QuestionQUESTION: Why is it some lawyers will not tell you how much their Demand letter is for?
ANSWER: Dear Howard,
Many thanks for allowing internet insurance claims expert Dr. Settlement, J.D. to give you some ideas on your claim. This seems like such a simple topic—but once one gets into it, the whole philosophy of a lawyer’s practice (vis-à-vis involvement of his client) comes into play. Plus, it involves FOUR basic client rights:
(a) the right to see what has been sent out by the attorney in the client’s name; and
(b) the right to terminate the attorney/client relationship, which in turn involves:
(c) the right to see the work product of the attorney so the client can evaluate the work of the attorney in progress—instead of having to wait for a poor result. And
(d) the right to a REASONABLE ATTORNEY’S FEE—and it is this last one that could be in play here if your attorney is trying to disguise a simple, easy policy limits case as something that merits a full one-third contingency fee. Perhaps that is why he did not want you to see his demand letter?
So, rather than give you all of three quick sentences that would tell you the answer (as so many experts here seem to do), I am going to give you AT LEAST two hours of my time to go into this in depth. The reason: while this appears to be a simple and small issue, it is A BIG ISSUE with you, and depending upon the responses and cooperation of your attorney, an essential issue to the success of your insurance claim, and (if it is a policy limits case) to a fair attorney’s fee.
I cannot speak for today’s attorneys: Dr. Settlement is an old school personal injury attorney—someone who kept his clients INFORMED all the way to the final distribution of the insurance claim award funds.
My practice was to involve the client in KNOWING everything. I think it is your right. But note the insertion of the word “knowing”: I do NOT believe the client has a right to discuss and help to decide everything. Negotiations are the attorney’s business, and in my practice, the client had no input on how I was going to negotiate the desired result. Negotiations start with the demand letter, and I never sought input from the client as to the amount I decided to ask in my demand letter. Once I had the facts of the case—including all impacts upon my client’s life, I prepared the demand letter with no client review or input. Not that I am arrogant—I did value client input on many aspects of handling their cases. But there would be little value in devoting time to argue the points of how to negotiate the result we had agreed upon. And some clients want to butt in on everything an attorney is doing in their file.
So—in summary of my position on client input and knowledge of what is happening:
(a) yes, the client must be involved in agreeing to the range of settlement; and
(b) yes, I preferred to have client input on the facts I put in the demand letter—done via interviews with me or with my assistants (once I had the facts, however, I never sent a draft of the demand letter for the client to review and edit); and
(c) no, the client need not be involved in deciding the amount of the demand letter. But
(d) the client ALWAYS is entitled to a copy of the attorney’s demand letter.
In your case, Howard, are you are telling me that your attorney did not send you a copy of his or her demand letter? Or that they blanked out the amount? UNSAT—as Dr. Settlement used to say in the Navy!
Why is that unsatisfactory? Because there is no part of the work done by the attorney that should be off limits—kept secret from—his or her client—and the attorney is showing his HUGE EGO by discounting the fact that our clients can really help the attorney if we consider what they have to say in response to what we have written.
First, though, let’s distinguish what is REQUIRED by law for the attorney to include the client in deciding, versus what is merely preferable, but not required.
The attorney MUST have the client’s permission to settle for a certain sum—usually at the start this is an agreed range (e.g. if $40,000 to $45,000 is the expected range of settlement value—anything north of $40K would be OK).
And when settlement is to be had, it is the actual agreed figure that is presented to the client for approval. And, Howard, even though this is beyond your question here, please give some thought to this when the time comes. When your attorney does present you with a settlement figure, ask him or her to also show you—IN WRITING, and IN ADVANCE of coming in to approve distribution—a statement of the tortfeasor’s policy limits (why?—see below re: rules on fees—if a blind dog with a note in its mouth could make a settlement for low policy limits, your state bar association rules for fair attorney’s fees will trump the contract your attorney had you sign) and a rough estimate of the expected distribution, including figures for:
(a) his attorney’s fee;
(b) the costs he is proposing you pay (check carefully what he is asking you to pay here—are some of these “costs” really his general operating expenses?)
(c) subrogation he expects to pay to your insurers [this is money claimed by your own insurance to be repaid; but in some (“Blue”) states there is opportunity here for fighting and thus reducing such reimbursement; so ask him what letters he is going to write as part of his duties to attempt reduction of the subrogation claim]; and MOST IMPORTANTLY,
(d) the amount you will put in your pocket once all is finished.
