Disagreement w/ Lawyer

[ivanl3]

It IS up to you if you want to take it to trial or not. Doesn't sound like ANYTHING was said about him representing you at a trial in which you stand to lose, or win less than the settlement.

As many have said, you are being foolish.

I would love to take it to trial. I just wish my lawyer would take it to trial (as he said he would countless times.....until it came time to actually do it)...

As for me being foolish, there is no way you can accruately make such a statement w/out knowing my financial situation, life goals, personal prioroties, etc.. None of thse are relevant to the legal questions i have posed, so I will respectfully decline from defending my decision not to accept the offer nthe table. BTW, that decision is final. It is now just am atter of my lawyer decidieng to walk fr mthe case or take it to trial.....It will be interesting to see what he chooses.

 

[seniorjudge]

What is the name of your state? MI

I am the plantiff in a civil suit. I agreed to enter mediation in hopes of reaching a settlement. The final amount offered by the other side (after weeks of mediation) is below my expectations. My preference is to take the case to trial. We have a court date in September. My lawyer has now told me that he is not willing to take the case to trial. His advice is to accept the offer or find another lawyer. I sought out other lawyers, but none are willing to accept the case this late in the game. Seems like I have no choice but to accept the offer on the table. Any other ideas?

One more thought:

Your choice is to take

A. A certain amount of money

OR

B. Take a chance at getting nothing (or, unlikely, more).



Mediation actually works.

Your lawyer knows this.

The mediation showed you what your case is worth.

 

[Zigner]

One more thought:

Your choice is to take

A. A certain amount of money

OR

B. Take a chance at getting nothing (or, unlikely, more).



Mediation actually works.

Your lawyer knows this.

The mediation showed you what your case is worth.

Yes, but our OP is choosing: C. Drop the case and *&^% the lawyer. (Otherwise known as cutting off the nose to spite the face)

 

[seniorjudge]

Yes, but our OP is choosing: C. Drop the case and *&^% the lawyer. (Otherwise known as cutting off the nose to spite the face)

Ah!

An exceptionally bad choice.

 

[Zigner]

Ah!

An exceptionally bad choice.

But, our op says "there is no way you can accruately make such a statement w/out knowing my financial situation, life goals, personal prioroties, etc.. None of thse are relevant to the legal questions i have posed,"

Of course, he doesn't know just how relevant it actually is

 

[tranquility]

i've already stated that I am more than happy to take it to trial.

Then, do so.

It is my lawyer who is refusing to take it to trial.

No. Your lawyer is refusing to do the work to take the case to trial. He has absolutely no control over if the case settles or goes to trial or not. You do. Even if he had an iron-clad contract saying he would take the case to trial, if he did not, the only remedy would be your damages--as properly mitigated. Slavery has been made illegal with the 13th amendment.

No lawyer can force their cleint to accept an offer or make a plea against their will.

Absolutely true.

So by him quitting he is forefeting any chance of getting paid at all b/c I am not going to accept the current offer (and let him take his $125K w/out taking it to trial).. He cannot force me to accept an offer; even he admits that. That is why he is so angry and may actually reverse course and take it to trial. We'll see. He thought he could strong arm me into accepting an offer I felt was too low.

It is problematical as to if he can get his contingency amount if you fail to prosecute. I don't think he can. HOWEVER, as I wrote, by you failing to prosecute the case he is ENTITLED to be COMPENSATED for the work he has done. The calculations involve terms like lodestar and the like, but the bottom line is, if you let the case drop, you will OWE HIM MONEY. He may be upset because the amount you owe him will be based on the actual number of hours worked rather than a percentage of the award. Many attorneys use their experience to calculate this in their favor and feel a win with a contingency arraingement is worth the risk. There are many attorneys who will do exactly what is being done here, they don't like litigation and hardly ever go to court. They take a case, knowing it will settle and put in the time for the pot of gold. It didn't work out. You will still owe him thousands of dollars in fees for the work he did.

Make your choice.
1. Take the money and pay the attorney his contingency.
2. Don't take the money and get another attorney to take the case to trial where the court will determine the proper amount to give to the first attorney (in satisfaction of the lien on any settlement) if you win and nothing if you lose.
3. Fail to prosecute and pay the attorney quantum meruit compensation for the time he has worked.

It's up to you. You still have the power to decide. No one can take that away from you. The problem is, each decision has consequences. You don't get to make the decision and also determine the consequences.

