Unhappy With Your Settlement and Want to Get Out of It?

Tearing up Settlement

So you’ve settled your personal injury claim and you now have a huge case of buyer’s remorse. You wish there was something you could do to get out of that agreement. In most cases, as long as you orally gave your lawyer authority to settle for a certain amount on your behalf, there isn’t anything you can do. However, in some there is. Before doing anything rash, I strongly advise discussing the matter with your lawyer. There may be something he can do to satisfy you, such as agreeing to a reduced fee. He may be able to explain to you why you didn’t receive as much as you thought you would. One thing is certain, though. He will not want to try to get out of the settlement, and usually for good reason.

Unhappy With Your Settlement? Why?

Clearly, if you are unhappy with your settlement it is because you received less than the amount you wanted after attorney’s fees, costs, and medical liens (including a lien by your health insurer) were taken out. There are any number of reasons why this would happen. First, the defendant may not have had adequate insurance to cover your damages. If you have $60,000.00 in damages, but the defendant only has $50,000.00 in liability insurance, there’s not a whole lot you can do to make up that $10,000.00 shortfall. In most cases, it is simply not worth it to sue the defendant individually for the remaining damages, as most people with inadequate insurance coverage can’t afford to pay a judgment. If this is your problem, you’re going to have to suck it up. You got the most you could, and getting out of your settlement won’t change that. The best you can hope for is that your attorney may reduce his fee. Note that he does not have to do this, so don’t try to strong-arm him into it. Play to his sympathy, and hope that he can cut you a break.

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Another reason you may be getting less than you wanted is that you overtreated. Put simply, you went to the doctor (or chiropractor) more than was reasonable, given your injuries. $20,000.00 in chiropractor bills for a whiplash injury is too much. If you find yourself in this situation, your lawyer can try to get the medical provider to reduce his bill. It would behoove you to apply pressure to the medical provider as well. After all, you were just following the provider’s advice in treating so much. As with the case of too little liability insurance, getting out of your settlement won’t fix this problem.

The third most likely reason that you didn’t get as much as you wanted is because your case had “liability” or “causation” problems. This means that had you gone to trial, there was a good chance that a jury could find for the defendant (leaving you with nothing). Liability refers to whether the defendant was negligent. Causation refers to whether the damages you suffered were actually caused by the accident, as opposed to being pre-existing, entirely unrelated, or caused by a later incident. A fair settlement in cases involving these issues will often be determined by multiplying your odds of winning by the full value of your damages (e.g., in a case where your full damages are $100,000.00, but there is a 50% chance you would recover nothing if you went to trial, a $50,000.00 settlement would be fair). Obviously, figuring out your odds of winning involves a certain amount of speculation, but an experienced lawyer tends to get a good feel for these things.

Getting out of a settlement agreement in a case with liability or causation may ultimately improve your outcome — a jury may find completely in your favor and award you your full damages. On the other hand, you may recover nothing, making you even more unhappy. This is the only scenario where you should even think of trying to get out of your settlement.

In Most Cases, You Can’t Get Out of Your Settlement

If you have agreed in writing to a settlement, whether at mediation or through an informal settlement where you’ve already signed a release, you’re pretty much stuck with the settlement. The only circumstance I can envision where a court might set aside such an agreement (which is a contract, after all) is if the defendant induced you to sign the agreement through fraud, or through what is known as a “mutual mistake.”

In the only cases with which I am familiar, the fraud or mistake used to rescind the settlement related to the amount of the defendant’s insurance coverage. In other words, the defendant had higher insurance limits than he said, and the settlement was only for the amount of the insurance stated, based on the plaintiff’s belief that this was all that was available. Fraud makes it more likely that the settlement will be set aside, but “mutual mistake” (defendant didn’t intentionally misrepresent his limits) is still an avenue worth pursuing in these cases. Your lawyer will be fully on board with getting you out of your settlement agreement should it turn out that there’s more insurance available. Again, this only applies if you settled for what you thought was the full policy limits. If you settled for $40,000.00 under the belief that the defendant had $50,000.00 in coverage, it makes no difference if the defendant actually had $100,000.00. You’ve shown that the additional coverage wasn’t necessary to settle your case.

Getting Out of Your Bad Settlement Through the Back Door

After telling you why you shouldn’t try to get out of your settlement (in 99% of cases) and the consequences of doing so, I’ll tell you one trick that may work under certain circumstances. Confidentiality clauses are routinely included in settlement agreements and releases, but are often not mentioned to the plaintiff until the time comes to sign the agreement. If you (1) haven’t yet signed a release or settlement agreement and (2) you never orally agreed to a confidentiality agreement (even to your own lawyer), you can refuse to sign any settlement agreement that contains a confidentiality clause. Tell them that while you agreed to a dollar amount, you never agreed to confidentiality. Most insurance companies will require this as part of a settlement, so your refusal to agree to confidentiality could result in the whole settlement going away (due to their being no true “meeting of the minds” between the parties when the agreement was reached). If the insurer relents and takes out the confidentiality provision, you’re stuck again and you’ll have to sign. In rare cases, the insurer may offer some more money as consideration for the confidentiality (but don’t count on it).

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I will warn you right now that any attempt to revoke or avoid your settlement will likely piss off your lawyer. He may fire you over it. You will probably later regret not having taken the settlement. But if you’re mind is made up that you want out of that settlement, this is the best trick I can think of to make that happen.

You may ask, why don’t I just refuse to sign the agreement even if I had agreed to it orally? Well, that’s because the defendant will file a Motion to Enforce Settlement Agreement with the court, and the court will order you to sign it. This is the same tool that keeps a defendant from reneging on a settlement.

If You Get Out of Your Settlement, Will You Really Be Better Off?

If you’re unhappy with your settlement, make sure that there’s nothing your lawyer or lienholders can’t do to satisfy you before trying to get out of your agreement. There was a reason you agreed to the settlement in the first place. Remember that position of uncertainty you were in before you agreed to settle? Think of being in that position again, but now you have a pissed off lawyer (or no lawyer), a pissed off defendant (who will likely not make you any further settlement offers), and practically a guarantee that your case will have to go to trial. Is it worth it?

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181 Responses to Unhappy With Your Settlement and Want to Get Out of It?

  1. Johnny [last name removed by admin] says:

    I am reading all. Doctor notes describe that mri reports validate herniated disc l4 l5 with tear. it says my SOAA-P is 15 moderate. However, we feel he is high risk for asking specifically for “named medication”
    drug tested at intake shows negative everything. drug test 3 months later show medication prescribed in system. they say nothing shows im abusing meds, they increased my meds this past month by double and set me up for another injection appointment cost is 2,700 attorney gave me files but not last doctor note from this past month….

    I really don’t understand why he would withdraw… maybe he cant afford my injections obviously im thinking of calling insurance in a few days and telling them attorney wouldn’t ay for my injections and before I get another attorney ask if they want to make an offer to settle before I go talk to another attorney

    • fl_litig8r says:

      Your lawyer is paying for your medical treatment? That’s very unusual. Are you sure this treatment isn’t being provided under a letter of protection? I really don’t know of any jurisdiction where it’s normal for a lawyer to pay up front for his client’s medical treatment, so if this is the issue causing him to withdraw, I have no point of reference from which to say if this is reasonable or normal.

      From your prior comment, you said that your lawyer was concerned about a doctor’s note poisoning your case. I tend to believe that this is the real issue, because I have a hard time believing that your lawyer was fronting the cost of your medical care. Lawyers will pay for IMEs on occasion, but not their clients’ actual medical treatment — at least they shouldn’t.

