If your personal injury case is in progress, and you believe that your lawyer isn't doing a good job, you can always try to get a new lawyer. But consider that the closer the case gets to trial, the less likely it is that another lawyer will be willing to take over. And if your personal injury case has ended and you're not happy with the outcome, your only option may be a legal malpractice claim, which can be an uphill battle. We'll take a closer look at the possibilities in the following paragraphs. (For more on the basics of gauging your lawyer's performance, check out our companion article How Can I Tell If My Personal Injury Lawyer Is Doing a Good Job?)
If Your Personal Injury Case Is In Progress
If you think your lawyer is mishandling your personal injury case, as the client, it's always your right to fire your lawyer and find a new one. But that's easier said than done once things have progressed past the early stages of the case.
Once the discovery and expert disclosure deadlines in a case pass, lawyers are not generally very excited about taking over a case. This is because, at this stage, the new lawyer will likely be completely stuck with the old lawyer’s investigation and preparatory work. Until the new lawyer sees the file, he or she won’t really know what the old lawyer did to prepare the case for trial. And the new lawyer is almost definitely not going to be able to see the file until the old lawyer has been let go, so there's no opportunity for a "preview" of the state of things.
So, if you’re a client who is starting to have second thoughts about your lawyer, if you really want to switch lawyers, you should do it well before the discovery and expert disclosure deadlines pass. Learn more: Can I Fire My Personal Injury Lawyer?
If Your Personal Injury Case Is Over
If the case is over, and you feel that your lawyer didn’t do a good job, and the appeal deadline (which can be anywhere from 20 to 60 days, depending on the state) hasn’t expired yet, then you might be able to find another lawyer to file an appeal, although you’ll have to act fast.
But if the appeal deadline has expired, or, if you filed an appeal and it was denied, your only real option against a lawyer who didn’t do a good job is a legal malpractice claim. And in that situation, you’ll want to find a lawyer who specializes in legal malpractice cases.
In order to succeed in a legal malpractice claim, you have to prove that: 1) your lawyer was negligent, and 2) your lawyer’s negligence caused you damages. In other words, you have to prove that your lawyer made a significant mistake, and that, but for that mistake, you would have won your lawsuit or that you would have gotten a better settlement.
The second part of this requirement is very important (and it's a tough burden to meet). Let’s say that your lawyer missed the statute of limitations filing deadline in your case, tried to file your lawsuit after the deadline had already passed, and your lawsuit was dismissed. (More: How Long Do I Have to File a Personal Injury Claim?) You might think, "Okay, I’ll just sue the lawyer for legal malpractice." But it’s not enough for the lawyer to have been negligent, you have to prove that you otherwise had a good case. If, hypothetically, you were injured when you drove through a red light and got hit by a car who had the green light, you didn’t really have a case anyway, and so your lawyer’s negligence in not filing the suit on time didn’t cause you any damages, because you likely wouldn’t have gotten any money.