This is the BEST practice b/c it gives the client plenty of time to ask about various figures. But many attorneys do not give an estimate of distribution in advance of the office visit where they are presented with all of these figures and run through the review quickly and asked to approve everything in five minutes. Do you suppose there might be a reason some attorneys prefer to do it this way? Do you think there might be less opportunity for the client to ask questions about and challenge some of the distributions if given the figures BEFORE coming to the attorney’s office to sign off on how the money will be distributed?
Well, Howard, forgive me for getting a bit off of your question, but I did this b/c I think an attorney who tries to hide what he is doing is also more likely to try to put some expense through on distribution. Or worse—he could be trying to disguise a simple and easy settlement for low policy limits in order to justify his full one-third contingency fee when in fact your state bar association has a mandatory rule that trumps his contract with you so that instead you get a FAIR attorney’s fee.
Now, just to let the dust settle on your topic: NO—the attorney is NOT required to involve the client in each step of the negotiations used to achieve the settlement award. BUT, the client IS entitled to a copy of everything the attorney prepares for him.
And the first step of the negotiations is to send the demand letter, and one important part of that is to set the amount of the demand. The attorney is in charge of negotiations—and he is NOT required to get the client’s approval of the amount of the demand.
In personal injury insurance claims practice, Dr. Settlement negotiated many bodily injury insurance claims over my three decades plus legal practice. So far as I can recall, I never once sought permission for the amount of the demand. On the other hand, I never once kept my client in the dark about the amount of my demand. The client ALWAYS got a copy of my demand letter before or the same day as the tortfeasor’s insurance adjuster.
Auto accident attorney expert Dr. Settlement, J.D. believes clients can and should be a resource for the attorneys. Your input is welcome—or should be. But of course there is a limit to what we want or need to hear from clients. And perhaps this is one of those areas for your attorney. May I give you a bit of discourse on this particular aspect of processing an insurance claim?
In most cases, the attorneys know better than clients how to negotiate a personal injury claim. And part of that negotiation process involves setting the monetary demand to be inserted in the demand letter. So while the attorney absolutely cannot go forward without his client’s permission granted to settle for a certain sum—or at least within a certain range—we almost never involve the client in selecting the amount of the demand.
Take this for example, Howard: Say that you and I are client and attorney. We will sit down and go over your case and come up with a settlement range. Say we agree that your case has a settlement range of $40,000 to $45,000, inclusive of special damages (e.g. medical expenses, lost wages, etc.) and general damages (pain and suffering, loss of enjoyment of life, etc.). So anything north of that base $40K figure is approved by you. Best practice is to memorialize our agreement with a quick note; but I confess I did not do this all the time—sometimes I just made notes in the file regarding our agreement.
That is ALL I am going to get you to agree on at the time I send out your demand letter. In most cases, it is likely that I will know better than you what amount to put in the demand letter, and I can do that without your permission. Depending (as you will discover, Howard, there is always a “depending upon” in the law whenever you ask your attorney to give a synopsis of the general law!) upon the adjuster and our past successful experience working together, my demand could be anywhere from $45K to $70K.
So I do NOT need your input on that. I do not want to sit there and waste our time going over with you how I am going to negotiate your case. I am not going to ever ask your input on how much to demand. Now, Howard, can you imagine how your attorney might have been involved in an unpleasant experience in the past with a client trying to butt in on what is the attorney’s area and argue with him about the amount of his demand?
That is the only (quasi legitimate) reason I can think of as to why your attorney will not tell you the amount of his demand or give you a copy of his demand letter; he does not want another episode of arguing with his client about how to do his job—how to negotiate a good result.
My point to you, though, is that his reason is NOT VALID in denying you a copy of what he put forth in your name. He has an absolute duty to not only disclose the amount of his demand, but also to give you a copy of his demand letter.
How else can you evaluate his progress, his handling of your claim? Hence, you are always entitled to a copy of his work product. I always sent my clients a copy of their demand letter—and ALL correspondence with the adjuster. ‘Below, I will suggest a way to obtain your copy of your demand letter.
But first, I feel duty-bound to expose one unethical practice a few attorneys engage in. Insurers have a good faith duty to pay fair value for claims, and if their insured has low policy limits and they are presented with a claim of proven value far in excess of those limits, they must offer the policy limits. The attorney has hit a jackpot if he can convince his client that this was a lot of hard work to wrestle a policy limits settlement out of the tortfeasor’s insurer. Or, he also might do a TON of PAPERWORK—a lot of extra pleadings and so forth—all of which are unnecessary. But they are on the office computers, so it is no problem to generate such work product.
He thus will put forth a distribution plan wherein he is paid his full one-third contingency fee. Even worse, he will take his one-third on the gross award, not the net. What is the difference? The gross is the beginning point—the actual settlement figure recited in the approval documents. But if there is subrogation to be taken from that (e.g. to repay some of the money paid out by the client’s insurer), then the amount left to distribute to the client is far lower than the gross. Most attorneys will take their fees on the net, unless they had to fight subrogation and won some compromise.