  2. FuriousMom says:

    I slipped and fell in California causing injury to my back. I lost my job and wasn’t able to find work for almost 2 years after my injury. Still creating a problem finding work because I am limited to what I can do. My case took over 2 years before going to mediation. At the mediation my lawyer was requesting $184,000. The defendant came back with $1,200. By the end of the mediation I felt as I was being pushed into a corner because my lawyer said he was not going to represent me if it goes to trial and that I didn’t have a case. After my lawyer explained to me the couple of things that would be taken out of the offer, we settled at $6,000, but I was not happy. Thinking I might get a couple thousand back and could just be done with it.

    The park where I fell was trying to brush it under the rug, but after being brought into the office the employee apologized and said they were washing the concrete and “thought the sun would dry the area.” They did not have any cones up and the line stanchions lead people right through the water where I fell. As the case continued, my lawyer said unless we can prove that there was something in the water (chemical, or slippery substance) or that the concrete is up to code, then we don’t have a case. By the way, the area was not tested until 18 months after the incident. The whole time I was wondering and asking “why should we have to prove there was something in the water or that the concrete was up to code?” Telling my lawyer that I should not have to pay for their Negligence and they admitted that they messed up. Come to find out, but not until the mediation that the concrete grade was considered “safe” if over 0.5 and anything under would be considered “unsafe”. The concrete was tested at 0.56 when wet. But the fact is that I fell on their property because they were negligent and am still paying for it today and probably for the rest of my life. Not to mention missing out on things I would have been able to do with my young child.

    At this time, I have signed the settlement paperwork but the defendant did not bring the release papers to the mediation. We are now going on 2 weeks after mediation and I have yet to receive release papers & they have not even been sent to my lawyer. Why? My lawyer does not contact me or let me know what is going on unless I contact him. After a week, I called him asking what the hold up is. He said that Medical has their hands in it for one emergency visit after the incident occurred, and if they release the papers the check would be written in Medical’s name. At this point, I don’t think I am going to get anything out of this, not even enough to cover costs and fees. I’m pissed!

    I am seriously thinking about telling my lawyer that I am revoking the settlement offer and finding another lawyer. I have not called him yet and I know that if I am going to do this then I have to before signing the release. I need some advice, and I don’t know what to do. If I do this, is it going to screw me over in the end and having to owe thousands of dollars? I feel like my lawyer has not had my back & possibly already gotten paid off by the city (in cahoots with each other) Please help A/S/A/P. Thank you.

    • fl_litig8r says:

      I really wouldn’t advise doing what you’re thinking. First, you have an enforceable settlement agreement which you can’t just back out of without reason due to the release taking longer than expected to come in. The defendant can file an action to enforce that agreement, and a two-week delay (or even a month) in them sending the release won’t be a valid defense. Your settlement is pretty small, so it’s probably not high on the “to do” list of the defendant. The best you can do s have your lawyer nag the other lawyer until it gets done.

      I can’t imagine any other lawyer taking your case at this point. Even if you could get out of the agreement, it sounds like this isn’t a big case, and lawyers are reluctant in general to take over cases from other lawyers — but especially when the case isn’t worth very much. Plus, you’ll likely still wind up owing your original lawyer a fee. The fact that you’d be looking for a lawyer after backing out of a settlement agreement and firing your original lawyer would be toxic to most prospective new attorneys.

      The time to dig your heels in on the settlement amount was before you agreed to it, not after. I think trying to back out now would end badly any way you look at it. You may be in a bad position now, but it would likely get worse if you renege on your settlement.

  3. Brandi [last name removed by admin] says:

    What if what we discussed during the settlement, and what is written in the final documentation is completely different. In fact the final doc wants me to commit fraud by admitting to something that isn’t true?

    My lawyer said to me…

    He draws the same conclusion, I asked him to not prepare a report,
    Because if I get that kind of report, it ends everything. Ends it. Because
    You have their doctor, our doctor, they are both saying the same thing, the Case has no value, that’s the risk it’s taking. It’s not only [doctor 1], but it is [doctor 2], it’s [doctor 3].

    Then I found out that
    Dr. M did write a report. In fact he states, on page 1 that
    Prior to her employment there she was in fairly good health, she only had a history of an ankle fracture.

    I even sent an email to my lawyer telling him this, from the U of I Hospital employee in Patient relations department, that validated my claims about [doctor 1], and his unethical treatment involving me. Which states:

    That [Dr. M] and [Dr. F] both reviewed the patients notes, and clinic notes and recommended the patient/physician relationship HAS BEEN compromised in regards to spine services.

    There is nothing listed that has anything negitive by [doctor 2] or [doctor 3]. Yet my own lawyer told me there was.

    Because I was fuzzy…I didn’t say anything.

    He also made me believe that “throughout” the time I went to physical therapy, I had inconsistencies. When actually that word is only is used twice, out of eighteen reports. All the others said very positive things. On 1/18, and on 2/8. In fact on 2/8 her final assessment states:
    Patient presents with signs and symptoms CONSISTANT with the diagnosis . She will benefit from physical therapy. While talking about

    He also kept telling me inconsistencies are the death to any case, over and over again. Making me believe the judge isn’t going to believe me, that I am still hurt and in pain.

    Add in that not only did I tell my lawyer and the mediator I took codine to deal with the pain, but ended up having an allergic reaction in the middle of mediation. Which renders me confused. I was crying, attempting to fall asleep (reaction makes me dead exhausted, which can be supported by medical statements from my doctor). I didn’t take my ADD medication in fear of a chemical reaction.
    This is what he wants me to sign
    The settlement docs state, that Defendant states that a substantial portion of the claimed disability is related to conditions other then those caused by the work injury.

    There isn’t one piece of evidence that can validate this. I’ve never had any prior injuries. I even made a list of 25 employees who could validate how hard I worked,and never had any pains or complaints. No medical evidence either.

    I have a total of 22 unanswered emails, ranging from pleas for help for treatment, to emails I received, that needed answers. Even questioning him if he even cared about my case.

    Anyway I am sending the letter tomorrow to fire my attorney for unethical practice.

    Also the mediator lied to me. I have all this on audio.

    What do you think the chances are that I can have the settlement agreement thrown out? I clearly wasn’t in a clear state of mind.

    • fl_litig8r says:

      As an initial matter, please refrain from putting people’s names in your comments. I’ve removed them myself (along with your last name) from your first comment.

      To be honest, I doubt that you’re going to be able to have the settlement set aside. Your best chance would be the argument that you weren’t mentally competent at the time to sign the agreement, but saying that and proving it are two different matters entirely. Just being “fuzzy” from a painkiller usually won’t prove that you didn’t know what you were doing. Of course, taking any drugs that may impair you before mediation isn’t a great idea, but why would you take one that you hadn’t taken before — I assume this was your first time with codeine due to you having an allergic reaction. In any event, your doctors weren’t there to evaluate your competency at the mediation, so I wouldn’t count on any opinions they may give after the fact that you were impaired to be given much weight. You’ll also likely be contradicted by the mediator, opposing counsel and your own attorney, who will all say that you seemed lucid when you made the agreement. I doubt your lawyer would ever say that he had you sign something when you didn’t seem lucid.

      On a separate issue you raise, when your lawyer says that there were inconsistencies in your medical records, he isn’t referring only to the times when the records themselves expressly note an inconsistency (which is terrible for your case in and of itself). He’s talking about any contradictions, whether expressly noted as such in the records or not. Even assuming that your lawyer outright lied to you (which I seriously doubt he did), that wouldn’t be grounds to get out of the settlement. He’s your lawyer, so you can’t use his actions to void a settlement with the defendant, who did nothing wrong (as far as the settlement goes).

