The devil is in the details, as they say. Here are some of the important things you should consider when hiring a lawyer, or making sure you already have the right lawyer.
❏ Law School Education. Qualities of law schools vary extensively. Lawyers attending law schools ranked in the top 20 of the nation may, although not necessarily, be better educated and therefore better qualified to assist you than attorneys who attended schools ranked in the top 100, or unranked schools.
❏ Undergraduate Education. Undergraduate education can also have a bearing on a lawyer’s qualifications. A top ranked nationally recognized university or private college can often provide the necessary overall knowledge and skill sets that a person needs to be successful in law school, and then after, to be successful as an attorney. A good lawyer can’t just possess “lawyer” knowledge and skills; he needs counseling skills, always guiding the client in the desired direction. A solid four year undergraduate degree, with all of the varied knowledge and skills gained in obtaining the degree, are indispensable for the lawyer to understand his clients and act as their counselor with regard to the human side of people’s legal problems or needs.
❏ Years of Practice. Generally, the longer an attorney has practiced, the more experienced and qualified he is. “Practice makes perfect,” and law is no exception. Law is as much of an art as it is a business. In fact, just like there are, let’s say, five ways to successfully paint a landscape, there can easily be five ways, or more, to successfully approach a transaction or prosecute or defend a law suit. However, an experienced lawyer, in close coordination with his or her client, can narrow down to a select few which approach or approaches would match best the client’s needs. Also, because the first five years of a lawyer’s career are generally a steep learning curve of basic lawyering skills, it is a good idea when working with newer attorneys that a more experienced attorney oversees the newer attorney’s work. The flip side is that some newer attorneys have a drive and enthusiasm that cannot be matched by some of the more experienced attorneys. This enthusiasm and drive is sometimes what makes the difference in the outcome of a case. Therefore, it is important that when hiring an experienced, well-seasoned attorney, that he or she still have the necessary enthusiasm and drive.
❏ The Lawyer’s Office. A lawyer who has a physical office–versus a presence only through the internet, a post-office box or rented conference room–is often in a better position to meet his or her client’s needs. The legal profession is entirely people-based, i.e. it’s a “people business,” despite daily and weekly advances in technology. A very important task of a lawyer is to effectively gather information and communicate, which often require evaluating other people’s character and motivations, and when getting down to the nitty-gritty, the best way to do that is in face-to-face meetings. This is not to say that email and other forms of electronic and telephone communication don’t have a place, they obviously do, but when it gets down to involved negotiations or active litigation, there is almost no substitute to looking someone in the eye to gauge the person and situation, and to gather information.
❏ The Lawyer’s Appearance. We live in a society where people, including lawyers, are judged on their appearance. A lawyer is both the representative and spokesperson for his client, and therefore the lawyer’s appearance directly reflects on the client. A lawyer that has a neat appearance presents his client in a better light than a lawyer who is disheveled. Also, a lawyer that dresses nicely generally has more persuasive power than a lawyer that does not. A nice suit, with matching shirt and sharp tie, for a male attorney, and a nice blouse and matching skirt suit or pant suit, for a female attorney, is a must. The studies are many that show a direct positive correlation between a person’s appearance and his or her persuasiveness. That correlation is even stronger for an attorney, because people expect an attorney to have a nice appearance, and when they don’t, there is loss of respect and loss of influence.
❏ Organization. There are a lot of well-organized lawyers, but there are also a lot of disorganized ones. Hiring a disorganized lawyer is a big risk because he probably will treat your matter no differently than he runs the rest of his law practice, despite the otherwise good impression you may have of him. Why is organization important?. In litigation, there are a myriad of deadlines that are very unforgiving if missed, and action steps to take or else the case will not be developed. An organized lawyer will have the necessary case management system in place, and implemented, to always stay one step ahead. On the other hand, a disorganized lawyer can fail to execute even basic tasks, let alone meet important deadlines, both of which jeopardizes his client’s chances of success. The same goes for documenting a transaction. Society is becoming ever-more complex, including business and real estate transactions, and litigation. An organized lawyer can capture all of the necessary points and details that the transactional documents need, or that must be evaluated in a litigation matter, whereas a disorganized lawyer will often miss important points that sooner or later, when the matter plays out, can make a real money difference to the client, or more.
