If you are reading this then one of two things have probably happened. You have a business relationship with another person or entity that is taking advantage of you and you need to change it immediately. You were just served with a complaint that provides a response deadline. In either scenario, you should hire a lawyer to protect your interests. But when do you this? How do you do this? Do you even know any lawyers? What if I choose the wrong lawyer? How do I hire the right lawyer? Lawyers are intimidating and jerks (so I have been told). These questions and statements are very common when I meet clients for the first time. Knowing this, I have always wanted to prepare a cheat sheet that clients can refer to help them navigate the very unfamiliar process of how to hire a lawyer.
Step 1. Be proactive – Start Your Search and Do Not Wait to Hire Your Lawyer
If you were served with a complaint and do not respond before the indicated deadline, the plaintiff (the person who filed the complaint) can ask the Court to enter a default judgment against you. Do not wait until the last day to reach out to hire an attorney. It is always a better strategy to meet with an attorney (or with several attorneys) as soon as possible so you can see if you can work together. The quicker you start your attorney search, the quicker you will hire an attorney. Do not wait. This only leaves you with less time to choose the best lawyer for you. So, where do you begin?
- Do you know any attorneys in your family? If you do, ask them if they know anyone who you should hire for your specific situation.
- Ask your friends for recommendations. Your friends are tremendous sources of credible information. They will tell you who they like and also just as important, who they did not like. Most of our clients in fact come from the recommendations of friends and family members, current clients, and believe it or not, the families of my children’s friends.
- Google. There is nothing wrong with going online and doing your own research to see who you should hire. Even if you receive recommendations, go online and see if there are any reviews. Be sure to check both the firm’s website and its presence of Facebook. See if there any online reviews, positive or negative. Has the attorney written many articles? Check if there is a blog. In today’s online society, there is a tremendous amount of information that can be learned before you even meet face to face.
Step 2. The Initial Consultation
Now that you have selected the attorney you want to meet, you need to schedule a consultation. Chances are you will wind up talking to the attorney’s assistant. Pay close attention to how you are treated. At this point you are both learning about each other. While your lawyer and his/her staff should always be polite, it is a very bad sign if the person you are talking with is rude at the very beginning of the relationship. The initial meeting should also be free – while many attorneys charge for the initial meeting, in my humble opinion this is a mistake. This is an opportunity for both sides to meet each other and find out whether they can work together. In addition, I have found that if the initial meeting is not a billed event, my client’s relax and I find out more information. Understanding a client’s case from the outset is preferable and only possible if my clients are comfortable.
Please make sure to bring all the relevant documents with you to the meeting. While your lawyer’s assistant may not be able to give you answers to legal questions, ask him or her what documents you need to bring to the meeting. It is an even better sign if she asks you what documents you have – in addition to the complaint. This is a sign of an actively engaged staff that cares about everyone’s time. If you come to the meeting to discuss a complaint concerning a partnership dispute, the meeting will be more valuable to everyone involved if the complaint and partnership agreement was in front of everyone. Many times I have been in an initial client meeting but the potential client has forgotten the agreement. All is not lost in these situations but it is certainly a better use of everyone’s time if the right documents are brought to the initial meeting.
Confirm who will be handling your case and communication
Please remember that this is your case and your livelihood is at stake. Do not be shy. Specifically ask who will be handling your case? You do not want to meet with one attorney but have your case handled by a different attorney. Will the attorney who is handling your case be the same attorney who actually goes to court? Make sure the lawyer you retain is the lawyer who will be working on your case. The day to day prep work for a case involves a different skill set from a trial attorney. Trial attorneys regularly appear in court. Litigation attorneys prepare cases for the trial attorneys. Find out who you are working with and what skill set they have. Also, how will the attorney communicate with you. Email, phone calls? What documents will be sent to you? Will you be included on strategic decisions? Do not be a pacifist. This is your case. Be an active participant but don’t get in the way either. Listen to your lawyer and recognize that he or she has traveled this path before. Do not confuse your Google search for a law degree and actual experience!
