By: Matthew Tievsky
A relative of mine (call him “Evan”) who was wrongfully terminated
by an unethical employer. Evan believed that he had some potential legal
claims against his old employer, for its illegal behavior. Evan recently
came to me, looking for help in picking a lawyer to obtain compensation
from the employer, based on these legal claims. My relative was particularly
interested in one lawyer, and Evan showed me the lawyer’s standard
retainer agreement (the contract he regularly signs with his clients).
According to the retainer agreement, the lawyer was willing to negotiate
with the employer, in an attempt to settle the case without any lawsuit.
Under the retainer agreement, the lawyer was entitled to collect a percentage
of any settlement reached. If a settlement could not be reached, then
the lawyer would charge no fee. However, in addition, if a settlement
could not be reached, the lawyer did not agree to file a lawsuit for Evan.
Instead, Evan would have to find another lawyer to file a lawsuit, if
I advised Evan not to hire this attorney, even though he otherwise seemed
competent. I gave this advice for a few reasons. The attorney would only
be paid if he settled the case without a lawsuit. This created an incentive
for the attorney to settle the case for too little compensation for Evan,
even if Evan would win more money through a lawsuit. I was afraid that
the lawyer would not be sufficiently aggressive on Evan’s behalf
-- for this and another reason. A lawyer who can’t or won’t
file a lawsuit in a case, is unlikely to fully understand what the result
would be if a lawsuit were filed. But a lawyer trying to settle a case
without a lawsuit, has to know how successful a lawsuit would be –
that’s the only way to figure out what qualifies as a good settlement.
Chaikin, Sherman, Cammarata & Siegel, P.C., will not take a case and
try to negotiate a settlement, unless the firm is willing to file a lawsuit
if a settlement cannot be reached. If you have been wrongfully injured
by another person or as a result of another person’s negligence,
contact one of our attorneys for a free consultation.