Ask The Judge

Judge Frank R. Bayger

Judge Frank R. Bayger


Ask the Judge – Question #9

Dear Judge Bayger:
I’m really miffed at my lawyer. Over a year ago, I fell off of a ladder after it slipped while I was repairing my neighbor’s roof. I was trying to do someone a favor, but the ladder he provided didn’t stay in place. Anyway, I got a lawyer, and at first he seemed happy to have me. He talked about suing my neighbor’s insurance company, the store he bought the ladder from, and the company that made the ladder. That was then. Now, I call to check on the progress of the case, and I rarely hear anything. He doesn’t return my calls, and when I get a call back, it’s usually his assistant. What can I do to get his attention? Sincerely,
John Q. Annoyed

It is not for you to get his attention. It is incumbent upon him to earn your business. In a previous column, I have touched upon the concept of changing lawyers in the middle of a case. Allow me to now elaborate further.

As I explained before, in a typical personal injury case, an attorney is bound tocharge 33.33% on a contingency basis, which is the percentage he can take out after the trial or settlement of the case. This percentage is not a random figure; it is set by the Rules of the Unified Court System. It makes no difference whether you have one attorney or three. If the case is resolved in your favor, you will collect 66.7% of that award. It will be up to the attorneys to figure out how they are going to split the remaining 33.33%.

This is important because the power is truly in the hands of the client, not with the lawyer, as some would have you believe. You always have the option of changing attorneys, particularly if you are not satisfied with the service you are receiving. The client is the boss. A qualified attorney is an advisor; a well-educated, knowledgeable guide to be certain, but he or she works for you. Their job is to meet your needs, not the other way around.

Without knowing more facts, I cannot say whether or not your ladder case has merit, but you should discuss the case with your attorney to find out how they view the case,and if they have a viable approach towards resolving it. If they are unable or unwilling to discuss their plan with you, you have every right to pull your file and go to someone who will respect your opinion and your time.

This is not so much about getting a second opinion as it is getting peace of mind. Being involved in a lawsuit is a stressful event. Your lawyer should be a supportive partner in this endeavor, not some distant functionary who cannot be bothered to talk to you. I consider it a privilege to serve my clients, and others within this profession would do well to remember the same.

(Retired State Supreme Court Justice Frank R. Bayger is inviting you to submit legal questions pertaining to personal injury or wrongful death cases to him for a published response. Email your questions to Judge Bayger, a Hall of Fame trial lawyer, and the judge will respond in writing in the Niagara Falls Reporter. Send your email to or write to the Law Firm of Frank R. Bayger, P.C., 2578 Niagara Falls Blvd., Niagara Falls, NY 14304.)


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