Consider this example, Howard. If the provable settlement value is $45,000, but the tortfeasor’s policy limits are only $25,000, there is no real difficult attorney work involved in getting that $25K. No time or labor or special skill is required. And consider that the victim client unfortunately resides in a “Red state” (where the insurance industry is more likely in bed with the legislature and governor), so there is little—or no—subrogation relief available on a claim by the client’s insurer of $7,000 paid out in medical bills. Unless the client is aware of the bar association rules I will mention below, there is a good possibility that an attorney who has already tried to hide his work from his client might try this kind of distribution of the policy limits.
[NOTE: I made up two tables, but I do not know whether or not allexperts.com has software to preserve my formatting. So forgive me if you have to rearrange the following lines if they are not in table format.]
Gross Award or Settlement $25,000
Less one-third attorney’s fee per contract ($8,333)
Less subrogation claim from client’s insurer ($7,000)
Less costs per contract (medical record copies, etc.) ($500)
Balance distributed to client $9,167
If the client is informed about these tactics, he can fight taking full fees on low policy limits and taking fee on the gross award instead of the net settlement by contacting his state bar association and asking about rules I am about to cite for you, Howard. Here is how that same case OUGHT to look, if those bar rules are invoked.
Gross Award or Settlement $25,000
Less subrogation claim from client’s insurer ($7,000)
Less attorney’s fee per time, effort, and skill required ($3,000)
Less costs per contract (medical record copies, etc.) ($500)
Balance distributed to client $14,500
OK, Howard, before I get into an example letter to your attorney, here is a brief introduction to the rules of your state bar association, which you might consider asking about. Oh, and BTW, if invoking these does not get a proper reduction in fees by your attorney (if merited in your case), your state bar also has a way of arbitrating the fees.
ATTORNEY FEES CONTROLLED BY STATE BAR ASSOCIATION RULES OF PROFESSIONAL RESPONSIBILITY.
Yes, the contract you signed does govern your relationship with the attorney, but over that, guiding the attorney for fair treatment of his clients, are the rules enacted by your state supreme court or your state bar association.
Those rules are known as Rules for Professional Conduct (RPC). And RPC 1.5 governs attorney fees and IT TRUMPS YOUR ATTORNEY'S CONTRACT
If your attorney does not fully disclose all that he should, or tries to take a full fee on a low policy limits case when your case has a high settlement value, then you might think about these rules. TO ACHIEVE A FAIR AND REASONABLE PERSONAL INJURY ATTORNEY FEE, LEARN AND CITE your State Rules of Professional Conduct REGARDING REASONABLE LEGAL FEES. Your State Bar Association can help you with this, and I would not hesitate to contact them if there is any suspicious hiding of work in your case by refusing you copies of what your attorney is doing.
NO MATTER WHAT YOUR FEE AGREEMENT SAYS, YOUR STATE BAR ASSOCIATION IS NOT GOING TO LET YOUR ATTORNEY ABUSE YOU BY TAKING A FEE HIGHLY DISPROPORTIONATE TO THE WORK INVOLVED!
Note that this is NOT just something that the attorney may or may not agree with: HE IS DUTY-BOUND TO COMPLY WITH THESE RULES. The preamble to the rules states as follows:
”The Rules of Professional Conduct are MANDATORY in character. The rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."
I believe I have fully and completely answered your question, Howard. But there is a second part of your issue that you did not ask, and which I believe you also should know: “What should I do if my attorney will not (here you pick one—or maybe both—of the following) disclose the amount of his demand, or even give me a copy of his demand letter?”
So let me go above and beyond what you asked and answer those two issues:
(a) where he gives you a copy of the demand letter, but blanks our the amount; or
(b) where he refuses to send you a copy of his demand letter.
I would not fire an attorney just for this reason, assuming he is competent in all other aspects of handling your case. But I would INSIST upon being kept informed about what is happening in your case—AND in receiving copies of his correspondence.
Now, you can do that in a two-step process:
(a) phone the staff and ask for the amount of the demand letter—and if he did not give you one, a copy of your demand letter; and
(b) failing compliance with that simple request by you, send him a letter—email is fine, but hard copy is better—or perhaps best: do both an email, followed by hard copy in the mail.
