Personal Injury

What If My Personal Injury Lawyer Won't File a Lawsuit?

By David Berg, Attorney
You think it's time to take your personal injury claim to court, but your lawyer disagrees. What now?

If you have a personal injury claim and your lawyer just won’t file a lawsuit despite your clearly-expressed wishes, you're at a critical stage, and you really only have two options: settle the case for whatever amount your lawyer can get, or fire your lawyer and hire a new one.

But, take a closer look before you take action. It is possible that your lawyer is trying to act in your best interests, and that he or she knows that absolutely nothing good will come of bringing a lawsuit in your situation.

It's Time to Talk

Make sure you understand your lawyer's reasoning. If you haven't had an in-depth discussion on why your lawyer doesn't want to file a personal injury lawsuit, it's time to have that talk. What is going on in your case? What are the key strengths and weaknesses of your position, and the other side's position? What are the potential outcomes, the likelihood of each, and the consequences? You shouldn’t do this by phone unless you live too far away, and you certainly shouldn’t do it by email. (More: How Often Should I Talk With My Personal Injury Lawyer?)

If the lawyer admits a reluctance or unwillingness to file suit, you need to:

  • ask why
  • make sure you get an honest answer
  • make sure you understand that answer (if you don't understand it, ask more questions until you do understand), and
  • make a plan.

Getting to the Truth

Some lawyers are reluctant to tell a client that a case isn’t good, and that they should take what they can get via settlement and move on. (More: Personal Injury Settlement FAQ.) Of course, that's not doing the client any favors. A client needs to know the strengths and weaknesses of their case. If the case is a dead-end, the client needs to know that sooner rather than later.

Of course, lawyers sometimes don’t like to tell a client the case is bad because they're afraid they're going to get fired as the client goes looking for a lawyer who will tell them what they want to hear. But it's always in the client’s best interests to know what their lawyer is thinking about in terms of the merits of the case. That's why it's important to press your attorney for the truth if he or she doesn't seem to be all that forthcoming in the moment.

Move On From Your Claim, or From Your Lawyer?

If the truth is your lawyer doesn’t think it's wise to file a personal injury lawsuit and take your case to court, you need to take that advice seriously, as long as you are otherwise satisfied with your lawyer, and you think that he or she is honest, trustworthy, and competent. That’s the key. Do you trust your lawyer, and do you think that your lawyer is a qualified professional? If so, then you should probably follow his or her advice and accept the recommendation to settle the case for what you can get and move on. Good lawyers know what they are doing. They generally know when a lawsuit is going to be a losing proposition.

And if you don't trust your lawyer and/or you don't think your lawyer is competent to handle your case, then you should probably think about firing him/her for that reason alone, never mind the disagreement over the proper strategy for your case.

This decision, like so many others in lawsuits, boils down to the attorney-client relationship. Always remember that it’s your case, not the lawyer’s case, and, if you don’t like or understand what your lawyer is doing, then you have the absolute right to ask questions until you're satisfied. And if there are trust issues or you're at an irreconcilable impasse, you also have the right to fire your lawyer and get a new one. (More: Signs Your Personal Injury Lawyer is Doing a Bad Job and Should I Get a Second Opinion About My Personal Injury Case?)

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