Pam: So when you hire a personal injury lawyer, are you bound to stay with that lawyer until the case is over?
Barry: Ideally, you should. You’re certainly not required to and not every match is made in heaven. There are certainly times where if you’re not communicating well with a lawyer, if you’re not working well together, you have the right to go ahead and change lawyers.
Pam: But are there costs to changing lawyers?
Barry: Well, there aren’t necessarily financial costs, but there are costs that are involved in the sense of there’s additional delay. There are things that get lost.
A lot of the details that I have when I’m working up the case, some of them are documented in the file. Some of them are stored up in my head. When you change lawyers, that work product that has been lost. When you pick up a new case and the old lawyer who delivers three bankers boxes full of material for you, it takes a long time to get up to speed. And that brings about some delay, which ultimately delays the resolution of the case.
A lot of times lawyers will be very, very reluctant to pick up a case that another lawyer has been working on. When I pick up the file, I’m sort of wedded to some of the decisions that the prior lawyer has made. And those aren’t necessarily the same decisions I would have made had I had been handling the case for from the very beginning. So, that’s one reason that a lot of times lawyers are reluctant to pick up a file that some other lawyer has been working on for a long time.
I very seldom do it. I almost never do it after a case has been filed. And a lot of the really very good plaintiff’s personal injury lawyers have the same view I do regarding that.
The other thing that makes lawyers reluctant to pick up a file from another law firm is that when I get a file from another lawyer, I have to reimburse them the case file expenses that they’ve put out on the case to date.
So, you know, if I’m going to pick up a file they’ve spent $7,000 working up the case, I don’t even know what’s in the file, but I need to reimburse them that $7,000. It’s like a leap off the high dive. You’re jumping off hoping that things are going to be okay and when you get the file, you don’t really know what surprises are waiting for you and it may be a situation where you look at the file and wish that you hadn’t made that decision to take the case on, but you’re already $7,000 into the case. So, it’s one of the sources of reluctance. It’s one of the reasons that the lawyers have reservations about taking on a case that another lawyer’s been working on.
Pam: So is it easy to hire a new lawyer if you decide you want to fire the one that you already have? Why or why not?
Barry: Well, not really. There are a whole host of reasons that go into that. What we do as personal injury lawyers is far more art than science and the way that I approach a case is going to be different from the way that the lawyer in the next office does or any other personal injury lawyer does.
So, the problem with that is that if I pick up a file to another lawyer has been working on, they have made very strategic decisions about how to prosecute the case that may handcuff me in terms of how I want to go about working the case going forward.
When a client switches lawyers, it doesn’t cost the client anything. Where it becomes a difficult for the lawyer is that that fee has to be divided with the original lawyer on the file. So I may be working on a case that was actually much harder because of the work that the original lawyer did, and I’m still gonna end up giving a portion of the fee on that to the first lawyer, so I actually end up doing more work for less money.
One of the funny things about lawyers is everybody else in the civilized world is really reluctant to go to court over anything. Lawyers are going to court anyway. If you get into a dispute with somebody and you’re like, “I don’t want file a lawsuit, they want to settle it,” Between lawyers, it’s not quite that same reaction. They say, “Well, I will be in court on Thursday. Can we go then?” And you know, it’s a very different reaction and lawyers will be willing to fight things out, especially if they feel like the second lawyer did them wrong in some way.
Pam: So I understand that it might not be easy for someone to get a new attorney once they’ve fired the old one. But are there any real downsides?
Barry: Well, the biggest downside is going to be in the loss of continuity and some delay in working the case up. When I talk about loss of continuity, I mean that’s the work product that the lawyers carrying around in their head. If I pick up a file from another lawyer and there’s three bankers boxes full of material, it takes a long time for me to sit down and review that, get up to speed on that, but then you know, there’s also going to be stuff that’s in the file that I’m not necessarily going to see the significance of.
My favorite thing in the world when I get another file that someone else has been working on is that there’s a giant stack of paper and there’s a sticky square attached to one page with a giant star on it and I look at it and think what in the world is this all about? Obviously, somebody else has attached some degree of significance to it. The lawyer has thought things through to some degree, and I’m not going to have the benefit of that as being the second lawyer on the file.
Pam: All right, so this sounds really difficult. So what would you advise to someone who say is not communicating with that attorney and really feels like they need to make the switch? What do you say to that person?
Barry: Well, the best advice is really to see if you can work things out with the lawyer that you’ve got and sometimes it’s as simple as just calling the lawyer up and saying, “We need to sit down and meet and talk about my case.”
You know, it gives you an opportunity to have a face to face discussion and really kind of address all the issues that’s going on, not only with the case, but in your relationship, in terms of how you deal with one another.
But if you really don’t have confidence in the lawyer that you’re working with, if you don’t feel comfortable with the progress or the status on the case and don’t have good explanations for what’s happening and why things are the way they are with your case, then you certainly have the right to make that switch. It’s just that even though it doesn’t cost you anything upfront to make that switch, it’s a decision that shouldn’t be taken lightly and is one that really shouldn’t be made until you really give the relationship a chance to fix itself and work itself out.