Very few people have regular experience hiring lawyers. In fact, many business owners consult with an attorney when they go into business and when they sell the business, but rarely in between. That is unfortunate, because the expression “an ounce of prevention is worth a pound of cure” is rarely more apt than in the case of a person or business that waits too long to engage legal counsel. For those who want or need to retain counsel, finding and hiring is not easy. Most clients know afterwards whether they made a good choice, but there is no foolproof way to decide in advance. This article will help to provide some guidance.
You go to a lawyer because you have a problem or because you want to prevent a problem. Lawyers have bills to pay and firm goals to meet in terms of billing. The question, then, is whether your lawyer is focused on solving your problem, or whether your lawyer sees your legal needs as a way to solve his problem. Two lawyers might get the exact same results, but the cost and methods might be substantially different. Even a good outcome is of limited value if it comes at too great of a cost.
If you need documents prepared, many lawyers will provide you with a fixed price. Hiring a lawyer for litigation is more difficult, however, because there are many variables that are outside of your lawyer’s control. Some people think that the answer is a contingent fee lawyer who only gets paid a percentage of the success. The first problem is that contingent fees are not allowed in criminal or family law matters and are not really an option when the lawyer is hired to defend a claim against you. The second problem is that a contingent fee might give an attorney too much interest in the outcome of your litigation. A case that might be worth $100,000 at trial is, almost by definition, worth substantially less in settlement because there is a risk of getting nothing. As a result, a contingent fee lawyer can do almost no work and yet might be able to settle a case for 50 to 80% of its value. Thus, if a lawyer can get $20,000 (one third of a hypothetical $60,000) for doing no work, and going to trial involves some risk and an upside of only $13,333 (because the lawyer would get $33,333 on a $100,000 judgment), there is little reason for a lawyer to do anything other than settle. That’s good for the legal system as a whole, but it may not be good for you when your hired gun doesn’t want to fight.
Here are some recommendations for hiring a litigator:
- Ask for a strategy and a budget. Litigation costs are difficult to predict because they depend on what the other parties do. That being said, your attorney should be able to provide a plan. Grandiose descriptions of the discovery to be taken and motions to be brought excite some people, but a lot of it might be busy work. Many lawyers boast about bringing motions to dismiss or motions for sanctions and then complain about getting a bad judge when the motions are not granted.
- Ask who will be handling your case. Most clients want to hire a lawyer, not a law firm. They may like the fact that the firm has other lawyers and resources, but they don’t want to find their case being passed down to someone with less experience than the attorney that brought them in the door. More importantly, ask how many lawyers are going to be working on it. There are very few cases that justify having more than two lawyers – a seasoned veteran and a less expensive research and administrative person. If the law firm is going to assign more than that to your garden-variety case, you should be concerned that it is trying to find ways to keep people busy.
- Get referrals from people who have actually used the attorney. Referrals from accountants or other lawyers can be helpful, but keep in mind that those people are probably hoping for referrals in return. Thus, they may have no actual experience using the lawyer and they may have an ulterior motive lurking in the background.
- Do not be influenced by things such as “Superlawyer” status. The likelihood that someone makes the list is affected as much by self-promotion as actual talent. The suggestion that Superlawyers are voted to that status by their peers wrongly suggests that every lawyer fills out an annual survey. To the contrary, the voting consists largely of groups of lawyers who all agree to vote for each other.
- Ask questions to determine whether the lawyer has handled similar things. The fact that the lawyer has no prior experience in the particular area is not necessarily determinative, as a lawyer handling an issue for the first time may have insights that a veteran overlooks. You do, however, need to know if you are going to be paying for your lawyer’s education. Also, while lawyers are not likely to give you names of clients as references, you can ask about similar cases and use the public record to learn more about the outcome or even to contact the prior clients.
- Request the right to approve tasks and budgets at all stages of the proceedings. Everything should involve a cost-benefit analysis, and you should be involved in that process. There are a variety of things that attorneys might do in big cases involving millions of dollars, but they are probably not worth the expense in most cases. For example, doing extensive analysis of the propensities of the presiding judge, the backgrounds of potential witnesses, and the experience of others who are similarly situated may reveal some helpful information. On the other hand, it may cost several thousand dollars and be of no value.
- Do not assume that the person with the highest hourly rate is the best lawyer. There is a tendency to believe that cost and quality go together, but that is only true in an efficient market. Hourly rates are not generally advertised, and legal services are far from a commodity. Thus, the fact that an attorney has a high hourly rate may not reflect anything other than the attorney’s own opinion or desire.
- Be aware that lawyer’s fees are not absolute. There is a provision of the Rules of Professional Responsibility that limits fees to what is reasonable under the circumstances. Most fee agreements do not provide for a reduction of fees for a bad outcome or bad service, but most lawyers will factor those things into their billing. Some will only do so if you raise the issue.
- Find a disinterested sounding board. Some clients believe they want to take an aggressive position and the lawyer has little incentive to disabuse them. As a result, it may be useful to find a confidant who is not as emotionally invested and who may, therefore, give you good feedback about the strategy chosen.
- If you have concerns, do not wait too long to consult other counsel. Courts do not generally let you start over just because you hire a new lawyer. Thus, if you wait too long, the new lawyer may be handicapped in handling the matter. On the other hand, if you think a lawyer has committed malpractice, there may be reasons to let the lawyer try to overcome the malpractice. For example, if you retain a new lawyer part way through and the end result is bad, there may be a dispute as to which attorney is at fault for the bad result. If you have a bad lawyer, therefore, there may be situations where you do not want to change lawyers at a particular time. That determination should be made with the input of a lawyer (who you retained after considering the items in this article).
Do not let a bad experience with a lawyer keep you from contacting lawyers in the future. Instead, use legal resources when necessary, and do what you can to control the situation to assure a better experience.