      I don’t know that firing your lawyer at this point is going to make any difference. The case settled, I doubt you can get out of it, and he’s entitled to a fee. It really sounds more like you and your lawyer have differing views on the evidence than him lying to you or being unethical. You can try whatever you want, but I can’t see any other lawyer taking up your case at this point and I can’t see you generating a better outcome without one.

      • Brandi [last name removed by admin] says:

        There is only 2 times in all the medical records, that say the word inconsistent. 2 therapy sessions, after I asked not to see the therapist that had me doing the wrong exercises. In fact many notes were made that I was a good patient, who worked hard at everything assigned to me.

        Because I have ADD I audio tape everything.

        I brought this up today in an email, and he didn’t even attempt to dispute that he lied to me.

        If you were to listen to the audio, you would ask the question everyone has asked me…who is he working for? He is very aggressive, and short tempered with me, his client.

        My allergic reaction (cold urticaria) causes me to hive up, (right in front of him and the mediator),and after I had to go to my car and get warm, (so I don’t go into shock), I went back in, and was very confused, started crying, you can hear this and my very slurred words on the audio. I state I am exhausted and lay my head back on the love seat and nod off. These reactions are easily verified by my allergy doctor. Best way to describe it, is feeling drunk. But sometimes it knocks you out for up to 3 days, because your body goes into shock to protect the organs.

        Had I been clear in my mind, I would of said..wait a minute. Show me where said evidence is.

        When I sent 22 emails, some asking if we could get me somewhere for some medical treatment, others with questions, even asking why I have not been responded to. They were never answered. Even after Dr. M said 3 things would grant me relief, my lawyer did nothing.

        12% whole body loss, and because of this accident, my right leg is forever shorter then my left. I basically was tossed out of treatment, after the spine doctor said we can’t do anything else, who didn’t believe in hyper mobile facet syndrome, yet treats patients with it, who isn’t a work comp patient. (validated with actual patients, whom my chiropractor introduced me to, after asking their permission to give me their name). This was the doctor I had requested to not see, because of his reputation. It was later confirmed to me, from the patient representative that they found that our patient/physician relationship was compromised and recommended I see someone else.

        The real issue is, not once was there any conversation during mediation about any preexisting conditions. Not one word. No mention of doctors reports that they think I wasn’t honest, nothing. It solely is based on one thing. They want me to sign a document that says the a substantial portion of my injuries are due to something other than my work injury.

        Again, not one single medical report, nothing exists saying I have ever had a previous injury.
        Because I haven’t had any injuries prior to this one.

        So they want me to commit fraud. To lie and say this statement is true.

        How is it ethical to pull the bait and switch?

        • fl_litig8r says:

          Again, I’ll reiterate that medical reports don’t need to actually use the word “inconsistent” for there to be inconsistencies. When the word “inconsistent” actually appears in the report (in reference to reported symptoms compared to objective findings, anyway), that’s usually pretty awful for a plaintiff, as it often indicates the treating doctor’s opinion that the plaintiff is magnifying her symptoms (malingering). So telling me again that the word “inconsistent” only appears twice doesn’t really tell me that there weren’t other inconsistencies — it just tells me that there were at least two major ones.

          With respect to your statement that your lawyer “didn’t even attempt to dispute that he lied to me”, that’s not the same thing as saying that he admitted he lied to you, and I think you know that. We lawyers are masters of careful wording, so I’m pretty sensitive to when it seems like someone is trying to impart a false impression. Therefore, I’ll ask you directly — did he actually admit that he lied to you? If not, then your inference from his failure to deny your accusation is just your interpretation, and I’m sure he has his own.

          As far as your confusion due to the cold urticaria (for my other readers, this is an allergic reaction to cold), I’m a bit confused myself because you previously indicated that your allergic reaction was to codeine. Also, if you had such a severe cold urticaria reaction, why would you go back to the mediation, as opposed to seeking emergency medical attention? I’m just having a hard time believing that you had such a severe reaction (and just from cold air, at that — most severe reactions are from cold water) that you were cognitively impaired, yet you stayed at the mediation and were able to continue interacting with the people there. You’d really need your allergy doctor to back you up on that claim, and even if she agreed that such a situation were possible, I doubt that she’d be willing or able to say that you actually experienced it at that specific event unless you went to see her right after the mediation. I just don’t see such an excuse being bought by either a judge or a jury — and this is ignoring the fact that you’d need to make this claim on your own without your lawyer and pay your allergy doctor for her testimony out of pocket — if this is your plan to try to get out of the settlement.

          You again confuse me by claiming to have no preexisting conditions while at the same time admitting to having cold urticaria and hyper mobile facet syndrome, both of which are believed to be genetic — or at least not caused by traumatic injury. Maybe you have no other traumatic injuries, but it sounds like you definitely have preexisting conditions, at least one of which caused you severe problems at that very mediation. Therefore, having you sign a statement admitting to preexisting conditions doesn’t sound like they’re asking you to commit fraud. I don’t why you refer to this as a bait and switch, either. That metaphor doesn’t seem to apply here.

          On a somewhat unrelated note, did you obtain the permission of the participants of the mediation before you recorded them? I’d really be shocked if either the mediator or defense attorney would agree to such a thing, given the confidentiality expected at mediation. If you did not, your recording would not be admissible in any proceeding to challenge the settlement and, depending on your state, you may have committed a crime (some states require that only one party to a taped conversation knows it’s being taped and some require all parties to know). Look into this before you share the fact that you taped the mediation with too many people.

  4. Happygram2010 says:

    I was in a car accident in August. I didn’t retain an attorney because the other driver’s (she was at fault) insurance company agreed to pay for everything right away. They actually paid me more than I paid for my car so I guess I didn’t want to complain when it came down to settling for my injuries. They offered me $800 and even though I didn’t think it was enough I accepted it. I have never signed any kind of release to this day. I was discussing this with my doctor because I’m still having headaches from it. He told me that I can still obtain an attorney since I haven’t signed a release. Is this true?

    • fl_litig8r says:

      The question isn’t whether you can obtain an attorney — it’s whether your settlement agreement is binding. Typically, oral settlement agreements are binding — the signing of releases or other written agreements are usually just a formality to make enforcement of the agreement easier and to document it for any future need. If you attempt to renege on this agreement, the insurer may file suit to enforce it under breach of contract theory. Unless you have better grounds than “I was in a giving mood because they gave me more than I was expecting for my property claim” to void the settlement, I doubt that a court will let you off the hook.

  5. Brandi [last name removed by admin] says:

    I apologize if I seemed disrespectful by saying my lawyer lied to me.

    I sent him a list of questions such as:

    1. Why did you tell me that you asked my doctor (that he sent me to), to not write a report, when in fact he did? Which favored me.

    At mediation, your exact words to me were:

    He draws the same conclusion, I asked him to not prepare a report, Because if I get that kind of report, it ends everything. Ends it. Because You have their doctor, our doctor, they are both saying the same thing, the Case has no value, that’s the risk it’s taking. It’s not only [doctor 1], but it is [doctor 2], it’s [doctor 3].

    Why would you tell me something that wasn’t true?

    What is the “same thing”?

    I had my doctor review them and he can’t find a single thing that implies anything negative on any records.