Why insist upon making your attorney comply with such a request? Because it is your absolute right to have both a copy of his demand letter and to know the amount he is demanding. AND because you can be of better use to successful prosecution of your claim if you are kept informed along the way. Plus it is your absolute right to fire him if he is not doing a good job, and thus you must have a copy of what he has sent out in your name to evaluate his progress. Finally, you do have the right to a fair attorney fee, and that is based upon the work he does in the file and the skill required. He does not get to hit the jackpot and take an unethically high fee, irrespective of what his contract says. Does this make sense, Howard?
I could leave you with that and offer to help you if he refuses to give you a copy of his demand letter, but I am going on vacation soon, so my account at allexperts.com will be blocked for a bit., and I do not want to make you wait until I get back. Hence, may I please give you a couple of ideas on a letter to send in case your attorney refuses to give you a copy of his demand letter? You make changes as you deem necessary, but this is the general approach I would respectfully suggest. NOTE: when I mention attorney fees being governed by rule, that IS, to the best of my knowledge the same rule—or a slight variation of it—in each state. You could call your state bar association to confirm that.
Dear attorney,
I am following up on my call to your able assistant, Samantha, regarding obtaining a copy of my demand letter. I told her that I did not even know the amount you had demanded, and besides that information, I wanted a copy of what you sent out in my name. She responded that it was your office policy that because you handle the negotiations—and not your clients, you would not send your clients a copy of the demand letter sent in their case.
I do not dispute that it is your job to negotiate this case, but it is my right to know what you are doing in my name. I am entitled to a copy of my demand letter, and to copies of all of your work product. How else can I evaluate your performance?
As you are aware, attorney fees are governed by rules of professional conduct in this state, and part of those rules pertains to the time, effort, and skill required in the case. How can I evaluate your fee unless I have the work you have done for me?
Finally, I hope you would agree that if we were to move on to litigation, it would be essential for me to know all that you said about my injuries and their impact upon my work and my life prior to having to take a deposition. Moreover, once I am able to see what you have written, there is a good chance that I will be able to supplement and strengthen your presentation.
I would like a copy of the demand letter you sent, and a list of other work product you have prepared in my case so that I can determine whether or not I will need a copy of those materials.
Please respond solely in writing to this request.
Very Truly Yours,
Howard
Well, Howard, I hope you are still awake after this long tour of information along the pathway to a better relationship with your attorney. I trust that my extra time given you has been of benefit to you—now and in the future of your case. Thus, I respectfully request that you find the feedback forum on this website and leave some feedback for me. This is the best way to let future accident victims who need help know just which experts are willing to give them the time required to give an answer that will truly help them.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
Client right to demand letter, Dr. Settlement insurance expert, attorney fees
---------- FOLLOW-UP ----------
QUESTION: I did not know He had sent the settlement letter out. when I ask about it he said it was being reviewed by the adjuster. He did not ask me about an agreed range. The claim is against a major hotel. They accepted full liability. I have major injuries. It has been 40 days have not heard from anyone about an offer.
AnswerHello again, Howard,
I have the two new letters prepared, but I am reluctant to put them out on the internet as examples until we know whether or not they are merited in your case. Of course, I can always send them to you via private email (unfortunately, allexperts.com does not have any means for me to mark our communications as private, so I will give you instructions below on how to contact me directly).
Something really started to bother me when I went back and read and re-read your comments. It sounds like the following is a possibility—of course there is no evidence to support this idea—but it is the only explanation that makes sense: your attorney did not in fact have any demand letter on the street at the time you asked his staff about it. He had been sitting on your file. It is only after you asked about it that he got to work and put out something to the adversary. THAT is the only reason I can see why he would refuse to give you a copy of his demand letter. He is hiding something. It also explains why he never consulted you on the amount you would settle for—he must pretend that he got your letter out over one month ago. If in fact he were to decide to consult you about the amount for a settlement now, he would have had to admit that he is just now getting around to making his demand.
Is this alone reason to fire him? Heck, we ALL have been a bit delinquent on getting work done in some files. It is just part of the trade, I guess. So being late on getting your work out—in and of itself—is probably not reason to fire him. It depends—other factors might come out for you; being deceived is one that would bother me as a client. I also would be suspect of the quality of work done if the scenario I supposed above were true: did he really have the time to argue the merits of your case? Did he present facts to support liability—drawings of the accident, witness statements, etc.? If it were me, I guess I would use the second letter in the series I will discuss below to ferret out the real facts on how he has handled my case to date—and then decide whether or not to terminate his contract (I will write more on that below).
You will have to decide what to do—whether or not you will ask for all correspondence, or maybe the entire file. Or maybe do nothing for now—just wait and see what he comes up with. My only problem with that is your negotiating position has been set for you by his demand letter, and you have had no input. But on the other hand, this attorney might be highly competent and surprise you with an excellent result.
