“Should I replace my employment attorney?”

Question: I have an employment attorney and I’m not happy with how he’s handling my case for many reasons.

For one, he’s real short with me and rushes me off the phone. Two, I had a long deposition and he didn’t take any notes or cross examine me. I don’t think he’s taking my case very seriously.

Is that normal for an attorney not to cross examine in a deposition? I mean, we were there for six hours, and they asked me tons of questions.

Would it make any sense to find a new attorney at this stage?

Pueblo, Colorado

Answer: Dear Alonzo:

I believe that the relationship between a client and an attorney is based, first and foremost, on trust. It is the essential ingredient that is more important than any other. And, by the way, because this is a two-way relationship, it goes “both ways.” That is, both participants need to feel that trust. Of course, it is the client who must always come first. 

I have been an attorney, but I want you to know I have been a client, as well. While I do not know all of the facts, events and circumstances, here are my thoughts.

a. First: Ask yourself, “Are my requests for telephone time reasonable?” To my mind, whether you are “rushed off the telephone” is less important than the larger issue of “Have you been able to sufficiently communicate about the essentials of your case?” Clients involved in a litigation are often bewildered, confused, frightened and curious – just as are patients being wheeled into surgery. Since lawyers are involved in the litigation process so often, they tend to forget the client’s perspective, which is not a good thing for anyone. Lawyers who do that frequently are simply not good lawyers, to my mind. 

At the same time, some clients want to speak with their attorneys each day, for hours at a time, at times as a kind of “therapy.” Last year I had a client call me at home Saturday night at midnight to ask me if we could talk on Sunday, and if so when, so he could plan his day. Though he woke me up, he proceeded to ask me questions about strategy. I kid you not. At the same time, there are days I receive as many as 50 telephone calls; when this happens, I must keep conversations brief.

You know, in your heart, if your requests have been reasonable. If not, try to keep them reasonable. If your requests have been reasonable, read on.

b. Second: Consider setting up a regular communications schedule. If you have been reasonable in your requests, and they have not been met, may I suggest you ask your attorney to meet for a brief time in person or by telephone to set up a schedule – perhaps each Friday, at 2:00 pm – to keep you abreast of developments. You might also ask to have a weekly summary by email of events, if any, and thoughts about strategy. You may also ask your attorney to appoint one of his staff to do so.

c. Third: The fact that your attorney did not ask cross-examination questions at your deposition is not a problem; I rarely do so. The reason behind your deposition by opposing counsel is to afford opposing counsel the opportunity to gather information. The more questions asked of you – by either attorney – the greater the chance is that you will give over that information. The only really good reason to cross-examine at a deposition is to help you clarify your answers, what attorneys refer to as “rehabilitation.” Should your attorney ask you any questions, that might just help opposing counsel think of things that he or she forgot to ask, or to go into entirely new areas of questioning. Unless absolutely necessary, I don’t cross examine in depositions.

I understand a client’s feelings of frustration at depositions if their attorney fails to act like the opposing counsel. It’s for this reason that I counsel them beforehand not to expect me to cross examine. 
d. Fourth: It may be difficult to find an attorney to come in to your case at this time. It is sometimes difficult to find an attorney to come into a case that is half-done. That’s because the way one attorney would start a case is often quite different from the way another might do so. If your attorney is working on a percentage-of-recovery fee, often called a “contingency” fee, it may be a bit of a challenge to divide up the recovery between the incoming attorney, the outgoing attorney and you. Challenging, but not impossible. It’s something to consider carefully.

If you would like to obtain a Model Letter to be used to obtain information from a potential new employment attorney [click here].

Overall, you should always have an attorney in whom you trust. If problems have arisen, try to iron those out. If you cannot do so, consider changing attorneys, but do so with care and consideration for each person’s interest and perspective. Every single attorney – including me – has been replaced by a client. It’s no cause for shame. The only shame is to have a client not confident in his or her advocate.

Hope this is helpful. Please consider telling your friends about our blogsite.

My best to you,
Al Sklover

P.S.: If you would like to obtain a list of five or more experienced, “employee-side” employment attorneys in your city, just [click here]. Delivered by Email – Instantly!

© 2011 Alan L. Sklover, All Rights Reserved.