    You had me believing many times, I was the one being questioned weather they believe that I am in pain. When you said a 12 out of 10 is a red flag. When Therapist#1 notes that my lower back is hot to touch, I said to you, that validates that I am in pain, and you said, “I don’t think hot proves you were swollen and in pain”… had my mind clarity not been compromised, I would of shown my notes in which Therapist #1 explains why injured areas are hot to touch, which is called inflammatory response. Which is a symptom of swelling.

    2. Why did you say to the mediator that there were all sorts of inconsistencies though out therapy, when the word is listed only twice? Out of 18 reports, as all the others say we are progressing well or continues to display findings consistent with the therapy diagnosis.

    3. Why didn’t you question why I was never treated for the diagnosis of what Doc 1 stated?

    4. Why wouldn’t you respond to why doc 1 asked me these questions at our appointment. It would of validated he didn’t even review my records, that he must of known I requested not to see him.
    Conversation between doc 1 and myself, on audio:

    I told him, I knew something was wrong when I started limping..he says…limping…for your shoulder or what?
    I said..my knee.
    He said..in June of 12…so did Dr. 3 do a scope or something?
    I said, we did a MRI, found torn cartilege.
    He said…ok, then what did he do with the cartiledge?
    I said …nothing.
    He said…so did Dr. 3 say…the cartiledge will heal on it own…or what?
    I asked him what the MRI said…
    He said…for your shoulder or your knee?
    I said…my back..
    He said….well lets take a look at it. So he is reviewing my MRI, right in front of me.

    This was validated by 2 other spine doctors who stated it was their medical opinion after reviewing the notes, that the doctor/patient relationship was in fact compromised. Why didn’t you request to get me another appointment with a spine doctor?

    4. Why did you tell me throughout our conversation prior to the mediator that my case has no value. You read me the exact same therapist reports, in different ways, six times. When in fact it was only 2 reports. You had me believing I had to prove that I was in pain, yet the final doc’s say nothing of the sort. They don’t say because of inconsistencies, they say:

    The Addendum to compromise settlement states:
    Defendants contend that a substantial portion of the claimed disability is related to conditions other than those caused by the alleged injury. Defendants deny that Claimant’s ongoing subjective complaints are causally related to the alleged work injuries. In support of these contentions. Defendants rely upon the attached medical reports of Doc. 1 and Doc 2.

    5. I would greatly appreciate if you can show me where in those two medical reports that is the proof that is relied upon. My doctor was unable to locate where the “proof” is, that supports these statements.

    6. What was the reason we dropped 45% of the case value, then went straight to a dollar amount? No one disputed that I had a 12% whole body loss. I listen to the audio and the mediator doesn’t say one thing, nor lists a reason why they are dropping the value. You don’t even question why.

    Not once does the mediator explain why they are offering less money. He walked in the first time and said, they will give you this. You don’t ask why. Nor does he give you a reason for why they offered only 6k. When the case was worth 105K. If I could understand this, then I would be ok with it. But no reason was stated from the opposition as to why.

    7. Why didn’t you tell the mediator that an investigator followed me and was unable to get anything on me? Which validates I went no where. He followed me on at least 3 occasions that I know of. This was after he followed my son’s and I confronted him. I don’t know how many times he followed me prior to us confronting him.

    My attorney responds:

    if you don’t sign the documents, then you will get nothing and the case can be thrown out. We will request payment for services from you.

    Don’t I have a right to this information?

    Cold uriticaria has nothing to do with my injuries after the accident.
    Yes I get hives from air conditioning. Many people do.

    May I ask what your opinion is about this:

    Dated Dec. 4th, 2014

    Regardless, the dispute in this claim is not over whether your ongoing complaints are from a pre-existing condition.

    Yet on Sept. 20th, 2014 when I reply to him: @ 1:20 PM

    The documents state I agree with the fact that a substantial part of my injury is due to something other than my work related accident. We never talked about that.

    His reply @ 4:06PM Sept. 20th.2014

    The language means pre-existing conditions, which is supported by the medical evidence. The language changes nothing in the settlement.

    I’ve asked many times what evidence, and he won’t respond.

    To reply to what you said:

    The Hyper mobile faucet syndrome was the readings by the radiologist. Dr. #1 says he doesn’t believe in that syndrome, therefore won’t treat it, but I found out from my chiro (with permission of the patients) that he in fact does treat that syndrome if they are not a work comp case.

    In fact, I had to take a physical for a job that required one lifting 50 pounds, all sorts of strength tests, two weeks before I got the other job where I fell at. I was offered the job, a week after I took the job where I got hurt. I should ask for a copy of that report.

    One month before I got hurt I played basketball with my son and a group of 16-17 year olds, who were impressed that I can shoot 3 point shots really good. They would see me out and about and mention that I was a good ball player. I am left handed. Left shoulder is where the tears happened.

    I brought a list of former employees who could validate nothing slowed me down. I was asked quite often why I worked so hard, when I am the boss. I wanted to set the example.

    In Iowa, the law states as long as one of the parties are aware of audio recording it is not against the law.

    I was the person who dug up dirt on our city, and called them out in a city council meeting, in request of passing a curfew law they refused to pass. I found they had a dummy corporation that bought land cheap, and manage to sell it to the city, where they built additional low income housing, which caused our neighborhood to become out of control. This was after the 1996 ruling that stated that the city could not build any more affordable or habitat housing in our neighborhood. Yet they built 64 more houses, not only did we have to deal with gun fire, fights, property damange, but we took our kids and moved to a small town, because of many gunfire incidents. It was terrifying. We could not sell our house, and it dropped in value by 18K, the only streets that lost property value in our entire town was 5 streets that connect to ours.

    So it isn’t that I lacked going head to head with any of the statements, because many know me to be a person who presents well thought out arguments and I always validate statements with proof. I would of said…wait a minute. Why would you say that? Here is Dr. #4’s report, which is very favorable towards me. Here is also proof of my complaints on my doctor reports that I was unhappy with therapist #2, and requested therapist #3 and was denied. I would of said…what are they all agreeing to?

    I would of said…the mere fact one leg is shorter then the other, should validate that this injury has compromised my back, and pointed out Dr. #3’s report that states, that everything is shifting down 1/4-1/2 inch, and is impacting back, causing pain. I had 2 doctors validate that. One cannot argue that losing 1/4th-1/2 of an inch of your leg, does not impact your back, because it does.

    But I didn’t. I am not a shy person. I believe in standing up for what is right. I was not of clear mind, and when I hear the audio, it greatly upsets me. That those of clear minds should of stopped the mediation. When someone is bawling, claiming they are exhausted…they should of at least said…let’s take a break, but they didn’t. I didn’t know the law, and even if I did, I clearly was not in clear mind to stand up for myself at the moment.
    So it’s not that I misunderstood what my attorney was telling me, it is quite clear. My doctor emailed me this after reporting my symptoms that day:

    Also, having taken codeine would be a confounding factor that could contribute to the reaction you describe.

    I try to fall asleep in the middle of mediation. Crying. I say I am so exhausted many times. In the middle of me saying something, I stop talking. Don’t finish what I was saying.
    I say, “when I was at the grocery store……then just stop talking.
    Or I had asked Therapist one (said her name) if I………..
    My son and his friends………………….I just don’t finish a sentence.
    Float off. My audio can easily show how slurred my words are. It is upsetting that I am under duress and neither one of them did a thing to assist me.
    I do this many times. I cannot recall my own doctors names, I call one of them, my knee doctor…my lawyer says his name, and a minute later I forget his name again. He has the same last name as my best friend.