I do not have that luxury: to tell you to just wait and see. Other experts here will do just that. But I see my job as requiring me to give you some alternatives for action and to explain why this or that alternative might be a good course of action for you. Then you, having been fully informed, can make a better choice for yourself. Does that make sense, Howard?
I hope so because what I have in mind for you will cost me double in time compared to what I did the first go-round between us. You leave me little choice but to treat this as a significant case because you said your injuries are “major” and the tortfeasor has agreed to liability.
Presently I have allexperts.com questions in a queue that I cannot get to for a day or more, so as I write this I have already shut down my www.allexperts.com account for the next few weeks because I am behind on my work at our car wreck injury claim www.SettlementCentral.Com online insurance settlements help website.
So you will not be able to respond to me through allexperts.com, and I cannot risk just treating your case as something of not much import—something that does not warrant getting serious letters out to an attorney. Thus, I will prepare information for you on the presumption that yours is a higher value claim.
If you were to use my opportunity for private contact, what I would want to know are the facts that support what you say. And please tell me about the accident—what did they do to cause your injuries—and tell me about your injuries and any surgeries and your prognosis. Presuming it to be a serious claim, at the end of this response, I will offer you a way to contact me directly via my private email.
Part of the reason I do not want to put these letters out there unless they are connected to a set of facts that disclose the client has a serious case is these are pretty serious letters—ones that should be sent only if yours is a case with some higher value (e.g. at least above $25,000). On the other hand, if yours is a case with just average or marginal value, then these two letters (and especially the second one) would be waaaay too heavy-handed. I do not want to put out there a tool to hammer an attorney when I do not know the facts that would show he deserves such a serious treatment.
For example, the second new letter (which for clarity hereinafter we will call the THIRD letter since you already have the first letter from my earlier response—and this response introduces two new letters) is one that basically sets you up to terminate the contract with the attorney. So I would want to hear something a bit more serious before I turn that kind of thing loose on the internet. OK?
Before we get too far into this new response, may I please summarize these three letters so we know what tools we have?
#1. The first letter.
This is the one you already have. It instructs the attorney to forward you a copy of his demand letter, and directs him to furnish you a list of his work product in your case.
#2. The second letter.
This is a new letter that directs the attorney to furnish you a copy of ALL COMMUNICATIONS—be they retained in electronic or written format—between him and (a) the risk manager for the hotel and (b) the adjuster for the insurance company for the hotel. That includes ALL notes of phone conversations. It directs him to furnish you a list of his work product in your case. This letter further instructs the attorney to communicate with you only in writing—with email being preferred.
#3. The third letter.
This is the big gun—some serious stuff here, but if use of this letter is justified, you can count on it being EFFECTIVE. This third letter STOPS ALL WORK in the file---the attorney is PROHIBITED from any further work or representation of you until you tell him otherwise in writing. This third letter directs the attorney to prepare your entire file—at no cost to you—and to leave it for you or an agent to pick up. It instructs him to identify any materials—written or electronic—that he is withholding (e.g. not included in your file, hence trying to hide from you)--and to state his reasons therefor. The letter directs the attorney to have NO further contact of any kind with the adversary until you rescind this restriction IN WRITING. This letter further instructs the attorney to communicate with you only in writing—with email being preferred.
OK, Howard, now let’s take a look at a few of the provisions of these letters.
#4. “Why restrict my attorney to communicate with me only in writing?”
Both the second and the third letters instruct the attorney to have no communications with you other than in writing. Why?
(a) Potential malpractice claim?
Because you might be looking at prosecuting a malpractice claim versus your attorney, and if so, you do NOT want a “he said, she said” conflict the staff or the attorney. Get it in writing—email is best—quick and in writing. CAUTIONARY NOTE, Howard: there is NOTHING whatsoever so far that tells me there is a probability of malpractice here. On the other hand, if in fact this is a case with “MAJOR” injuries and no liability question, then—at least for my experience in four decades now—there is something strange going on if the attorney does not consult with you to obtain permission to settle—and he then hides his demand letter from you—and refuses you a copy of it when you asked his staff. So this just reinforces the GOOD JUDGMENT you exercised in seeking a second opinion here at www.allexperts.com, You made a decision that was warranted by the strange actions of your attorney.
(b) Shady practices; B.S. the client; sell the client a poor settlement
Even if there is no malpractice, per se, the attorneys who have done this kind of shady practice thing to their clients do NOT wish to expose themselves to a review of their entire file (as directed in these two letters), so they will get on the phone and B.S. their clients to delay and delay producing the file, with the hope being that they can achieve a settlement in the meantime. They are good at B.S.—and they operate on the phone—using their pet phrases—A LOT more effectively than their clients could hope to do. Unless they are experienced in telephone sales or negotiations, clients just cannot think and respond as quickly as these attorneys. And these attorneys are more apt to try to use the phone to sell their client on a poor settlement. It is far better to make these attorneys put all of this stuff in writing—at least that gives the client time to sit down and consider all that has been presented.
