I read plenty of legal briefs, motions and complaints as part of my business of investing in lawsuits. And I am always struck with the language. Not only are many lawyers paid by the hour but I suspect they sometimes increase their billings with time at the dictionary replacing commonly understood words with the indecipherable.
I just read a motion that used the word “inapposite” rather than “not pertinent”. Why? Do attorneys think their average client understands the rarely used word (or anyone else for that matter)?
Powerful and effective language is using words and phrases that are both uncommon but broadly understood. Words that are used too frequently can annoy the reader and words that are not broadly understood are not very effective in communicating a message.
Saturday, October 31, 2009
Friday, September 4, 2009
Should there be a single payer legal system?
http://online.wsj.com/article/SB10001424052970204731804574387021307651050.html?mod=wsj_share_facebook
Great op-ed piece in the WSJ about the concept of the Federal government taking over the legal industry. Great fun!
Great op-ed piece in the WSJ about the concept of the Federal government taking over the legal industry. Great fun!
Friday, August 28, 2009
Defense Attorneys Milking Cases
Defense attorneys are milking cases for all they are worth today. Two litigation attorneys I spoke with this week said they have never seen it so bad.
During “good times” defense attorneys that are paid by the hour usually milk a case for a minimum amount before settling. But as these law firms are getting less work than normal they are tending to make up the difference by spending more time per case. The net result is that it takes longer to settle a case than a few years ago.
During “good times” defense attorneys that are paid by the hour usually milk a case for a minimum amount before settling. But as these law firms are getting less work than normal they are tending to make up the difference by spending more time per case. The net result is that it takes longer to settle a case than a few years ago.
Saturday, August 1, 2009
If your attorney drops you
If your attorney has taken your case on contingency and subsequently doesn't like the odds of winning he will drop you as a client. Now there is a process they must go through including notifying you, making a motion to the court to withdraw as counsel and then receiving the approval of the court for withdrawal.
Before this motion has been approved they still have a duty to represent you but their heart is not really in it. So if they are bailing on you, you need to move into overdrive to get a new attorney. This will be twice has hard as getting an attorney the first time because the second group of attorneys will think one or more of the following situations exists:
1) you do not have much of a case
2) you are a difficult client to work with
3) the prior attorneys have messed up the case already
4) even if they win and collect a judgment they may have to share some of their fees with the prior attorneys.
I have worked with folks that try to resist their prior attorneys dropping them. And you need to understand why the case is being dropped and can the case and the relationship be salvaged but you also need to move into action to find a new one.
Before this motion has been approved they still have a duty to represent you but their heart is not really in it. So if they are bailing on you, you need to move into overdrive to get a new attorney. This will be twice has hard as getting an attorney the first time because the second group of attorneys will think one or more of the following situations exists:
1) you do not have much of a case
2) you are a difficult client to work with
3) the prior attorneys have messed up the case already
4) even if they win and collect a judgment they may have to share some of their fees with the prior attorneys.
I have worked with folks that try to resist their prior attorneys dropping them. And you need to understand why the case is being dropped and can the case and the relationship be salvaged but you also need to move into action to find a new one.
Thursday, July 16, 2009
Don't fire until you hire
In general do not fire your old attorney until you have engaged a new one. You will have far more leverage in negotiating with the new one if you are not in between lawyers.
But have a good reason to explain yourself to the new attorney. Be specific in how the old attorney let you down and get assurances that the new one won't act the same way. For example a common reason for firing the old attorney is that the old one keeps delaying in actually filing the lawsuit.
Once you have reached agreement with the new one then he can assist you in notifying the prior attorney that his services are no longer needed and to notify the parties of your new representation.
But have a good reason to explain yourself to the new attorney. Be specific in how the old attorney let you down and get assurances that the new one won't act the same way. For example a common reason for firing the old attorney is that the old one keeps delaying in actually filing the lawsuit.
Once you have reached agreement with the new one then he can assist you in notifying the prior attorney that his services are no longer needed and to notify the parties of your new representation.