    In fact the mediator says on audio, you look very exhausted. Both him and my lawyer saw the physical evidence (the raised rash, looks like a bunch of mosquito bites, without the dot in the middle).

    A reaction varies all the time. Had I started to cough, or my tongue swell up, or I felt like I was going to pass out, I would of said, call 911. If you look up cold urticaria on any social sites, folks can validate my symptoms. Some call it a hive coma. Because your mind turns to crap.

    Ask yourself, honestly, If it was your sister this happened to, would you just recommend her to fold, or fight for what is right?

    • Brandi [last name removed by admin] says:

      cont..
      The doctors that validated that my patient/physician relationship was compromised they recommend that
      I be seen by by either Neurosurgery or Neurology or as designated by her workcomp case manager….

      I sent this report to my lawyer, and he never replied back. I have 22 unanswered emails.

      • fl_litig8r says:

        Maybe you have 22 unanswered e-mails because you’ve been rehashing things that were already discussed over and over and your lawyer is tired of having the same discussions with you. The fact that you kept sending e-mails after the first 3 went unanswered astounds me. Pick up the phone and call your lawyer. Set up a meeting with him. Don’t just keep sending e-mail after e-mail, like you’re trying to build some record of how your “terrible” lawyer never responds to you. How long are these e-mails you’re sending him? As long as the last comment you left? Do you keep pinging him with multiple questions that he’s already answered just because you disagree with his answers? Maybe this new piece of information you sent him was ignored because the last 21 e-mails were filled with things you had already covered and your lawyer is just sick of dealing with them.

        I’m normally not this curt with commenters, but I have to be honest with you where your lawyer cannot. I get the vibe from you that you are a very difficult client who doesn’t listen. You also seem to playing up your “victim” role with respect to what happened at your mediation, which may also detract from your credibility as to your subjective complaints about your injuries overall. I don’t believe that you were rendered incompetent by either your cold urticaria or the codeine you took. The fact that you seem to pile on reasons (first it was the codeine, then the cold urticaria, then both, like you’re seeing what will stick) for why everyone at the mediation should have realized your incapacity and stopped the proceedings just seems disingenuous to me. I get the feeling that you were setting up reasons to try to back out of the settlement and that you knew exactly what was going on at the mediation. I may be wrong, but I don’t think I am.

        I don’t think I can help you, because I think you may be the problem here.

    • fl_litig8r says:

      It sounds to me like your lawyer has tried to explain his position and you’ve rejected his explanation. I’m not saying who is right and who is wrong, but rehashing the same issues over and over is not going to get you anywhere. I’ve already explained to you that the use of the word “inconsistency” in a medical report is not required for there to be an actual inconsistency, yet you continue to argue that the word inconsistent was only used twice. Your lawyer may be wrong, but I get the impression that you keep arguing things as if they are only one-sided (your side) even when the opposing position is explained to you.

      I don’t know what you expect from me, but if you’re looking for confirmation that your lawyer did something wrong, I can’t give that to you. I also can’t say that they should have stopped the mediation because you appeared exhausted. I’ve been through 12-hour mediations where everyone is exhausted by the end — that doesn’t mean that we were incompetent to reach a settlement. Your claim about the cold urticaria and/or the codeine affecting you is something purely subjective. I can’t agree or disagree with you, nor can I say that at the time you appeared so objectively incapable of continuing that everyone at the mediation should have brought it to an end. Clearly, the other people there didn’t see what you claim they should have seen.

      In your questions to your lawyer, you seem to be pointing at unrelated things and drawing unreasonable conclusions that make it incredibly frustrating to address. For example, when you say that the defendants point out your non-injury-related conditions in the addendum to the agreement, you seem to conclude from that they didn’t consider inconsistencies in your medical reports to be an issue. That’s not a reasonable inference to draw from that. Mentioning one flaw in a case does not mean that they think that is the only flaw, or even the most significant flaw. It’s likely that they included that because it’s something you would have no problem agreeing with, as opposed to saying that they think you’re exaggerating your symptoms which is something you would never agree to. I could discuss how each of your questions is in a similar vein, but it would frankly be too frustrating for me because I don’t think you’d even accept my opinion (someone with no dog in your fight) because you’re too entrenched in your own narrow view of your case.

      Your lawyer’s response about you signing the documents or losing your case indicates a level of frustration with you that you shouldn’t just blow off. It sounds like he’s ready to dump you, and I don’t know that you’d be able to find anyone else to take your case. It may be worth it to you to burn the case to the ground rather than take a small amount, but you really shouldn’t place all of the blame for this on your lawyer. You sound like a difficult client. I say that not to be mean or just to take the lawyer’s side, but as I said, you’ve completely ignored my explanations about the “inconsistencies” in your records and just plowed on as if your own interpretation was correct. If you’ve done that with all the major issues in your case, I can see why your lawyer is throwing his hands up at this point.

  6. Brandi [last name removed by admin] says:

    Well good news. I did get a new lawyer, who is brilliant…. After reviewing all the records, his exact words….gross misconduct. Oh and trust me, the old lawyer is going to have to answer for his gross misconduct, in more then one way. In fact my new lawyer said..(while listening to the audio), “who’s side is this guy actually on?” It was that bad. So no…the problem was not me, but thanks for suggesting I was the uneducated one who just didn’t want to accept so called facts.

    He screwed me. Period. I believe in fighting for what is right. His job was to look out for my best interests, he failed miserably.

    Funny how I stumbled across this today…and yes you can hive up in air conditioning.
    [link removed by admin]

    • fl_litig8r says:

      I did say that I could be wrong. I’m still not convinced that I am, though. My opinion that you tend not to listen is just supported by your “yes you can hive up in air conditioning” statement, when implies that I claimed otherwise. I said that severe reactions (like the cognitive impairment you claimed) seemed more related to extreme cold conditions like being immersed in cold water, not that you didn’t get hives. I see no reason why you would claim to have something that is easily disproven if it was false, so I took the hive claim at face value. The cognitive impairment claim is what I found hard to believe.

      Good luck with your new lawyer.

  7. C says:

    I signed a contingency agreement with an atty for a sinkhole case. We “settled” during trial but I’ve since discovered there were significant things I wasn’t told about the repair process that will result in us having huge amounts of debt due to repairs after all is said and done if we sign these settlement papers. I don’t want to sign. My atty sent me an email in the interim recommending something illegal (committing insurance fraud). Is this enough for me to probably be granted quantum meruit and not owe the atty anything? At this point I just want to completely drop the case and fix the house myself because it’s the cheapest thing to do…

    • fl_litig8r says:

      You really haven’t given me enough information to work with. First, what do you mean by “sinkhole” case? Is this a claim against your insurer to repair a sinkhole on your property? I don’t know how a settlement in such a case would wind up costing you more than you just walking away, so maybe you mean something else. Your attorney recommending something potentially illegal may not be enough to get you out of owing him the fee you contracted for. Assuming that his recommendation is illegal, it comes after you’ve already agreed to the settlement, so the contingency you contracted for has already occurred. It could certainly be ground for a bar complaint, but that wouldn’t affect your contract with him. I don’t see that firing a lawyer, even for cause, after the contingency occurs gets you out of owing the contracted fee.