#5. “Why do you make the attorney produce the client’s entire file?”
This is one of the most serious steps a client can take—but one you ARE ENTITLED to. You have a right to see EVERYTHING the attorney has done for you. In addition, you are entitled to see each communication sent and received regarding your case. The file is YOUR PROPERTY. If the attorney gives you any grief on this topic—refuses your request to release your entire file, you MUST let me know right away, giving me your home state. I will research your state’s Code of Professional Responsibility and give you some ammunition to confront the attorney. You also have your state’s bar association on your side.
Ah, but I failed to answer the “why” part of this serious step. There are two reasons.
(a) First is to review the file—either on your own—or via an independent attorney. Depending upon the seriousness of your injuries, you may or may not have to pay that attorney for a review. Most of such reviews will cost nothing, especially if the client thereafter hires that independent attorney to take over his file.
(b) The second reason is to change attorneys.
Having signed the attorney’s professional services agreement, you are not married to that attorney for life: you can fire him at any time. (STOP right there Howard: if this attorney did NOT present you with a written contract, this is A HUGE RED FLAG—you need to write to me in private on this topic—many bar associations have ethics rules that require such contracts to be in writing, not verbal. And if he did not have a written contract, in some states he cannot collect the contingent fee he seeks upon settlement of the case.) You do NOT need a “good reason” to terminate the contract. It is up to you and no reason whatsoever need ever be given. In fact, if you were to do as I will show you, there need never be one more word spoken—nor written communication made—between you and your attorney.
#6. “How is it done—to fire my attorney?” “What should I say to them?” “If I do hire a new attorney, how will I pay for two attorneys?”
If you wish to fire your attorney, it is easy to do, there is no communication required, and you do not pay two separate attorneys’ fees. There are two ways to go about this:
(a) Before you even write to your attorney, at any time in your case, you are totally free to go out and search your area for an attorney that you think will do a better job for you. You never have to tell your present attorney—you simply make your due diligence and find someone you like. That attorney will then write to your existing attorney and tell him to prepare your entire file to be picked up. He will also instruct your attorney that he now represents you, so your present attorney is prohibited from ever speaking with you on this file.
OR
(b) you have someone pick up your file first, you look it over, and then you take it and shop it and yourself around to any attorneys you think will do a better job for you. Once you hire them, ditto above.
And no matter which of these two ways you elect, communications and fees work like this:
(c) First thing, make sure he gave you EVERYTHING.
In your letter directing the attorney to prepare your file to pick up, you include the instruction that he must affirm that he has given every single thing in your file, and if not, then he must identify what he is withholding and state his reason therefor. You can designate anyone you wish to go down and pick up your file. If you wish, it might be better to hire a courier service. Do NOT EVER allow your attorney to mail the file, unless via registered mail. Once you receive it, make darn sure the attorney has issued the requested statement regarding materials he refused to give to you. There are ways for you to contest his decision, but that is a topic for another day.
(d) There is never any further need for you to have to speak with or communicate with your attorney or his staff. Just refuse to speak with them—and make them write to you. Of course once you have a new attorney your former attorney can have no communications with you whatsoever.
(e) You never have to pay two attorneys’ fees: you pay only ONE FEE—the attorneys have a method to divide the fee IAW the work done, and other criteria set forth in the Code of Professional Responsibility Rule 1.5 that governs all attorneys in your state (see my first answer). The amount you pay in fees will be the same, even with two attorneys—it is up to them to figure out how much each of them receives.
(f) The first attorney might WAIVE all fees if he is unable to produce a favorable result, and it looks to him to be a difficult case. For example, if the first attorney failed to receive any offer in an acceptable range, he might be happy to be rid of the case and of the client. He already invested some time in the case, and he does not want to invest any more time in what might continue to be a losing cause even if a lawsuit were filed. In that case, you could take your file and not owe one dime in attorney’s fees. Costs? Yup—those must be paid. But most attorneys who are turned back with a denial of liability are not going to want to go forward with investing more time in the case.
“But how can I get that first attorney to waive his fees? Do I have to rely upon the second attorney to argue with him?”
