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

Asked about 2 years ago - 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)

  1. Andrew Kevin Jacobson

    Pro

    Contributor Level 16

    9

    Lawyers agree

    Answered . 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... more
  2. S. David Rosenthal Esquire

    Pro

    Contributor Level 18

    9

    Lawyers agree

    Answered . 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.

  3. Lars A. Lundeen

    Pro

    Contributor Level 20

    8

    Lawyers agree

    Answered . 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.

  4. Jonathan Craig Reed

    Pro

    Contributor Level 16

    6

    Lawyers agree

    Answered . 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.

  5. Jeffrey Mark Adams

    Contributor Level 20

    7

    Lawyers agree

    Answered . 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... more
  6. Adam David Sorrells

    Contributor Level 13

    4

    Lawyers agree

    Answered . 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... more
  7. Andrew Daniel Myers

    Contributor Level 20

    5

    Lawyers agree

    1

    Answered . 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.... more
  8. Alan Francis Sylvester

    Contributor Level 2

    4

    Lawyers agree

    Answered . 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

  9. Ryan Miller

    Contributor Level 4

    4

    Lawyers agree

    Answered . 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.

  10. Joseph Torri

    Contributor Level 17

    2

    Lawyers agree

    Answered . 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... more

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