Your 8 Basic Rights in a Nursing Home Injury Case
As a legal services consumer, you have rights designed to protect your interests and ensure you get competent representation.
You do have rights as a client. Sadly, however, few people know that they have any rights at all—and their lawyer never tells them. We’re providing information on eight basic rights clients have to empower nursing home and medical malpractice victims (and anyone else who has a personal injury lawsuit).
You are not simply victims at the mercy of lawyers. You are consumers of legal services. In this simple packet we give you insider knowledge about the basic rights of your lawsuit.
At Eadie Law, we want you to be empowered! Knowing your rights is the first step you can take in gaining strength over your circumstance.
Right #1: You have the right to fire your lawyer!
There is an old saying in the law, “clients have lawyers, but lawyers don’t have clients.” What does that mean? That means that clients have the absolute say in who represents them at each stage of the case. The case belongs to you, not the lawyer.
How does someone fire his or her lawyer? Just by doing it. You simply say, “you’re fired”! You don’t even need to sign a piece of paper to fire your lawyer. Now, your lawyer may not be happy about this. They may groan and tell you all the reasons they shouldn’t be fired, but big deal. You hired the lawyer to perform a specific service. If you don’t think they’re doing a good enough job, then you shouldn’t hesitate to find a new lawyer.
No matter what you signed, you always have the right to fire your lawyer. Because it’s your case!
If you’ve lost trust in your lawyer—unfortunately, that happens too often—then get a new one. Get a lawyer you trust and feel comfortable with.
But what about the legal fees? Will you have to pay the legal fees for the work your former lawyer did when you fired them?
No, not if it is a contingency fee case. Contingency fees are when the lawyer takes a percentage of the settlement or verdict as payment. Almost all injury cases are taken on a contingency fee. The original lawyer will split his fee for the work he did with the next lawyer at the end of the lawsuit. What’s important to remember is that you will be spending the same amount on the fee either way.
Right #2: Your lawyer cannot abandon you!
This is a very important right. You should remember it.
While you always have the right to fire your lawyer with no explanation necessary, your lawyer cannot simply fire you after your lawsuit is filed if doing so would mean your case is negatively impacted. They cannot simply abandon you.
If we discover a case lacks legal merit–that is, we cannot pursue it due to the law–we will discuss this with you candidly, and help ensure your rights are protected.
Right #3: You have the right to select the lawyer to work on your case
You’ve done your research. You’ve selected the best trial lawyer you could find. You’ve met the lawyer, signed the fee agreement, and everything seems great.
Nothing to worry about, right? Hold on, my friend!
That great lawyer might not be working on your case. Many lawyers will meet and greet you at the first meeting, then you get passed off to the newest lawyer just out of law school. Hey, all lawyers were there at one point in our career and new lawyers need experience . . . but not necessarily on your case.
At your first meeting with Mr. or Ms. Trial Lawyer, you must ask, “Will you be handling my lawsuit?” And, “Will you be handling the depositions and the trial?” You need firm commitments from Mr. or Ms. Trial Lawyer.
If they hem and haw when you ask these questions, it’s a good bet that they intend to pass your case off to the newest and greenest employee at the law firm. Get the answers at the initial meeting and confirm your understanding with a letter which you ask Mr. Trial Lawyer to sign to confirm your agreement.
Right #4: You have the right to a complete copy of your file at any time
The file belongs to you (not your lawyer) and you have the right to get a copy of the complete file whenever you want at no charge.
You have the right to insist that you get a copy of your complete file whenever you want, without even giving a reason. Your lawyer cannot ethically refuse to let you review your file.
By the way, your “file” includes every document, whether electronically generated or a paper copy, relating to your case, including documents containing the mental impressions of your lawyer and his staff.
I’ve had people some to me after firing a law firm and say, “I’ve requested the file and here it is.” All they have is a disc or two of medical records. That’s not the complete file. Trust me.
Now keep in mind, in this day and age files are often no longer paper documents. Your file includes a lot of digital information. This means that your file may be electronic, and that’s ok. The important part to remember is that the information belongs to you.
If you are my client, you have the right to status reports about your case once every four to six weeks. If you don’t know the status of your case and your lawyer won’t tell you, it’s time to find a new lawyer.
You have the right to get answers from your lawyer in writing within a reasonable time of your request. You have the right to meet or speak with your lawyer within 3-5 business days of your request (unless the lawyer is engaged in a trial at the time of your request).
If you are my client, you will receive “The 3 Rules for Communication” that explain how to communicate with my team members and the rules for communicating with me via email, telephone, and face-to-face. It’s very simple: we will always be accessible to you, but only at scheduled times.
Why do we only take scheduled telephone calls? Each client is entitled to uninterrupted service. When we are interrupted during the day to answer unscheduled telephone calls, we are doing a disservice to all our clients—including you.
If your lawyer will not meet or speak with you within that timeframe, it’s time to find a new lawyer. You have the right to a face-to-face meeting with your lawyer if you prefer a meeting instead of a telephone consultation.
Right #5: You have the right to insist you not be responsible for case expenses if you lose your case
I’m sure you’ve seen lawyer advertisements reading, “No fee if no recovery.” This sounds good but is basically meaningless.
In contingency fee cases, like yours, the lawyer is not entitled to a legal fee if you lose your case. So, of course, “no fee if no recovery.”
