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How to Avoid Firing Your Lawyer
By Eric J. Parker
Parker Scheer LLP
For many people, the process of hiring a lawyer is fairly
straightforward. The client in need of legal services identifies
a selection of qualified attorneys, interviews several of
those, and selects the one who appears best suited to undertake
the case. In a perfect world, the most qualified attorney
also possesses those essential qualities-integrity, diligence,
and skill-which further support the client's final selection.
The fact is that we don't live in a perfect world, and despite
the efforts of clients to hire the best lawyer for the job,
every attorney-client relationship is not a "love connection."
Unfortunately, clients often fail to appreciate what is expected
of them in the attorney-client relationship: choosing instead
to believe that if things did not work out as expected, it
was entirely the lawyer's fault. While all such relationships
may not be salvageable, a better understanding of what is
expected on the part of both lawyer and client can often help
enhance the professional relationship and lead to a better
outcome. The focus of this article is not on how to fire your
lawyer-although that topic is addressed as a last resort.
Rather, this article focuses on what is expected of both lawyer
and client in order to make the relationship work best.
The quality of the working attorney-client relationship is
vital to the success of the case. Clients and lawyers who
work well together dramatically increase the likelihood of
obtaining a favorable result. Conversely, lawyers and clients
who display all the symptoms of a dysfunctional relationship
tend to take it out on the case. Changing lawyers mid-stream-putting
aside the increased cost and stress which often accompany
such a change-tends to transmit a clear signal to the opposing
side that "problems exist." While these problems
may have absolutely nothing to do with the underlying case,
the opposing side may misinterpret the cause of the break-up
and conclude that the case is in trouble, leading to lower
settlement offers. In short, attempts to salvage the attorney-client
relationship are well worth the effort.
Rule 1: Check your cynicism at the door.
Lawyers are highly committed to achieving their client's
goals. Unfortunately, client cynicism can impair the attorney-client
relationship early on, leaving clients questioning their lawyer's
dedication, when mutual trust should be established instead.
A lawyer I worked with for many years had a wonderful saying:
Never trust anyone who doesn't trust you. To be honest, the
saying made little sense to me when I first heard it, but
over time, the wisdom became evident. Professionals who feel
distrusted by their clients tend to withdraw from the relationship
in subtle ways. Calls from clients often go unanswered or
take longer to return; attorneys parse their words more carefully
and speak in measured sentences. Perhaps most significantly,
candor is lost and clients receive less accurate information
from the attorney than would otherwise be communicated. It
may require a leap of faith, but by replacing cynicism with
trust at the earliest stages of the relationship, clients
can effectively improve the chances of developing a stronger
attorney-client relationship and achieving the desired objectives.
Rule 2: Maintain reasonable expectations.
There is perhaps no greater challenge for a lawyer than
the management of unreasonable client expectations. Whether
the case involves a serious, injury-induced such as complex
regional pain syndrome (CRPS), or the purchase of a new home,
a lawyer cannot be expected to deliver a result that is completely
unreasonable. Clients often value their own cases well above
the range typically paid by insurance companies or juries.
The reason for this is obvious: clients live with the enormous
pain and physical limitations imposed by their injuries, and
insurance companies do not. It is also important to recognize
that lawyers have no reason to under-value a case. Since most
personal injury-related cases are handled on a contingent
fee basis (typically one third of the gross amount recovered
plus case expenses) plaintiff's counsel has every motive to
obtain the very best result possible.
Rule 3: Give it time.
Like it or not, litigation takes time-and a lot of it!
A typical personal injury case can take from one to three
years to complete, depending upon the complexity of the case
and the extent of the damages. The best way to devalue a case
is to prematurely push for settlement. Cases prepared for
trial usually settle, whereas cases prepared for settlement
usually go to trial. The reason for this is clear-insurance
companies perceive aggressive efforts to settle cases as strong
indications that the plaintiff is uncomfortable having their
case tried before a jury. If true, the insurance companies
believe they can resolve the case for lower values than would
otherwise be acceptable if the client were committed to trial.