  8. C says:

    Sorry for the confusion… no contingency has yet occurred, although I verbally agreed to pursue one in the claim against my insurer to repair the sinkhole under my house. The “contingency” is the repair of the sinkhole on my property (the existence of which experts disagree on). If I don’t repair the property they don’t get any money. That’s what the paperwork says. The “recovery” they get 40% of is the total cost of fixing my house. If I refuse to sign the paperwork and write an appeal letter directly to the judge asking to rescind my settlement and for her to rule on a summary judgment or declare a mistrial (or allow a retrial) do you think she may allow it since there was significant information that was kept from me by my atty (this was his first sinkhole trial but I didn’t know that until the 2nd day of trial)? The information that was kept from me was the fact that if the cost to fix my house grows (which it could significantly due to the type of repair process the insurance company is forcing me to use) I could end up owing this atty and contractors $80,000 or more out of my pocket and have to declare bankruptcy because of the limit on what my insurance company paid my atty. The atty didn’t intend to deceive me he was just too naiive to know what to advise me about… I was planning to meet with him but increasingly they are being rude and completely unprofessional, saying things happened that didn’t happen, etc. I don’t want to get too specific in case someone from their office reads this.

    • fl_litig8r says:

      The contingency I referred to is you making a recovery in your case — whether through a settlement agreement or judgment. That’s the contingency that entitles your attorney to his contractual fee. You agreed to a settlement. Therefore, the contingency has occurred with respect to your fee contract.

      This is a completely separate issue from whether you can have that settlement set aside. Unfortunately, I don’t see grounds for that in your case. If you were misinformed by your own lawyer, that wouldn’t be something the court could use to void your settlement. Your lawyer is your agent, so you’re responsible for anything he may have done wrong. The defendant didn’t do anything wrong with respect to the settlement, so the court will enforce it on their behalf. If you feel that your lawyer mishandled the case to the point of malpractice, then suing him would be your only recourse. Of course, I explain in this article why such cases are extremely hard to bring. There may be something you can work out with your lawyer (like him agreeing to reduce his fee) that may be a better solution.

  9. C says:

    Ok, thanks. I guess we will try to work it out with him. I thought I had the power to just refuse to sign the agreement if there were problems but it sounds like that authority of mine disappeared at some point in the past and isn’t possible to get back again because the judge can issue an order forcing me to sign it….

  10. C says:

    The only other big difference is the amount he told me I would get “in the end” is now suddenly $6,000 less than I agreed to at the time of settlement (and could be completely nonexistent depending on what happens with the repair), but I guess that won’t matter to anyone…

  11. Loretta [last name removed by admin] says:

    In May 2011, I was electrocuted/ Severe electrical shock. I and some neighbors had felt current in the stair railing at times. I noticed mostly when it rained. As you grab the stair rail to the apartment, you would feel a strong current. It felt like a punch in the hand and then your whole hand and arm would fly behind you. Maintenance’s reply, “That’s not possible”. One night as I was greeting my grandkids, we approached the stairs as normal. I noticed my older grandson was shocked as I saw his arm fly back.
    He was higher up the stairs. my 3 and 6 year old grandkids were by me. I was scared they might touch something and get shocked. Its a strong painful current. I bent down for my grandson, 3. I grabbed the railing and froze. Electricity flowed through my body, my finger tips, arms toes, feet and legs. All the while I was in shock, froze to the stairs disoriented and again in shock. 2 day later I was admitted to the hospital for Rabdomylosis. Within the first 24 hrs I had lost any recollection of the event. COMPLETELY FORGOT! It took me a year before I remembered. I have brain injury and life a I knew it is over. I have so many struggles. I can only hope & pray that eventually my life will resume in some part of a normal fashion. No guarantees. Apartments still have no clue of the actual cause. Between my atty and the mediator I felt as though I havd been raped. I continue with serious cognitive issues. I am a different person. I’m not sure how this is going to work out or if I will ever be even remotely close to who I was. I was so over whelmed and unable to cope from the pressure from the attorneys. I wanted to go to court. I had credible witness and dr’s. People that
    knew me before and after the injury. What do you think about a civil suit. Feeling pressure to settle. Extremely over whelmed mentally and emotionally. Please advise. Thank you

    • fl_litig8r says:

      What is the current status of your case? It sounds like suit was already filed if you had a mediation (though pre-suit mediations do occur, they are not the norm). You say your lawyer is pressuring you to settle, but you don’t say the reasons he gave you. I assume it is in part due to not being able to find the cause for the railing shocking you or being able to reproduce that effect, which is a pretty big problem. If there are no electrical lines touching the railing, where did the electricity come from? You need to be able to prove that the building owner was negligent in not correcting a known unsafe condition. If your lawyer can’t even identify what the unsafe condition was, how do you prove negligence?

      Aside from this potentially huge liability issue, I don’t know if there are any causation or other issues presented by your case. There’s a big difference between what you believe (or know) to be true, and what you need to do to convince a jury. Instead of assuming that your lawyer is working against you, consider that he has valid concerns about proving your case. He’s in a far better position than me to know the problem areas of your case and its value based on those problems. There are cases where clients reject their lawyers’ settlement advice and they go on to get a sizable judgment, but there are more cases where the client winds up regretting not having taken her lawyer’s advice. Assessing a case isn’t an exact science. Your lawyer is weighing risks and advising you based on odds he’s assumed through his years of experience and knowledge of other cases. There’s always a chance things could turn out better than he imagines, just as the underdog can sometimes win — but usually the smart money bets on the favorite.

      If your lawyer is pushing for settlement, listen to his reasons carefully. Don’t just assume that a jury will believe you and your witnesses (especially if they are family members) or that they will accept that all of your current medical problems can be attributed to this accident. Even though your doctors may be 100% on your side, it’s not like the defendant won’t have doctors of their own to testify to the contrary. Also consider the possibility of your lawyer withdrawing from your case if you reject what he believes is a reasonable settlement offer. If he does, it may be very difficult to find a new lawyer to take the case, especially if that lawyer knows that the case will have to go to trial.

      I can’t say if you’re right or your lawyer is, but you should approach your discussions with your lawyer about settlement with an open mind. Being hyperbolic (like likening his pressuring you to settle to “rape”) may result in disaster — you having no lawyer, no settlement and no other lawyer willing to take your case. Try to be as objective as possible and really discuss this with your lawyer before rejecting settlement.

  12. Ben [last name removed by admin] says:

    I am 86 I had a bum hip put in about 1998 and settled with Depuy after no lawyer would take the case because Depuy said that there was nothing wrong with the faulty hip. They offered me $35,000 and not being able to get a lawyer I took it. Now I know that Depuy lied and that there was a problem with the hip. I was 73 when they took advantage of me, can I go back after THEM

    • fl_litig8r says:

      I really don’t see any way you could. This would require rescission of a 13-year-old settlement (which would require you paying back the $35,000 up front), which I can’t imagine any court entertaining purely on statute of limitations grounds, and then a way around the statute of limitations on your original claim — because rescission just reverses the settlement. It doesn’t restore or extend the statute of limitations of your original claim.

      To obtain your rescission, you’d likely need to prove that the settlement was obtained by fraud. Any claim of fraud, based on Depuy denying anything wrong with the device, would be pretty hard to swallow. Obviously you felt there was something wrong with their device if you were getting $35,000 from them over it. Them denying wrongdoing in their release is pretty standard language that couldn’t form the basis for a fraud claim.

      I can’t see any way for you to bring another claim against Depuy now. Sorry.