So how can you tell if the lawyer you are thinking of hiring is organized? There are several ways to get a good idea, but it’s not by asking the lawyer the grand finale question if he’s organized. Of course the lawyer will say yes! Rather, ask the lawyer to discuss a recent case or transaction he’s handled. Ask the lawyer to describe a) the nature of the case, b) the general action steps the lawyer took in representing the client, and c) what the lawyer did in that case to stay organized and a step ahead. Have the lawyer give you specifics as to how he stayed organized in the legal matter–not just generalities–such as file organization, transaction lists, case management software, calendar systems, etc. And try to get the lawyer to tell you, himself, those specifics–without you “leading” him–because then, what the lawyer tells you will be more accurate and usually more reliable, as to the lawyer’s organizational abilities than you putting words in his mouth.
Another way to tell if a lawyer is organized is to meet him in his office at his law firm, rather than in a conference room or at a Starbucks. You can learn a whole lot about a person by how he keeps his office, and his desk. This is not to say that the lawyer’s desk should look like the deck of an aircraft carrier; however, if there is a lot happening, it needs to be happening in an organized way, even if sometimes it’s an organized “chaos.”
If you get the impression that the lawyer is disorganized, ask the lawyer in a friendly, unassuming way how he can find his paperwork in his office, “because it seems like there is so much going on here,” or words to that effect. The lawyer may have a good explanation “to the madness.” But if you feel uneasy with his explanation, or the lawyer gets defensive, then the lawyer is probably not as organized as he should be, which is a red flag to consider before hiring that lawyer.
Another reason why organization is important for a lawyer (besides that then, there is a better chance that the lawyer will meet the necessary deadlines and perform the necessary action steps in the matter), is that an organized lawyer almost always projects a better impression than a disorganized lawyer does, and impressions are important., In a litigation matter, making a good impression on a judge and jury is very important. For example, there is nothing that a jury dislikes more than waiting a minute for an attorney to find an exhibit, when the attorney should have had the document at his finger tips within a few seconds. Similarly in a transaction, if the lawyer presents a first draft of a transactional document, to the other party, that does not contain all the necessary basic terms, with the lawyer later presenting another draft adding in the earlier missing terms, the other party’s frustration level rises, with a corresponding drop in respect for the disorganized lawyer (and the party he represents), which causes a weakening of the disorganized party’s negotiating strength.
❏ The Decor of the Lawyer’s Office.. When you go to interview an attorney, check out his walls. You can learn a whole lot about a lawyer by what pictures, bumper stickers, and art he has on his walls. In my office for example, one engraved-wood sign reads “My Barn, My Rules.” That should already tell you that in my law firm, which is “My Barn,” it’s my rules that count, not rules of someone else trying to dictate upon me, meaning, that I am a leader in my cases and will not be intimidated. If your seeking a tough litigator, that’s exactly the type of thing you want to see on the walls of your attorney’s office. On the other hand, if you are seeking a transactional attorney who needs to bring lots of people together who have divergent opinions, a sign like mine may show that the attorney is too divisive, unless you see other indicators that the lawyer can switch hats with ease, from litigator to transactional attorney, where the lawyer at times has to reach out and build a consensus.
Also on three of my four walls are several nature photographs that I took over the years. They contain scenes of mountains and waterfalls, and are in various “earth” colors. Most people feel a sense of calmness when looking at the pictures. That calmness is part and parcel of the way I practice law and relate to my clients, opposing counsel and others. If you are looking for an attorney who will stay calm, keeping his compass, even under the most stressful of situations, then you may have a good match if the attorney you are interviewing has those types of pictures on his walls. On the other hand, if you are looking for an edgy attorney that gives off an aura of tension and fear, you would probably be better served if the art on your attorney’s walls contained jagged lines and sharp colors. Both types of attorneys can get good results, just through different styles. On the other hand, if there’s no art or anything else of interest on the walls of the attorney’s office, other than, say, diplomas, the lawyer may not have a good balance between work and life outside the office, which may not bode well if you want your case, or position, presented in a well-rounded thoughtful fashion.
Also, even though this may sound corny, if you see pictures of the lawyer’s family in his office, like a picture of a spouse and children, that’s generally a good thing. People who have families generally have a different and higher sense of responsibility than people who are all alone. And often, a lawyer who can take on responsibility in one part of his life, like that of building and maintaining a family, he can do the same thing when it comes to his law practice, including the way his cases are litigated or transactions negotiated. A lawyer must have a strong sense of responsibility toward each of his or her clients, as that is the very essence of the lawyer and client relationship.
