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PERSONAL INJURY - IS IT CUSTOMARY TO HAVE A RETAINER AGREEMENT WHICH PRECLUDES A CLIENT FROM GOING TO TRIAL? IS IT A GOOD IDEA ?

Los Angeles, CA |

A PERSONAL INJURY CASE INVOLING AN 80+ YEAR MAN....TRIAL OBVIOUSLY IS NOT DESIRED.....BUT SHOULD THAT AVENUE BE BLOCKED OFF IN A RETAINER AGREEMENT ? IS NORMAL? WHAT IF AFTER A YEAR THE INSURANCE CO. REFUSES TO SETTLE AND TRIAL IS THE ONLY OPTION? SETTLEMENT SHOULD ALWAYS BE PURSUED AS THE BEST WAY TO GO........CLIENTS MUST BE REASONABLE WITH THEIR VALUE OF A CASE....BUT ISN'T BLOCKING OFF THE AVENUE OF TRIAL A DISTINCT COMROMISE OF A CLIENT'S POSITION?
AND SHOULD IT EVER BE UNDERTAKEN ????

Attorney Answers 10

Posted

Your question suggests so, but there may be a valid reason. Also, the insurance company is not privy to the retainer. It's privileged.

Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and educational purposes only. No attorney client relationship has been formed or should be inferred. Please speak with a local and qualified attorney. I truly wish you and those close to you all the best. Jeff www.nyelderinjurylaw.com

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Posted

Some lawyers want to focus on settlement, and if that cannot be done quickly, they will hand over the case to a lawyer who would be willing to take the case to trial. While the honesty is admirable, your concerns that the lawyer might not fight as hard for you are valid. You might want to look for a lawyer who will be willing to take the case to trial from the outset.

www.bayoaklaw.com. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.

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Posted

Your attorney should be ready and able to go to trial if necessary. Some contingency fee contracts give the attorney the right to terminate representation if they feel the client is being unreasonable in refusing a settlement offer. That may be the type of contract language you are talking about. It doesn't necessarily mean the attorney is not willing to try the case. You need to have direct and clear communication with the attorney about what services he/she intends to provide and what services you expect, and make sure that the contract reflects those concerns.

Good luck.

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Posted

I have never heard of such a retainer contract for a personal injury attorney, but I assume it might be possible. I would highly recommend against using this attorney, as he or she obviously is limiting any leverage she or he can bring to settle the case. While your retainer agreement would not become privy to the insurance carrier, this attorney's reputation for not being able or willing to take a case to trial will be well known in the community. Insurance carriers would routinely offer this attorney less in settlement, because he or she poses less of a threat, since he or she is not going to take your case to trial. I suggest you avoid future grief and find yourself a trial attorney.

Legal Disclaimer:

If this information has been helpful, please indicate below.

Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

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Posted

Any attorney that is not willing to try a case should not be handling personal injury claims of any nature.

The reason is that in evaluation of full fair settlement value of the claim, the insurer looks at what their potential exposure is in the hands of a jury and/or court. What are juries giving in similar cases in this state or county? That is a standard key factor in insurance evaluation. If an insurer thinks the attorney is not going to ever try a case, that's not going to bode well for settlement.

My hunch is, and it is only a hunch, that there is either a misunderstanding somewhere along the way, or there is more to this than meets the eye.

I encourage a conversation with the attorney to address this.

I wish you the best.

Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.

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1 comment

Andrew Daniel Myers

Andrew Daniel Myers

Posted

I wanted to post the article on contingent fee agreements linked below but I clicked the submit too quickly: http://www.attorney-myers.com/2012/03/personal-injury-contingent-fee-agreements/

Posted

Some of the prior answers have been concerned with whether you have gotten the language of the retainer agreement correct.

However, it is not uncommon for a retainer agreement to say that the lawyer will advance the costs of the case as long as he feels it is justified, but the lawyer may quit advancing costs and demand the client pay costs if the lawyer doesn't feel the case prospects justify the lawyer putting more money into the case. This effectively give the lawyer the right to bail on going to trial.

Different lawyers use such a retainer differently. Some may always refuse to go to trial. Such lawyers should be avoided. Others may invoke their right to bail (unless the client comes up with costs) only if they feel the client is refusing a reasonable settlement offer. Trials, done right, can be hugely expensive, so I personally do not believe that every client has a right to go to trial at the lawyer's expense regardless of the settlement offers on the table. Finally, a very small variety of lawyers will even take the client to trial at the lawyer's expense even if the lawyer feels the client is refusing a reasonable settlement offer.

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Posted

I agree with the other providers completely. I would just add that for an 80 year old gentleman, suit should be filed quickly (based on the facts you provided) and a motion for preferential trial setting made (to have the case taken to trial sooner) based on the gentleman's age. GOOD LUCK.
Adam Sorrells
Lawyer in Chico

The above was not legal advice and cannot be relied on. For informational purposes only. Some of the time periods in which you are legal required to act can be incredibly short, some as short as 6 months. Time is of the essence, do not delay seeking legal advice and pursuing your legal rights. No attorney/client relationship formed.

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Posted

It is not customary. And, it is not a good idea at all!! In almost 50 years of doing personal injury work I have never done it, and do not know any attorney that has

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Posted

You should always hire an Attorney who is ready and willing to take on the case for the full duration. I would never represent a client in a personal injury matter without being dedicated to their individual needs. Even if that means avoiding settlement and going to trial.

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Posted

You need a trial warrior. Attorneys that are afraid of going to trial will not do you any justice. The other side needs to know you will take the case to trial. If they think you won't go to trial, you will not get a good offer. This is an absurd retainer agreement. I enjoy trials. I really enjoy doing trials in family court because it keeps me sharp when a civil jury trial is necessary. I've done a lot of criminal jury trials in my career. You need quality representation with a trial warrior.

Clients have the right to fire an attorney, and get a new one. The new attorney can deal with the old attorney about the fee dispute.

www.JoeTorriLaw.com

This communication does not create an attorney-client relationship. This means that I am not your lawyer and I will not appear in court simply by posting on this site. If you would like me to represent you, you must call my office, sign a written fee agreement and pay a legal fee, assuming I do not have a conflict of interest and you are in Southern California. If I respond to your question and you have follow up questions by posting on this site, I may or may not reply. This information should not be construed as legal advice. I am offering my opinion. Each person's case is unique, and that's why you should contact a lawyer over the phone for a consultation for your situation. That's why you should not rely on any response that an attorney posts on this site. I am licensed in California. I am not licensed in another state or country. I do not practice law outside of California.

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