Should I Fire My Product Liability Lawyer and Hire a New One?

Occasionally I get calls from people who tell me they are unhappy with their product liability lawyer and want to fire that lawyer and hire someone else.

So should they? Let’s look at it.

Injury Litigation Can Be Highly Stressful

First, it’s important to recognize that litigation is stressful to the parties involved. Litigation involving injuries from a failed product can be very stressful. The defendants are large and well-funded corporations, and they will aggressively defend themselves against claims that their product harmed you. So you will have a fight on your hands. And fights are never fun.

Second, product liability litigation, particularly medical device and prescription drug multi-district litigation, takes a long time to resolve. You have to absorb this unfortunate reality of product liability cases. I had one case that lasted over seven years before we were able to resolve it. Although that is an extreme case, you can expect your device or drug case to take years to resolve. This slow walk to “justice” can cause a natural strain on the attorney-client relationship.

Choose the Right Lawyer the First Time Around

The attorney-client relationship begins with an often serious injury, and continues through years of contentious litigation. It can be a pressure cooker. This is why it is so vitally important to choose the right lawyer for you the first time. You should never hire a lawyer quickly or impulsively (not me, not anyone). I have written about choosing the right attorney in the past, and you can read more about that here and here, but the key thing is to slow down. Read as much as you can about the attorney and the firm you are considering. Ask questions. Do not sign with a lawyer after seeing one television commercial. Even a really good commercial.

“I Hired a Lawyer, and It’s Just Not Working”

OK, we’ve gotten this far. You hired a lawyer and you really don’t feel comfortable. Perhaps you left three voicemail messages over four months and you still haven’t received a return call. You have no idea what is going on with your case. Maybe you spoke with the lawyer for ten minutes on the day you signed the retainer agreement, and you haven’t heard from him or her since. If you feel deeply unhappy with the representation, you should first call your attorney and explain that you are dissatisfied and that you are considering hiring a new lawyer to represent you. This may motivate the lawyer and the firm to discuss all your issues in an open and honest way, and maybe you can rehabilitate the relationship and move forward. If not, read your retainer agreement carefully; this document is a contract for services between you and your lawyer, and it defines the terms of the representation and the rights of the client and the lawyer. Understand what happens in the event that you terminate the relationship. After that, send your attorney a letter stating that you want to get out of the engagement, the reasons you want to move on, then ask that the attorney release you (in writing) without any further obligations on your part. Often the lawyer will accept this no-strings-attached termination. If not, you will have to go through some negotiation to establish the terms by which you can move on. It may be that the fired attorney will expect to be paid a portion of fees in the event of a resolution of the case, but some attorneys will simply allow you to move on. You will need to work this out before you hire the new attorney.

I will say this: if you are close to settlement (especially if you have accepted terms of a settlement) it is a bad move at that point to attempt to fire your attorney. If you are truly dissatisfied, you need to make the change as early in the litigation as possible.

Final Thoughts

This subject is delicate, and I don’t want to come off as sanctimonious. Sometimes a lawyer truly does not handle a client or a case competently, and sometimes a client can expect too much from a lawyer. Do your research on the lawyer and then set reasonable expectations through the litigation. If you are a client, be patient and give your lawyer the benefit of the doubt, at least for a period of time. If some time passes after you leave a message, it could mean that the attorney is in trial (and trials can takes weeks or months). But if your attorney is almost never available, rarely calls you back, and takes other actions that you deeply dislike, you may need to make a change. You deserve to have confidence in your lawyer throughout the litigation.

And if you are an attorney, call your client. Check in periodically. Keep your client updated on developments, even if the report turns out to be: “nothing happened this month with your case.” If you do, the likelihood is that your client will never have any interest in reading this article.

Note: This post is not legal advice.

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