 

[ivanl3]

Make your choice.
1. Take the money and pay the attorney his contingency.
2. Don't take the money and get another attorney to take the case to trial where the court will determine the proper amount to give to the first attorney (in satisfaction of the lien on any settlement) if you win and nothing if you lose.
3. Fail to prosecute and pay the attorney quantum meruit compensation for the time he has worked.

I made my choice. I am not taking the current offer. I have been unable to find another lawyer to take the case and have documented proof of this effort. Based on all your advice, I will not officially drop the case. When the trial date comes up in September and my lawyer does not show in court, I will explain that to the judge that my lawyer quit the case (by virtue of not showing at trial, as well as the letters and e-mails he sent to me indicating that he refuses to take it to trial). I will also send my lawyer certified mail indicating that I intend to take the case trial w/ or without him but have been unable to hire new counsel. I will also state in the letter that I am not firing him and that if he does not show at trial, I will asuume he has quit the case (his choice -- as he keeps reminding me). I will explain to the judge that I have been unable to find another lawyer willing to take the case (which I have documented). If the judge wants me to try the case myself, I will give it the old college try and assuradly get nothing (as will my existing lawyer). QED

I will then look into suing my current lawyer for trying to force me to accept an offer under duress by quitting the case so close to the trial date. I made a few phone calls on this today and found 3 diufferent lawyers interested in the case. I am sure I will not win, but it might make him think him twice about lieing to future clients.

 

[las365]

The reasons that no other lawyer wants to take your case are: you are being unreasonable in regard ot the offer; your attorney will still have a lien on any recovery you get in the case; and no one wants a client with an attitude like yours. If all you want is to fight the case and you don't care about the money, and you didn't intend to take any offer but take it to trial no matter what, you should have said so in the beginning and not lied to your lawyer in order to induce him to take your case on a contingent fee.

By the way, he won't just not show up for the trial. He will file a Motion to Withdraw as Counsel and there will be a hearing. By the time the trial rolls around, you will be officially without a lawyer. The trial will probably be continued, the other side will probably file and win a Motion for Summary Judgment because you won't know how to deal with it, and you'll be done. And ecstatically happy, I am sure. Good plan!

 

[ivanl3]

The reasons that no other lawyer wants to take your case are: you are being unreasonable in regard ot the offer; your attorney will still have a lien on any recovery you get in the case; and no one wants a client with an attitude like yours. If all you want is to fight the case and you don't care about the money, and you didn't intend to take any offer but take it to trial no matter what, you should have said so in the beginning and not lied to your lawyer in order to induce him to take your case on a contingent fee.

By the way, he won't just not show up for the trial. He will file a Motion to Withdraw as Counsel and there will be a hearing. By the time the trial rolls around, you will be officially without a lawyer. The trial will probably be continued, the other side will probably file and win a Motion for Summary Judgment because you won't know how to deal with it, and you'll be done. And ecstatically happy, I am sure. Good plan!

You are right on a couple points/facts, wrong on others and offer some (uneducated) opinions:

1.) You have no way of telling if I am being unreasonable or not in accepting this offer. You know no facts of the case. I choose not to debate an uneducated opinion (yours).
2.) You state that I did not intend to accept any offer. That is factually incorrect. I just choose not to accept this offer.
3.) You state that no one wants a client w/ an attitude like mine. I am curious to know how you now what everyone wants. Are you some omnipotent being?
4.) I never lied to my lawyer. You have that mixed up. I was 100% honest the whole time. He lied to me and has admitted in writing to me that he has done so.
5.) Thanks for all the info in the second paragraph. That is helpful and useful and I assume accurate.
6.) You are 100% right that I will be "ecstatically happy" when the loses the $125K he thinks he might get. Hope he starves.

 

[ivanl3]

Actually all of your sage advice and positive/constructive comments triggered this plan. If he comes back to me soon and states that he will try the case, I will fire him. I think there is about a 50/50 chance this will happen. Based on your comments (and BTW, the contract has langauge to this effect too), he will be eligible to collect a share of any settlement/award. I will then state that I intned to try the case myself, basically ensuring I lose (but not officially withdraw the case). He will then know he is going to get nothing and either accept it and hopefully learn a lesson and also lose his $125K OR he may try to convince me to allow him to try the case. I will then have great leverage to re-negotiate my conttract w/ him at a lower contingency %. Either way he loses.....Gosh it is great to have all the leverage.

 

[tranquility]

I will explain to the judge that I have been unable to find another lawyer willing to take the case (which I have documented). If the judge wants me to try the case myself, I will give it the old college try and assuradly get nothing (as will my existing lawyer). QED

This is a far better choice as you will not be required to pay the attorney fees to the attorney who has removed himself from representation. Also, since you have a contingency arraingement, you will not pay that if you lose. Here, you are out nothing from your pocket and you only lose the money you would have had from settlement less the amount you paid out in damages.

