HOW TO CHOOSE A LAWYER
By David E. Wood
(Mr. Wood is the principal member of Wood & Associates, a California law firm.)
For most people, hiring a lawyer is something to be avoided like open-heart surgery. As a
result, finding the right attorney for a particular job is often done in a whirlwind of
activity surrounding the crisis that generates the need for counsel in the first place --
not the best environment for making a well-reasoned decision.
A simple rule of thumb is to choose a lawyer just like you would choose a doctor. Ask
yourself what ails you. Do you need a general practitioner or a specialist? Is the
treatment routine, or does it require years of experience to administer properly? Do you
know someone who has suffered the same condition, who felt that his or her doctor did a
good job? You do not want to place your life in the hands of the wrong doctor, so where do
you go to find the right one?
A legal dispute has all the trappings of a medical crisis. First and foremost, it hurts --
ask anyone who has gone through a trial. Second, the nature of the problem dictates the
kind of professional and the level of experience you need. Third, although a sympathetic
ear will never substitute for smarts and good training, a little bedside manner will often
go a long way toward making you feel better.
A. What Kind Of Lawyer Do You Need?
Most people need lawyers for one of two reasons: (1) To protect their interests in a legal
dispute that already exists; or (2) to protect their interests in a manner calculated to
prevent legal problems from arising. In choosing a lawyer, ask yourself first into which
category you fall.
If you are not in the middle of a dispute, and need an attorney for planning purposes, you
probably already know it. To have a will or a trust prepared, most people consult estate
planning attorneys. To have a partnership or corporation documented in such a way as to
take full advantage of the tax and other benefits of these forms of ownership, most people
have a attorney prepare the necessary documents. The purpose of having a lawyer involved
is to ensure satisfaction of all legal requirements for achieving a certain result (i.e.,
an enforceable contract, employee policies calculated to bring the employer into
compliance with state and federal law, a loan that can be enforced against real estate in
the event of a borrower default, etc.).
Not involving an attorney can save you money in the short run. There are many how-to books
that can guide you through the intricacies of a divorce or a bankruptcy without the
expense of a lawyer. Choosing this alternative is, however, never risk-free. A single
mistake can result in consequences far more costly than the attorney's fee. Deciding
between an ounce of prevention and a pound of cure is a function of your financial
realities and how much risk you are willing to stomach.
If you are in the midst of a dispute, whether or not it has degenerated into a lawsuit,
you probably need an attorney with experience "litigating" (i.e.,
bringing or defending a lawsuit) lawsuits from start to finish. Many litigation attorneys
have sub-specialties in certain areas, such as child custody disputes, real estate
problems, banking litigation or automobile accidents. However, litigating lawsuits is a
sub-specialty by itself. If the dispute in which you are involved is relatively simple, a
good litigation attorney should be able to handle it regardless of subject matter. More
complex disputes call for more complex knowledge. If your matter involves special
expertise that cannot easily be mastered in an afternoon at the library, do not hire a
lawyer whose learning curve you will pay for. Choose a litigator who has training and
experience in the area, who has a leg up on the subject matter from the start of the
representation. Kinds of cases in which specialized knowledge is helpful include insurance
coverage disputes, professional malpractice, defective construction, and environmental
hazards.
Many attorneys call themselves litigators, but have never actually been to trial. This is
because over 90% of all lawsuits settle before trial, and when a trial is necessary,
clients seek out the lawyer who has been in front of a jury before. If there is any chance
your case will result in a trial, look for a trial lawyer (i.e., an attorney who
has tried many cases and is comfortable in the courtroom). While every trial lawyer has to
represent someone in his or her first trial, do not be that person -- your matter
is too important to be a learning experience that may or may not turn out well.
Many disputes begin long before a lawsuit is filed, and if handled properly, can be
resolved quickly and cost-effectively without ever visiting a courtroom. Because the
litigation process is so expensive to conduct, arbitration and mediation have become
popular as alternative means of resolving legal disputes without the cost of litigation.
