Please help, I need lawyer advice

[Sonya]

Almost 5 years ago I was involved in a very bad car wreck. (His fault) I will have problems the rest of my life b/c of this. The insurance company was doing their best to intimidate me so we turned everything over to a lawyer so he could speak for me. We found one we really liked at a firm we thought was very respectable. To make a long story short, (maybe ) it's been over 2 years now and still no settlement. Our 1st lawyer left the firm, our 2nd never returned any of my calls. We decided to leave the firm and find another. Suddenly one of the partners called me and said he would handle this himself and it would be done by December. It's now April and still we are not done! We haven't left b/c the statute of limitations is almost up and we are so close to getting this over with.

So now it looks like this will all be over in a month. My problem, finally, is that when we signed on with this firm they said they would take X% of the settlement and we agreed. However we do not feel like they have lived up to their part of the job and earned their fee, namely getting it done in a timely manor, nor have they been consistent in calling us back and letting us know what is going on. Is it fair to ask them to reduce their fee? Or should we have talked that over when the partner called to plead with us to stay with them? If I should ask them to reduce their fee, how sould I phrase that?

Thanks so much for you help!

 

[Miss Jasmine]

Well that 33 1/3% that most lawyers "charge" is usually not negotiable (you signed an agreeement, right?). What may be negotiable are any costs involved not covered by the percentage. However, I would be inclined not to bring it up until the matter is settled so it doesn't get tossed on to the back burner again. Not that a lawyer would do that.

P.S. It's always best to get in good with the legal assistant or paralegal rather than the lawyer because it's the assistant/Paralegal who is the one that keep the attorney up to speed and can push things through for you. More than likely it's the assitant/paralegal who has been the one contacting and dealing with the insurance company.

 

[Tess]

I wouldn't expect the firm to take less than the agreed upon percentage--usually here in MI 33 1/3%.

The fact that it has taken longer than promised may not be any fault of your attorney's firm. Three years is the average time of this type of case--it can be quicker IF the injuries are so severe as to not be in dispute. It could well be that your attorney felt that your injuries were of that nature while the insurance carrier disagreed--hence the need to fully investigate the extent of your recovery. The old adage about "time healing all wounds" weighs heavily in favor of the insurance company.

Despite what we would like to believe, insurers aren't in the habit of forking over cash without extensive foot dragging! Some insurance carriers are better than others at recognizing (and often times accepting the advice of its attorneys) injuries--extent and worth. These companies would rather expedite the process rather than expend unnecessary legal fees only to pay in th end. Others fight tooth and nail to decrease the pay out by a few thousand dollars. Everything in the legal system takes inordinate amounts of time to accomplish--there are deadlines and waiting periods for everything and attorneys are oftentimes at the mercy of the court docket. Those dockets are usually stretched to the nth degree too because our society is so litigious and criminal prosecutions take precedence to civil matters.

As to your issue about the return of phone calls, client contact, etc.--it sounds as if the firm you chose was in a state of flux. It happens to the best of firms--sometimes it seems as if it's a revolving door. Obviously, time is money--if there is nothing to report, an attorney is reticent to spend his billable hours returning a call--I'm not excusing that--it's inexcusable, they all have support staff. I'm simply trying to give you insight. There is no benefit to a plaintiff's attorney to spend time that isn't hourly billable when he/she is assured of a % payment in the end. Frankly, it's one of the greatest complaints I have heard over the years about plaintiffs' counsel--it's somewhat like an automatic gratuity--no incentive to work harder since the tip is assured.

Anyway--as I said--you can ask and plead your case , but I wouldn't expect the attorney to be willing to decrease the % taken from settlement. They are, after all, attorneys--any argument you might come up with they will have a counter.

I am a former paralegal for an insurance defense firm--the exact opposite of your firm. I know there are attorneys on the board and perhaps they might be able to give their perspective on the issue, too. I'm glad you are seeing the light at the end of the tunnel where your case is concerned. . .having been on the working end--I would NEVER want to walk in your shoes.

 

[Tess]

AMEN to that Miss Jasmine--you have it exactly right!

 

[Matty_Disfan]

Okay, there are three ways that you can go about this:

1) You're in a pickle. They will not deviate from the agreement, and they will not defer costs. Your best bet is to talk to the partner overseeing the case and explain to him how angry you are at being treated like this. It won't do anything for you, but he/she is a person and they will understand how negatively this reflects on their firm.