I will then look into suing my current lawyer for trying to force me to accept an offer under duress by quitting the case so close to the trial date.

Obviously, the closer the date the more problematical to the lawyer. Good luck. By-the-by, what are your damages?

I made a few phone calls on this today and found 3 diufferent lawyers interested in the case. I am sure I will not win, but it might make him think him twice about lieing to future clients.

Are they interested on contingency? Are they aware there is a settlement on the table? Are they aware you choose to not mitigate your damages?

I will then have great leverage to re-negotiate my conttract w/ him at a lower contingency %.

Contracts which have no consideration are not valid. What are you giving up, legal eagle?

 

[ivanl3]

This is a far better choice as you will not be required to pay the attorney fees to the attorney who has removed himself from representation. Also, since you have a contingency arraingement, you will not pay that if you lose. Here, you are out nothing from your pocket and you only lose the money you would have had from settlement less the amount you paid out in damages.

Agreed. Thanks.

Obviously, the closer the date the more problematical to the lawyer. Good luck. By-the-by, what are your damages?

Not sure exactly how to quantify. Will need to discuss w/ new lawyer if I go this route.

Are they interested on contingency? Are they aware there is a settlement on the table? Are they aware you choose to not mitigate your damages?

Did not discuss terms of a potential contract. Yes, they are aware an offer is on the table. Yes, they knew all decisions I made.

Contracts which have no consideration are not valid. What are you giving up, legal eagle?

Sorry, don't follow this point. What I was trying to say i if he treid to convince me not to fire hime and allow him to take the case to trial, I could state that I would only do so if we both agreed to cancel our old contract and sign a new one w/ his contingency % much lower.

 

[Texas Pooh]

I have gotten a headache trying to follow OP's logic.

First, if I understand it all, OP is willing to give up a claim for $375k ($250k to OP, $125k to lawyer) in favor of taking a matter to trial his/herself.

OP, you do understand that one of the many benefits of mediation is certainty of payment? If you go to trial, and get a judgment (which of course may or may not happen), there is a whole other set of hurdles?

First, the other side might appeal. Not only will that mean additional YEARS as the appeal winds its way through the legal system, but you will have to pay for appellate lawyers. By the way, I have yet to meet a single appellate lawyer who works on contingency. The cost of an appeal is not included in the contingency fee you are paying your current lawyer. You will have to pay appellate lawyers out-of-pocket for (expensive) appellate fees. In most cases, appellate fees are not recoverable (since we don't know what kind of case you have, I can't say with certainty if they are or not). The appeal may be successful, which means you are back at square one.

Second, if you do get a judgment and prevail against the inevitable appeal, or there in no appeal, you now have to collect the judgment. Is the other side credit worthy? Are there assets? Will there be a bankruptcy? You do know the low percentage of judgments that are successfully collected, right?

Thus, you need to realistically weigh your mediation offer - which comes with it the certainty of payment - against the issues raised by appealing and collecting a judgment. This is worth a significant discount over what a trial judgment might be. The mediator knows this, and thus valued the mediation settlement considering this factor.

You have been given excellent advice on why to accept this offer, and why you are being unreasonable to insist on going to trial. I won't repeat all that, as you have obviously want to simply ignore the logic that has been expressed.

You need to reconsider your decision.

 

[ivanl3]

I have gotten a headache trying to follow OP's logic.

First, if I understand it all, OP is willing to give up a claim for $375k ($250k to OP, $125k to lawyer) in favor of taking a matter to trial his/herself.

OP, you do understand that one of the many benefits of mediation is certainty of payment? If you go to trial, and get a judgment (which of course may or may not happen), there is a whole other set of hurdles?

First, the other side might appeal. Not only will that mean additional YEARS as the appeal winds its way through the legal system, but you will have to pay for appellate lawyers. By the way, I have yet to meet a single appellate lawyer who works on contingency. The cost of an appeal is not included in the contingency fee you are paying your current lawyer. You will have to pay appellate lawyers out-of-pocket for (expensive) appellate fees. In most cases, appellate fees are not recoverable (since we don't know what kind of case you have, I can't say with certainty if they are or not). The appeal may be successful, which means you are back at square one.

Second, if you do get a judgment and prevail against the inevitable appeal, or there in no appeal, you now have to collect the judgment. Is the other side credit worthy? Are there assets? Will there be a bankruptcy? You do know the low percentage of judgments that are successfully collected, right?