Having your attorney involved early in the dispute can help avoid a headlong rush to the
courthouse, and attendant expense.
Many other disputes go straight to litigation. If the paper boy trips on your property and
is injured, the first time you become aware that he claims you are responsible is when you
are served with a summons (a one-page document issued by the court commanding you to
respond to a lawsuit) and complaint (a multi-page document setting forth the aggrieved
party's basis for suit). If you receive such documents, do not panic. Contact a lawyer
immediately to ensure that you do not give up your right to contest his allegations by
responding too late. Keep in mind that most lawsuits, although they appear to be intensely
personal attacks on the defendant, are really a claim against the defendant's insurance
company, or an expression of anger and frustration, or simply a roll of the dice aimed at
gaining a possible payoff. In choosing the right lawyer to handle such a matter for you,
look for the person who is smart and experienced in litigation and the subject matter the
litigation concerns, and who uses this knowledge to puts you at ease. Litigation is at
best a nuisance and at worst a heart-wrenching low-point of life. Select the attorney who
will act as a skilled and honest guide through the badlands.
B. About Lawyer Advertising.
Many people do not know personally an attorney to ask for a referral when they need one.
These have nowhere to go but the various vehicles for lawyer advertising: The Yellow
Pages, the Services Directory in the classified section of the newspaper, highway
billboards and bus-stop benches, and so on. Judging by the sheer number of these ads,
there are a lot of people who choose a lawyer through one of these media.
Do not be one of them, if you can possibly avoid it. Advertising is a process of
manipulation. The idea is not to give the consumer a accurate, balanced picture of the
good or service being advertised. The only goal of any advertisement is to get the
consumer to make contact with the advertiser -- by telephone, by mail, by internet or in
person. Once contact is made, then the sales pitch begins. There is nothing wrong with
either advertising or sales pitches. Promotion is the engine that drives whole sectors of
our economy. But while you should expect to participate in a sales ritual when you buy a
car or a stereo, choosing a lawyer is different. You will be entrusting your assets, your
peace of mind, your business, and maybe even your freedom to your attorney. Select a
lawyer as you would a business partner or best friend. You do not expect these people to
be perfect. They must only be right for you in terms of their personal and professional
capabilities.
Attorney advertising was, until relatively recently, forbidden by attorneys themselves,
who are the state bar. Freedom of speech concerns have overridden the profession's sense
of propriety. The regulations governing what a lawyer can and cannot represent to you boil
down to a relatively simple admonition: Do not say anything that is not true or that could
be misleading. Unfortunately, this leaves a lot of room for shallow, irrelevant, and
downright tasteless advertising.
Because you want your lawyer to be honest and skillful, the process of selecting one
should focus on these two characteristics. Ask your friends, associates and business
colleagues about lawyers they know. Did the attorney know what he or she was doing? Was
the job done well, and for a reasonable price? Was the lawyer approachable, fair-minded,
and forthright? These are not questions that can be answered by an ad.
If you do not have access to a personal referral and must go to lawyer advertisements to
find an attorney, use a simple vetting process to narrow the field. Ignore all ads for
lawyers who promise to be honest, to represent you fairly and aggressively, and to recover
for you all the compensation you have a right to. Every lawyer is bound by the rules of
attorney ethics to be an honest, zealous advocate. Courts and juries, not lawyers, decide
what compensation you have a right to, and what you have a right to may be exactly
nothing. These promises are empty ones, designed solely to get you to make contact so that
a sales pitch can begin.
Look for the advertisement that tells you something valuable with which to evaluate the
attorney. If you are looking for a tax lawyer, the ad that says that Attorney Smith is
former in-house counsel for the Internal Revenue Service gives you valuable information
about her experience and training, that is useful in the selection process. Also, look for
the ad that gives away something that you need, such as a telephone number to call for
recorded information about what to expect if you are arrested for driving under the
influence, or a pamphlet describing how a creditor should protect its rights when its
customer goes into bankruptcy. Beware the web site, the display ad, the Yellow Pages entry
full of glowing self-promotion. Any lawyer can talk about him or herself. The lawyer who
lets his or her experience, work product or clients speak for themselves is the one you
want.