(g) BONUS TIP for you here, Howard: figure out WHY your attorney does not like your case. I do not have any reason to foresee this EXCEPT if in fact I am correct in my supposition that your attorney was sitting on your case—dragging his heels. THEN, it stands to reason there was something about the case that he did not like—or that he saw as a huge problem. Follow me? No? Well, Howard, how about looking at it from the perspective of the attorney standing to make some money on a contingency fee? Assume this were a policy limits claim that a blind dog with a note in its mouth could settle for policy limits. For example, damages worth $65,000—but only $25K in policy limits. Don’t ya see that the attorney is gonna waste not one minute in getting out his demand letter b/c it is an AUTOMATIC EASY PAYDAY! He will have to come off his one-third percentage (or ETHICALLY he should), but still, that is going to be an easy chunk of change for his office. So is he going to sit on that file? Of course not! It is going to be done quickly.
Contrariwise, if he sees that the case is difficult to prove—be it liability or damages—the attorney is less likely to push on that file. This is truer of liability disputes than it is for damages b/c once you lose on liability—damages are irrelevant—right?
So, if your attorney was sitting on your file, my guess is that there is a reason why—and—since you stated that you had major injuries, the most likely suspect is a liability dispute. But you told me the tortfeasor admitted liability—and my response is: so what? An adjuster’s opinion of liability is not at all binding upon his insured—absent some facts not apparent here. How was this liability admitted—did the adjuster state it in a letter? And if he did, my same response is: so what? That in no way binds his insured. If lawsuit were to be filed, their attorney is not at all bound by the liability opinions of their adjuster. He does not possess the authority to bind his insured that way—UNLESS your side acted to your detriment in reliance upon his statement that liability is not in issue. But that is for another day since I am going far afield here in my own guesstimate as to WHY your attorney was sitting on your file [which is itself another of my guesstimates ]
(h) Now, Howard—take advantage of your attorney’s dislike for that part of your case. If he were denied on any part of your case, do NOT SYMPATHIZE with him—do NOT agree with him Instead, stand firm and state that he is under contract to represent you and so he MUST file a lawsuit to fight for your claim. See what I am going to have you accomplish here, Howard? I am gonna get your attorney to BEG to be let out of his contract. The more you insist that he must file the lawsuit, the more he is going to say it is of no use, and eventually he will offer you to take the file from his office if you would just relieve him of all responsibility for whatever loss or setback he has suffered. Hence, you will agree to take the file, but only on condition that he waives any and all fee interests in the file.
(i) No hold harmless agreement. If your attorney were smart (but he does not sound like he is) he would only let you take the file without a fee obligation IF you agree to hold him harmless on the results obtained. I have no problem with that UNLESS there is some part of the case that he lost, or lost the opportunity to pursue. That might be malpractice. But from what your case sounds to be, there is little chance of that.
“If I am only going to pay one attorney’s fee between the two attorneys, why do I care about eliminating the fee claim from my present attorney?
(j) You will stand a much better chance of hiring a good second attorney if you can bring her a CLEAN FILE with no fee lien on it. Your new attorney now knows that she is going to receive full credit for all the work she does in the file, so you will thus be in a much better position to attract someone competent to take on your file. Agree?
#7. “Why should I STOP ALL WORK in the file—no further representation by the attorney until I write him to resume work?”
Because otherwise he can—and likely WILL—do work that is not in your best interests. There are two kinds of work to be done once he gets the instruction to make your file ready for pick-up.
(a) The attorney can have his staff generate a lot of work at little cost to him b/c it is on their computers—this will be stuff the new attorney should (allegedly) use. Hence, this work is done in the hope of increasing his share of the fee he will have to split with your new attorney.
(b) The attorney can make compromises in your position in order to achieve a settlement offer in the hope of retaining your file. He goes out has reduces his demand to just a little over your minimum desired outcome so as to induce a responsive offer from the adversary. Even though that offer is less than your minimum demand, it is unlikely that you are going to follow through with a transfer of your case.
#8. “My attorney says (a) I must pay existing costs before he will allow me to pick up my file; and (b) there will be copying charges of $225 that I must pay before they will even copy my file. The office standard administrative fee for copying a file is $150, and it is 300 pages at 25 cents per page.”
(a) Your attorney CANNOT hold your file hostage to exact payment of existing costs (unless rare circumstances exist). Call your state bar association and ask them for guidance—there are ethical rules and provisions in your state’s Code of Professional Responsibility that cover this situation. He can make you—and/or your new attorney—agree to pay those costs upon reasonable terms. But since the file is needed by your new attorney for necessary work, your present attorney cannot exercise a possessory lien on it—he must surrender it, subject to your agreement to pay later.