2) Play hardball. Go to your state's bar society and lodge a formal complaint. This is nothing that anyone could get disbarred over, but they do have guidelines to timely service that have clearly been broken. Someone, probably the leaving lawyer, could get a little warning put on his record, or receive legal counselling from the Bar for his/her conduct. That sucks and lawyers hate it, remember, their business is in reputation.

3) Play super-hardball- go to another similar-sized firm in your area. Tell them what happened and ask for legal advice about breaking the contract. They might take up your case and defend any breach of contract in order to get your business (if the settlement is large enough, and insurance companies usually settle, after they've exhausted options). The original firm could cite your contract with them, it will be a matter of defending your actions by stating that they breached the contract with regards to timing. See if you can get your hands on the original agreement that they gave you and read the whole thing. You are looking for any clauses dealing with timing of the case, or any clauses dealing with quality or reasonable expectation of quality of their work, this could be translated into timing as well. If there isn't then you can bring up the fact that timing issues were initially discussed and agreed upon, and as such there was a verbal contract that was left unfulfilled. This is the diciest of the possibilities available to you. Do not even start this one without consulting a lawyer in your state. My advice should not be interpretted as anything other than friendly, and non-professional.

Remember: When you contract with someone, make sure that you spell all expectations out. When there are expectations left unwritten, the court can only look to the situations the parties were in and infer intentions when the contract was drawn up and signed. Standard form contracts, like the one you obviously signed, usually do a good job of covering their a$$es, so don't expect much.

 

[Miss Jasmine]

Tess,
Been there, done that. Glad to be out of that line of work (being a legal assistant that is).

 

[twinmomplus2]

We just had this same situation, sort of. My lawyer was wonderful. right on top of things every second. And it took 3 and a half years to settle the claim. It is a long and annoying process. Be aware just when it seems like its over it won't be. we were supposed to dispose of this matter for me last spring. than it was continued to June. then the guy that hit me was sick could not testify, It was postponed to September the 11th, 2002. canceled, due to the fact my lawyers dad dropped dead on the 9th of September. continued to November and I had my check by December 31st. The moral is it will end, but, it is a long process take it as it comes and don't put to much emphasis on when.... you will make your self nuts. Good luck

 

[Miss Jasmine]

Matty,
umm that is a bit much for this action. Plus it wasn't just this attorney that "dropped the ball". I don't remember ever agreeing to time periods (outside of the limitations).

 

[Matty_Disfan]

Here's some information on the dispute resolution process for your state's bar association.

http://www.mobar.org/law/com_resg.htm

Hope that bit helps....

Miss Jasmine- Depends on the size of the settlement. If there is an expected high non-pecuniary damages yield then there is little that is 'a bit much'. If one lawyer dropped the ball then he/she is subject to some form, in this case mild, of disciplinary action. It's not that there were no timing issues agreed to, though that is remotely possible, it's that certain items of the contractual relationship were discussed and not fulfilled. Lawyers are bound by their respective bar associations to maintain a certain level of conduct when dealing with the general populace. Accountability is a big thing with bar associations these days.

 

[ChiTownZee]

It may not be the fault of your lawyer there wasn't a settlment. As said before, lawsuits are a VERY long process (I know all too well I'm sure your firm wanted it finished as much as you, that means they can get paid. And insurance companies are HORRIBLE (try being told they won't settle because you should have been wearing your safety restraint system, on your BICYCLE!) And when the defence knows they are going to have to pay something, thy want to put it off as long as possible and will do their hardest to drag it out. Unless you feel your firm did something that was malpractice, I doubt they would reduce their fee.

 

[Tess]

Matty's #1 suggestion seems to be the most sensible. The rest is way over the top AND I would proffer that it would most likely be pointless. After all, the legal community knows the reality of time involved in a case. . .you [the lawyer/paralegal, etc.] can't tell a client it will take a year and if you do, you know that's an estimate [or flat out lie in some cases]. Perhaps the original attorney was inexperienced OR simply looking to get a signature on the contract.