C. Professional Certifications And Associations: What Do They
Mean?
Many lawyers decorate the walls of their offices, and adorn their marketing materials,
with certificates and plaques from a variety of professional associations to which the
attorney belongs. There is nothing sinister about a lawyer who is actively involved in his
or her profession. Look out, however, for the lawyer who offers the bare fact of
membership in such associations as some indication of quality of his or her work. Most
professional groups are joined simply by paying a membership fee, for which the lawyer
receives a commemorative certificate.
For example, for an attorney to belong to the American Bar Association requires no more
than payment of annual dues. For an attorney to be admitted to practice in several states,
he or she must simply pay extra bar fees and submit to the same background check that he
or she has already passed in the home jurisdiction. Most would agree that being a member
of the American Bar Association is a useful endeavor by which a lawyer can enrich his or
her professional life through contact with lawyers with similar interests. Being admitted
to practice in multiple states would be very useful if one has clients in other states.
These should not be confused with professional qualifications.
Some professional groups do perform quality-based analysis of their members, rigorously
testing skills to ensure that the attorney is worthy of certification. Ask your
prospective lawyer what it took to earn the certification in question. How was the lawyer
evaluated, on what basis and by whom? If the certification is indeed a badge of honor,
rather than a distinction bought for a fee, the attorney will be eager to tell you all
about it, and you will come away from the discussion with a thorough understanding of not
only the significance of the certification, but also the lawyer's expertise.
Some professional certifications are not merely pay-as-you-go, but also do not reflect an
objective analysis of the lawyer's talents. For example, Martindale-Hubbell (a worldwide
directory of attorneys that businesses often use to research lawyers' backgrounds) issues
ratings of attorneys and law firms. An "AV' rating from Martindale is considered very
prestigious. This rating is not, however, based upon any objective indicia of quality --
it is conferred solely upon what other lawyers and judges say about the lawyer or firm
being rated.
When considering whether a lawyer's professional affiliations mean anything, ask him or
her what it takes to be a member. If the answer involves anything other than an
examination of the lawyer's written work product, beware.
D. Where Did The Lawyer Go To Law School?
The bar examination is difficult, but passing it does not mean one is a good lawyer. What
really makes a competent attorney is the caliber of legal education he received in school,
the kind of experience he gains in the field before meeting you, and his ability to
communicate effectively both verbally and in writing.
Did the lawyer go to an accredited law school? More often than not, graduates of
unaccredited schools take the bar examination a number of times (there is no limit) before
passing it. More often than not, graduates of accredited law schools take the examination
only once, and pass it then. There is no hard and fast rule about accredited versus
unaccredited schools, or about how many times one takes bar examination. There are
excellent attorneys in practice who attended unaccredited law schools. Similarly, many
very good attorneys failed the bar examination the first time they took it. If one keeps
failing on multiple occasions however, the question arises whether this is an indication
of understandable mistakes coupled with test-panic, or something more fundamental. It is
fair to say that your chances of obtaining competent representation increase, perhaps
significantly, if you stick to graduates of accredited schools who passed the bar
examination on one or two tries.
E. What Costs Does The Attorney Bill You For?
When an attorney says he will expect you to pay "costs" in addition to a
professional fee, this refers to "litigation costs" like the filing fee the
court charges to initiate or respond to a lawsuit, the cost of serving documents in the
case (which means postage, except for the initial summons and complaint which requires a
process server), long-distance telephone charges and travel expenses necessary to the
suit, and the cost of copying at a reasonable rate. Litigation costs also include the
expense of hiring an expert to consult on a matter requiring specialized knowledge beyond
the scope of a lawyer's knowledge, jury fees one must pay to the court to get a trial by
jury, and transcript fees payable to the court reporter. In short, costs properly include
any expense that, had the attorney not been working on your case, would not have been
incurred.
Sometimes, the line between what would and would not have been incurred anyway is a blurry
one. Some law firms underwrite their overhead by adding hidden fees to their bills in the
guise of litigation costs, or using the incurring of litigation costs as a profit center.