Therefore, allowing the case to "mature" can greatly
enhance the overall value of the settlement.
Rule 4: Be direct.
I have a phrase I use to (affectionately) describe a certain
category of clients: I call them "after thinkers."
After thinkers are clients who nod their heads up and down
during client conferences only to telephone me later with
a variety of questions and concerns that could have been addressed
during the conference. I suspect that a major cause of "after
thinking" is awkwardness. Clients often feel uncomfortable
challenging a lawyer's opinions in real time. Unfortunately,
delaying important questions or concerns tends to lead attorneys
to conclude that there is consensus between lawyer and client,
when in fact such is not the case. If you have concerns about
any aspect of your case-ask. If you do not understand the
case plan your lawyer has developed, ask for an explanation.
If you still do not understand the case plan, ask until you
do understand it.
Rule 5: Too many cooks spoil the soup-and the case.
If you find yourself losing confidence in your attorney,
make an appointment to meet in person and address your concerns
face to face. Too often, dissatisfied clients tend to seek
out the opinions of other lawyers, who have little or no familiarity
with the particular facts and circumstances surrounding the
client's case. This results in greater confusion on the part
of the client. Don't expect a lawyer who has not had the benefit
of working on your case to have the answers. It's unreasonable
and self-defeating. Instead, advise your lawyer that you have
concerns and insist on answers that help you to resolve them.
A brief word about Workers' Compensation cases
The two most common scenarios where people find themselves
injured and subsequently seeking compensation involve injuries
suffered at work and outside of work. If an injury occurs
during your employment, odds are that you will be filing a
"Workers' Compensation" (WC) claim. You may also
have a direct claim against the responsible party, known as
a "Third Party Claim." Clients with WC claims often
find themselves frustrated with "the system," due
in large part to the added level of bureaucracy inherent in
the WC System in most states. Unlike direct actions, such
as non-work-related car accidents, persons injured at work
are entitled to immediate reimbursement for medical expenses
and lost earnings. However, insurance companies tend to question
many of the claimant's bills and other submissions. These
denials are a common source of frustration for injured workers,
and often result increased frustration with the claimant's
lawyer. Before assuming that your lawyer is responsible for
the delay in payment for lost wages or outstanding medical
bills, ask your lawyer why things are taking so long.
What can I do when all else fails?
Although I tend to be an optimist, believing that most
troubled attorney-client relationships can be saved, clearly
some cannot. Lawyers who fail to return client telephone calls
promptly, or ignore repeated requests for updates on cases,
or are generally unavailable to their clients, must take responsibility
for the failure of the relationship, and should be discharged
before the case is jeopardized. In most states, when a client
retains a lawyer in connection with a personal injury case,
the client signs what is known as a Contingent Fee Agreement.
According to the terms of the agreement, the attorney's compensation
depends on the attorney's ability to obtain an economic recovery
on behalf of the client. However, most contingent fee agreements
also state that the attorney has a duty to take all reasonable
and necessary steps to obtain a recovery on behalf of the
client, and his obligation to return calls and respond to
reasonable requests for case updates is implicit. If the attorney
breaches the agreement, the client may discharge the attorney
"for cause." The attorney may attempt to seek compensation
from the client based on the number of hours devoted to the
case, but these claims are difficult for attorneys to enforce,
particularly if they have failed to live up to their end of
the deal.
The Bottom Line
Preserving a relationship with your attorney is generally
preferable to discharging your attorney. Clients who understand
their role in the attorney-client relationship tend to enhance
the value of their case and reduce instances of client dissatisfaction.
If the relationship cannot be saved-do not sit on your hands-move
on.
Attorney Eric J. Parker is a top-rated trial lawyer with
more than 20 years of active experience representing victims
of negligence, including those suffering from trauma-induced
Complex Regional Pain Syndrome (CRPS). Parker Scheer LLP has
offices in Boston, Massachusetts, Providence, Rhode Island,
and Las Vegas, Nevada. Contact Attorney Parker at ejp@parkerscheer.com,
or visit the firm website at www.parkerscheer.com. |
