Help! My Attorney is Refusing to Take My Case to Trial

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After an accident minutes matter, your words and actions matter even more. You need help and you need it now. This is David Vs. Goliath brought to you by Dolman Law Group Accident Injury Lawyers, a boutique firm with a reputation for going head to head with the insurance company giants and putting people over profits.

Matt Dolman:

Welcome to another episode of David Vs. Goliath, the legal podcast starring myself, Matt Dolman, and my partner in crime Stan Gipe. Stan, say hello to the audience.

Stan Gipe:

Hello. Looking forward to another episode of the podcast today. And we sort have an interesting topic to go over with people, don't we?

Matt Dolman:

Yes, we do. You want to introduce it?

Stan Gipe:

All right. Yeah. Today we're going to end up talking about what happens when you get into a disagreement with your current representing attorney about what to do with the case because this happens a lot.

Matt Dolman:

And we see it happen often.

Stan Gipe:

Yeah. More often than you would think because an attorney's in charge of strategy and the client makes the final call on any settlement decisions, but you don't always have sort of the same opinion on how things play out and what things are worth. One of, I think, the biggest issues you get out there is, the client knows the truth because the client was there, right? They know everything. They know whether they were injured, whether they had priors, all of this, and they're embraced with it because it's the truth.

Stan Gipe:

Okay. And as much as you hate to tell people this, the truth only matters if the jury's going to believe it. Because if the jury's not going to believe the truth, it's difficult to get a verdict based on it. But what happens? Okay, you sit down here you come to a conclusion. We, look at this, you get an offer and you may say, hey, I think this is a fantastic offer for your case. We present that. And then a lot of times you come up to the client and they either disagree or have a different opinion as to what the case is worth.

Matt Dolman:

And I'm going to discuss the alternative to that, which is more often not we're retained by clients whose prior lawyer does not want to take the case either to trial or they don't want to file a lawsuit. But in the situation you just discussed, the client is the ultimate decision-maker and per the Florida bar and you nailed it on the head earlier, the client makes the decision of when and where to settle. The lawyer dictates strategy and strategy only.

Matt Dolman:

Now, if I have a client that's unreasonable, we get an offer of, let's say $130,000 to settle a case that wasn't a major case, but they had some type of a minor surgical intervention. Maybe an outpatient procedure, not a fusion, but something a little bit more minor. And it's hard to say anything's minor. I don't mean to de-minimize any case, but if the average value of this case, normal jury verdict is in the 100,000-150,000 range, and we get it done for a fair amount of money, where we think it's done and the client balks at that and wants 300,000 or 400,000 and it's unrealistic.

Matt Dolman:

What I've done in the past is, I usually have them sign an agreement that, I lay out what I think and if they decide they still want to go forward and try the case. Therefore, if we're taking the risk together, they at least have acknowledged the fact that they were advised of their rights. They were advised of the settlement opportunity. They were advised that their counsel does not agree with them and believes the case should have been settled. And if they want to take it forward from there at least, it's covering your butt, if you will.

Stan Gipe:

Yeah.

Matt Dolman:

But at the same point, the annoying part is you almost want to ask the client for a cost retainer because now, what I mean by the cost retainer is the client's going to put up money to try the case because they don't really have any financial skin in the game other than the conclusion, hoping to get a verdict. You're the one putting forth the money in the effort to prosecute the case.

Stan Gipe:

Yeah, exactly. And, as simple as this sounds, really the crux of the issue when that pops up between an attorney and their client, a disagreement on whether they should settle or push forward, it boils down to an issue of reasonableness, okay? Is the client being unreasonable and expecting way too much money, refusing to accept a reasonable settlement or is the attorney a wimp? Because a lot of times what you'll find is some attorneys just don't have the guts to file cases. They don't have the guts to take it to trial so-

Matt Dolman:

or years. I've litigated over: 1500

Matt Dolman:

They're making a decision based on their own financial needs, then the needs of their client. And we see it happen often enough. Because most of the lawyers... I say this all the time, if you could be the world's worst trial attorney, and you're not, and Stan's fantastic actually, but you still better than 99% of your colleagues who've never tried a case. The guys who try cases like the top, it's like one or 2% of lawyers out there, very few take cases of trial. Now 20-30% of them actually litigate cases and take the case up to the cusp of trial. Maybe try to get the case resolved at mediation or shortly thereafter. But a lot of guys will still balk at trying a case.

