Can Settlement Without Client's Consent Be Refused?

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Latest post 11-11-2011 8:07 PM by greatadvice. 10 replies.
  • 11-05-2011 8:25 AM In reply to

    Re: Can Settlement Without Client's Consent Be Refused?

    greatadvice:
    Can my friend refuse the settlement if he hasn't signed any papers to receive the check?

    Not if the retainer agreement gives his attorney the right to settle.

    greatadvice:
    I'm doing research to get as much information about this as possible because I want to give my friend accurate advice.

    You need to stay out of it.  Well meaning friends and family "doing research" often do FAR more harm than good.   This is your friend's case and his/her issue.  They need to handle it on their own and if they have an issue or a question for their lawyer ask them.  They need to do their own research and satisfy their own questions.

    greatadvice:
    My friend says he'll tell the lawyer that he doesn't want the settlement because it's too low for someone with a permanent injury that doctors say could get worse.

    Except according to your other post your friend's "doctor" is a chiropractor who are known for inflating injuries and diagnoses for settlement purposes.  They over treat and over diagnose in order to pad their bill.  You don't get payment for problems that have not happened yet only for what did.  He will not be paid for what "could" happen only for what did.

    greatadvice:
    I don't know if my friend had that type of agreement and even if he did I'd think that the settlement wouldn't be finalized without the client's signature. Am I right about this?

    No, you are not right.  If your friend has this type of agreement with his lawyer then he gave permission for the attorney to settle on his behalf.  His signature would not be needed.  He gave the attorney power to act on his behalf and the attorney as a licensed professional can sign for his client.  

    greatadvice:
    Please give me as much help as you can because I want my friend to know if this lawyer tries to trick him by telling him he can't refuse the settlement.

    The lawyer isn't trying to "trick" him.  Personal injury lawyers work on contingency so it is in his best interest to get the client the best settlement possible.  They aren't going to settle a case for less than what it is worth because then they get paid less.  The one who is creating all the problems in this case is a well meaning friend and a chiropractor padding their bill who believe they know more than the educated lawyer.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 11-05-2011 7:09 PM In reply to

    Re: Can Settlement Without Client's Consent Be Refused?

    I agree with Clydesmom, that your friend's right to reject the settlement would by subject to terms of the contingency representattion agreement.  Nevertheless, the plaintiff and not the lawyer is the only party that should be able to sign the dismissal order or the tort release. 

    In the event your friend can get the settlement agreement rescinded, your friend would probably owe the original attorney an amount equal to the contingency agreement plus the legal expenses incurred. 

    You have described an accident with light vehicle impact dynamics, with injury diagnosis made by a chiropractor.  You similarly describe a settlement yielding your friend $5000 after lawyers fees.

    The value of your friends injury claim would weight heavily on the actual clinically objective diagnosis of the injury.  Additionally, since you describe a light impact accident, the burden of proof would rest with your friend to demonstrate that the accident dynamics caused the injury.

    If there were objective suggetions of  permanent injury, it would appear unusual that the chiropractor didn't refer your friend for evaluation by a medical doctor. 

    There is nothing wrong with researching the value range of the specific injury.  Factors that would affect such value would include, but not be limited to trial venue, demonstrable clinical findings, reputation and expert testimony results of the chiropractor, and witness credibility potential of your friend.  Many of the factors are archived by venue specific jury verdict services.  It is possible that your friend's attorney subscribes to such a service and has already conducted this research.

    Regardless, your friend's lawyer should take the time to explain how the settlement amount was negotiated.

     

     

  • 11-05-2011 7:43 PM In reply to

    Re: Can Settlement Without Client's Consent Be Refused?

    ashkicker:
    You similarly describe a settlement yielding your friend $5000 after lawyers fees.

    Exactly and since most PI attorneys working on contingency get a percentage at about 30% plus costs then this case came in at around $8000 tops for attorney fees and costs.  The insurance company has probably already paid medical and for car repairs as well.  

    greatadvice:
    He has a permanent neck injury that the doctor says could cause arthritis to set in at an early age, My friend has to manage his pain and also headaches come as a result of this injury

    What you describe in this post in another thread is a whiplash injury which will heal with time.  It isn't uncommon to have headaches after a low speed accident.  Your friend will not be compensated for "could cause" statements from a chiropractor.  Using the term "doctor" interchangably with chiropractor is not advisable as they are not medical doctors.  If your friend's case went to trial it would require the testimony of an MD that he had permanent neck damage not a chiropractor.  

    ashkicker:
    If there were objective suggetions of  permanent injury, it would appear unusual that the chiropractor didn't refer your friend for evaluation by a medical doctor. 

    This is what raises the most suspicion to insurance companies.  If there were disc herniation or spinal cord damage that was caused by the accident and not normal spinal degeneration of aging then any reasonable chiropractor would have referred the patient to the nearest orthopedist or neurosurgeon immediately for possible surgical evaluation.  At the VERY least to the primary care physician for care.  However no referral for intervention appears to have been made.  Only the statement that future problems requiring chiropractic care "may" occur.

    ashkicker:
    Regardless, your friend's lawyer should take the time to explain how the settlement amount was negotiated.

    Very much agreed.

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 11-06-2011 7:00 AM In reply to

    Re: Can Settlement Without Client's Consent Be Refused?

    greatadvice:
    The MRI shows it as a permanent injury, the chiropractor is only giving the news, he's not just making up something.