Friday, July 10, 2009
Hiring a bankruptcy attorney
This article has a few ideas about hiring a bankruptcy attorney. Keep in mind that many bankruptcy attorneys will give you an initial consultation for free. To make the most out of this time get your data together. Collect your income information, your minimum monthly expenses other than for credit repayment and information about your dependents.
A key issue will be if you will be able to declare personal chapter 7 bankruptcy which will wipe out all of your debts (unless you decide to keep your mortgage) or chapter 13 bankruptcy where you pay off as much as the court determines is practical over a five year period and then the rest is wiped out. Generally only those with incomes less than the state average can declare chapter 7 bankruptcy.
Some of these attorneys will advise you which bills to pay and which to not pay - there goal seems to be to put enough money in your pocket up front so that you can pay them before they start working on your case.
A key issue will be if you will be able to declare personal chapter 7 bankruptcy which will wipe out all of your debts (unless you decide to keep your mortgage) or chapter 13 bankruptcy where you pay off as much as the court determines is practical over a five year period and then the rest is wiped out. Generally only those with incomes less than the state average can declare chapter 7 bankruptcy.
Some of these attorneys will advise you which bills to pay and which to not pay - there goal seems to be to put enough money in your pocket up front so that you can pay them before they start working on your case.
Tuesday, July 7, 2009
What is a retainer
If you are paying your attorney by the hour your attorney will frequently ask for money up front - this is called a retainer. The details of this retainer should be spelled out in your engagement letter.
Sometimes this is equivalent to the last months rent and none of this money is used to pay your monthly legal bills. In this case you need enough cash for this retainer along with enough to fund your monthly payments if you are going to make it without running out of cash.
In other cases the attorney will use your retainer to pay his monthly bills until the case reaches a certain level or he thinks there is enough money at the end of the case to satisfy his bill.
You need to understand what your attorney is expecting on this front and do not be afraid to negotiate this item if you are short on cash.
Sometimes this is equivalent to the last months rent and none of this money is used to pay your monthly legal bills. In this case you need enough cash for this retainer along with enough to fund your monthly payments if you are going to make it without running out of cash.
In other cases the attorney will use your retainer to pay his monthly bills until the case reaches a certain level or he thinks there is enough money at the end of the case to satisfy his bill.
You need to understand what your attorney is expecting on this front and do not be afraid to negotiate this item if you are short on cash.
Friday, June 26, 2009
Preperation for hiring an Attorney
Whether you are hiring an attorney that you are paying for by the hour or trying to find the right one on contingency get your ducks in order before you talk to them. Prepare a summary of your case and the documents that prove your case.
First, this allows you to learn more in your initial interview. These preliminary meetings are usually free but just because they are free doesn't mean you can't learn at them.
The attorney that you are interviewing is also interviewing you. If they are considering taking the case on contingency then they would rather have an easier case than a more difficult one. They would prefer one that will settle early rather than after several years. And they are trying to determine if you will be a good witness. Most important, the contingency attorney is going to try and ascertain if the defendant has deep enough pockets so that if you win you can actually collect.
Attorneys that only charge by the hour are far less concerned about if you can actually collect on the judgment. They mainly care about your ability to pay. So in these cases you need to dig into whether or not the defendant can pay a judgment if you are successful in court. Keep in mind that 90% of judgments go uncollected.
First, this allows you to learn more in your initial interview. These preliminary meetings are usually free but just because they are free doesn't mean you can't learn at them.
The attorney that you are interviewing is also interviewing you. If they are considering taking the case on contingency then they would rather have an easier case than a more difficult one. They would prefer one that will settle early rather than after several years. And they are trying to determine if you will be a good witness. Most important, the contingency attorney is going to try and ascertain if the defendant has deep enough pockets so that if you win you can actually collect.
Attorneys that only charge by the hour are far less concerned about if you can actually collect on the judgment. They mainly care about your ability to pay. So in these cases you need to dig into whether or not the defendant can pay a judgment if you are successful in court. Keep in mind that 90% of judgments go uncollected.
