By the time you get to a mediation conference, you’re more than ready to work out a settlement for your damages and move on with your life. You enter the meeting with your attorney, who has probably told you that there’s a good chance you’re finally at the finish line. After all, around 95% of cases are settled using mediation, and the other side wants to avoid a trial if at all possible. But once the meeting is in progress, things don’t appear to be going so well. And before you know it, it’s clear that you and the defendant are unable to reach an agreement.
At this point, you’re probably angry and scared about the possibility of going to trial. Much of this anger may be directed at your lawyer, who seems to have failed you in your hour of need. But what are your options when you’re this far along in your case? Can you fire your attorney and start over with a new lawyer?
The short answer is, yes, you can switch lawyers at any time during your case, even after you’ve gone through mediation. The bigger and more important question is: should you change lawyers?
To answer that question, you’ll need to consider why your mediation didn’t go as planned, and if your lawyer is truly to blame for the outcome. Furthermore, you’ll need to think about the level of service you’ve been receiving from your attorney throughout your case. Finally, you must consider the consequences of starting over with new counsel, and whether the pros outweigh the cons.
Why did the Mediation Fail?
Frankly, there are many reasons that a mediation can fail, which may not have anything to do with your attorney. Here at Normandie, our success rate for settling cases during mediation is in line with the national average of around 95%. However, that still leaves a considerable number of clients who were unable to resolve their case without intervention from the courts. We share our client’s frustration when a mediation doesn’t work out, but there are valid reasons for why two sides can’t come to an agreement. Based on our experience, here are the most common reasons for an unsuccessful mediation:
- Unrealistic expectations
Unfortunately, some clients have unrealistic expectations, regardless of what they’re told by their attorney. The same can be said for the defendant if they’re convinced that they are not responsible for the client’s damages. If one or both sides come in with unrealistic expectations, it’s more or less impossible to reach an agreement.
- Lack of preparation
Both sides must show up with the necessary information to support their claims. Information must also be sent to the mediator ahead of time, or they will not be prepared to mediate the issue during your meeting.
- Bad faith
Some defendants have absolutely no intention of cooperating, but show up for the mediation because they’re required to by law. Their lack of cooperation and/or communication is an act of bad faith, and it will most certainly cause a mediation to fail.
- Settlement Authority
A mediation cannot proceed unless all the decision makers are present. The individuals with settlement authority do not need to attend in person, but they must be reachable so that they can authorize a settlement agreement.
- Emotions
Both sides must keep their emotions in check and prepare to communicate in a calm and rational manner. This is easier said than done, which is why a mediator’s presence is helpful. It’s the mediator’s job to diffuse emotional situations and facilitate communication. However, that may not be possible if there is too much hostility or distrust between the two parties.
As stated, these are the most common reasons based on our experience. Your mediation may have failed for different reasons, which may or may not be your attorney’s fault. Our attorneys will be happy to discuss your concerns and advise you of your legal options during a free consultation.
How do I know if my Lawyer is at Fault?
Some circumstances are beyond a lawyer’s control, but there are certainly cases where an attorney can be blamed for an unsuccessful mediation. For example, a lawyer may be the reason why a client has unrealistic expectations regarding what they should ask for. Instead of encouraging civility and compromise, they are aggressive and overly demanding, which will not result in a favorable outcome for their client.
Another issue may be your lawyer’s lack of organization or experience. This often results in a lawyer being unprepared for the mediation, thereby wasting everyone’s time. Lack of experience can also lead to unrealistic expectations about the value of a client’s case. This can be a dangerous situation, especially if the lawyer is convinced that they can win a bigger settlement in court. With our decades of experience as trial attorneys, we can promise you that a trial is the last resort when it comes to winning a case. A lawyer should never push for a trial when there is a more efficient method to recover the client’s losses.
Then again, you may have a lawyer who is underestimating the value of your damages and is pressuring you to settle. This way, they can wrap up you case and move on to the next one. If this is the problem, you may have noticed that your lawyer wasn’t doing their due diligence to represent your interests during the mediation.
Your lawyer may be at fault in some other way, but we can’t know for sure unless we speak with you in person. Please don’t hesitate to give us a call if you’re interested in talking to one of our attorneys.