  13. Connie says:

    Lawsuit settlement arrived for my signature. $6000. check. I spoke with attorney recently. I believe he said if I sign a release for workers comp re any further action, they would forgo reimbursement on payment of my medical bills-12k. He said I’d receive 3-4 thousand dollars. These documents say after all others are paid, including workers comp I only get 928. dollars. Seriously? Is this common? She ran a red light. My car was totaled and I’m still injured. Her insurance offers 6 thousand but all I get is less than one thousand dollars. Why did I bother?? Any advice on what to do now? There’s no way I’m signing those papers. I’d rather get nothing than for others to profit at my expense. I just don’t get it………….Thanks Connie Louise

    • fl_litig8r says:

      Before opting to get nothing just to spite others, talk to your lawyer about the distribution. It may be that the numbers you see now are subject to change pending negotiation (like the worker’s comp reimbursement). Try to calmly go over it with your lawyer before becoming confrontational and burning the whole settlement down. You can always do that later (not that I’d recommend giving up money — you likely need your share more than your lawyer needs his, so you’re hurting yourself more by just walking away).

  14. naticha [last name removed by admin] says:

    My lawyer has lied to constantly. He told my adjuster had quit and my case was outsourced to another company. I found out today that was a lie. The last time I talked to him he told me that he was waiting on the company to fax him something but the company does not exist. What can I do?

    • fl_litig8r says:

      I’d schedule a face-to-face meeting with him to go over these matters. Sometimes, these things are just misunderstanding that can be cleared up. I don’t really see a motive for him to lie to you about the things you mentioned, unless he’s just telling you things to cover for the fact that he hasn’t worked on your case at all. At a face-to-face meeting he can show you things in writing (if he has them) to back up whether he is actually working your case. If it turns out that he hasn’t done anything, just tell him you want to take your case elsewhere (assuming you have a decent case), and see if he’ll release you from your contract without claiming entitlement to a fee. I’d be calm about it and not make it confrontational unless you find out he hasn’t worked your case and he won’t let you out of the contract. If he lets you go, great. Find another lawyer who has the time to work your case (maybe read this article first). If he doesn’t let you go, threaten a bar complaint for him not diligently representing you and keeping you reasonably informed about your case.

      Hopefully, this is all just a misunderstanding and you can keep him as your lawyer. The best way to find out is a face-to-face meeting.

  15. ANN says:

    In February my attorney who was handling my case quit because we disagreed upon how the case should be handled (he did not want to do a job, which I felt was crucial for the inquest). Lawyer A also wanted to be paid $50,000 upfront for the inquest. Lawyer A quit because he felt he would not get paid. I was searching for a real estate attorney online and met with a few other attorneys and was told the inquest should cost approx $50,000.
    After a few email exchanges I met with LawyerB firm to see if he could take on my case. He discussed a initial retainer and about $7K to $8K a month. I told him that I was unable to afford him at $500 an hour and I could only afford to pay the same amount per hour as my last attorney which was $350 an hour.
    1. I hired LawyerB firm and told them I needed a very aggressive attorney for my case as the Co-op and their Lawyers were very sneaky and won their case against me on summary judgement based on lies (the problem with the sewage pipe lay inside my apt and so they needed to gain access into my apt to correct it). I was assigned JrLawyer B at $350 an hour and assured he was aggressive and would be able to handle my case.
    2. I did not know JrLawyer B was inexperienced with Court proceedings or that my case would be JrLawyer B ’s first time to court (not mentioned to me). SrLawyer B had to accompany him to court for every session. It became very clear to me later on that JrLawyer B did not have the experience needed for an attorney to handle this case. When I told SrLawyer B about JrLawyer B ’s inexperience, he told me that JrLawyer B was his right hand guy and did trusted him to do his personal work. At this point I still did not believe I would be charged double for two attorney’s handling my case. This was supposed to be an inquest not a murder trial. The attorney fees Lawyer B firm charged me were a total of $200,000.
    3. Soon after I hired Lawyer B to represent me the first bill came to $20K and the next bill was $50K. I immediately told SrLawyer B that I could not pay those types of bills as I did not have the money. I was told to pay what I could. I was on the hook and could not afford to replace attorneys at that time as it would be very expensive for me. I paid what I could since I was only working on contract.
    4. Also I had asked SrLawyer B if I had to pay taxes on the settlement and he said it was not taxable. I have found out later on while doing my taxes that not only had I to pay taxes but I had to pay taxes on the total settlement amount of $400,000.
    5. Since Lawyer A was instrumental in winning this case for me on default, I was entitled to get all my attorney fees refunded to me, I was also seeking money to repair my apt, refund of maintenance fees for the duration of the sewage backup problem and for when I did not have the use of my apt when it was under repair and punitive damages when the co-op refused to correct the sewage backup problem and tried to evict me.
    6. I was busy with a divorce at this time and Lawyer B firm did not give me invoices until the middle of next year after settlement which were needed for the divorce. After looking at the invoices I find lawyer had tripled their legal fees for the last month and this led to the extra legal fees of approx $50,000
    7. How do I go about fee arbitration and can I get back my money as the fees were not on contingent basis but on retainer.
    Thanks

    • fl_litig8r says:

      You haven’t said what state you’re in, so I don’t know if arbitration is even an option. This may be something you could find on your state bar’s website. Otherwise, you’d need to fight it via a breach of contract lawsuit. I really have no issue with Firm B using an inexperienced lawyer, as they need to get experience somehow and it appears that he was being closely supervised at the time. This is how inexperienced lawyers are trained. I would take issue with duplicative billing — if they were charging you for both the junior and senior lawyer to be present at the same hearings when the senior was merely there in a supervisory capacity. Depending on how the senior participated, billing for both lawyers could be an ethics violation.

      I would expect less experienced lawyers to be billed at a lower rate, but that is really a matter of contract. It’s not an ethics issue if they billed at the same rate, if that’s what the contract allows. I’d strongly recommend trying to resolve your billing issues directly with the firm before resorting to arbitration or litigation. Many billing disputes can be resolved without investing additional time and money in an avoidable fight. I’d suggest that you prepare by highlighting all of the specific charges on their billing records that you question, rather than going in vaguely arguing about too much time being spent. Note any double-billing issues specifically, as those are the most likely to be reduced.

  16. Sean says:

    I was wonder do I have to accept the offer that the insurance company is offering me and my wife. We were involved in an accident on March 17, 2014 while at work, I drive the bus and she monitor the students on the bus. (while stopped at railroad crossing, young girl heading east on cell phone(car A) failed to stop at stop sign hit car B headed south the bus heading north was struck by both car A and car B. She (wife) was pregnant at the time. This pass Thursday we were offered a settlement, I agreed to look at the paperwork and settle if everything seen fair. This weekend while talking with my wife I expressed that I do no think the settlement is fair. Today we received our release forms and checks I haven’t sign anything. Is it to late to negotiate for a better offer? offers My wife 12,500 roughly $8500 in medical bills (all) and the remaining $4000 to her, Mine 10500 all medical bill covered and 3900 to me. I still have pain

    • fl_litig8r says:

      If you didn’t actually agree to the settlement, but just to review their offer, then you don’t have to sign the agreement. If you actually agreed to the amounts, but now you regret that and are looking to get out of it based on pretending to have trouble with the other terms of the agreement, it’s something you can try but if they agree to remove the “objectionable” terms, they may be able to enforce the agreement and make you sign. In other words, if you say “I won’t agree to confidentiality” and they say “Well, then the deal’s off” you have successfully gotten out of the settlement. If they say “Well, then we’ll take that provision out”, they could choose to enforce the settlement agreement if you still refuse to sign.

      I would imagine that because both you and your wife were working at the time of the accident that your medical and part of your lost wages would be covered under worker’s compensation (unless this is some type of volunteer position and not your usual jobs). You should keep in mind that you’ll likely have to reimburse the comp carrier from any settlement with the tortfeasor.

