection in case they have to defend themselves.
This area of pre-paid legal services, legal insurance, or however your state may codify it, has exploded. The number of competitors has quadrupled over the past few years. It’s hard enough figuring out what your carry firearm will be; what kind of monumental effort and research will it take to find out which, if any, legal program is right for you?
To give Gun Tests readers a heads-up on what to look for when considering legal insurance, I’ll cut through the sales talk and marketing and present you with the plan benefits you should look for in the field of firearms legal protection.
The 5 Criteria for Choosing Self Defense Insurance
Having represented individuals who lawfully defended themselves, I am painfully aware of which parts of a legal insurance program are a necessity, and how they should operate to deliver what they promise. As a result, there are several areas on which I judge these legal-insurance programs. Find these criteria listed here, followed by detailed breakdowns of each criterion below.
1. Attorneys’ Fees Coverage
Seeing as how these programs exist to diffuse the cost of attorneys, this one is a no-brainer. If the program can’t cover your attorney’s fees, it isn’t a program worth buying. And there may be both criminal and civil proceedings, so you need coverage for both types of representation.
2. Bail-bond Coverage
This is the one people forget about the most. You may get arrested, be completely innocent, and the district attorney dismisses your case during your first appearance. Sounds like a slam dunk, but you had to cough up $2500 to get out of jail, and that money is long gone. Having good bail-bond protection means you don’t have to sit in jail, which is always a benefit.
3. Access to an Attorney
A 30-second conversation with an attorney before the police arrive can be the difference between the gun owner inadvertently saying, “I killed him,” instead of “I was afraid for my life, and I defended myself,” or, perhaps, “I need to speak to my attorney before answering any questions.” Consequently, whether you can instantly access an attorney when you need one is key.
4. Freedom of Choice
As we can see, having an attorney is a requirement to survive the legal system. However, there’s a huge difference between Matlock and the Public Defender in the too-small suit and crooked tie who rides the bus to the courthouse. Does your legal insurance allow you to choose your own representation, or could you be stuck with a rookie lawyer? Considering that some plans deny benefits if you don’t use their programs’ attorneys, this is a very important question to ask.
5. Civil Judgment Coverage
There’s a popular phrase — “Every bullet has a lawyer attached to it.” Bad news — every bullet has two lawyers attached to it! After the criminal suit, the survivor or survivor’s family will be coming after your savings account. While having quality representation can make or break you, a jury is a fickle thing. Every trial lawyer can tell you about a trial they should have won… until the jury went its own way. Losing a civil suit means having to pay civil damages or a judgment — in short, money paid to the other party to make them whole. Having a back-up plan in case you lose a civil suit is a fantastic idea.
Here is what I think you should look for in a legal-protection program:
Self Defense Insurance Criteria Breakdown
Attorneys’ Fees Coverage:
Keep in mind that the defensive use of a firearm happens in a variety of ways; be it displaying the firearm, discharging but not hitting an individual, hitting but not killing an individual, and finally, killing another in self-defense. In my career, the large majority of cases were usually road-rage based, where one driver flashed his gun at the other. In terms of representation costs, a relatively new attorney or public defender may want to bill you for somewhere around $6,000; an experienced attorney could look for anywhere from $10,000 to $15,000. Actual shootings are relatively rare; however, they do happen. These can range from $25,000 if the person who was shot is still alive, all the way to George Zimmerman levels of legal representation that cost $500,000.
Now, it may be my bias as a criminal-defense attorney, but, personally, I believe that escaping the criminal system is more important than anything else. You risk losing your freedom and spending the rest of your life in jail. Civil protection is important; however, the cases happen less frequently. You simply don’t see a civil case for a brandished or displayed firearm (though you can be darn sure there will be an inquiry by the criminal system).
Besides the dollar calculations, if your legal-defense firm’s contract terms aren’t totally transparent, it is very difficult to find out what your money gets you. If, for instance, there is no written contract that governs the responsibilities of the legal provider, this means that, arguably, the information provided on their marketing pages becomes an offer, and your payment is acceptance. Maybe this is just my attorney’s mind speaking, but a contract exists to give you a clear outlining of what exactly you are getting for your money. If you don’t get what the contract promises, you can go to court to force the other party to give you what you are owed. Having to argue to the judge that the marketing language is the “contract” is an unpleasant position to be in, in my opinion.
Here’s an example. Suppose your legal firm provides $25,000 for attorney’s fees in a criminal action. But there is an asterisk next to this statement that it is up to $25,000. This means that the actual amount to be paid depends on the “needs of the case” and “severity of likely charges.” What happens if the attorney thinks the needs of the case require $20,000, but your self-defense firm believes it should only be $10,000? Who decides?