For example, it is entirely reasonable for your lawyer to charge you a per-page cost for
photocopying that approximates the raw cost to the firm, say 10 or 12 cents per page to
cover the cost of paper and copier supplies. Some lawyers charge 25 cents per page or
more, effectively shifting to the client the cost of leasing the office space on which the
copy machine sits, and paying a salary to the employee who runs it. These are overhead
expenses that should be included in the attorney's fee -- it is his cost of keeping his
business open, whether he is working on your case or not.
Similarly, some attorneys charge their clients a "document processing fee" (an
hourly or per-keystroke charge for use of the firm's computerized word processing system)
or "secretarial overtime charge" (a fee for overtime usually occasioned by poor
planning on the lawyer's part). Having a computer system, and having a secretary, or part
of the lawyer's overhead, and should not be passed onto the client by any means other than
the attorney's fee -- not litigation costs.
F. Is The Attorney Equipped In A Way That Best Serves You?
Operating a law practice takes a lot of equipment: An office, a law library, a computer, a
copy machine, and more. When you first enter a law firm, ask yourself whether the things
you see are there to help the lawyer serve you more efficiently, or are there solely to
impress or to make the attorney more comfortable. Bear in mind that it is your fees that
are paying for the equipment and trappings you see, and how the are chosen says a lot
about how the attorney thinks and practices the profession.
For example, does the firm have spacious offices and conference rooms, sumptuous
furnishings, expensive artwork on the walls, fresh-cut flowers on tables and bone china at
the coffee service? If so, count on the billing rates to be sky-high. For a wealthy
clientele that expects to pampered when visiting the firm, this kind of opulence may be
part of the image it demands from its attorneys, who are only to happy to oblige. Make no
mistake, however: The client pays for the level of luxury the firm maintains.
There is no crime in maintaining a comfortable office space. Attorneys tend to work long
hours, and are as entitled as anyone else to have a user-friendly working area. But
comfort should also be efficient. If the attorney's individual office is large and
lavishly-decorated, but the firm's reception area is dingy and cramped, then the client's
needs when visiting the office have been neglected.
Some lawyers still use a dictaphone to create documents, keeping a secretary to perform
transcription, instead of using a computer. When asked, they will swear that dictation is
not more time-consuming (and therefore more costly to the client). They say they
"think best on their feet," that they can organize documents effectively by
memory during the dictation process, and that their secretaries type faster than they do.
These are, quite simply, excuses for not learning to type, to use a word processing
program, and to generate documents from scratch. When a lawyer does these things for
himself with a modicum of skill, they take no time at all, and yield a work product far
faster and more accurately than speaking into a dictaphone. Any lawyer who still clings to
outdated methods of practicing his trade is costing his clients money.
A more recent development in high-tech lawyering is computerized legal research. The way
most attorneys were taught to perform legal research is slow and cumbersome. Find and read
the background source (such as a treatise, or a digest of legal rules). Then find and read
the most-often-referred-to cases. Then trace the history of the rules of law analyzed in
those cases from the past to the present, noting and studying each incremental change
along the way. Finally, look up all cases that have referred to the rule to make sure it
has not been overturned by a higher court in a more recent decision. The process requires
going back and forth from book to book, reading through the entire text of each segment of
material before moving on to the next one. When actually studying the text, one aims to
gain an understanding of the rule of law being researched, while looking for key phrases
that accurately sum it up in order to quote those phrases in the summary one is writing
for the court or client. It is a dusty task, often performed by the lowliest lawyer on the
staff in a room (the library) leased specifically to house all the books, with large
tables upon which to stack them as one travels from volume to volume and back again to
trace the logical sequence of law supporting the point one is trying to make.
