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Consumers Guide from Veteran Lawyer About Dealing With Lawyers

This is Jim Milliken's page. I take sole responsibility for its content.

Notwithstanding all the lawyer jokes and bad press, the premise of this page is that a good lawyer can help you a lot and that money carefully spent on legal fees is well spent. You know this is the case, instinctively, because you know that big business makes extensive use of lawyers.

I am going to try to help you deal with lawyers and get the most for your legal dollar. I have something to say now (below), and will have more to say later, so please feel free to stop by again. If advice from a lawyer about how to deal with other lawyers will be helpful to you (and I think it will), this site is worth a bookmark.

My thoughts about the general relationship between lawyers and the public may be helpful to you as background for this subject, although they are not specific advice as to how to get along with a lawyer and get the most you can from that relationship. Some specific advice is as follows: 

1. Pick a lawyer you feel comfortable with.

It seems obvious, but many clients forego the ability to communicate for perceived (rightly or wrongly) competence, or a feeling that the lawyer will be aggressive. 

2. Honesty and straight forwardness.

Your lawyer should level with you about the lawyer's areas of expertise, and should be willing and able to rank order (roughly) the lawyer's experience and expertise in other areas. A lawyer should tell you what he does often or well, or doesn't really like to do. If there is no area of the law the lawyer doesn't know, beware: a lawyer should be able to admit there are matters the lawyer can't or shouldn't handle, and should be willing to refer you to somebody else on such matters.

3. Look for some degree of specialization.

One of the reasons there is such a wide range of cost for incorporating or forming a limited liability company, for example, is that lawyers who don't do that type of work often naturally take more time to get the job done. If you are paying by the hour, and that is the prevailing measure of the cost of legal service at this time, then more time obviously means more money. Just because the lawyer forms corporations efficiently, however, is no reason to assume that the lawyer will create living trusts efficiently and inexpensively. Once a good relationship is established, clients will often ask me whether I would do a living trust for them, or a collection matter, or sometimes even a divorce. I don't do divorces or collection matters, and I tell them so. I can do a living trust, but not nearly as efficiently as I can form a corporation or an LLC, and I don't really want to do living trusts.

When you came to a lawyer because the lawyer performs a specific type of work competently and efficiently, both you and your lawyer should avoid expanding the representation into areas where the lawyer's degree of expertise is significantly lower. You should be able to develop the kind of relationship with a lawyer where the lawyer will tell you, candidly, the pros and cons of that lawyer representing you in a different area of the law.

4. Understand conflicts of interest.

Clients often do not appreciate the question of conflict of interest. The stockholders of a new corporation may ask a lawyer to draft an agreement setting forth their respective rights and responsibilities. They quite often want to come into the office as a group, and have the lawyer listen to them and "write-up" such a contract. Doing so involves a built-in conflict of interest, and is dangerous for the lawyer, because each of the parties sitting in that room is likely to think the lawyer is looking out after his or her individual interest. Don't put your lawyer in this position even though you may think you will save money by doing so. There are other ways to accomplish the same purpose at comparable or less cost. Moreover, if there is ever a dispute between the parties, the lawyer can't represent any of them, and each and every one of them is likely to think, at one time or another, that the lawyer was in cahoots with the others.

5. Carefully define what you want your attorney to do.

If you ask your lawyer to review one of those twenty page, fine print leases, remember that the lawyer is going to have to spend a lot of time reading the lease at standard hourly rates. Don't just say "I just want to know if it's all okay", say "I understand paragraphs 1, 5, 8, 12, 13, 15, 16, and 17, but I have specific questions I'd like to ask you about the other paragraphs when you have reviewed them." Every lease will contain a certain amount of factual material which you can understand as well, if not better than, your attorney. You've seen the premises, and have a better idea whether they are accurately depicted in the section of the lease describing them. Having the lawyer review what you already know is a waste of money.

6. Don't expect perfection.

The only person I know of who won all of his cases was Perry Mason. The rest of us have to live with a set of facts which was created before the client ever came into the office, and those facts are sometimes good and sometimes bad. Some lawyers can make more out of bad facts than others, but a poor lawyer with very good facts should defeat a good lawyer with very bad facts. 

7. Be cognizant of the difference between office lawyers and litigators.

If your lawyer is an office lawyer who has never ventured into court, be wary of going to court with him or her on a maiden voyage. Similarly, don't ask an insurance defense lawyer (a "litigator") to give you tax advice. There are lawyers who are fluent in office work and litigation as well, just as there are people who are fluent in more than one language. The languages of litigation and office work are not romance languages, however, and there is not a lot of spillover between the two. An office lawyer who ventures into a contested matter has to put on his litigators hat and duke it out with the litigator on the other side.

8. Be as precise as you can about your fee understanding.

Accept it on faith that lawyers dislike fee disputes just as much as you do, and are generally eager to set up a fee arrangement which will keep everybody happy, even if it results in some reduction in the amount they would otherwise receive. Fixed fees can be used for incorporation because the lawyer knows exactly what needs to be done, but it is simply not possible to quote a fixed fee in a contested matter or where discretion as to whether or not the work is done rests in the client or in some third party. You may be able to make a better deal, once you have some experience with a lawyer, by paying in advance and letting the lawyer bill against that retainer. Since the bad debt question is a real concern to lawyers, you should expect some concession if you eliminate that possibility.

9. Develop a good working relationship with your attorney.

Remember that your lawyer is supposed to (by training) come as close to perfection as possible in representing you. This chase for perfection takes time, and time is money. Law schools don't say money is no object, they just don't talk about it. Lawyers are left to themselves to figure out how to balance taking the time needed to assure the best result with the need to earn money to pay overhead and earn a living. It is immutable fact that money is always an object, and that perfection is impossible. You and your attorney must work out, between yourselves, an acceptable balance between cost and perfection. You simply can't expect 100% certainty at any cost, and you should recognize that there is a point of diminishing returns in the cost versus certainty equation.

10. Deal with differences promptly.

If you don't have to have continuing involvement with another person, differences can often be swept under the rug. If you do have a continuing involvement with anybody, including your lawyer, the differences should be dealt with before each side has the opportunity to heap upon the other all the frustrations clients have ever had with lawyers, or lawyers have ever had with clients. Both you and your lawyer should remind yourselves of the old litigation adage that a bad settlement is better than a good lawsuit.

If you come this way again, you may find (if I find when I re-read this material that I have something useful to add) additional advice on dealing with lawyers. Such additional advice will be added at the end, not because it is less important than what came before, but simply so that you can read the new information (at least if you know where you stopped before) without having to wade through the information you have already read. 


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