(b) There will be NO copying charges assessed against you for making your file available for pick up. The file BELONGS to you, not to the attorney. Everything in your file is yours (except the notes of the attorney—there is a split on this issue; some states say the notes go with the file, but others contend that the attorney’s notes are his private work product and need not be transferred to the client. There is no prohibition on the attorney making whatever copies he deems necessary to retain for his historical record (e.g. he might want copies if he foresees further inquiry on his performance in prosecuting your case).
Here are a couple of points I would like to get resolved before I release these two new letters. FIRST is the seriousness of the claim and SECOND is the statute of limitations. I am going to issue you a personal invitation to contact me via my private email address (below). That way, we can easily communicate and it will be in private, and I can give you these two new letters in private, as opposed to putting them out on the internet.
First issue for us to discuss: is this a serious case?
You state that you have “major” injuries—but what does that mean? Was this a car wreck with the limo from the hotel picking up somebody at the airport? How extensive are your injuries? How much time off of work and loss of wages? What is your prognosis—and what are the future medical costs? Those are all issues you will want to discuss to demonstrate that you have “major” injuries to put this in the category of being a serious case.
Second issue for you to check up on: when does your statute of limitations run?
Make darn sure your attorney tells you that information. What does that phrase (“statute of limitations”) mean anyway—and why should you be concerned? All of this is fully explained on out excellent discussion regarding the statute of limitations www.SettlementCentral.Com insurance injury claims DIY website. Here is our page with information on statute of limitations
http://www.settlementcentral.com/page0452.htm listing of state statutes of limitations.
Let’s wrap this up, Howard. What comes next?
IMO, the first thing is to get ahold of the demand letter to see how the attorney presented your claim. What proof did he present to support both liability and damages? You mentioned liability, but unless there is some contract—something in which each party gives some consideration or even mutual promises, a mere statement of opinion that they are liable is worthless. Oh, there is one exception to that rule, but this answer will have gone on too long already—so save that for later if need be.
Once you see how you were represented, you can decide whether or not you need to seek other counsel.
I have given you a good choice of alternatives and instruction on how to use them. I will leave it to you to decide what to do. This is YOUR CASE, and we never ever give legal advice or legal services. These letter examples that I speak of are generally drafted to aid all other readers who need to take such action versus their attorneys. They are not drafted to your particular situation, Howard, but instead just as examples anyone can make use of. OK?
If you still need to contact me, then go to our car crash victim help SettlementCentral.Com bodily injury claim website. You will use a form on our insurance claim tips www.SettlementCentral.Com self-help website—top right home page “contact us”. And put in the email that you are Howard with a serious accident claim from ALLEXPERTS.COM. That way we will have the staff send your email to my attention instead of responding with a general no-help response—as we must otherwise do b/c of the many people who write asking us questions. We cannot answer those b/c of the potential liability if we gave the wrong answer (never sufficient info given online), and of course, the expense of having staff and attorneys answering those instead of our own members.
Yes, I DO very much appreciate the super job you did in leaving me feedback, Howard. But if we go to private correspondence via our emails, this will be the last opportunity to make one last shot at feedback. You need not do anything at all, of course. But it sure would be nice to get even a review with no words of feedback—just their grading system on various aspects allexperts.com sets up for you. So if you feel so inclined, I would appreciate that very much, and so will accident victims who come after you since your grades will instruct them where to come for help.
Once you have obtained your demand letter and had a chance to review all that your attorney did (or did not do) for you, if this is something you have questions about, or feel the need to go on to the second or third letter, go ahead and write to me. Otherwise, I will wish you a successful settlement, and more than that, a complete restoration of your health.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Www.SettlementCentral.Com
Letters to attorney to produce parts of file; how to fire attorney; Dr. Settlement, J.D. (Juris Doctor)
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Hello again, Howard,
First off, thank you kindly for the most generous feedback you left for me. That means a lot.
I also appreciate the comment you made about the time spent with you versus your attorney. At first I thought that was a nice thing to say, but now as I read what he has done with your case, I can see that your comment on time he spent with you is probably true.
I am SO DEPRESSED and SO ANGRY about what this guy did in your case—I just cannot imagine what he is thinking by not even discussing the amount you think is a good settlement. Maybe he thinks that he knows the value and he will get what he can and then twist your arm to accept it.
Maybe your case is just a very small case and he did not see the need to go over things with you?
But how will he explain what the other side is offering unless he shares information with you?
I am going to work up two more letters for you, Howard. One will be a different demand for information and the other will be to copy your entire file.
I will work on those tonight and send them tomorrow. You need not respond to this note—just wait to see whether or not I can create something of value to you. OK?\
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
www.SettlementCentral.Com
attorney withholding information from client, online insurance expert Dr. Settlement, J.D. (Juris Doctor)