Saturday, June 6, 2009
Firing your attorney!
Yes you can! If you have a bad attorney then he or she is not going to get any better - fire them now. You have the right to change.
But keep in mind that if you are a bad client or "difficult" client you may not get another one.
You are the manager and the attorney is your service provider. If he is not getting the job done or is not paying enough attention to your case it is unlikely to get any better.
Now keep in mind that many first-time plaintiffs think that the legal process is going to move far faster than it actually does. They also think they are going to receive millions when they might only get a few thousand. The speed varies from court to court and state to state but rarely do we see "speedy justice".
Do not assume that your attorney is going to meet her deadlines! They do forget about these things so you need to be paying attention. And if they are leaving motions and responses to the last minute they may simply not make it in time or do a poor job because of the deadline. You are screwed!! So you need to know the deadlines and the schedule and make sure your attorney is meeting the deadlines.
If you are a plaintiff and have a contingency contract you still have the right to change attorneys. Usually it is a good idea to find a new attorney before firing the old one. Generally (it varies by state) the old attorney will work out compensation with the new attorney for some compensation for his expenses on the case and the time he spent.
But again, you only get so many at bats. It is harder to hire a good attorney after you already have one. So try to do it right the first time. The second attorney is worried that the first attorney already messed up the case. Or the second attorney thinks that you may be an unreasonable client.
I had a client that actually fired two attorneys and then could never again find someone to represent him. He had to represent himself and it has not gone well ever since.
But keep in mind that if you are a bad client or "difficult" client you may not get another one.
You are the manager and the attorney is your service provider. If he is not getting the job done or is not paying enough attention to your case it is unlikely to get any better.
Now keep in mind that many first-time plaintiffs think that the legal process is going to move far faster than it actually does. They also think they are going to receive millions when they might only get a few thousand. The speed varies from court to court and state to state but rarely do we see "speedy justice".
Do not assume that your attorney is going to meet her deadlines! They do forget about these things so you need to be paying attention. And if they are leaving motions and responses to the last minute they may simply not make it in time or do a poor job because of the deadline. You are screwed!! So you need to know the deadlines and the schedule and make sure your attorney is meeting the deadlines.
If you are a plaintiff and have a contingency contract you still have the right to change attorneys. Usually it is a good idea to find a new attorney before firing the old one. Generally (it varies by state) the old attorney will work out compensation with the new attorney for some compensation for his expenses on the case and the time he spent.
But again, you only get so many at bats. It is harder to hire a good attorney after you already have one. So try to do it right the first time. The second attorney is worried that the first attorney already messed up the case. Or the second attorney thinks that you may be an unreasonable client.
I had a client that actually fired two attorneys and then could never again find someone to represent him. He had to represent himself and it has not gone well ever since.
Start with phone calls to multiple attorneys
If you are waiting on one phone call from one attorney to help you
out - you are screwed!!! As a service industry attorneys as a group
do not know how to operate out-bound phone calls to prospective customers.
And this is before you sign a contract to use their services. Rarely does it get any better after they have you as a customer.
So a bad strategy is to call only one attorney and wait for several days for a return phone call. Call multiple attorneys and see how hungry they are for your business. This does not qualify them to work for you but it will surely disqualify many of them.
The number one reason that I hear from my clients for firing their attorneys (yes you can fire them and we will cover that in more detail in a later post) is that their attorney stops returning their phone calls. And if it starts out bad it ain't getting better.
out - you are screwed!!! As a service industry attorneys as a group
do not know how to operate out-bound phone calls to prospective customers.
And this is before you sign a contract to use their services. Rarely does it get any better after they have you as a customer.
So a bad strategy is to call only one attorney and wait for several days for a return phone call. Call multiple attorneys and see how hungry they are for your business. This does not qualify them to work for you but it will surely disqualify many of them.
The number one reason that I hear from my clients for firing their attorneys (yes you can fire them and we will cover that in more detail in a later post) is that their attorney stops returning their phone calls. And if it starts out bad it ain't getting better.