  17. Sean says:

    So even though we have not signed the agreement in so many words because we basically said yes its best just to go ahead and accept the offer as is? Both settlements do include paying off worker’s compensation.

    • fl_litig8r says:

      If you came to an agreement on the money, there’s a good chance that they’d be able to enforce the settlement if you try to pull out now. Whether they would actually initiate litigation to enforce the settlement or try to offer you a little more money is hard to say. If you’re having serious doubts about the amount, the safest thing would be to consult a local personal injury lawyer before you sign.

      • Sean says:

        Okay, should the child my wife was pregnant at the time be taken into consideration?

        • fl_litig8r says:

          If you mean that there were complications in the pregnancy due to the accident and now the child has issues he or she wouldn’t have had otherwise, then that’s something that should have been part of your and your wife’s claims (the fetus wouldn’t have a separate claim, if that’s what you’re getting at). Any additional testing on the fetus/child done as a precaution due to the accident should also be included, even if the tests were negative.

      • Sean says:

        Okay, thanks for your help.

  18. Sherika [last name removed by admin] says:

    What if I don’t agree with terms of 50% cuz I agreed to a settlement of paying the lawyer 35% thn he reduced his fee to 21% & got some fees deducted. Now asking me to sign final statement agreeing to 50%. When he 1st said his fee is 35% even though he got fees deducted. What do I do, I haven’t signed yet.

    • fl_litig8r says:

      Is the 50% just for the fee, or is that both his fees and costs? Costs are typically deducted separately from fees, because they reimburse the attorney for money he has spent up front on the case — your lawyer doesn’t make money (98% of the time) on costs; he makes money from the fee only. If the 50% is for both fees and costs, and the costs are reasonable (see the article I linked to above to determine this), then there really isn’t much you can do. It is what it is and your lawyer isn’t doing anything wrong. You can refuse to sign anything, but that’s not going to get you more money. Your lawyer may interplead the settlement money into the court’s registry and ask the judge to divide it (which the judge will likely do as your lawyer is already doing if the costs are in line), so you both lose out on time (and money for court fees) and get the same result.

      If your lawyer is actually charging 50% for fees alone, then you shouldn’t sign. If he refuses to honor his agreement to reduce his fee to 21%, you could either sue for breach of contract (which probably isn’t practical) or see if there is a fee dispute process available through your state bar.

  19. John [last name removed by admin] says:

    OJI and employer filed a state w/c claim and state w/c carrier found out they were not responsible for claim because it was LHWCA Claim.My employer did not have coverage ,so V.P. of employer sent me a letter wanting to reinstate me to companys payroll instead of contacting Dept. of Labor about accident.my attorney did not notify D.O.L. about this and employer neglected to inform doctors that the claim covers infectious diseases which I contracted while surgeon attempted to operate on my back.My attorney told me I had to sign settlement agreement or my employer would discontinue medical and weekly wages and I had to return to work.Have not been able to return to work and I am disabled due to this.Employers attorney stated in 8(I) agreement that doctor released me to return to work and I just found out this is not true,because I relocated and changed doctors and only spoke to his office and found out that he did not release me.The employers attorney also stated that I had not signed up fo disability,and I had and notified D.O.L.,and my attorney of signing up for disability benefits.In other words I was lied to in order for me to sign agreement,but I have proof of misrepresentation of facts to coerce me into signing agreement and witness that employer knew they were required to obtain DBA coverage to procure Federal Contract jobs at military bases.Have filed complaint with Bar Association on both attorneys and sending motion to ALJ to invalidate agreement under 33 U.S.C. 18;905(B),949, and 931.(4)(c).Breach,Misrepresentation,Duress,and Coercion.My own attorney and the employers attorney with the claims examiner sent knowingly false information to Deputy Director to sign off on.If I had known the law I would not have needed attorney represent me and then mislead me into an unconscionable confidentiality agreement to the terms of settlement agreement after I told them it was incorrect information.Now the CE wants to know what else I want.Its JUSTICE that I want,because you can guarantee if it had been me to file a false claim they would want to throw the book at me.

  20. nicole says:

    How long does a settlement offer last? My attorney kept asking me to accept a settlement offer after the trial begins. He kept telling me that the offer will not last for long and I need to accept by certain date. When the date comes, the offer is still up. At the end, he asked to be withdrawn from the case if I don’t accept the offer.

    • fl_litig8r says:

      If it’s an informal offer (not one made pursuant to a special statute or rule as I discuss in this article), as most settlement offers are, it lasts as long as the party offering it wants it to. A party can give a deadline and then extend it, or even pull the offer before the stated deadline as long as the other party hasn’t accepted it first.

      If your lawyer is going to withdraw if you don’t take the offer, you should seriously consider that offer. Most lawyers don’t do this unless they truly feel the client is being unreasonable, and it’s incredibly difficult to find another lawyer to take over a case in progress (especially one where the last lawyer withdrew because the client wouldn’t settle). If you’re on a contingency fee, your lawyer can’t claim any fee if he withdraws (though, arguably, if you turn around and immediately accept the pre-withdrawal offer after he withdraws, he might have a claim if he can show that you were only being unreasonable to get him to withdraw so you could avoid his fee). Therefore, lawyers will usually only withdraw from a case where a settlement offer was made if they see themselves losing money by continuing to litigate. If I were you, I’d seek the advice of a somewhat neutral third party (e.g., a friend with no interest in the case) as to whether you’re being reasonable in rejecting the offer before your lawyer withdraws.

      • nicole says:

        Thank you for your informative response. The case is settled now but I have a follow up question.

        After the attorney’s fee and medical bills, the remaining money will be used to pay back a loan because I could not work after the accident and I borrowed money from a family member. I am currently on Medicaid. If the remaining money from the settlement is sent directly to the family member as a repayment for a loan (without going through my bank account), would that affect my eligibility for Medicaid?

        • fl_litig8r says:

          Without using a special needs trust, expect Medicaid to consider the settlement against you, regardless of whether your sister is paid directly by the lawyer or whether this is repayment of a loan (which I assume was informally done). This may or may not result in you being temporarily cut off.

          Medicaid rules can vary by state, with some states considering lump sum income from a settlement “received” in the month when you actually got the money and others in the month after you got the money. The second type allows you to spend down that money in the first month and avoid having it considered a resource by Medicaid, so that you maintain eligibility. The first type would consider that money a resource immediately and discontinue benefits until it is spent down to the necessary level. I suggest you ask your lawyer if you fall into the first or second type of state. You may be able to avoid being cut off just by making sure that the settlement money is depleted by the end of the month, regardless of how you work the payment to your sister. Paying the money to your sister may raise some red flags, though, as medicaid and SSI recipients sometimes try to defraud the government by having relatives hold on to assets which are still really available to the beneficiary. While yours is a legitimate transfer of money, it may receive scrutiny because it is one of the most common types of medicaid/SSI fraud. Be prepared to deal with those questions.

          Even if you don’t use a trust (which may not be a good option, anyway) and get cut off, you should be able to regain eligibility the month after you spend down enough of your settlement to re-qualify.

          • nicole says:

            Is the repayment of a loan considered a spend down even if the loan was informally done?

            I assume I will have to show proof that the money is transferred/spent?

          • fl_litig8r says:

            Any way you dispose of the money that doesn’t result in either you still having access to the money (e.g., “Here, hold my money for me”) or in you acquiring a countable resource is a spend down. Yes, you will need to prove how you disposed of the money, and that will raise the issue of whether this is a genuine loan repayment or a fraudulent transfer.

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