However, your lawyer can insist that you pay the case expenses, also known as “disbursements,” if you lose your case. The case expenses can range from $15,000 to over $100,000.
If your lawyer insists that you pay the case expenses at the end of the case, and you lose your case, you could be forced into personal bankruptcy. Not what you expected when you heard “no fee if no recovery.”
But there is great news for you! Your lawyer can agree in writing that you will not be responsible for the reimbursement of case expenses at the end of the case if you lose your case. It’s in every one of our contracts.
You should insist that the contract you sign with your lawyer contains a provision that specifically states something like:
Client is not responsible for reimbursement of expenses incurred by the client’s lawyer in the prosecution of the case if there is no recovery by settlement or judgment.
Only with such a statement in the retainer agreement will you be protected from a substantial debt at the end of your lawsuit.
You should make sure your lawyer includes this paragraph in the retainer agreement. Otherwise, if you lose your case, you could be faced with personal bankruptcy.
If your lawyer won’t include this information in the agreement, fire them!
Right #6: You have the right to an itemized list of all case expenses at any time
If your lawyer is doing their job, they will spend money for filing fees, expert witnesses, medical records, depositions, deposition transcripts, and travel, including flights and hotels to meet with and depose experts. You won’t even realize that this money is being spent, but it is necessary for the lawyer to do their job.
But I will let you in on a little secret: this is your money.
If they’re spending the money now before a settlement or verdict, how is it your money? At the end of the lawsuit, you will have to reimburse your lawyer for the case expenses. So, you want to make sure that your money is being spent wisely.
You have the right to a complete, itemized list of the case expenses at any time. The ledger will show the date of every case expense, where the money was spent, the amount of each expense, and the purpose of the expense (for example, “complaint filing fee”).
Remember, this is your money and at the end of the case, you will pay these bills by reimbursing your lawyer. Your lawyer should provide an itemized list of every case expense, and be able to explain why they spent the money.
Right #7: You have the exclusive right to decide whether to settle your case
Let me let you in on something very important: you are the boss. You decide whether to settle . . . not your lawyer.
Your lawyer is acting as your agent. They aren’t allowed to settle your case without your consent.
Now, you can’t go completely overboard. You will not dictate how we handle your lawsuit on a day-to-day basis. Those day-to-day decisions require our professional judgment.
That’s why you hired a lawyer.
But when it comes to the ultimate decision whether to settle, lawyers can only make recommendations. You can accept or reject them, even if that means ignoring our advice.
Your lawyer cannot force you to settle. Period.
Our clients can get a written evaluation of the strengths and weaknesses of their case. Our written valuation of your case will have a monetary figure showing the absolute lowest amount that we will recommend as a settlement (the “bottom line”) and the figure that is the “goal” of the settlement negotiations.
Why do we do it this way? Our job is to make your decision easier, not more complicated. You can only make a good decision if you have good information.
Your “net recovery” is the only number that should matter to you when you consider a settlement. Your “net recovery” is the amount of the check that you will receive after all expenses (case expenses, legal fees, and liens and subrogation claims).
For example, if your case settles for $300,000 with $20,000 in expenses, a $10,000 lien from Medicare, on a 40% contingency fee, your “net recovery” will be $150,000:
$300,000
– 120,000 (40% legal fee)
– $20,000 expenses
– $10,000 lien
= $150,000 to you (“net”)
Liens and subrogation claims are when Medicare, Medicaid, or a private insurer insist on being paid back for care they paid for, if you recover. You have a right to be kept informed of the amount of the liens and subrogation claims throughout your lawsuit.
Right #8: You have the right to insist upon absolute confidentiality
You place a lot of trust in your lawyer. In some cases, clients have told us things that they would not tell anyone else in the world. You have the right to insist that EVERYTHING you tell your lawyer is strictly confidential—not just verbal communication, but all written correspondence and emails between you and your lawyer.
Your communications with your lawyer and their staff are protected by the attorney-client privilege. This means your lawyer must keep their mouth shut about them.
If you are my client, you have the right to get a written “Rules for Protecting your Privacy Rights” explaining how your medical records and privacy rights will be safeguarded by my team. “Rules for Protecting your Privacy Rights” explains how your confidential information is handled within our law firm.
If you question the integrity of your lawyer, or think they are not honest with you, you should terminate the attorney-client relationship. If your lawyer is not honest with you, it’s time to find a new lawyer. Your lawyer has too much confidential information about you not to be trustworthy.
If you believe your lawyer has been dishonest, unethical or lied, you should file an ethics complaint against your lawyer with your state bar association. The Office of Disciplinary Counsel reviews complaints against lawyers and protects consumers against dishonest lawyers.
Your complaint must be in writing. You must include 1) the name of the person making the complaint, 2) the name of the attorney against whom the complaint is being made, and 3) the basis for the complaint. In Ohio, a complaint form for lawyers may be obtained from the Office of Disciplinary Counsel, 250 Civic Center Drive, Suite 325, Columbus, Ohio 32215-5454 or from your local bar’s grievance committee.
There are some limits to confidentiality—like if you tell your lawyer about how you’re going to hurt someone—that do not probably matter to your case.
Our Promise to You
When you hire Eadie Law, we promise to honor your rights, and to treat you with dignity and respect.
You have my word on it!
William Eadie
Nursing Home Injury Lawyer