Key Considerations When Changing Attorneys in a Personal Injury Case

What can you do if you’re unhappy with your personal injury attorney? Here’s how you can change attorneys with the least hassle, and find one who’s even better.

There are over 1.3 million lawyers in the United States. Despite so many choices, you may find yourself represented by a lawyer you no longer like or trust.  What should you do?

Changing attorneys is a big step and one you shouldn’t take lightly.  However, getting proper compensation for your injury is essential and you need to be comfortable with the attorney representing you.

Your case belongs to YOU, not your attorney.

You only have one case and it’s an incredibly important part of your life. You need to know your rights if faced with a bad attorney relationship and what to consider when changing attorneys.

Should You Change Attorneys?

If you’re unhappy with your attorney, first ask yourself if your expectations are realistic. All good attorneys are busy handling many cases, all with deadlines that must be met. As a client, you must respect their time.

There are some common factors present in all good attorney-client relationships. These include maintaining good communication, building a foundation of trust, and agreeing on a strategy for your case.

Maintain Good Communication

Most good attorneys will keep you informed about the progress of your case and will return your phone calls and emails in a timely manner.

An attorney’s failure to communicate with their client is one of the biggest reasons people change lawyers.

Example of Effective Attorney Communication

Next week attorney Smith will start a trial that may last for more than three weeks. In preparation to be out of the office that long, attorney Smith sent the following letter to all his clients:

Dear Client:

Next week I will start a trial that may last for three weeks or more. During that time I must give my complete and undivided attention to the trial. As such, I may not be able to respond to your calls or emails until after the trial. Any delay in responding to you will be due to the demands of this trial.

I thank you in advance for your understanding and please know that if your case goes to trial I will give it my complete and undivided attention as well.

Attorney Smith

Build a Foundation of Trust

Trust is another key part of your relationship with your attorney. Do you trust your attorney to handle your case in an effective and professional manner?

Your attorney is like your doctor. You’re not trained in the law, like you’re not trained in medicine, so you must rely on an expert to give you good advice and help you handle your problem.

Behaviors that can damage trust in your attorney:

  1. Unprofessional conduct
  2. Failure to communicate
  3. Missed deadlines
  4. Repeated extensions of time
  5. Inconsistent advice
  6. Lack of experience with your case type

Trust in your personal injury attorney is essential. If you’ve lost trust in your attorney, it’s most likely time for a change.

Discuss Case Strategy

Finally, you and your attorney must agree on the strategy for handling your case, especially when it comes to deciding on a reasonable settlement amount. This is related to trust.

An experienced attorney can help you understand any issues or problems with your case and what your injuries are reasonably worth.

If you strongly disagree with your attorney’s advice, however, then it might be time to get a second opinion from another lawyer.

Example of Losing Trust in an Inexperienced Attorney

Valerie’s husband was killed when a tree in a shopping mall’s parking lot fell during a storm and landed on his car.

Valerie was referred by a friend to an attorney, but the attorney had only limited experience in personal injury cases.  The attorney quickly filed a lawsuit and after a short investigation recommended that she settle the wrongful death case for $150,000.

Valerie was unhappy with that recommendation and lost trust in her attorney. She decided to call another lawyer with significant experience in wrongful death cases. The new attorney agreed to handle Valerie’s case. She sent a letter to her old attorney discharging him.

Valerie’s new attorney aggressively pursued the case. He found a local tree service that several months before the storm had looked at the same tree that fell on Valerie’s husband.

The tree service at that time told the mall manager the tree was dead and needed to be taken down before it fell on someone. The mall manager decided it cost too much to take the tree down, so she left it.

After this new information was presented to the mall’s defense attorneys, Valerie settled her case for over $1 million – much more than her first attorney had recommended.

Communicate with Your Attorney

If you’re unhappy with your attorney or have concerns about their work, but you’re not sure you want to change, consider doing the following:

1. Schedule an Appointment

Go meet with your attorney. Go to his or her office for the meeting. Don’t rely on a telephone call. You need to look your attorney in the eye and be honest about your concerns. Don’t hesitate to ask specific questions about your case and its progress.

2. Address Your Concerns

If your concerns are related to poor communication, then get a commitment from your attorney to respond within 48 hours. If your concerns are related to trust or case strategy, then talk honestly with your attorney about your concerns.

3. Get a Commitment

Ask your attorney about the steps going forward with your case and the approximate dates when each step will be completed. Your attorney can only push your case as hard as procedural rules allow. If your case is delayed for no good reason, however, ask yourself if you trust your attorney to change. If not, move on.

How to Choose a New Attorney

DO NOT discharge your current attorney before you’ve found a replacement. You need to know that any upcoming deadlines with your case will be met and that your case will stay on track.

Remember that personal injury attorneys know many of the other attorneys practicing in the same area. They’re often part of the same professional organizations and attend many of the same continuing education programs. Your potential new attorney may have even worked with your current attorney.

There are several things you will need to do when choosing a new lawyer to represent you:

1. Get Referrals

This may be easier said than done. You may have chosen your first lawyer based on a referral and it didn’t work out so well. Still, you’ll want to ask family members, friends, co-workers, ministers – anyone you know who may be able to help.

2. Schedule an Appointment

Meet with any lawyer you’re considering hiring. It’s common for people to meet with more than one lawyer when deciding who they want to represent them. You have the right to get more than one opinion about your case and about the situation with your current attorney.