Should I Switch to Another Lawyer?
If you believe that your lawyer doesn’t have your best interests in mind, you should consider the possibility of switching to another attorney. But you want to make sure that your reasons are valid and that you’re not acting out of anger or desperation. Clearly, you are unhappy about the outcome of your mediation, but is that enough to start over with a new law firm?
It may be worth it if you’ve had certain problems with your attorney all along. For example:
- Your lawyer does not return your calls or emails in a timely manner (usually 2 business days).
- They are disorganized / unprepared – missing deadlines, misplacing paperwork.
- They don’t seem to have the experience for the complexities in your case.
- Your lawyer lacks the compassion and dedication you need as a client.
- You believe that they’re engaging in unethical conduct (not informing you of settlement offers, breaking your right to confidentiality).
These are just some of the issues that can negatively impact your case. On the other hand, some issues are a matter of personality differences and may be worked out through an honest conversation. Ultimately, it’s hard for the average person to figure out if firing their lawyer is the right thing to do. But we have a solution for that, which you can read about in the next section.
Schedule a Free Second Opinion
The best thing to do when you’re thinking about firing your lawyer is to speak with another personal injury attorney. Just like doctors, lawyers can give second opinions on a case and confirm whether your attorney is doing their job.
Before you make a decision regarding your legal representative, please schedule a free second opinion with the lawyers of Normandie. During a free case evaluation, our lawyers can address all your concerns and give you their professional advice on questions like:
- Is my case worth more than what my lawyer is telling me?
- Is it normal for my type of case to take this long?
- Did my lawyer do what he was supposed to during the mediation?
- What are the consequences if I leave my current law firm?
Once you have all the facts, you can make an informed decision on whether or not to change lawyers. If you decide to hire one of our attorneys, we will do all the work of transferring your case from your current law firm. That way, you can avoid the awkward process of firing your lawyer in person. But even if you stay with your current lawyer, the consultation is completely free so there is no risk to you either way.
Can I Sue my Attorney if they Messed up my Case?
This question comes up quite a bit during our free second opinions, and frankly, the answer is complicated. Yes, you can technically sue an attorney, but you’ll have to determine whether you have a case for legal malpractice, which is defined by the following factors:
- Duty
Your lawyer owed you a duty of professional and ethical conduct.
- Breach
Your lawyer was negligent in their duty to you as a client (going against your contract, making a mistake that damaged your case, etc.).
- Causation
Because of that breach of duty, you were financially harmed (for ex: lost your case or received a low settlement).
- Damages
The loss you suffered in your case caused you significant financial hardship.
These points are difficult to prove, as you would have to show that the outcome of your case would have been different had you chosen another lawyer. Proving this to a judge’s satisfaction requires the skill of an experienced legal malpractice attorney. But the first step is to confirm that you have a case for legal malpractice. Then, you’ll need to decide if it’s worth it for you to pursue a lawsuit against your attorney. Our lawyers can advise you of your rights and legal options and ensure that you are making the right decision for your needs.
Contact Normandie Law Firm
There is a risk with every choice we make in life, and sadly, some people make the wrong choice when it comes to hiring an attorney. Fortunately, California law permits the changing of counsel at any point during your lawsuit. But the process of firing an attorney is complicated, and many people run into problems when they try to handle it on their own.
At Normandie Law Firm, we start the process by informing you of your rights and legal options during a free second opinion. Additionally, we will advise you of the steps we can take to resolve your case and bring you the settlement you deserve. If you’re interested in working with us, you won’t have to worry about dealing with your current lawyer since we’ll take care of the entire transfer process.
Another issue you may be concerned about is our legal fees. In fact, many clients believe that switching lawyers will cost them money, and choose to stay with a lawyer they’re unhappy with. Under our Zero fee guarantee, there is nothing for you to pay upfront when you choose one of our attorneys. We only get paid if we win you case, and if we lose, you will not be responsible for any of our fees.
If you’re fed up with the lack of care and attention from your attorney, contact our office right away. We look forward to speaking with you during a free second opinion consultation.
