Should I change attorneys? (Why is it taking so long?)

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When represented injured workers (“applicants”) start looking for another attorney, the reason they often give is that their case is taking too long to settle, so they want to change attorneys.  It seems like nothing is happening. Often this is not the fault of the attorney but is a problem of the entire system.  Generally, the more complicated a case, the longer it takes to settle. However, sometimes even seemingly simple cases can drag on.  This might be because injury to one or more of the claimed body parts is denied, or a claim file is assigned to a desk with no current adjuster, or to an adjuster who is overworked (most are) or a doctor is slow in providing a report or responding to an inquiry.

Many workers’ compensation courts (“Workers’ Compensation Appeals Board” or “WCAB” district offices) are booked up for many months in advance.  So if there are any issues that need to be heard by the court, it can take months from the time of requesting a conference to the date of the conference.  Often the only way to force the insurance to talk about your case is to get a court date.  If the adjuster won’t respond and your attorney can’t get a court date in less than three months, that may be three months when nothing happens on your case.

Certainly, there are also delays in attorney offices.  Workers’ compensation is usually a high volume practice.  Because most cases result in fairly small fees an attorney has to handle a lot of cases to pay the bills. Over the last ten years the cases have become much more time-consuming. Attorneys are much more involved in obtaining adequate medical care for their clients.  We can no longer chose a doctor we know will help our client and let that doctor do whatever needs to be done. Because of perceived abuses of that system, we now have a system where our choice of doctor is limited and every recommendation of the doctor is reviewed and challenged by the insurance company.

The system of determining the level of permanent disability, upon which any settlement is based, has become more complicated and more limited. It requires more sophisticated analysis.  Often the attorney has to remind doctors of things they have left out or could explain differently or better in order to get the client what they deserve.

The more complicated medical system accounts for another common complaint.  That is that the client/patient can’t get the medical care they need. The system is designed to put so many cost-cutting safeguards in place that many doctors are inhibited from providing the care that they would provide to a “regular” patient. There are also injured workers who have exaggerated expectations.  Not every complaint that arises after a work injury is caused by that injury, and not every process you read about on the internet is a reasonable treatment for your particular injury. “Utilization review” is the current system for second guessing the doctor’s recommended treatment.  If the process is not followed correctly by the insurance or by the doctor, delay occurs which cannot be remedied by the attorney.

Another common complaint is that the client never talks to the attorney, only to an assistant, or worse, to an answering machine.  There can be different reasons for this too. Most attorneys have trained assistants to deal with the common problems that arise so that the attorney can deal with the sophisticated medical-legal problems that require more skill and training.  While your question might seem complicated and important to you, it may be a “common question” for a workers’ compensation law office.  The attorney needs to be able to concentrate on the aspects of the case that the assistant or paralegal can’t handle and let the assistant or paralegal deal with the “common” or “routine” matters.  The more information you can give the assistant, the more likely you are to get a proper response.  If the assistant knows what you want to know, and does not know the answer, the question can be conveyed to the attorney.  Most attorneys don’t have time to call a client who just wants an “update” when that can be handled by an assistant.

However, if you don’t get any response from your attorney or the assistant, that is not a good thing.  Most offices are so busy that calls do slip through the cracks and if you don’t get a response in a reasonable amount of time, you should call again.  The same goes for your doctor’s office.  If they tell you they will let you know when your next appointment, or that MRI, or something is to be scheduled, be sure to follow-up when you don’t hear from them.

Many attorneys are so busy that they are more often in court than in the office. Hopefully, this means that they have trained people in the office to deal with the clients who are not in court with them.  If your attorney has provided an email address, that is usually a good way to communicate  at the attorney’s convenience. It might be easier to answer an email while sitting in court, or from home after dinner, than to get involved in a phone conversation under those circumstances.

Attorneys are people and some have more social ability than others.  We all find different types of people to be compatible with ourselves.  Some skills that are useful in a litigation environment do not come off well in an interpersonal relationship. You may find your attorney to be unpleasant or rude, just like you find other people in the world to be unpleasant and rude. It is also possible that your attorney finds you to be unpleasant or rude.  Most attorneys and their staff  in the workers’ compensation field are aware that their clients are under a lot of stress, being injured and out of work and try to allow for that in their dealings.  But most attorneys do not respond well to people who leave angry messages or curse at their staff.

Even if you do not get along well with your attorney, he or she may have much more knowledge of your case than a new attorney could obtain without a time-consuming review of the file.  Your attorney may have developed a relationship with the adjuster and/or insurance attorney that will be advantageous when the time comes to settle your case.

Another problem with changing attorneys is that the new attorney will have to share the attorney fee with the prior attorney.  This is a practical consideration for the attorney.  The fee deducted from your settlement will be the same whether you have had one attorney or many.  The attorneys have to divide the fee amongst themselves.

There are law firms with good reputations and a few with bad reputations. Some firms are better at marketing than at lawyering.  Those of us who have been around a long time know each other. Attorneys are usually more willing to assume representation of a client who is coming from a firm they suspect of not adequately representing their clients, than from an attorney they consider to be equal to or better than themselves.

You have an absolute legal right to change attorneys at any time.  Speaking practically though, it is not always a good idea and is often difficult to find an attorney who will accept your case. It is usually better to try to work out your differences with your current attorney than to change.  Send your attorney a letter or email detailing your concerns. Keep it concise and to the point. Ask your questions and don’t be accusatory.  If you get no answer, send a second request. If you still get no answer, or if you get an answer that you consider unsatisfactory, try to find another attorney.

You may also dismiss your attorney and represent yourself, but this is a risky approach. There is a form to file with the court which dismisses your attorney. It must also be served by mail on all parties in the case, giving notice that the parties, including the insurance and their attorney, can deal directly with you.  If you dismiss your attorney or if you have never had an attorney, you can obtain assistance from the Information and Assistance (I&A) officer at your local WCAB. They can also provide you with the names of attorneys who practice in their area.

© Robert S. Havens 2017

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