If your legal representation requires any payment beyond this initial fee, you might have to request a grant of further financial assistance to defray the cost of going to trial. So, you may request a payment, but there is no guarantee whatsoever you will receive one. The lack of any contract creating duties or responsibilities means that even if you were legally justified, under this language, your firm could still deny you further monies.
Some services cover all attorneys’ fees criminally for a certain amount a month, without caps. It avoids the issues we’ve outlined above, but it’s not a perfect solution. Sometimes caps on coverage, as much as we hate them, exist for a reason.
Insurance companies are able to do business by spreading the risk among all of their customers; if one person has an incident, it is paid for by the other customers of the insurance company. If this event is catastrophic in nature, the insurance companies pay to the limits of their caps to prevent themselves from going bankrupt. If your carrier has four George Zimmerman-style proceedings, can it afford to take a $2 million hit? I can’t answer that because it depends on the company’s financial reserves, which will likely not be disclosed.
Both plans with and without caps have their advantages and disadvantages, so consider carefully which disadvantages you find are easier to stomach.
These are covered in several different ways. Some firms offer tiered plans. As an example, a basic plan might start at $9.95 a month for $10,000 of criminal defense, then have another layer for $50,000 at $19.95 a month, and then $100,000 for $49.95. Sounds great, but you should check to see if these amounts are available immediately. If only a small percentage of the promised money is available immediately, and the remainder is the potential amount you will be reimbursed upon a not-guilty verdict or dismissal, what does this mean in plain English? Imagine you have basic protection and you just had to discharge your firearm in self-defense. You go to hire an attorney, who is a long-standing family friend who offers to take the case as a personal favor for a measly $9,000. While this is under the $10,000 cap, only $2,000 is made available to you; the rest will be reimbursed upon the finding of a “not guilty verdict or similar outcome.” In the mean time, you have to cough up $7,000.
Another caveat of this pay-and-be-reimbursed model is that the contract may state you only receive reimbursement on a “not guilty or similar outcome.” This means if you take any kind of plea deal, or deferred adjudication, you will not be reimbursed. I had a client once charged with a felony, but ended up taking a deferred on a traffic-ticket-level offense. There were many facts and pieces of evidence that made this a superior tactic to going to trial. However, if this individual was operating under this plan, he would have had to forgo the better legal strategy of taking the deal, because otherwise he would have lost his reimbursement.
Finally, these caveats aside, look at the dollar ratio of the amount you pay versus the coverage you receive. For instance, one offering might give you $2,500 of protection for each $1 of premium you pay. If a competitor offers $50,000 of protection up front for $13 a month, or a plan that offers $75,000 for $22 a month, or a plan that offers $150,000 of protection for $30 a month, you can calculate the Protection/Premium formula to see that you get $3846 of protection per fee dollar for the first plan, $3409 for the second Plan, and $5000 for the third plan.
It’s a distinct edge if the money is available up front, as in the firm overnighting checks directly to your attorney, up to the full limits of your coverage.
Civil suits are certainly less commonplace than criminal charges when firearms are involved. While the criminal system is costly, the civil system treats money as just another legal strategy. It is not uncommon for attorneys or firms to exploit the discovery process in trial to quintuple legal fees, knowing the other side can’t afford to continue.
In such a system where money loses meaning, it is important to make sure you have a program that will cover your attorney’s fees in a civil suit. Calculate this coverage the same way you examine your protection for the dollar on the criminal side.
Access to an Attorney:
The sooner you get your attorney involved after a self-defense incident, the better. Being able to call an attorney gives you immediate access to legal assistance, which is fantastic. Having an attorney actually appear on the scene is incredibly helpful in most cases, so that the attorney can speak to the police on your behalf. However, do all of these plans give you this immediate access, or on-site assistance?
If your plan does not cover “on-site assistance,” this means you will not have an attorney helping you at your location. From a legal standpoint, it is beneficial for the defender to have an attorney intercede to prevent any legal misstatements and possibly keep the client out of jail altogether. In my opinion, a service that provides a “Manager” who is tasked with getting you an attorney simply isn’t as advantageous as getting directly to your attorney. Frankly, if I just shot someone, I want to speak to a cool, level-headed attorney immediately, not after I’ve spilled my guts to the police and talked myself into a 20-year conviction. If you get a call the next day, you’ve already had to figure it out on your own (for better, or for worse), so I guess the attorney can tell you how you messed up.
Some firms have a roundabout way of getting you to an attorney. First, you talk to a case manager, whom I imagine is the gatekeeper for the pocket dials, unintentional calls, or 4 a.m. theoretical questions clients have (it happens, believe me). This case manager then gives your contact information to the attorney. The attorney then contacts you back immediately. A better plan is that you would contact the attorney, and once the situation is safe or you’ve been processed, then you speak to the case manager.