Experience counts. Treat this as your time to interview the attorney. Don’t be shy. Has the attorney handled this type of case before. When was the last time they were in court? What is their typical litigation strategy? This is a trick question. There should not be a typical strategy. Beware of a scorched earth approach. While this sounds good up front, we are going to war etc…. the only certainty is increased legal costs. Of course there always is a time and place for everything and sometimes scorched earth tactics are necessary (for example injunctive relief) . However, just filing preliminary objections to a complaint because you can is often times a waste of money.
Billing, Costs and the Retainer
Make sure you find out the billing arrangements before you hire your attorney. How does the attorney bill? Hourly, contingency or flat fee? You will find most attorneys will not take a commercial litigation case on a contingency basis except in exceptional circumstances. Find out what the hourly rate is for each attorney who will be working on your case. How often will bills be sent? Monthly, every two months? What happens when two attorneys meet to talk about your case? In most cases, if two attorneys each bill $400 an hour you will be charged $800 if they talk for one hour. I take a different approach. I run my law firm as a small business where you are renting my time. If I need to meet with my colleague for an hour to discuss your case, you will pay for my time but not my colleagues. However, if we are both working on a part of your case in order to meet a deadline, then you will be billed for both of our time but merely having interoffice meetings -you will never be double billed.
Be sure to ask about costs. Will the attorney you hire pass along his costs? Typical costs that attorneys pass onto clients are copy and postage charges, overnight fed ex charges, computer assisted research charges. These are hidden profit centers for law firms. These extras can add up and you need to know how they are being handled before you hire your attorney. Along the lines discussed above, I run my firm like a small business and view this as my overhead. I keep my costs in house and do not pass them along to my clients. There are always exceptions (for example overnight mail to 5 locations) but for the most part if I have to do computer research or overnight something this will not be passed on to you. And when I take you to lunch, you will NEVER see the lunch as an expense on your bill!! Don’t laugh, this happens. Costs that are passed on are filing fees, services charges, depositions costs. Direct out of pocket charges directly related to your case.
You also need to understand what a retainer is and how it works. There is a distinction between the retainer agreement and the retainer amount. The retainer agreement is a written contract between you and the attorney you choose to hire. It usually takes the form of a letter that you sign at the bottom that you agree to be bound by the terms set forth in the letter. Occasionally the letter will incorporate other terms set forth in an enclosed form document titled “Terms and Conditions.” The retainer amount is how much money you agree to pay up front that the attorney will bill against at the end of the month. This money is held in a separate account from the attorney’s business operating account. If the agreed upon retainer is $5,000 and you were billed 2 hours at $500 per hour the attorney will take $1,000 from your retainer account and the going forward balance will be $4,000. It is also important to understand what happens to the retainer when it is exhausted or used up. Are you required to replenish it? Are you required to bring it back to the initial agreed upon amount at the beginning of every month? This is known as an evergreen retainer. Or does the attorney move away from the retainer and just go to monthly billing? This is the approach I like to take. It demonstrates trust and a willingness to work with the client. Of course if this path is chosen, do not be surprised if a retainer is reinstated if you fall behind. Also retainers are commonly reinstated right before trial and to cover deposition and transcript costs. If you would like to review a few sample retainer agreements from the PA Bar Association, please click here.
I hope these thoughts are helpful and provide insight into the process of how to retain a lawyer. If I could just pick one closing thought to remember it would be, don’t be shy. If you think about it, this is your case and if you are not shy about it you will want certain information answered so you can make an informed decision. In a pinch however, you can always keep this folded in your pocket. If you have any questions regarding this post, or perhaps want to talk about your case, please feel free to call me, Douglas Leavitt. I am one of the attorneys at Danziger, Shapiro & Leavitt, P.C. and I would be happy to discuss your case with you.
This entry is presented for informational purposes only and does not constitute legal advice.