May I Fire My Texas Personal Injury Lawyer?

firedWe frequently get contacted by injured persons wanting to know if they can fire their personal injury lawyer.

The short answer is “yes, you can fire your personal injury lawyer even if you’re paying a contingent fee”, but you still may end up paying the first lawyer.  Let me explain.

Texas contingent fees are governed by a 1969 Supreme Court case of Mandell & Wright v. Thomas.    In that case, the Court stated that when a client fires a lawyer who is working on a contingent fee without having good cause, then the lawyer can still recover the full contractual fee.

This means that if you have hired a lawyer and agreed to pay him 40% contingent fee, decide to fire the first lawyer and hire a second lawyer on an identical 40% contingent fee, then you could be paying 80% of your claim for attorneys’ fees.  So yes, you can fire your lawyer, but if you’re not careful, you could end up paying for that decision.

Having said that, these issues can usually be worked out.  When you call us and ask us about firing your current personal injury lawyers, the first advice is almost always to schedule an appointment with the prior lawyer, sit down face to face, and see if you can’t work through your differences.  In many cases, disputes are often just a misunderstanding, and communication between you and the lawyer can help both of you move forward.

I realize that can’t work in all cases.  For a variety of reasons, you might not be able to work with your current lawyer.

In most cases, if you simply can’t work with your prior lawyer, then we can try to work something out with the prior lawyer so that you’re not being charged two fees.   Sometimes, the prior lawyer may agree to give up his rights to the fee and expenses.  Sometimes, the prior lawyer may agree that he won’t collect a fee, but he would like to be reimbursed for his out-of-pocket expenses incurred in your case.  And in other cases, we will work something out with the prior lawyer to share the fee so that you are only charged one fee.  The particular circumstances in your case will dictate what agreement can likely be reached.

However, there are times when we’ll talk to your prior lawyer, and we can’t work out any agreement.  Those instances are difficult.  Depending on the circumstances, we may advise you take various steps, including investigating whether you might want to file a fee dispute with the Austin Bar Association Fee Dispute Committee.  Regardless, if we can’t work something out with your prior attorney, we will typically not take your case until that issue is resolved because we don’t want to be part of a matter where you might be paying two fees.
So long and short, yes you can fire your personal injury lawyer, but the best way to do it is to do it as amicably as possible to minimize the risk that you might have to pay extra attorneys’ fees.

Posted on: November 19, 2014 | Tagged

Concussions — IMPACT Testing For Kids

My son sustained a concussion last spring while playing baseball.  During that process, my son took a test called an IMPACT test to help diagnose the concussion and to help figure out when he had recovered sufficiently to return to normal activities. But our problem was that we didn’t have a baseline.  The IMPACT test works best if the kids have taken a pre-injury test (required by many school athletics departments) to be compared to the post-injury tests.  Since the pre-injury test only costs around $20, I’ve become a big proponent of encouraging kids to take the tests.

Recently, local news station KXAN ran a good story about the tests.  If you have kids, especially those participating in sports, I urge you to watch the story and to have the kids take the test.  You can watch the story below.

 

In Texas, No Justice For The Injured

The folks at Texas Watch have put together this great story on Texas’s medical malpractice reform.

What Are Symptoms Of A Concussion Or Brain Injury?

I often tell clients that they need to be on the lookout for brain injuries.   For some head injuries, the problems are obvious.  But in many cases, the problems are much more subtle.  As a result, many concussions or brain injuries go undiagnosed because a doctor doesn’t know you well and doesn’t see the symptoms.  Because of this, it’s important for you or your spouse or other family members to look for symptoms so you can convey that information to doctors.

Working on a case, I stumbled across this symptom chart from the Centers for Disease Controls that will help you identify potential brain injuries.  Hopefully, this will help you recognize problems so you can get the treatment and care you need.

Symptoms of concussion

Motor Vehicle Accidents: Do I have to provide a release of medical information to the insurance company?

We recently received an inquiry asking, “Do I have to provide a release of medical information to the insurance company?”

Generally, the answer is “no,” but for a more detailed answer, I need to know the type of case.

If you’re making a claim directly against the driver who caused the wreck, the answer is clearly “no.”  In that situation, we would almost never advise our clients to sign a blank release giving the insurance company full access to all of your medical records.  Instead, we’ll gather all of your medical records related to your wreck and forward them to the insurance company.