Thus, you need to realistically weigh your mediation offer - which comes with it the certainty of payment - against the issues raised by appealing and collecting a judgment. This is worth a significant discount over what a trial judgment might be. The mediator knows this, and thus valued the mediation settlement considering this factor.

You have been given excellent advice on why to accept this offer, and why you are being unreasonable to insist on going to trial. I won't repeat all that, as you have obviously want to simply ignore the logic that has been expressed.

You need to reconsider your decision.

You missed the fundamental point. I do not care about my share of the current settlement offer. It is not material to me given my financial situation and other personal considerations. What is most important to me now is that my lawyer not get the $125K he would receive if I accepted the current offer. I made it clear to my lawyer up front that I wanted the case to go to trial unless a pre-trial settlement offer was made that was in the 7 digits and had no confidentiality clause attached to it. I wanted public disclosure of the facts in the case that would come out at trial, as well the amount (if any) of the award. I put all this in writing and stated int orally multiple times. He said that he understood and I would not have to accept any offer in mediation and he welcomed the opportunity to try the case if mediation did not bring the issue to resolution. This was a lie that he since has admitted (in writing) was a lie. So now my fundmental goal is to ensure he does not get any money out of this (unless of course he tries the case and wins). The plan I outlined above ensures me of reaching this goal. His lie also made it impossbile for me to hire another lawyer this late in the game (at least not one willing to wok on contingecy). He screwed me so now I am looking for quid pro quo.

Many on this board (not all, but more than 50%) have condemed me for not just accepting the settlement offer (and rewarding and reinforcing his behavior). Their opinion on that subject is not a matter of law. It is their personal judgement that they are making w/ virtually no facts on the case or my families personal situation. I am not sure why they felt compelled to offer unsolicited opinions on personal matters that are not related to the law . I find that awfully presumptious, arrogant, rude, ignorant and, to a certain degree childish (unenlightend may be a better word). They seem unable to accept that there are other valid paradigms, perspectives and personal situations that alter their standard way of thinking.

Anywho....Thanks to those who stayed on topic, I am now armed w/ a plan to ensure my goals are met. I will report back in September (trial date) and let you know how it all turned out**************Until then, good luck to those who stayed on topic and answered my legal questions. For those who like to preach their unsolicited opinions on personal matters, I submit that they may want to consider a career change. Oprah, Dr. Phil, and Laura Schlesinger (sp. ?) have to retire some day.

 

[tranquility]

Not sure exactly how to quantify. Will need to discuss w/ new lawyer if I go this route.

Yes, you will need to discuss how you were hurt. In court, to win any damages, you will need to prove by the preponderance of the evidence that you would have won in court and that you would have received more than the settlement offer. You award will be reduced by the amount of the settlement offer. Even then, that is assuming the attorney is in breach by removing himself from representation at this time. I think there is plenty of time to get an attorney with a couple of months before trial and the opportunity to continue the case while the new attorney gets up to speed, it seems to me there is no breach whatsoever even if damages could be proven.

Did not discuss terms of a potential contract. Yes, they are aware an offer is on the table. Yes, they knew all decisions I made.

One of your goals in the first lawsuit was to not coming up with extra money. If the contract is not contingency, doesn't that defeat the goal? Be sure o run your plan by them. All the letters and whatnot to the prior attorney may be considered intent to act in bad faith and cause you to lose by unclean hands in equity.

Sorry, don't follow this point. What I was trying to say i if he treid to convince me not to fire hime and allow him to take the case to trial, I could state that I would only do so if we both agreed to cancel our old contract and sign a new one w/ his contingency % much lower.

You are the one making no sense. Do you have a contract or no? If yes, you can't change it without giving something up. If no, why are we talking? Oh, wait, I see. You want a contract to resend the previous contract and then create a new contract. What if he breaches the contract? He's then out of the previous one and you have zero damages in the new one.

Final edit/contribution:
Of course, the entire discussion has been held in a vacuum of the OPs statements and without review of the engagement agreement. If it is a fairly standard one which places a duty on the plaintiff to cooperate with the attorney (among other things), the OP may already be in breach and would certainly be in breach if she went to court with the intent of harming the attorney. If the agreement so states and the OP had the intent, the attorney would be entitled to compensation even if the OP didn't win. If in a suit by the attorney to collect (or by the OP in malpractice), if the attorney found out about this thread and accessed it in some way, the OP would have a big problem. Good faith is important even to ideologues.