There are many questions that you must ask and answer, or have answered
for you, before engaging an
attorney. To shape these questions, you should consider the following
subjects before meeting with an
attorney or beginning the negotiations about your engagement agreement.
1. Defining The Legal Services You Want And Need.
You must be clear in your own
mind why you are seeking legal services and be able
to state clearly the work you would like to
have performed. You must formulate, before meeting
with an attorney, what you want for an
outcome.
While you probably do not know all of the alternatives
available to you to achieve your
outcome, your attorney should tell you about them
before you retain him/her. You simply should
not select an attorney or negotiate a fee arrangement
unless you have defined the legal services
you want and the outcome you expect.
During the first interview, your attorney should
tell you whether your expectations are
reasonable. If she doesn't, you should specifically
ask how reasonable your expectations are.
Ask how much it will cost and how long it will take.
Then get it in writing. Remember, if an
attorney guarantees an outcome, leave immediately.
There simply are no guarantees in this
business. But you can expect an honest and detailed
plan about what your attorney will do to
achieve the outcome you want. Get the plan in writing
in your engagement agreement. Have
your attorney redraft the scope of work until it
is satisfactory to you.
2. Selecting The Right Attorney. As strange as it
might seem to you, attorneys are still
not allowed (by their ethics rules) to tell you
they "specialize" in a certain area of the law. Yet
you will probably want to select an attorney who
is a specialist. You want an attorney who has
spent her professional life learning the intricacies
of the area of law you want her to perform in.
You want an attorney who doesn't have to look up
the law at every turn, but really "feels" the
legal principles of the given area through her fingertips.
There is much less room for error and
you will have a better advocate by retaining a specialist.
Unfortunately, many attorneys present themselves
as "generalists." They imply that they can
help you with any problem, when this is not true.
And they have no hesitancy, as they should
have, about taking a case into court even if they
are not skilled at oral argument before a judge,
or trying cases before a jury.
There are three facts that you must consider before meeting to interview an attorney:
First, no attorney can master
the constantly changing law in each specialty area, let
alone understand how it
affects all of the problems people and companies
encounter.
Second, all attorneys, in
fact, limit there practice to a great extent, perhaps spending
most of their time working
in one or a couple of defined areas.
Third, attorneys often receive
a referral fee, or something equivalent to it, for
sending you to another attorney.
So you should pre-screen the candidates you interview
by finding an attorney who specializes
(the permitted descriptions are "concentrate," "exclusive
practice," or "limited practice") in the
type of work you need. Specialty areas include the
following:
1. accident/personal injury
2. admiralty/maritime law
3. appellate work
4. bankruptcy
5. civil rights/discrimination
6. commercial/corporate/partnership/business law
7. copyright/patent/trademark
8. criminal law
9. entertainment law
10. estates/wills/trusts
11. employment/labor law
12. family/adoption/matrimonial/divorce law
13. health law
14. immigration & naturalization
15. insurance law
16. international law
17. landlord and tenant matters
18. legal malpractice
19. medical malpractice
20. other professional malpractice (accountants, architects,
etc.)
21. products liability
22. real estate law
23. securities law
24. social security/other economic benefits
25. tax law
26. trial practice
27. workers' compensation
These specialties are even more narrow than they
might seem from this list. Some attorneys do
just plaintiff's or defendant's work in one or more
of these specialty areas. Some only represent
landlords or tenants, not both. Some women lawyers
have developed a reputation for
representing aggrieved wives. The narrowing goes
on and on. Be sure to check out this next
level of hidden specialization during your interview.
The listing of attorneys in the yellow pages is about
the worst way to start your search for the
right lawyer. Simply said, all attorneys are not
equal no matter what the yellow pages imply.
And the size of the yellow page ad only reflects
how much an attorney is willing to spend on
marketing, not competence.
Probably the best way to identify an attorney is
through someone you know and trust,
someone you know for sure is not getting a referral
fee. Find out just what the attorney did for
your friend, and why he thinks the attorney is good.
Of course, if your friend recommends the
attorney just because he returned phone calls, while
important, it's not enough of a
recommendation. Also, if the recommended attorney
handled a products liability case for your
friend, that probably won't do you much good if
you're looking for a matrimonial lawyer. At
the core, find out if your friend had the same sort
of problem you have. And be sure he had a
personally satisfactory experience, not just in
outcome — since one of the parties in litigation
will necessarily "lose" — but in an open, honest
and trusting relationship with that attorney.