Stan Gipe:

You hit the nail on the head there with it. It is not even essentially how effective you are at trial. You know? And I've said this to people before insurance companies, who are really who we're fighting against. At the end of the day, it's an insurance company on the other side. They're like bullies and I don't care how big or small the person is, if you're willing to punch the bully, the bully generally wants to go pick a different fight. And that's-

Matt Dolman:

No question about it.

Stan Gipe:

That's what it boils down to. So even if you're a little guy, if you're a poor trial attorney, if you don't have good skills, if you're willing to actually get in the courtroom, they're going to take you seriously. If you're someone-

Matt Dolman:

Of course.

Stan Gipe:

Who's punched them in the nose a few times and it still hurts, they're going to take it real seriously. But the bottom line is.

Matt Dolman:

Mm-hmm (affirmative).

Stan Gipe:

If you're someone who refuses to go to trial, if you're someone who refuses to take that next step, the assumption then is that you get a reasonable offer on every single case.

Matt Dolman:

Well, there's a lawyer actually in Tampa... There was a law firm that was...there was an expose about them and was in St. Pete Times or the Tribune. And without making any comments, there are former lawyers at John Morgan's firm, Morgan and Morgan and Morgan made fun of them in the article, talking about how is it possible that you can get a good settlement in every last case because that lawyer bragged about the fact they were so astute at working up with the medical portion of a case that they always got fair value, which is preposterous because an insurance company is a risk management profession.

Matt Dolman:

Their job's to mana a risk. If you're not on to try a case, they have no risk. So they have no incentive to actually pay full value on any case. And again, the scariest proposition to any insurance company is spending money and by litigating cases aggressively, and then trying the case on occasion, when you get the opportunity to try a case when you're left with no other option, and you're doing what's in the best interest of your client, you're costing the insurance company a lot of money win, lose, or draw.

Stan Gipe:

Yeah. You're dragging them to the mat and sometimes those cases come back with fantastic verdicts. Sometimes, you get poor verdicts. There's nobody that wins every case they try. That's just the nature of the beast. But you know, if you're not willing to try a case, you, as an attorney really expose yourself to being discharged by your client. Now there's two different types of discharges and Matt, you know this. One's with cause and one is without cause. They are just like they sound, without cause means, you know my attorney didn't do anything wrong. He's a fine guy. I just want to go with someone else.

Stan Gipe:

Well, if you discharge your attorney without cause, that attorney has a lien, meaning he gets paid for the work he's put in so far, and that may come out of the other attorney's fees. So you may not pay twice. But if you discharge the attorney and it's, what's determined to be for cause, meaning the attorney did something wrong, he was incompetent, wouldn't try a case. He was unreasonably refusing to litigate. That attorney doesn't get paid for anything. They don't have a lien on the file. They don't get to charge you and you can go retain whoever you want and that new attorney gets the full fee.

Matt Dolman:

Correct. I actually saw recently with, it is about actually, when I said recently about a year ago, with a lawyer that claimed that he was discharged unreasonably. He was discharged for cause he was trying to tell the client what he should or shouldn't do medically and was trying to browbeat them into having surgery. And the client did not want to have surgery. So the client finally fired him. And low and behold that the same attorney refers every last case to the same doctor. This is an issue though that needs to be decided by a judge, correct?

Stan Gipe:

Correct. Yeah. It ultimately, well a judge or jury, depending on the nature of the case, it's got to be a find or a fact. And it's that simple. Who was unreasonable? Because what happens is when the discharge happens, it's typically because of what we call irreconcilable differences.

Matt Dolman:

Mm-hmm (affirmative).

Stan Gipe:

I mean, hey, we just can't get along. You know, there's a lot of attorney-client privilege stuff that goes on. So a lot of times on the front end, we're not able to disclose exactly what the nature of the dispute is without breaching attorney-client confidentiality.

Matt Dolman:

Correct.

Stan Gipe:

You know, I can't go in front of a judge and say, man, this guy wants a million dollars, but his claim stinks. He was lying. You can't do that. Right? You just can't do that kind of stuff. So a lot of times, all you can do is withdraw and then what happens is once the former attorney goes to assert the lien, that's when the facts start playing out because the case is settled and the privilege can be waived.

Matt Dolman:

Correct.

