8 What About an Attorney?

Jim had been confident that he could handle his own case. After all, he was just collecting on an unpaid business account. Jim knew that his competitors generally used a certain attorney in town who specialized in collections. But Jim had done some online research and found court forms for collections cases. The forms didn’t look that complex. And so he filled them out, took them to the courthouse, and found the right court clerk with whom to file them. But the clerk rejected them, explaining that Jim had used the wrong forms. The clerk also said something about the judge not letting a non-lawyer represent an incorporated business because law practice required a license. Jim hadn’t thought of that.

Representation

Most lawsuits benefit from lawyer representation. Many lawsuits, including those involving corporate parties, frankly require an attorney. Court procedures are technical and complex. Simply the challenge of correctly pleading your case, in the written complaint that you file in court to start your lawsuit, can take considerable law knowledge and skill. You must then correctly serve the defendant, file proof of service, make required disclosures, initiate and respond to discovery requests, file and respond to pretrial motions, attend pretrial conferences, and prepare pretrial disclosures, all just to get to trial. The trial itself requires another complex set of technical actions. Judges may somewhat indulge an unrepresented party, but not much. Judges and court clerks must not give legal advice. Without an attorney, you may well lose your case on a technical issue, not even reaching its merits. Except for small-claims court, think hard and clearly before proceeding without representation. It’s at best an uphill battle.

Fields

Law is sufficiently broad and complex that attorneys tend to focus their practices in certain fields. You won’t find many attorneys that practice both civil and criminal law, or that mix a litigation practice with a transactional practice, at least not for the bigger and more-complex cases. And within those broad categories, you’ll find a lot more specialization. In civil litigation, attorneys may focus their practices on cases involving only personal injury, medical malpractice, products liability, employment law, commercial litigation, or family law. You may also find attorneys who have niche practices focusing on cases involving banking law, construction law, securities law, civil rights, police excessive force, discrimination, school law, labor law, and a host of other niche fields. If you have a niche case involving an unusually technical subject, then seek a niche attorney. Attorneys will generally advertise the fields in which they practice. You should be able to tell from a website biography the attorney’s practice fields. Word of mouth among friends and acquaintances can be a big help, too, to locating a skilled and trustworthy attorney.

Choice

You may have a choice of attorneys. If so, factors to consider in making the better choice include the attorney’s experience, standing, and reputation in the field. New attorneys can have current law knowledge and fresh ideas and energy. They may also need clients and accordingly work harder, communicate better, and charge lower fees. But if your matter requires special tact, influence, and judgment, more than just basic skill and interest, then your attorney’s experience, standing, and reputation may matter more to the success of your case. Years in practice, large verdicts or ground-breaking wins, law-firm leadership, and bar-association service can together indicate higher standing and reputation. Check the state bar association listing for any attorney whom you are considering, to confirm that the attorney has no discipline against the attorney’s license and is in good standing. Ask around town, among friends and acquaintances, about the attorney’s reputation. Schedule an initial consultation to see how you and the attorney get along and what the attorney thinks of your case. If you’re still unsure, ask the attorney for former clients who can give the attorney a reference. Do your research, trust your instincts, and go with your gut.

Agreement

Attorneys are generally required to put their fee agreement in writing for you. Read the writing that your attorney presents to you. Ask the attorney to explain anything that you do not understand. If you need time to review and think about the agreement, then ask to take it home rather than signing it immediately. Terms to examine especially closely include the amount of the fee or manner of calculating it, whether payment is due in advance or upon billing, whether the attorney is advancing case expenses, the fee due if you terminate the representation, whether the representation includes defending counterclaims, and whether the representation includes appeals. If you are married and have a personal-injury claim, determine whether the attorney is also representing your spouse on your spouse’s loss-of-consortium claim. If you own a business involved in your matter or have business partners, determine if the attorney is representing you individually, your business, your business partners, or all of you.

Payment

Attorneys conducting litigation generally work for hourly fees, fixed fees, or contingency fees. An hourly fee requires the client to pay for the attorney’s time. If you retain an attorney on an hourly basis, get an estimate of the expected time to be sure that you can afford the fee and that the fee makes sense against your lawsuit’s value. Request monthly billing, and examine the monthly bills as soon as received to track the billed time against the estimate. Speak with your attorney if the time is exceeding the estimate. Monitor and control hours as best you can. A fixed fee, by contrast, pays the attorney a single agreed-upon amount to conduct the whole litigation. Negotiating a fixed fee can eliminate your risk of having to pay hourly for protracted litigation. A contingency fee, generally available only in cases seeking a damages recovery, pays the attorney a percentage of your recovery. Statutes and ethics control the maximum percentage, generally anywhere from as high as 40% to as low as 15%, depending on the state or federal law, the type of litigation, and the stage at which the litigation resolves. You may also be able to negotiate a lower percentage, especially if you have a higher-value case with clearer liability. Examine closely the manner for calculating the percentage fee including case costs. 