    Not necessarily.  If this chiropractor does not have a good solid reputation and their testimony won't support the MRI findings then the diagnosis is HIGHLY suspect.  This is the problem:  if it was a permanent spinal injury the chiropractor should have IMMEDIATELY referred the patient to a medical doctor for a second opinion and didn't. You also don't indicate if the MRI was read by a board certified neuroradiologist.  That also would impact the interpretation.  No permanent spinal injury that would lead to a high money settlement is treated through a chiropractors office.  EVER.  The insurance company knows this.  That type of injury is a spinal fracture, spinal cord damage from trauma, acute disc herniation:  all issues that require emergency treatment from a neurosurgeon or orthopedic spine surgeon.  Not chiropractics.  Any organization that is so closely followed by quackwatch is not one the insurance industry is going to take seriously in diagnosing a "permanent spinal column injury" for the purposes of a high dollar suit settlement.  If you want to read more about the fraud associated with this industry go here :  http://www.chirobase.org/01General/modde.html

    greatadvice:
    In my opinion the lawyer should have discussed settlement amounts being negotiated and not have a client be shocked when he learns a settlement has been accepted when he calls the lawyer's office only for the second time.

    What you don't seem to understand is YOUR opinion does not matter one bit in this case.  It isn't YOUR law suit and you should not be involved at all.  By asking all these questions and creating the drama you are doing nothing more than stirring up trouble.

    greatadvice:
    This seems very unprofessional to me even if the agreement gave the lawyer certain permissions which I still don't know if the one my friend signed gave the lawyer such permission.

    You don't know what agreement your friend signed with the attorney, you don't know for certain how many times the attorney actually attempted to contact him either.  You only have what your friend is telling you which may be jaded because they are upset at not hitting the "lottery" via the lawsuit as they were expecting. Many disgruntled clients blame the lawyer when they don't get the amount they dreamed they would.  The irony is it is most often low speed accident victims with chiropractors treating them who come up with alleged permanent injuries that might cause a problem "someday" that think they have a large dollar value case.  They don't.    You really need to mind your own business and let your friend handle this with their lawyer.  

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 11-06-2011 12:21 PM In reply to

    Re: Can Settlement Without Client's Consent Be Refused?

    ClydesMom said....."Not necessarily.  If this chiropractor does not have a good solid reputation and their testimony won't support the MRI findings then the diagnosis is HIGHLY suspect.  This is the problem:  if it was a permanent spinal injury the chiropractor should have IMMEDIATELY referred the patient to a medical doctor for a second opinion and didn't. You also don't indicate if the MRI was read by a board certified neuroradiologist"

    Agreed!   Interpretation of MRI signals is a highly technical aspect of medical radiology.  I doubt there is a single school of chiropractic that teaches such analysis skills.

    Additionally, an MRI merely shows a current "picture" of  condition.  Even if there is some objective pathology demonstrated, you describe a light impact car accident so what credible expert testimony could your friend offer to relate injury causation by the accident?

    You describe a settlement providing your friend with $5000 compensation, presumably above medical bills and attorney fees.   In most jurisdictions, if the injury documented is merely a "soft tissue" injury treated by chiropractic, this would be a somewhat generous settlement. Alternatively, if there was in fact MRI finding of a serious injury and the chiropractor did not make immediate referal to qualified medical specialist, your friend might have a malpractice action against the chiropractor that could return a much larger case, especially if it can be shown that delay in referal to a specialist has insulted the injury.

     

  • 11-09-2011 6:09 PM In reply to

    Re: Can Settlement Without Client's Consent Be Refused?

    First off, even if this friend's lawyer "tries to trick him by telling him he can't refuse," that doesn't prevent youf friend from refusing nonetheless.  :) 

    I don't see any retainer agreement provision giving the attorney the power to sign off on a release to the paying party on behalf of the friend, nor any dismissal order -- as stated in previous responses.  Doesn't mean the attorney isn't capable of forgery, which cannot be ruled out.  I'd ask the attorney (in writing) to explain (in writing) why the paying party would cough up a check without a release and stipulation to dismiss the case (that I presume was filed, but perhaps not) ... and why is it that there's been no mention of such a release?  Perhaps the plan is to spring the document on the friend to sign when he picks up the check.  Who knows. 

    Your friend is free to refuse to accept the check, and he's free to insist on a copy of the retainer agreement in which he agreed the lawyer was free to settle without consulting him first, etc.  (I'd advise your friend in future to never ever sign something without ensuring he has a duplicate copy in front of him to take, or not hand a document back over to someone without first making a copy of it.  Don't worry about polite; the rule is cover thyself.)

    I'd have a problem with getting my medical treatment just from some chiropractor, whether one had been given "awards" or not (by his community/colleagues, no doubt).  I would get an assessment from an M.D. with a relevant specialty/board certification. 

    Friend is free to file an attorney grievance/ethics complaint with the state bar (not the state bar association, which has no power to discipline) if his attorney will not properly communicate.  I would limit my communications with the attorney in writing at this point, since if you're in FL that's not a one-party consent state but an all-party consent state (can't tape without telling the other party).  So I'd limit my communication to "regular" mail sent by whatever means or email (with a readnotify.com subscription so you can prove it was opened). 

    If the friend fired the attorney at this point, the attorney would not necessarily be entitled to the entire contingency fee (since one cannot presume to know what the case would ultimately be settled for) but at the very least reasonable hourly rates for his/her time, plus expenses (though I'd expect that to be backed up by billing entries and not just someone's say-so). 

    I disagree that attorneys are necessarily going to get the highest possible settlement; the name of the game with most personal injury attorneys, sadly, is often not bothering to tell the client that they have zippy intention of ever filing a lawsuit or, if they did, pursuing it through trial -- that the name of the game is settlement.  We cannot possibly know what the attorney's finances are like or whether he is a member of a reputable firm that wouldn't have his own interests far ahead of the client's.  It's not supposed to happen, but the reality is that it does.

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