Now, once a lawsuit is filed, the insurance company will typically subpoena records from medical providers who you saw as a result of the wreck.  Additionally, if you have a history of a condition related to your injuries from the wreck, the insurance company might try and get your records from before the wreck.  But even in those situations, we’ll try and insist on a reasonable limit on what they obtain.

If you’re making a claim against your uninsured or underinsured motorist carrier or with your personal injury protection carrier, then you have a contractual duty to cooperate with the company.  If you don’t, you could be risking your benefits.  But even in those situations, when the insurance company asks for a release, we’ll try and work with them to provide a limited release.  For example, we might limit the release to those doctors who provided treatment from the wreck.  And if the insurance company wants past medical records, we might limit them to five years before the wreck.  The insurance companies will typically work with us to find some reasonable limits.

Again, there may be situations where you have a long-standing condition that makes things a little different, but for those most part, this is how we try and deal with requests for a medical release.

Head Injuries and Concussions — From Players’ Perspective

If you know me, you know I’m a huge University of Texas sports fan.  Because of that, I’m a huge fan of the Longhorn Network.  Usually, the stories just relate to my sports passion, but in light of David Ash’s retirement from football due to his repeated concussions, the LHN ran a great piece that talked with three former UT players about their battles with concussions.

Watching it, one thing that stood out to me was something that we see in our practice (and which the science backs up), and that is, once you have had a concussion (or multiple concussions), it takes a smaller impact to re-injure the brain.  Additionally, with a history of concussions, the symptoms appear to get worse.

If you have any interest in head injuries, concussions or sports, I highly recommend the story below.

Leading Causes of Traumatic Brain Injury

TBIStats_Causes

 

 

 

 

 

 

 

 

We represent a number of clients who have brain injuries, and I received this infographic the other day describing the causes of traumatic brain injuries.  I thought it was brilliant, and I wanted to share it here.

 

Can I Sue A Day Care For Neglect?

Yes.  Texas law allows parents to sue a day care for neglect of a child.

Unfortunately, many kids suffer injuries while they are entrusted to care workers at day care.  These injuries can occur from neglect, abuse or improper supervision of the children.  Your rights and remedies often depend on the exact facts of your case.

Fortunately for those required to make claims, Texas law requires most day care operators to carry liability insurance that pays at least $300,000 per occurrence.  However, there are some broad exceptions, including exceptions when a day care operator can’t purchase insurance for financial reasons or when the day care can’t find a company to underwrite its coverage.  If you’re looking around at day cares, make sure to ask whether the day cares you are considering have insurance coverage.

Back to School — Be Safe In School Zones

school busFor those of us in Austin, today is the first day of the new school  year.  As always, we need to mindful of school zones, especially the prohibition against cell phone use in school zones.

This year, the Austin Police Department is helping remind us, and perhaps not the easy way.  I heard a report this morning that for the next two weeks or so every Austin Police Department motorcycle officer would be deployed to school zones around the city.

Don’t have an unexpected meet-up with one of these officers.  Obey the speed limits, stay off your cell phone, don’t pass buses that are loading or unloading children, and stay safe.

Don’t Let Facebook (or Twitter, or Instagram, or other social media) Ruin Your Personal Injury Claim

facebookAn increasing trend in personal injury litigation is for insurance companies and their lawyers trying to gain access to your social networking sites.  Sometimes this includes the use of trickery to get access to your information.    Once there, they’ll take statements or photos entirely out of context to try and argue that you’re not as hurt as you claim.

I’ve never had a client harmed by social media, but I don’t want you to be the first.

Some attorneys suggest that their clients cease all use of social media while the client’s case is pending.  While that would be nice, I also think it’s unrealistic.  I know social media has become a part of culture and life.

So if you’re going to continue to use social media, here are a few guidelines that can help you not ruin your case.

1.  Don’t discuss your case in any fashion on a social networking site.

2. Don’t mention activities you’re involved in; no talking about hobbies, vacations, etc.

3. Don’t post photos of yourself.  Trust me, they’ll be taken out of context in ways you can never imagine.

4. Keep your privacy settings strong.

5. Don’t allow a new “friend” unless you absolutely know who they are and trust them.  There are repeated stories of insurance company representatives trying to “friend” injured persons to get access to the injured persons’ social media sites.

These are just general guidelines.  If you are injured and want more specific advice, feel free to call us or contact us.

Perlmutter & Schuelke, LLP maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke

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