❏ Website. A lawyer should have a website that is informative and helpful. You may ask why, as long as the lawyer is good at what he does!? The answer is simple: the world has gone to the internet, but if a lawyer doesn’t have the gumption, or ability, to create a professional website, his other technical skills may be lacking, including using and maintaining a computer-based case management system that tracks cases, contacts, deadlines, documents and more. This tracking often makes all of the difference in running an organized and efficient law firm, with its myriad of clients and cases, versus operating an unorganized and inefficient firm.
Also, if you find the lawyer’s website to be unhelpful and aesthetically deficient, the lawyer may not be concerned about presentation, which for a client, should be a serious issue. Presentation is half the battle in law, because a lawyer is constantly making “presentations,” in the form of documents, court filings, oral arguments, exhibits, demonstrations, conference calls, and even sometimes storytelling. If a lawyer presents well, the person watching — or reading – the presentation will better understand what is being communicated and will more likely be convinced in favor of the lawyer’s client; the opposite is true if the lawyer makes a poor presentation. Second, a nice presentation to a judge, jury or party to a transaction engenders a favorable impression of the lawyer and his client and creates feelings of appreciation that a lot of time has gone into the presentation, which often then leads to positive results.
When you look at the lawyer’s website, read as much of its content as you can before hiring him. Make sure you ask the lawyer a few questions about his website before you hire him, including if the lawyer wrote the material on the website himself. Many, many lawyers do not write their own website material. That is not necessarily a bad thing, but if the lawyer did write his own website material, the material will give you insight into that lawyer, much more so than if he didn’t write the material. Also, if the lawyer wrote his own copy, you can quite accurately predict that this lawyer will take a more personal interest in your case as compared to a lawyer, or firm, that hires out all of their website development to an outside web consulting firm.
❏ The Lawyer’s “Cyberspace” reputation. We live in a world in which the internet has become all-present in most people’s lives. Through Google and other search engines, information on almost any subject is available at your fingertips, including information about specific people and professionals, like lawyers, who work with lots of other people, because anyone can say on the internet almost anything they want about someone else, including about lawyers. A good lawyer with a thriving law practice is bound to have at least one, or a few, clients over the years who, whether justified or not, were not happy with the lawyer’s performance, and that client may post on the internet comments containing ill-will toward the lawyer. It generally would be a mistake to not hire that lawyer on the basis of just one or two negative postings on the internet. If you otherwise like the lawyer and have done the rest of your due-diligence as to the lawyer’s qualifications, you should ask the lawyer to explain the lawyer’s viewpoint as to what happened with the client that posted the negative comment. If the lawyer is ethically forbidden to explain what happened with that client, as may be the case because of attorney-client confidentiality, you should at least ask the lawyer to describe why, in a general fashion, he disagrees with the former client. A reasonable explanation from the lawyer will often be enough basis for you to ignore the few negative comments made about the lawyer on the web.
On the other hand, if you do a web search of the lawyer and lots of negative posts are found about him, not just from one client but from lots of different clients, then you probably have a red flag warning not to hire this lawyer.
❏ Source of the referral to the lawyer–is the person who made the referral knowledgeable, first hand, of the lawyer’s ethics and expertise, versus having simply heard about the lawyer. Ask the referral source this question.
❏ Areas of Practice. A person hires a lawyer for a specific task, either to prosecute or defend a law suit, to assist in a transaction, or to provide legal advise as to a specific set of facts. Just as there are specialties in the medical field, there are specialties and areas of expertise in the field of law. However, in the field of law, it is even more important to make sure your lawyer has the necessary expertise in the matter for which you are hiring him, because generally, there is only one type of law license (unlike in medicine), and someone can call himself an expert lawyer in litigation, for example, when in reality, he could have little actual experience, having never done an actual judge or jury trial. Therefore, it’s important to directly ask the lawyer his areas of expertise, and then to ask him to describe several cases or matters that he has recently handled, including specifics of how he handled the matters. For example, if you are looking for a lawyer to handle a litigation matter for you, and the lawyer just says generally, “Oh yes, I have lots of experience in litigation,” and nothing more, and you ask no other questions, you are taking his word for it that what he is saying to you is accurate. The better approach would be for you to follow-up on his generalized answer with a specific question, such as, “Can you please tell me how you have obtained all of that experience.” The lawyer should then provide you more details. If the lawyer still hasn’t already provided you enough specifics for you to confirm that he has good, actual experience, you can then ask him to discuss with you some recent matters he handled in his practice, and inquire what overall action steps he took toward moving those matters in the direction the client wanted.