Stan Gipe:

So, a lot of times, well, let me tell you what if you're someone who finds yourself in that situation where you kind of get your spidey sense up that your attorney may be a little bit of a wimp or may not be wanting to push the case forward or something just doesn't make sense. You're probably right. Attorneys are skilled experts in the law, but common sense is still common sense. If you've been on this earth long enough, sometimes you get feelings on things, and most of the time you realize those feelings are right. So you're always able to go check with another attorney. You're always able to call someone else. You're always able to look for a board-certified civil trial attorney. In Florida, that's the stamp of approval that says this guy actually goes to trial and is a specialist, but you're free to go speak to whoever you want.

Matt Dolman:

Correct. And what I think many clients are... Why they might be reticent in hiring another lawyer. What they might be fearful of is that they're going to get charged twice. And we need to explain to them that that's not the case. You're charged one time for an attorney fee. It's now the two law firms that have to kind of bicker and dispute who gets what in terms of the fee.

Stan Gipe:

Well, and really, I think Matt, that depends on what attorney you go to. At our firm, we don't double charge the client. The client pays one fee.

Matt Dolman:

Yes. I'd say most reasonable lawyers. There are a few notable exceptions in town, but your most reasonable lawyers. And I believe that if the lawyer's being unreasonable and more likely not, you're not going to find two unreasonable lawyers to fight with each other. So one that they're going to bring in front of a judge and the judge is going to err on the side of caution, try to avoid double-dipping in terms of a fee on the client.

Stan Gipe:

Well, but what can happen is the new attorney can write a contract in such a way that they're entitled to a full contingent fee. And the old attorney also gets like a quantum meruit lien, in which case the client pays twice. So yeah, if you've got-

Matt Dolman:

You want to explain what quantum meruit lean is for those out there don't...

Stan Gipe:

Oh yeah. I guess I should do that. I'm throwing it out there like everyone knows. Quantum meruit means the value of your time, essentially. You're getting a lien for the value of what you did, but that's what the discharged attorney, usually asserts. It's a quantum meruit lean for the time they put in.

Matt Dolman:

So the goal, hopefully, is to find a lawyer that's reasonable like us. We would never do that. I'm not looking to take money out of the client's pocket. There's one fee. I'm going to split it with the prior lawyer. And we're going to come to some type of an agreement. At the end of the day, I don't begrudge other lawyers who don't try cases. Sometimes it's not in their financial wheel. They might not have the financial resources. They might not have the experience necessary. I do think they are prejudicing their client by holding on to such a case because they should bring in competent counsel to help them litigate the case from day one because what winds up happening is lawyers make decisions based on their own finances, rather than what's in the best interest of their clients.

Matt Dolman:

And if you haven't swam with the big fish, if you haven't litigated enough cases, you know the old saying is the world's most scariest individual is he or she, who's not aware of what they don't know. Now, if you haven't litigated enough cases, you're not even sure you won't know what a real good offer is. And you're leaving money on the table, which is something that after having done thousands of cases between the two of us, we know what a good offer versus at least a fair offer by the insurance company versus is what's considered to be a De Minimis offer, an offer that is just absolutely asinine.

Stan Gipe:

And beyond that, Matt we've been around long enough. We're big enough that we don't need the money.

Matt Dolman:

No.

Stan Gipe:

We can wait for a reasonable offer.

Matt Dolman:

Mm-hmm (affirmative).

Stan Gipe:

You've heard John Morgan say this on the TV. Your attorney may need the money more than you do.

Matt Dolman:

He's correct. As much as I don't want to admit that, John Morgan, he's a phenomenal marketer. He is correct in that regard. There's no two ways about it. Many lawyers make these decisions based on how much are they going to walk away with now-

Stan Gipe:

Yeah.

Matt Dolman:

Versus if they had to bring in competent counsel like us that actually try the case and share the fee.

Stan Gipe:

Well, you and I both know attorneys in the community that struggle financially to keep the doors open and pay payroll.

Matt Dolman:

Mm-hmm (affirmative).

Stan Gipe:

Well, if you think that attorney's having trouble meeting $2,000 or $5,000 a week in payroll, what do you think's going to happen when he has to write the expert a $50,000 check if he goes to trial?

Matt Dolman:

Yeah.

Stan Gipe:

He's doing everything he can to get that client to settle the claim because he doesn't have $50,000 to write the check with in the first place.