3. Bring Your File to the Meeting

Any attorney considering taking your case will want to see your file. Hopefully, your current attorney has been sending you copies of all the documents related to your case.

Those documents should include your Complaint, the defendant’s Answer, and the interrogatories and document requests that are part of what’s known as “discovery.”

If you don’t have these documents, you can request copies from your current attorney. Be aware that when you request those documents, it may be a red flag to your attorney that there’s a problem. Still, the documents belong to you and you should not hesitate to ask for them.

4. Be Respectful when Meeting with Your Potential New Lawyer

No reputable personal injury attorney likes working with an unhappy client. Most attorneys at some point in their career have represented a client who was unhappy about everything, no matter how hard the attorney tried.

Your new attorney will want to know you’re not a so-called “problem client.” Explain the issues you’re having with your current attorney without being overly angry or critical.

5. Don’t Believe Big Promises

You may have a very strong case against the defendant, but a lawsuit has many uncertainties. No attorney can say for sure if an insurance company will settle your case, nor can they give the exact amount the company will pay if they do settle.

At best an attorney can tell you about other similar settlements and can give you advice based on experience as to what you might receive.

Likewise, no attorney can look into a crystal ball and tell you exactly what a jury will award you if your case goes to trial.

Be wary of any attorney who makes big promises about your potential compensation, especially during your first meeting when they don’t yet have all the facts about your case.

The one promise you DO want to hear is that your attorney will give your case their full attention, and will work tirelessly to get you the compensation you deserve.

6. Seek Experience

Find an attorney with experience handling cases like yours.

Injury cases can be complicated, and your new attorney needs to have experience handling your specific type of case. Stay away from attorneys with little or no experience in the area.

Some injury cases, like those related to medical negligence or product liability, require highly specialized knowledge on the part of the attorney.

Changing Attorneys Before Filing a Lawsuit

Changing attorneys before your case is filed is much easier than changing after the lawsuit is underway. If you’re unsure whether you want to make a change, first meet with your current attorney to address your concerns.

If you already know you want a new lawyer, write your current attorney a letter explaining that you no longer need their services. You don’t have to provide a specific explanation, but can if you want to.

In that same letter, ask for a complete copy of your file. You’re entitled to get back any documents or other evidence you’ve previously given the attorney. You’re also entitled to any documents the attorney has created for your case.

For example, if the attorney has interviewed witnesses, you should be able to get a copy of the notes from those conversations or transcripts if the calls were recorded. There may be a few documents, called “attorney work-product,” that belong only to your lawyer.

Since you should not discharge your current attorney before you have found a new one, your new lawyer may help you with this letter.

That’s it. It’s a simple process but you need to do it in writing.

Changing Attorneys After the Lawsuit Has Started

You have the right to change lawyers even after your lawsuit has been filed. But there are a few more things to consider if you’re changing attorneys after the lawsuit is underway:

1. Check the Rules

The rules governing lawyers in your state may require that you get approval from a judge to discharge your current attorney and add a new one. Your new attorney can help you with that process.

Judges usually give their approval to such a change. But if your case is close to trial and changing lawyers could cause a delay, a judge might not allow you to switch.

2. Expect Some Delays

Changing lawyers after your case is filed might cause a delay. Your new lawyer will need to spend time getting fully informed about your case. This may include contacting your doctors, family members, and any witnesses to hear first hand what they have to say.

If your case needs an expert witness, your new lawyer will have to start the search process. Your lawyer will need to read all the pleadings and discovery already exchanged by the parties. If there are interrogatories or document requests you need to answer, your new attorney may have to get an extension of time to get those ready.

There’s a lot for an attorney to do when he takes on a case already in progress. Be patient while your new attorney does everything necessary to prepare to represent you. Still, if your relationship with your current attorney is unacceptable, this delay should be worth it.

3. Discuss the Fee

Your current injury attorney is most likely representing you on a contingency fee basis. Hiring a new attorney will not eliminate your old attorney’s right to a portion of the fee when you recover compensation for your injury.

Some attorneys will give up their right to a portion of the contingency fee when discharged from the case, but others will not.

This is something your new attorney will consider when deciding whether to take your case. Whether and how to split the contingency fee is ultimately a matter between your old and new attorneys. Nevertheless, it’s something you should discuss with your new attorney.

The fact that your old attorney may be entitled to a portion of the contingency fee when your new attorney recovers your compensation DOES NOT mean your fee has to go up.

Attorney Ethics and Professionalism

If you have concerns about whether your old lawyer was acting unethically or unprofessionally, you should consider making a complaint to your state’s Bar Association. This is the organization that controls attorney licensing in your state.

This is NOT something to do just because you’re frustrated with your attorney or because you had personality differences.

File such a complaint only if you have serious concerns that your attorney may have committed ethical violations. Again, this is something you can discuss with your new attorney.

Changing Attorneys Questions & Answers

Bobby Jenkins, Esq. is an experienced civil litigator with over 20 years’ experience representing plaintiffs in personal injury cases. He is a member of the North Carolina State Bar and admitted to the U.S. District Court. Bobby has practiced extensively in the areas of auto accidents, medical malpractice, and wrongful death. He also teaches as... Read More >>