Get several names, and interview each attorney carefully.
3. Paying For Your Legal Services. There are four
ways to pay for your legal services:
(A) A Contingent Fee. Here,
your attorney will take his payment, typically
one-third of your recovery,
from the ultimate settlement or judgment. He gets
nothing, and neither do
you, if he loses. You will be expected to pay for all costs,
like court fees, deposition
costs, investigation costs, and the costs of experts, along
the way.
(B) An Hourly Fee. Here,
you pay for your legal services at some agreed upon
hourly rate as you go along.
As with a contingent agreement, costs are also paid by
you as your case moves along.
(C) A Flat Fee. With this
option, your attorney provides a specific service for an
agreed upon amount of money.
Out-of-pocket costs made by your attorney may or
may not be factored into
the flat fee.
(D) Some Mix Of a Contingent,
Hourly, or Flat Fee. This option is becoming
something of a trend in
response to the negative perceptions of attorneys' billing
practices. Here, you combine
two or more of the payment structures to design a
unique fee schedule for
your case. For example, you might pay an hourly fee up to
a certain amount and then
your attorney continues the work on a contingent basis.
4. The Screening Interview. Before you engage an
attorney, you must conduct an
extensive face-to-face interview. You must measure
the chemistry of your relationship, look at
her office, and carefully negotiate a plan of action
for your matter. As part of the interview,
you must discuss and agree upon the scope of work
and your arrangements for payment. It
shouldn't hurt to ask the attorney if he's ever
been sued for malpractice, or had a disciplinary
complaint been brought against her. If it does hurt,
you might want to reconsider your options.
In order for your attorney to obtain all of the information
from you that is necessary for her to
consider all of the alternatives to achieve the
outcome you expect, to design a plan with you,
and to reach an agreement on fees, your interview
may occur over several visits and take
several hours. However, these might be the most
important hours you ever put into any
undertaking. So, even if you have to pay for the
time to have your case evaluated and to design
the right plan for you, it could be the most important
investment you ever make. Only your
care and diligence at this point will minimize the
dangers and risks that lie ahead.
5. Insurance Coverage. You should never hire an attorney
who does not have legal
malpractice coverage. It should be the first question
you ask during your first interview. If the
answer is no, don't waste everybody's time, just
say thank you and leave. You can do it
tactfully by simply saying we told you to do it
this way, no further explanation necessary. As
set out above (at "Suing Your Attorney"), you inherit
a nightmare if your attorney makes a
mistake and has no coverage. You also want to be
sure that the policy has enough coverage to
fully compensate you if your case is ruined. You
also don't want the deductible to be too large
because your attorney will be paying that amount
out of his own pocket. These issues are so
important to you that you cannot just take your
attorney's word for it. You must receive a
copy of the "declarations sheet," if not the entire
policy. It should be referred to and attached to
your engagement agreement. And as one of the terms
of this engagement agreement, you must
require that a copy of the new declarations sheet
is sent to you each time your attorney's policy
is renewed. Put the date in your diary and be sure
that you receive it each year.
6. Your Engagement Agreement. You should never receive
legal services unless they
arise out of a written agreement that is dated and
signed by your attorney. The contract should
not be a "form" document, but rather one that has
been uniquely designed for your case and
one where every term has been explained to you,
and you approve. At a minimum, you must
include the following:
(i)
A specific case management plan setting out the scope of work, with
target dates for performance of the anticipated legal services;
(ii) An estimate of total costs to be paid based on the information known;
(iii)
A precise description of your obligation to pay and your attorney's
obligation to send you monthly statements detailing the work he has
provided;
(iv) A statement about any increase in the hourly rate;
(v)
An obligation that your attorney contemporaneously provide to you
every document sent and received in your case;
(vi)
An obligation to carry legal malpractice insurance up to a given
amount;
(vii)
An obligation to attach the current declarations sheet to your
engagement agreement and an obligation to send on a copy of it each
time the policy is renewed; and
(viii) An obligation to arbitrate any fee dispute, if that is what you want.