Some firms tell you to have your own attorney picked out ahead of time and they provide a number to get your attorney paid. Chances are, depending on your attorney, they will not spend their life prepared and ready for the phone to ring with your call. Most likely, the attorney will keep sleeping and will call you back the next day. Some firms have a 24/7 emergency hotline that gets you immediately to an attorney.
The goal: Having immediate access to an attorney to give you specific advice on that state’s laws.
Bail-bond coverage is universally underestimated by law-abiding citizens. A quick note on terminology. Bail is the cost to get out of jail and wait for your court dates. This amount can range from $500 to $100,000. Most commonly, I see bail hover around $25,000. If you deposit the money and make all of the court dates, you get the money back. Now, most of us don’t have $25,000 sitting around, which is where a bail-bond company comes into play. Instead of paying the $25,000 bail, the company pays that for you, and this is called a bond. The cost of bail bonding is, generally speaking, 10% of the bail. Instead of depositing $25,000, you would pay $2,500 to the bail-bond company. This money doesn’t come back to you, ever. It is gone for good. This is a terrifying concept. Imagine that a police officer arrests you, you pay to bail out, you show up to court, and the District Attorney dismisses your case on the first day. Sounds like a slam dunk, except you’re still out your bail money. What’s worse, if you can’t make the $2,500, you sit in jail until your court dates, which can be months apart in many cases.
Some companies provide escalating levels of bail-bond coverage, such as $1,000, $5,000, and $25,000 amounts. However, it all comes out of your overall criminal cap; if you utilize your $1,000 to cover the bail bond, and the $2,000 up-front attorney fee coverage, you will only have $7,000 of your original $10,000 policy remaining for further use. It’s better when your bail-bond monies are separate from your overall bail-bond cap.
Some services take a novel approach to this issue, offering you a percentage of your bail-bond limits up front to do with as you please. Now, this may sound crazy, but I have a feeling everyone will choose to use this money to get out of jail. If your up-front limits are split between your bail bond and your attorney retainer, you may run into a situation where you use up a large majority of your money for bail bonding purposes and have to pull from your own pocket for the retainer.
Some firms offer bail-bond coverage as an add-on. This is fine if the price per dollar of coverage meets your goals and the bail money doesn’t come out of other fees.
What you want: The most money possible with the fewest offsets.
Freedom of Choice:
Being able to afford legal representation is a requirement for survival in the legal system. However, there can be a huge experiential gap between attorneys, and that can make the difference between walking free and going to jail. When your freedom or your life’s savings are on the line, you want the best representation you can get; and being able to choose your attorney will help you do this. Some firms offer both criminal and civil protection, but only allow you to pick your criminal-defense attorney. Other companies provide lawyers from their own network that you must use or surrender coverage.
The best solution is for the client to be able to select a self-defense attorney for both criminal and civil proceedings.
Civil Judgment Coverage:
You may see plans that offer $250,000 in civil protection, $500,000, maybe even $1,000,000. These sound like quite a lot; however, these dollar amounts often cover both the civil suit AND the civil judgment. In some plans, because it will be insurance company lawyers representing you, it will be in their interest to use as much of that money for the representation as possible.
It’s a win-win for them; either they successfully defend the suit and pay nothing further out, or if they lose, they’ve hit the coverage cap and have nothing to pay out.
In the realistic, day-to-day practice of law, this amount of money will go to settling, rather than civil suits or judgments. However, if we prepare for the worst-case scenario of a tenacious plaintiff, this format leaves a lot to be desired.
Your plan should provide a stand-alone amount specifically in case of civil judgment. Ideally, it would have unlimited Civil Judgment Coverage, but we don’t live in a perfect world where this is common.
Coverage for Gun Owners: The Bottom Line
As a fellow firearms owner and Texas License to Carry holder, I realize the decision to buy protection is a personal one. If you have the foresight to realize that you may need to defend yourself one day, I think it’s smart to be prepared for everything that will happen afterwards, too. At the same time, I realize most concealed-carry practitioners nationwide do not have after-the-act coverage.
Is that the wrong decision? No, not at all. We all assess risks differently, from where we choose to live, work, and travel to the firearms we choose to protect us at the scene of a self-defense incident. You may believe you don’t need these plans, and I’m not here to sell you one. But now you know how to assess them so you can make the right decision for you and your family.
Gordon Cooper is a licensed attorney in the State of Texas, practicing law in the Houston area. More important, he is a proud gun owner and defender of the 2nd Amendment.