Cooperation

Expect to cooperate fully with your attorney. Keep your attorney advised of any change in your telephone, email, address, or other contact information, including if you are going to be out of reach for any extended time. Read promptly every communication that your attorney sends to you, and respond promptly as your attorney requests. Don’t leave your attorney hanging. Delays in your responses, or incomplete responses without the information or authorization that the attorney requests, can compromise your case. It can also undermine your attorney’s confidence in your commitment to your case. If you don’t show your commitment to your case, your attorney may likewise give it a lower priority or may simply be unable to prepare the case in the diligent manner that it deserves. The client’s willingness to cooperate with the attorney may be the single greatest factor in the success of a case. Conversely, the other side can often tell when an opposing party and the party’s attorney are not getting along and will use that division to the opposing party’s advantage. 

Accountability

You have the right to question your attorney regarding things that you do not understand or with which you disagree. Lawyers and their clients do not always agree. From an ethics standpoint, the client has the right to decide whether to proceed with a case including whether to settle the case. If you don’t want to settle your case for an offer that your attorney believes is reasonable and that you should take, that decision remains up to you. Listen to your attorney, showing due respect. But you decide. It’s your case. At the other end of the spectrum, though, the attorney generally has the right to decide how to conduct your case, at least in its details. Don’t critique your attorney’s every move. Your attorney deserves a degree of trust and respect to deploy the skills for which you hired counsel. In between, on larger issues like which court in which to litigate, whether to demand a jury, and which claims to present, hope that you and your attorney agree. You may have the right to call the major shots, and your attorney may well seek your input, approval, and authorization. Hold your attorney accountable to pursuing your goals and objectives. But beware major disagreements. Don’t put your attorney in a position of seeking court permission to withdraw from the litigation for your failure to cooperate. Such a request can thoroughly undermine your case. 

Termination

Most attorney/client relationships continue until the natural termination of the litigation. If you prevail on a damages claim where you owe your attorney a contingency fee, your attorney should provide you with a detailed written accounting showing how your attorney calculated the fee, for you to review and approve. The state bar may have a mechanism available to resolve any disagreement you have with your attorney over the fee’s calculation. Don’t hesitate to question an hourly billing that you believe to be inaccurate or that you don’t understand. Attorneys will correct and adjust fees to fairly reflect the fee agreement. If you and your attorney are unable to get along during the course of the litigation, you retain the right to terminate the representation. Beware of doing so unless you have other representation immediately available to you. You could compromise your lawsuit if you remain unrepresented for any time. Terminating your attorney can also look bad to the other side, reducing the settlement value of your case and encouraging the other side to fight even harder. 

Grievance

In the worst case, in which your attorney does something that you believe to be wrong and unethical, you have the right and opportunity to file a grievance with the state bar’s disciplinary commission. Of course, you would ordinarily not make any such accusation until the representation concluded, by your termination of the attorney’s representation or your case’s natural conclusion. The disciplinary commission will investigate your grievance if it appears to have potential merit, giving your attorney the chance to respond and explain. Do not use a grievance or threat of a grievance to manipulate your attorney for any purpose. Threatening a grievance indicates that the relationship already lacks the trust and confidence that it needs to accomplish your litigation goals. Try instead to work things out with your attorney or, if you cannot, then to retain other counsel in whom you can place your trust and confidence. Beware, though, of accusing one attorney of misconduct and then trying to find another attorney. Word gets around. You may not find another attorney available.

Counsel

If you made a good choice of attorneys, then rely on your attorney not just for representation in your lawsuit but also for counsel. Lawyers generally regard themselves as attorneys and counselors at law. The representation services that your attorney provides to you in pursuing or defending your lawsuit have their own value. You may seldom speak with your attorney, and yet your attorney may bring about a very successful conclusion to your litigation. But on the other hand, you may speak frequently with your attorney, getting substantial valuable guidance from your attorney whether or not you prevail in your litigation. Indeed, the greater value of representation is sometimes in the counsel, not the representation. You may learn valuable things from your attorney about your business, family, and self. Attorneys can make great mentors and guides because they can accumulate a wealth of experience helping individuals and entities in disputes of many different circumstances and kinds. Draw on your attorney for more than just representation. Learn judgment, discernment, and wisdom.

Reflection

Do you already know the attorney whom you expect to retain for your lawsuit? Do you have full trust and confidence in that attorney? Did friends or acquaintances recommend that attorney? Have you checked that attorney’s state bar record for discipline? Does that attorney practice in the field or niche of your lawsuit’s subject? Do you have a written fee agreement with your attorney? Do you understand its terms? What fee would you owe your attorney if you terminated your attorney in the middle of the case? Does the fee you expect to pay your attorney make sense relative to the amount you expect to recover in your lawsuit? Can you respect your attorney’s decisions on how to manage your lawsuit? Does your attorney appear to respect your decision on whether to settle your case and for how much? Does your attorney appear ethical in every respect? 

Key Points

• Most lawsuits of substantial value benefit from lawyer representation.

• Choose a lawyer whose practice focuses on your lawsuit’s specific field.

• Research and meet with your lawyer before retaining your lawyer.

• Your lawyer should present and explain a written fee agreement.

• Know how you are paying your lawyer, and keep fees reasonable.

• Fully cooperate with your lawyer, especially with prompt responses.

• You get to decide your case’s settlement, but listen to your lawyer.

• You may fire your lawyer, but don’t do so without a replacement.

• A client may pursue a grievance against an unethical lawyer.

• Rely on your attorney not just for representation but also for counsel.

Read Chapter 9.