❏ The Lawyer’s Licensing Status. It has happened before that someone hires a lawyer, only to find out afterwards that the lawyer is suspended from the practice of law, or was never a lawyer in the first place. There are a lot of frauds in the world, and bad apples in every bushel, so before you hire a lawyer, visit the website of the bar organization in charge of lawyer licensing in your state. In California, for example, you can easily visit the State Bar of California website and determine if a lawyer is in good standing and whether the lawyer has ever been publicly disciplined for wrongdoing, or has ever been suspended from the practice of law. If the there is negative information about the lawyer, either don’t hire the lawyer, or at a minimum, ask the lawyer to explain what happened that led to his State Bar discipline. If you are then satisfied with the lawyer’s answer, fine, but if you aren’t, you probably shouldn’t hire that lawyer.
❏ Does the Lawyer Have Malpractice Insurance. Most states, including California, do not require an attorney to carry malpractice insurance. However, malpractice insurance is protection for the client, in case the lawyer is negligent i.e. makes a mistake he shouldn’t have made that results in a loss to the client, such as a loss of money or other property. Unfortunately, many lawyers do not carry malpractice insurance, usually because the lawyer has decided that the cost of purchasing it, i.e. the premium, is too much money, or that the lawyer is simply uninsurable because of previous claims. A client should never hire a lawyer without malpractice insurance, for a few reasons.
First, lawyers can make mistakes, just like anyone, and sometimes, the mistake results in harm to the client, such as a missed filing date. Therefore, in case that happens, the client needs a lawyer that has insurance to make the client whole. To be specific, most lawyers do not have enough money of their own to cover a client claim, and so insurance is very important. Second, if the lawyer does not have malpractice insurance, it may be a sign that the lawyer has already had several claims against him, which either results in the lawyer being uninsurable, or insurable but at a very high premium. If that is the case, a lawyer with several previous claims against him may be a risky lawyer to hire, as past carelessness may be the best indicator of future carelessness. Third, a lawyer that does not carry malpractice insurance is generally making the statement that his interests i.e. saving the cost of the insurance premium, is more important to him than his client’s protection. A lawyer should always put the interests of his clients above everyone else’s, even his own, and the lawyer that by choice does not carry malpractice insurance is not doing that.
Therefore, always ask the lawyer you are considering hiring whether he has malpractice insurance. If the answer is no, don’t hire that lawyer unless he gives you a very, very good explanation why he does not have coverage.
❏ Does the Lawyer have a Standard Written Retention Agreement. A written retention agreement between the lawyer and client is an explanation of the rights and obligations of the lawyer and client; it is an important written communication that should lay out the nitty-gritty ground rules in the relationship between the lawyer and client. If you are hiring a lawyer for a task that is going to take more than a few hours, the lawyer and you should usually sign a written retention agreement for the services he will provide. In California, a lawyer is required to obtain a signed retention agreement from his client if he anticipates that fees he will earn will be over $1,000. Also, if the lawyer is going to represent you in a contingency matter, where he only gets paid if he obtains a successful result for you, then, again in California for example, he must, without exception, have a written retention agreement with you.
Why is the retention agreement important? There are a few reasons. First, in those situations where the lawyer is required to have a retention agreement and doesn’t, he is violating state bar ethics rules that he is supposed to follow, which may mean the lawyer’s ethics are not up to parr in other areas of his law practice. Second, a lawyer that does not have a written retention agreement with his client is not being transparent as to the terms of his relationship with the client, which can easily lead to misunderstandings and disagreements, down the line. The last thing a client needs is to be fighting with his legal representative, who is supposed to be fighting for him. Third, a lawyer that does not communicate the terms of his relationship with his client, via the written retention agreement, may either be a poor communicator, or have little interest in being a communicator, which could mean he’ll also be a bad communicator when the lawyer is supposed to be communicating the client’s positions to others, during the term of his retention with the client.
Therefore, before you hire a lawyer, ask him if he will be having you sign a retention agreement. If the answer is no, ask him why. If he answers he will be providing a proposed written retention, mention to the lawyer you would like to review the proposed agreement for a day or so. If the lawyer is happy to oblige, then the lawyer is probably secure in himself and comfortable in the lawyer client relationship. On the other hand, if the lawyer simply presents you with the retention agreement and does not allow you much time to review it, you may be dealing more with a high-pressure salesman, who probably should be selling cars instead of practicing law.