Matt Dolman:

Yes, many lawyers don't have enough experience in terms of enough financial, at least tax returns and showing year after year growth where they can secure a big credit line to finance these cases or finance the cases through their own means. And again, I don't want to begrudge other lawyers, but I will say that you are a fine trial lawyer, and you're board-certified. The Florida bar considers you an expert. I've tried my own share and litigated my own share of cases throughout the years. We have what I would consider one of the elite firms in the area. At the same point though, there are many young lawyers out there, they just need to be more... Clients need to understand that if you haven't hired a lawyer who's experienced and has tried a number of cases, they don't know what they're looking at.

Stan Gipe:

You know Matt, I'd go beyond and I'll toot our own horn on this. We're one of the elite firms, more so in the area on more of a nationwide basis. We've got a reach that goes throughout the country in different areas. We've made great recoveries for clients and participated in fantastic recoveries for clients throughout the United States, not just in Florida.

Matt Dolman:

Correct. And what we often do with a case that comes and occurs outside the state of Florida is, we will co-counsel with local attorneys in a specific jurisdiction. Say we get a case in Texas, we'll find a Texas lawyer to work the case with us so they can sponsor us to come in and litigate the case in their state.

Stan Gipe:

Yeah. And sometimes we get in, what's known as pro hoc vice, where you're allowed to sort of practice in another state for one specific case. But yeah, I'd say, I think this is more of a nationwide presence while we're physically here in the state of Florida, most of us anyway, our reach is really nationwide.

Matt Dolman:

It is. And we do mass tort products on a nationwide basis and even individual causes of action in terms of car accident, truck accident, premises liability, slip and fall, medical malpractice. We will look at a case anywhere.

Stan Gipe:

Yeah.

Matt Dolman:

And we'll at least help the consumer find, we'll give them a list of attorneys in that area that we've worked with in the past who have a really good reputation. And if it's a big enough case, we will get involved in the case and work with them.

Stan Gipe:

Yeah. And there are certain different individual attorneys that specialize in different things. Where you've seen a certain type of case over and over. So to the extent, you get something that's really specialized, we can generally handle it, or we work with an attorney that does.

Matt Dolman:

Exactly. Before I even discuss how you get ahold of us, the conclusion to this episode is, if you're in a deal with a lawyer, you know you've gone far enough with the case and they're unwilling to try the case or unwilling to litigate the case, you do have options. You can contact an experienced trial lawyer, someone who's competent, who's litigated thousands of cases before the state courts in Florida or whatever state you're in. You're not stuck with that attorney. You don't have to live and die by the sword that they carry.

Stan Gipe:

You know and I'll even take it a step farther than that, Matt. You don't have to wait to the stage where you're about to go into litigation. If you're early on in the case and you feel like your attorney's a dolt like they're not getting you out to the right doctors. You're not getting the attention you need. Things just don't make sense when they're talking to you. It might be time to reach out on the front end before you get too deep into the process. So we always talk to clients at any stage of the case. It is always free to reach out and consult. There is never any obligation. No one's going to call your current attorney and say, hey, so and so's thinking about leaving you. The one thing we can't do though, is while you're currently represented, we can't actually give you legal advice on your specific claim.

Matt Dolman:

Correct. So explain what are we allowed to do?

Stan Gipe:

We're allowed to tell you about claims in general. We're allowed to tell you about our firm. I can't tell you what you should do with your specific claim because that's legal advice until you retain us.

Matt Dolman:

Exactly. But we're available to talk to you and we can give you other names of many different experienced, successful lawyers and other jurisdictions if you're not in Florida.

Stan Gipe:

And if you've got questions about what your attorney's telling you or some issue at all, I always point people to our website, dolmanlaw.com. I'm going to give Matt credit for starting this years ago, before most attorneys got on this bandwagon of being in the internet. We have one of the most robust and informative websites in the nation. Not like hey, we're one of the top hundred. We have the number two website in the nation for providing information. So literally, if you're saying my attorney told me X and you want to see if it's right, that information is probably on our website somewhere for you to verify.

Matt Dolman:

Yeah. I mean, lawyers throughout the country will tell me when I go to different events that they have heard of me before and not even based on trial success, or litigation success, because they just seen our website pop up in their community. Guys in California are like you're showing up number one, number two for different search terms and we look at your website. It's like a resource. So if you have any questions, it's dolmanlaw.com. D like in David O-l-M-A-N law.com. My partner is Stan Gipe and the firm is Dolman Gipe Accident Injury Lawyers. You can reach us anytime at 833-55-CRASH. Thank you very much. This marks another episode of the David Vs. Goliath podcast. Have a blessed day.

Stan Gipe:

Always a pleasure.

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