Anybody can change their solicitor at any time. I have previously looked at how to change your solicitor, but there are some issues that you will need to consider before making that important decision.
One important issue is who pays the costs of your current solicitor? Whilst your case file belongs to you, your solicitor has the right to hold on to it until their costs are paid. This is called ‘exercising a lien’. It is the same principle as a garage not handing over your car keys until the repairs have been paid for.
Clearly, most people will not be in a position to pay those costs, which if the claim has been ongoing for some time, could easily amount to several thousand pounds. However, there is a method that solicitors usually use in this situation which hopefully keeps everybody happy and it works like this. The new solicitor will give an ‘undertaking’ (a binding promise) to the former solicitor that in return for them releasing the case file, they will preserve the former solicitor’s right to claim their costs at the conclusion of the claim. Once the claim settles, the new solicitor will then present both solicitors costs to the other party for payment.
Solicitors will almost always agree to release their file in return for an undertaking from the new solicitor as it gives them the best possible prospect of being paid, albeit at a later date.
Out of the frying pan…
Perhaps the most important issue however is whether you are totally confident that the new solicitor is going to do a better job for you. After all, you really don’t want to find that you have jumped out of the frying pan and into the fire!
This is a short checklist that may be of assistance in making your decision, although it is by no means exhaustive:
- Do your research thoroughly. The internet is a wonderful tool. I was recently contacted by a lady who had received a letter from a firm of solicitors recommended by her insurance company. She searched on the internet for the person who had written to her and found their Facebook page. The description of their lifestyle on Facebook was enough to convince her that she didn’t wish to be represented by this person – a lesson for us all!
- It’s vital to meet or at least speak to the actual person who will be dealing with your claim. Take a relative or friend with you or if it’s a telephone conference, let them listen in on speaker phone. There is no reason for the solicitor to object. Ask the person about their qualifications and experience and for examples of similar cases they may have dealt with in the past.
- Ask them for their proposed action plan. You really do need to know and understand what your new solicitor is proposing to do and why. If somebody contacts me I will almost always ask them to send me copies of any important documents and letters that they may have received from their current solicitor (for example, medical reports, advice letters, witness statements and schedules) as this will allow me to give a far better indication to the potential new client as to how I would propose progressing the claim if I take it over.
- Is the new solicitor confident that they can obtain interim payments for you? You may not be able to work, have medical treatment to pay for or have other financial pressures. In most cases the other party will voluntarily make interim payments. If they unreasonably refuse then your solicitor should consider applying to the Court for an order for an interim payment.
- Does the solicitor understand your condition? Ok, they’re a lawyer not a doctor, but a specialist solicitor should have at least a good basic understanding of your condition, treatment options, appropriate medical specialists etc.
- Ask the solicitor whether they use medical agencies to obtain medical reports. This is rarely a good idea. A good solicitor will be able to identify the right medical expert or experts for your claim on the basis of personal experience, rather than having to rely upon a third party agency. In the same way a good solicitor should confirm that they will carry out a thorough review of all relevant medical records before they are sent to the medical expert, in order to ensure that the medical expert is specifically asked to address all relevant issues in their report.
- This is a very basic one – after all this discussion, do you actually feel confident in the abilities of the person you have met or spoken to? If not, don’t instruct them. Remember, it’s the solicitor’s privilege to have you as a client, not the other way around. You are in the driving seat!
Finally, one point to note, which usually results in a great sense of relief to the client, is that once you have decided to change solicitors, you will not need to have any further contact with your former solicitor. The new solicitor will contact them on your behalf.
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