❏ Does the written retention agreement specify all the necessary items, such as:
a) Scope of service. In plain words, what your lawyer will be doing for you;
b) Deposit requirements. Some lawyers require money in advance before providing services. If so, does the retention agreement specify when those monies are earned. For example, some law firms characterize these deposits as initially unearned monies to be applied to future billings, with any unused portions to be returned to the client. The fee agreement should specify that these deposits will be placed in a trust account until actually earned. Other firms characterize their deposits as earned upon receipt, irrespective of the amount of actual work done thereafter. These deposits are usually non-refundable.
c) Hourly rate. The specific hourly billings rates on the matter should be set forth, including differentiation depending on which attorney in the firm works on the matter, for example whether partner or associate. The agreement should also set forth the minimum increments of time that will be billed. Some firms charge in minimum increments of a tenth of an hour, while others charge in minimum increments that can be as high as three-tenths of an hour or higher. Obviously, the lower the minimum increment, the better.
d) Flat fee matters. More and more firms are handling matters, of limited scope, on a flat-fee basis. For example, straight forward leases, incorporations, LLC formations, contracts and limited litigation matters (such as landlord-tenant and drunk driving defense) are normally handled on a flat fee basis, which should be specifically stated in the written agreement. Further, based on the current economic climate, some firms are charging flat fees for much larger matters such as stock offerings and business litigation, often with various provisos if unexpected events occur, in which case fees would be higher. Some firms are even tying results obtained for the client to the legal fees charged.
e) Contingency matters. Many people try to hire attorneys on a “contingency” basis so that they do not have to pay legal fees on an on-going basis during the pendency of the matter. In this situation, the lawyer gets paid “contingent” upon, i.e. “dependent” upon, successful recovery of money at the conclusion of the matter. Usually in litigation, only plaintiffs’ cases are handled on a contingency basis, and then only if there is a good chance of a money recovery at the conclusion of the matter, either by way of settlement or trial/judgment. The most common type of plaintiffs’ cases handled on a contingency basis are personal injury matters and other tort cases, such as insurance bad faith. However, plaintiffs’ cases related to business and real estate disputes are usually handled on an hourly basis, rather than on a contingency basis, as there is often less predictability regarding the extent and complexity of the litigation, and adjudication of rights are often as or more important, in those types of cases, than recovery of money.
If the matter is on a contingency basis, it is important that the terms of the contingency arrangement are clearly set out, including but not limited to the percentage fee to which the attorney is entitled, and when such fee is due. In many states, the percentage fee that can be charged is capped, such as when representing minors, workers compensation, and probate.
e) as to costs and expenses to be incurred, who is responsible for same, which costs are covered and not covered,
f) billing procedure,
g) discharge and withdrawal,
h) attorney lien,
i) arbitration provision that doesn’t abrogate any State Bar rules as to fee disputes
j) disclaimer of guarantee,
k) effective date of retention
❏ Does the lawyer speak to you if you telephone him. Does the lawyer timely return your telephone call, generally within a day.
❏ Does the lawyer have nice stationary, including business card.
❏ Is the lawyer associated with a firm or other attorney(s), that if his workload increases, your case will not be put by the way side.
❏ Does the lawyer have adequate staffing to handle the various administrative tasks in a law office, so he or she can focus on your case. Does the lawyer have adequate legal secretary or assistant who can work on certain aspects of your case, under the lawyer’s supervision, so you can
❏ Does the lawyer copy the client on most work product.
❏ Does the lawyer welcome client inquiry.
❏ Does the lawyer have the staff deal with the client as a shield for the lawyer.
❏ Does the lawyer have any conflicts of interest, or potential conflicts of interest, in the representation.
❏ Does the lawyer care, literally, about the client and his or her case. Does the lawyer zealously advocate for the client.
❏ Does the lawyer give regular updates to the client, or do months go by where you don’t hear from the lawyer.
❏ Is the billing of the lawyer adequately itemized. Is the billing done on a regular basis.
❏ Does the lawyer have the necessary time to handle the matter.
James A. Vickman, Esq. for LawyerandClient.com, the Resource Desk of Vickman & Associates. firstname.lastname@example.org, 310-553-0567
Vickman & Associates is a law firm located in Beverly Hills, California, representing individuals and companies in litigation, trials and transactions.