Finding the right attorney
Whatever your situation you need the right attorney in the right place to get you through your challenge.
Some attorneys are licensed in more than one state and some will even try to help you on an issue outside of their home state but outside of the easy ones this will not usually last long. They are frequently just looking to get a referal fee from the in-state attorney that will eventually serve you.
Courts of law are supposed to give every one a fair shake and treat all parties equally even if you are from out of town - but in reality it doesn't work like that. There is frequently a home court advantage. And even if everyone gets the same treatment by the judge, simply knowing the lay of the land and the local clerks and which judges to try to avoid is advantage enough.
Even being close to the court where you fight is going to occur can make a difference. I once had a Los Angeles attorney complain to me that we had been "home fielded" by a judge in Orange County.
But even more important than location of your attorney is his/her speciality. Ever heard the expression "I don't want you to learn to shave on my beard."? Well it applies double to the law. If you have an auto accident case you want an attorney that has done dozens of similar cases. So don't assume that just because an attorney will take your case that he is not shaving on your beard. Ask him how many similar cases he has tried and what the outcomes were.
Some attorneys are licensed in more than one state and some will even try to help you on an issue outside of their home state but outside of the easy ones this will not usually last long. They are frequently just looking to get a referal fee from the in-state attorney that will eventually serve you.
Courts of law are supposed to give every one a fair shake and treat all parties equally even if you are from out of town - but in reality it doesn't work like that. There is frequently a home court advantage. And even if everyone gets the same treatment by the judge, simply knowing the lay of the land and the local clerks and which judges to try to avoid is advantage enough.
Even being close to the court where you fight is going to occur can make a difference. I once had a Los Angeles attorney complain to me that we had been "home fielded" by a judge in Orange County.
But even more important than location of your attorney is his/her speciality. Ever heard the expression "I don't want you to learn to shave on my beard."? Well it applies double to the law. If you have an auto accident case you want an attorney that has done dozens of similar cases. So don't assume that just because an attorney will take your case that he is not shaving on your beard. Ask him how many similar cases he has tried and what the outcomes were.
Contingency Fees
If you are the plaintiff (the one suing another) in a commercial lawsuit your attorney may be willing to take your case on contingency. If you win he gets a cut and if you lose he does not charge you for his/her time.
The typical contingency fee is 33%. But it can be lower and as high as 50% depending on the case and the legal specialty.
Some attorneys have a scale depending on how the case is resolved. For example the contingency fee might be 33% if the case is settled prior to going to trial, 40% if you go to trial and get paid without an appeal and 45% if you have to go though the appeals process before you collect on your judgment.
One of the things that can be subject to negotiation that has always bothered me is that these contingency fees are caculated based on a percentage of the gross settlement before expenses are subtracted. So for example if you get a $200,000 settlement and have had $25,000 in expenses with a 40% contingency fee here is how it is how the fee is usually calculated: 40% of $200,000 = $80,000 fee. But another way to do it and one that also provides the attorney more encouragement to keep the expenses down would be to calculate the fee as follows: $200,000 gross settlement less $25,000 in fees = $175,000. The fee would then be $175,000 * 40% = $70,000 or $10,000 less than the standard method.
If you are confident that you are going to win and collect on your lawsuit and have sufficient funds you may want to negotiate paying for the fees as you progress in order to receive a lower contingency fee.
The typical contingency fee is 33%. But it can be lower and as high as 50% depending on the case and the legal specialty.
Some attorneys have a scale depending on how the case is resolved. For example the contingency fee might be 33% if the case is settled prior to going to trial, 40% if you go to trial and get paid without an appeal and 45% if you have to go though the appeals process before you collect on your judgment.
One of the things that can be subject to negotiation that has always bothered me is that these contingency fees are caculated based on a percentage of the gross settlement before expenses are subtracted. So for example if you get a $200,000 settlement and have had $25,000 in expenses with a 40% contingency fee here is how it is how the fee is usually calculated: 40% of $200,000 = $80,000 fee. But another way to do it and one that also provides the attorney more encouragement to keep the expenses down would be to calculate the fee as follows: $200,000 gross settlement less $25,000 in fees = $175,000. The fee would then be $175,000 * 40% = $70,000 or $10,000 less than the standard method.
