A reader wrote in to ask us two questions about changing his case and potentially hiring a new lawyer. While the first question’s more specific, the second one applies to many blog readers that ask us for advice. He asks: “Can I switch from a class action suit to a mass tort and switch lawyers? I signed with a lawyer and I get zero info from them. I have received nothing though the mail, so I called and asked about possible settlements again and received no info. Basically, they said it could be years away and they will let me know. (In other words, don’t call us, we will call you.) I haven’t received a copy of what I signed with them.” First, we’ll answer the more general question and then talk about class action vs. mass tort case options.
Question #1: Can I Get a New Lawyer If I’m Not Happy With My Current One?
The answer is yes, you can probably get a new lawyer if you’re unsatisfied with the one you have now. However, you really should explain to your current attorney that you are unhappy, and why. This gives your current representative the chance to fix things with you before you fire that person outright. We say this because you cannot avoid paying your current lawyer for any work already completed on your case. While it’s true some cases take years to resolve and pay settlements, it’s unusual to withhold copies of signed documents.
Steps To Fire Your Current Attorney & Hire a New Lawyer
Follow these steps to terminate your current representation and hire a new lawyer:
- Request a copy your signed legal retainer. If you don’t have this document (as you said), say you intend to terminate their services. Explain that unless they provide these documents, you intend to seek new counsel and refuse any payment. Refusing to provide copies of signed documents or communicate regularly with clients is unprofessional and unethical.
- Once you have that retainer, read it carefully for a termination clause. The retainer you likely signed is essentially an employment contract. There should be something called a “termination clause.” If it exists, that section should explain the terms for ending your contract.
- Hire a new lawyer before you fire the old attorney and explain what’s going on. It takes time to get your new lawyer up to speed on your case. The clock’s still ticking on your Statute of Limitations, so you cannot afford to waste time!
- Ask your new lawyer to draft a termination letter to the old attorney. You must sign a formal termination letter and send it via certified mail to fire your old lawyer. This provides proof the firm signed to receive your letter delivery. Include full contact info for your new lawyer and request they provide a copy of your complete legal file.
- Pay any balance you owe the old lawyer immediately. Your ex-attorney may refuse to release your case files until after you make this payment. This is 100% legal, and you cannot avoid paying for services already rendered.
- Notify the court you have a new lawyer, if applicable. This likely doesn’t apply to your case, but it might for others. If you already filed court paperwork, notify the judge you have a new lawyer.
Question #2: Can I Switch From Class Action to Mass Tort?
Honestly, no — you can’t swap class action for mass tort. And that doesn’t matter for getting a new lawyer, either. Class action and mass tort cases aren’t interchangeable, like some people think. In a class action lawsuit, every claim must be identical. For example: You bought a box of 116 crayons, but four are missing when you open it. This is true for all crayon boxes shipped that day, so 60 customers demand refunds. That’s an ideal class action: Everyone received four fewer crayons than they paid for and deserve the same refund.
Mass tort lawsuits state every injured party must sue same defendant. In other words, everyone who files a Zantac or talcum powder claim must sue the same manufacturer. You might think, “Well, if we all got cancer from Zantac or talcum powder, isn’t that a class action lawsuit?” No, and here’s why: Class action cases pay every plaintiff an equal settlement amount for identical claims. Mass torts pay each defendant a unique settlement amount based on that individual’s unique losses. Here’s an example:
- Plaintiff A is childless and gets terminal ovarian cancer at 70 after using talcum powder daily for 30 years.
- Plaintiff B has three children and gets mesothelioma at 38. However, Plaintiff B started using talcum powder 30 years ago as a child gymnast.
Both plaintiffs have terminal cancer, but different diagnoses. And while both prove talcum powder gave them cancer, a jury may award them different amounts. In a class action, Plaintiffs A and B must receive identical settlement payments. Mass tort lawyers calculate settlements using different factors, such as lost lifetime earnings, pain and suffering, etc. The proposed settlement amount for a 38-year-old parent is quite different than that for a 70-year-old childless plaintiff.
Lori Polemenakos is Director of Consumer Content and SEO strategist for LeadingResponse, a legal marketing company. An award-winning journalist, writer and editor based in Dallas, Texas, she's produced articles for major brands such as Match.com, Yahoo!, MSN, AOL, Xfinity, Mail.com, and edited several published books. Since 2016, she's published hundreds of articles about Social Security disability, workers' compensation, veterans' benefits, personal injury, mass tort, auto accident claims, bankruptcy, employment law and other related legal issues.