Switching Wrongful Death Lawyers in Texas

Can you change lawyers in a Texas wrongful death case?

Yes. In Hoover Slovacek v. Walton, the Texas Supreme Court held that a client may discharge a lawyer for any reason. If suit is on file, the new lawyer asks the court to substitute counsel under Rule of Civil Procedure 10.

Families in grief often stay with a lawyer they are unhappy with because changing feels like one more burden. We try to make it simple. Beverly Law’s Texas wrongful death cases are handled by our Texas-licensed attorneys, Joyce Ondich and John Efstathiou. You will find the general steps in our Texas switching guide.

Who controls a Texas wrongful death claim

Texas allows a wrongful death action when a death is caused by another’s wrongful act, neglect, carelessness, unskillfulness or default (Civil Practice and Remedies Code § 71.002). The claim belongs to the surviving spouse, children and parents of the person who died (§ 71.004(a)). Any one of them may bring it for the benefit of all (§ 71.004(b)).

If none of them has filed within three calendar months after the death, the executor or administrator must bring the action, unless all of those family members ask that it not be filed (§ 71.004(c)). When families switch lawyers, the new lawyer has to confirm who signed with the old firm, who is a named plaintiff and whether every eligible family member is accounted for. A family member left out can cause trouble later.

Wrongful death and survival claims are separate

Texas also has a survival action. The injured person’s own claim does not end at death and passes to the heirs, legal representatives and estate (§ 71.021). The survival claim covers what the person suffered before death, while the wrongful death claim covers the family’s losses. Damages from the wrongful death claim are divided among the eligible family members as the jury decides, and they are not subject to the debts of the person who died (§§ 71.010, 71.011).

A new lawyer should check that both claims were filed if both apply, and that someone has authority to act for the estate. Our page on survival actions vs. wrongful death explains the difference.

What else the new lawyer must catch up on

• The autopsy report, death certificate and medical examiner records.
• The police or crash investigation file, including any criminal case against the person responsible.
• Every insurance policy that might apply, including the family’s own uninsured/underinsured coverage in a vehicle death.
• Proof of the person’s earnings, household help and role in the family.
• Funeral and final medical bills, and any liens on them.
• Physical evidence such as vehicles, products or equipment. If a truck was involved, carrier logs may only be kept six months under federal rules, so preservation letters matter.

The Texas wrongful death deadline

A wrongful death suit in Texas must generally be filed within two years, and the claim accrues on the date of death (§ 16.003(b)). If a government unit is involved, it is entitled to notice within six months of the incident (§ 101.101). A change of lawyers does not pause these dates. Read more on our Texas wrongful death deadline page.

How fees work when a family switches

Switching your family’s case to Beverly Law does not raise the fee. Anything the first lawyer is owed is paid out of our fee, so the family is not charged twice. Costs the first firm advanced, such as expert or records fees, are normally repaid from the recovery like any case cost. If there is no recovery, the family owes us nothing.

Texas law asks why the change was made. A lawyer let go without good cause may claim the contract fee (Mandell & Wright v. Thomas), limited by the unconscionability rule in Hoover Slovacek. Where the lawyer neglected the case, Rocha v. Ahmad caps what that lawyer can recover at the reasonable value of the work done. We review this with the family first.

If the family already signed a release and the case settled, we cannot reopen it.

When family members disagree

Sometimes one family member hired the first lawyer and others feel shut out. Because § 71.004 lets one eligible family member sue for all, the others still have a stake in the result and in how the money is divided. A new lawyer should talk with each eligible person, explain who the plaintiffs are, and keep everyone informed. Where interests conflict, separate counsel may be needed. Our page on wrongful death damages explains what each person may recover, and our switching guide covers the general process.

Getting a second opinion

If the family has questions the current lawyer will not answer, such as who the plaintiffs are or whether a suit has been filed, ask in writing first. If that goes nowhere, we offer a free review in English or Spanish. Contact us through our contact page.

Sources

1. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557 (Tex. 2006) (courtlistener.com)
2. Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex. 1969) (courtlistener.com)
3. Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App.—San Antonio 1984) (courtlistener.com)
4. Texas Rule of Civil Procedure 10 (txcourts.gov)
5. Tex. Civ. Prac. & Rem. Code § 71.002 (statutes.capitol.texas.gov)
6. Tex. Civ. Prac. & Rem. Code § 71.004 (statutes.capitol.texas.gov)
7. Tex. Civ. Prac. & Rem. Code § 71.021 (statutes.capitol.texas.gov)
8. Tex. Civ. Prac. & Rem. Code §§ 71.010, 71.011 (statutes.capitol.texas.gov)
9. Tex. Civ. Prac. & Rem. Code § 16.003 (statutes.capitol.texas.gov)
10. Tex. Civ. Prac. & Rem. Code § 101.101 (statutes.capitol.texas.gov)
11. 49 C.F.R. § 395.8(k) (ecfr.gov)