Sonya--I'd chalk it up to live and learn. . .I don't see this battle as one you will win UNLESS the time constraints are specifically spelled out in your contract WHICH I highly doubt. IF you would follow any of the other suggestions you should ask yourself "Do I really want to deal with this for another 3-5 years?" If so, have at it--personally, I'd be thankful when the check is in hand and realize that I wouldn't recommend the firm again.

It is nice to have all your options laid out though. Of course, all of this is just my opinion, I could be wrong. . . BTW, Miss Jasmine, after 10 years in the business--I am SO NOT GOING BACK!

 

[StampMom]

Just wanted to chime in here on one point. Sonya, you mentioned not wanting to change to a different lawyer or firm because the statute of limitations is going to expire soon. That makes perfect sense. I just wanted to point out, though, that if you DID want to change lawyers, you would not have to go to the extreme of hiring another firm to defend you in a "breach of contract" action. The first firm can't bind you to stay with them -- the most they could do is make you repay any up-front fees they've advanced.

The contract you have with them is "binding" insofar as you have a contractual obligation to pay them what you agreed to pay if/when the case is resolved. But one of the "hallmarks" of our legal system is that the client always has free choice of representation. (Except perhaps in the criminal context when you can't afford an attorney and the court appoints one for you.)

I probably wouldn't do anything in terms of instituting a disciplinary action with the State Bar at this point. As several people have pointed out, these things take time, so the delay is not necessarily the firm's fault. However, if (god forbid) they dropped the ball to the extent that they MISSED the statute of limitations, you could then file a complaint with the State Bar as well as hiring another attorney to file a legal malpractice suit against them.

Good luck!

 

[jel0511]

First off, you signed a contract with a lawyer, those are usually pretty specific and are very difficult to be broken, remember this is a lawyer you signed the contract with. You've incurred expenses with this law firm, which if you decide to at any time leave, you'll be responsible for, it's in the agreement you signed. My DH and I were involved in a medical malpractice case and the statue of limitations runs out if you haven't filed a law suit. If one has been filed, then the statute can not run out, since this is pending litigation. Has an actually lawsuit been filed in court? Did you receive documents to that effect? If you have, then there is no more limitation. The statute of limitations is the amount of time you have time to file for damages, not the time it takes for you to receive damages. Usually a lawsuit is the first thing done, to ensure that the statute of limitations will not expire, and also to put pressure on the opposing party to settle the suit. MY DH suffered his injurt in May 1996, and the case wasn't settled until January 2001, almost 5 years later. I mentioned the expenses first, since during our time dealing with the lawyer, they charge you for every staple they used!!! We ended up racking up an unbelievable amount of expenses more than $25k (YIKES) and most of that was copying and postage, not expert witnesses. So, becareful in trying to switch law firms, you might be stuck with an unbelievable expenses bill and no way to pay it off, since you haven't received any money from the insurance company. We always were afraid what would happen if we didn't get anything, we'd be so much in debt right now!!!!!

 

[Sonya]

*shudder* I hadn't thought of the expenses! I hope they are not much but this could be something I could talk with them about.

OK, as far as I know this has NOT gone to court. We just didn't/couldn't deal with the insurance company to our benefit.

And also the lawyers didn't contact the insurance company with a settelment UNTIL January of this year. A year and a half seems like a long time to get their stuff together, but I understand, lots of Drs to contact, physical therapist, etc.

It wasn't a big deal case, just has long term health issues for me.

Thanks everyone, I had no clue as to what was involved, as I have never done anything like this before. I don't think I'll say anything, they already know I haven't been the happiest with them. However if the daily expenses are very high I might be tempted to say something.

 

[Tess]

Charging for every staple Accurate, but still funny. . .Sonya--if you are a long distance phone call from the firm, you should be grateful they didn't return the call--long distance expenses are assessed to the client, too. Then there are medical records expenses, copy expenses, postage expenses, and on and on. . .that $25,000 is a large amount and I'm guessing the suit was as well.

Plaintiff's attorneys want all the ducks in a row before they lay cards on the table and write a demand letter. The length of time you suggest seems a bit longer than most, but you did have an attorney exit and you may have fallen through the cracks temporarily in the upheaval. It happens. . .

If suit had been filed, you would certainly know it since you would have been copied with the complaint filed on your behalf AND more than likely would have had to sign it. You are much farther ahead to have this "settled" rather than dragging through the courts. Provided, of course, that's the ultimate outcome.

Good luck!