Computers have changed all this. Today, books are obsolete, and have been replaced by
CD-ROM's holding vast amounts of information, that can be searched and cross-referenced at
the blink of an eye. The background reading is done on-screen, with each footnote or other
reference to cases or statutes linked to their corresponding source materials. The tracing
process from source to source is lightening fast. Whole libraries-full of information can
be searched by asking the computer to pull out all authorities using certain words in
close proximity to each other. What once required whole rooms to store (and remember who
pays for all the space via attorney fees) can be placed in the hard drive of a single
computer. The arduous process of finding and synthesizing piles and piles of books can now
be completed in minutes.
It used to be that once the authorities one needed were piled on the table, one either
wrote or dictated the document analyzing them while sitting in front of the pile, copying
the quoted sections from books so that one's secretary could transcribe them. Now, one
downloads the necessary information literally as one reads it. For the lawyer who is
computer-literate and generates his own documents, computerized research is like having
another set of hands. He would no more go back to book research than he would ride a horse
to work instead of driving his car, charging the client for the added time.
Many lawyers have databases available that perform bits and pieces of legal research by
computer, usually via expensive retrieval services like Lexis or Westlaw. These services
charge steep access fees on a per-minute basis that attorneys pass on to their clients.
Few lawyers have weaned themselves entirely from books. Those that have typically license
whole libraries of legal authorities from legal source publishers, load them into a single
source and use very sophisticated search engines not only to do their legal research, but
to perform a wide variety of functions from creating court forms to storing and
summarizing deposition transcripts. These techniques not only increase the accuracy of the
lawyer's work, they substantially reduce the time spent doing it and, therefore, cost the
client less.
G.
When In Doubt, Use The Smell Test.
If all else fails, and you have no choice but to select a lawyer on faith alone, pay
attention to your gut feelings about the person. Is he or she sincere? Does he or she
speak directly and to the point? Do others seems to think well of him or her? Is he or she
a hard worker? Is he or she both a competent lawyer and a good human being? Listen to your
intuition. Do not be afraid to keep on looking. If the attorney is not someone you would
feel entirely comfortable recommending to your grandmother, beware.
Your choice of an attorney will speak volumes to the world about you. If you choose a
lawyer who mirrors your values, chances are he or she will articulate those values in all
actions taken on your behalf. In the world of lawyers, judges and juries, where peace of
mind among clients is scarce, you will be well-positioned to navigate the challenges of
the legal system with confidence.
1. TRUST
Finding attorneys you can trust can be very difficult and even recommendations from
friends do not make a lawyer reliable. Checking with the State Bar will at least ensure
that the attorney has never been disciplined and is licensed to practice. Finding out what
schools the lawyer graduated from, what bar associations he or she is a member of and how
long he or she has practiced are also helpful. This, of course, will not guarantee that
the attorney you choose is trustworthy but it should help reduce the risk of retaining a
dishonest lawyer.
2. LOW PRICES
In accident cases, price is not usually a consideration because most cases are taken on a
"contingency." This means that the lawyer takes a percentage of the settlement
or court award when payment is made. Since most lawyers charge the same percentages, the
usual difference is whether the lawyer charges you for medical bills from your own
insurance company. These costs can be considerable so it is a good idea to find out
exactly what you are charged for and when it has to be paid.
3. COMPETENCE
Competence is something usually best determined by someone familiar with the field. But
asking one attorney about another attorney's competence, and getting an honest answer is
unlikely. The usual gauge is the amount of experience a lawyer has. While this certainly
does not mean that an experienced lawyer will be competent, it should reduce the
possibility that your lawyer will make obvious mistakes. Another way is to find out if the
attorney has malpractice insurance and what the limits are since insurance companies will
not usually insure a lawyer with a history of claims against him. Or if they do insure him
it will be for smaller amounts.
4. PERSONALIZED SERVICE
Personalized service can be very important when you are trying to find out what happened
on your case and your attorney will not return your calls. This may sound funny but it is
the most frequent complaint people have about their lawyers. Service means answering a
client's questions and doing so in plain English. During your first interview with a
lawyer or paralegal, see if he or she responds to your questions in a way that you
understand. A lawyer who tries to show off with a lot of legal jargon that you cannot
understand is not doing his job of keeping you informed.