If you are confident that you are going to win and collect on your lawsuit and have sufficient funds you may want to negotiate paying for the fees as you progress in order to receive a lower contingency fee.
Civil lawsuits
If you need an attorney it is either for a criminal or civil case (all non-criminal). Attorneys specialize and this is the first and fundamental division to whom you should be working. If you are being tried for a concealed weapons charge you don't want an attorney that specializes in trusts and estate planing. And if you are in a contract dispute you don't want a criminal attorney.
If you are the defendant (the one being sued) then you are probably going to be paying by the hour for services. But for a big case it is sometimes possible to negotiate a flat fee for services until the job is done. This usually means paying the attorney up front but is worth discussing with the attorney.
If you are the plaintiff (the one suing another) and your case looks promising then your attorney may consider taking your case on contingency. This means that he/she gets a percentage of the gross settlement plus his expenses back when you win and collect from the judgment. If you lose the case the attorney gets nothing back.
A small percentage of attorneys representing a plaintiff on contigency will require the client to pay as you go for the expenses. This may be a warning sign for you. Perhaps the expenses are going to be very large (for example you need to hire several expert witnesses) but it may also mean that this attorney is not very well capitalized and simply can not afford to front the expenses(not a good sign).
Your agreement with your attorney will be memoriaized in writing via an enagement letter (which we will discuss further in other posts). And keep in mind that most of the terms and conditions (what percentage contingency you will pay for example) are open for negotiation. Most attorneys will tell you that this is their rate and their terms and take it or leave. But it is always worth asking and some attorneys will negotiate more than others. This is also the kind of advice that blogs and sites run by attorneys and law firms never seem to mention.
If you are the defendant (the one being sued) then you are probably going to be paying by the hour for services. But for a big case it is sometimes possible to negotiate a flat fee for services until the job is done. This usually means paying the attorney up front but is worth discussing with the attorney.
If you are the plaintiff (the one suing another) and your case looks promising then your attorney may consider taking your case on contingency. This means that he/she gets a percentage of the gross settlement plus his expenses back when you win and collect from the judgment. If you lose the case the attorney gets nothing back.
A small percentage of attorneys representing a plaintiff on contigency will require the client to pay as you go for the expenses. This may be a warning sign for you. Perhaps the expenses are going to be very large (for example you need to hire several expert witnesses) but it may also mean that this attorney is not very well capitalized and simply can not afford to front the expenses(not a good sign).
Your agreement with your attorney will be memoriaized in writing via an enagement letter (which we will discuss further in other posts). And keep in mind that most of the terms and conditions (what percentage contingency you will pay for example) are open for negotiation. Most attorneys will tell you that this is their rate and their terms and take it or leave. But it is always worth asking and some attorneys will negotiate more than others. This is also the kind of advice that blogs and sites run by attorneys and law firms never seem to mention.
Why we are here
I have hired more than my share of attorneys all over the US and know that the process can be expensive and frustrating. There are plenty of attorney referal services but I have yet to find one that does not simply send me to the highest bidder or the next one from their membership list. These services have not found a way to get me the best damn attorney at a competive cost.
One of the challenges you are likely to have is that you need an attorney fast. And moving too fast can land you the wrong attorney at too high a price.
I also have a business interest in this blog. My company Lake Tahoe Financial provides advances to plaintiffs in lawsuits. If you have been wronged and have an attorney on contingency then we can sometimes advance you cash against the proceeds of your case. See FundingLawsuits.com.
One of the challenges you are likely to have is that you need an attorney fast. And moving too fast can land you the wrong attorney at too high a price.
I also have a business interest in this blog. My company Lake Tahoe Financial provides advances to plaintiffs in lawsuits. If you have been wronged and have an attorney on contingency then we can sometimes advance you cash against the proceeds of your case. See FundingLawsuits.com.
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