Just over twenty years ago I started my first job as an attorney. I earned my law degree in May, took the bar in July, and learned I passed over Labor Day weekend. I was ready to take on the world, and I knew exactly what kind of cases I wanted to handle. Important cases. Preferably with fundamental principles at stake. Perhaps Supreme Court worthy cases.
As it turns out, the list of Supreme Court level, fundamental principle cases available at any given time is extremely short. The list of cases like that which a brand new attorney with no experience can handle is non-existent. Fortunately, I went to work for a small firm with a couple of seasoned attorneys. They had cases I could handle while I searched for my legal unicorn. Smaller cases – divorces, business transactions, loans, and estate plans. They also had me sign up to serve as court-appointed defense counsel for people who could not afford a defense attorney. I quickly realized two things. One, none of these cases would take me to the Supreme Court. Two, for each of my clients, their case was the most important case in the legal system. The implications for them were potentially life altering. It didn’t matter whether or not the case made it to Washington, D.C.: it only mattered how it affected them. As a result, the relationship they formed with their attorney was a crucial one in their life.
Most people I meet tell me they have never hired an attorney before. Often, they are not sure how they should decide whom to hire. They know it is an important decision, but they just are not sure what questions to ask or what signs to look for as they make a choice. Making matters worse, many people wait until the last minute to start looking. Either they have been served with paperwork and need to respond immediately, or the deadline to file a new case is fast approaching, and they will lose the opportunity to protect their rights if they do not act soon. The combination of high stakes and limited time makes for a tough decision. There are many online legal directories, but it can be difficult to know how they have selected the attorneys they highlight (is it a subscription service where the attorneys can pay more for a better listing, for example). As a result, I thought it might be helpful to offer my perspective on what you should consider when hiring an attorney. I typically recommend doing your research and narrowing your list to two or three attorneys, then interviewing those finalists. Once you schedule initial meetings with the attorneys, I think there are three basic questions you can ask to help decide the right attorney for you.
1. Do they know what I need them to know?
Many people start by asking friends for referrals, and this is a great starting point. But it is important to figure out if the attorney knows the area of law where you need help. Someone may have done a wonderful job in your friend’s divorce case and even won full custody for them after a week-long trial. If you need a patent attorney, however, that attorney probably is not going to work for you. You need to narrow your search to the legal field relevant to you.
You also want to make sure the prospective attorney is licensed in the jurisdiction where your case is going to take place. In Kansas City, this is an especially relevant concern. Crossing over State Line puts you into a completely different court system with different rules, statutes, procedures, etc.
You also need to decide how much specialization your legal case will require. If you have a simple speeding ticket for going a few miles an hour too fast, no prior tickets on your record and no other issues, it may be a simple matter which does not require a great deal of special knowledge. If, however, you are attempting to expand your business into a foreign market, you will likely need to find someone with significant experience with the laws and customs you will need to navigate. Or, if you want to hire foreign workers through a specialized visa program you will need to find someone who is deeply familiar with the program itself. A local attorney who specializes only in wage disputes may technically be a labor attorney, but their specialization does not help with what you need. It is not enough that the attorney is smart; their knowledge needs to be helpful to your case.
2. How much do they charge?
This is a common sense question for the client to ask, but it may be more complicated to determine than you expect. First, many attorneys charge by the hour rather than by the project. The total cost is, therefore, a factor of how much time they work on your case. Often, the time commitment is not fully known at the beginning. Second, it is common practice for attorneys to require an initial deposit before they will work on the case. This deposit is called a “retainer, ” and it is only the upfront fee required to retain the attorney. It is usually not the full cost. For example, an attorney may tell you they charge $250 per hour, and they require a $5,000 retainer. To hire the attorney, you need to pay the required retainer fee, but you may have to make additional payments through the case. If the lawyer ultimately works for 30 hours on your specific case, you total bill is $7,500 (30 hours times $250 an hour). Because you only paid $5,000 upfront, you will owe your attorney an additional $2,500.
If you have not hired an attorney recently, you are at a real disadvantage in trying to set a budget. You probably do not know what a reasonable rate is for attorneys in your area, and you probably are not sure how much work will be required to handle your case. It may be helpful to ask around for friends who have encountered similar events (but, keep in mind, each case is unique). You may also want to interview several attorneys to see which one fits best with your budget. Finally, let your common sense be a guide. If you have the simple speeding ticket I discussed before, it probably does not make sense to pay a $25,000 retainer for the one attorney in town who everyone agrees is Clarence Darrow, Atticus Finch, and Gerry Spence rolled into one. On the other hand, if your company is working on a complex stock issuance to raise significant capital, you probably should avoid an attorney who promises to handle everything for $500.
3. What is their desk-side manner?
One factor people forgot to consider in far too many cases is the relationship they will need to have with their attorney. When we discuss doctors we often describe their “bedside manner.” In other words, how do they interact with their patients – do they make them feel comfortable discussing medical concerns? Or are the rude and condescending? The same issues can occur when you are working with an attorney. Usually, however, your conversation are not taking place from a hospital bed but across a desk. I encourage potential clients to consider the personality of the attorney, or what I call their “desk-side manner.”
The fact you have decided to hire a legal expert means you feel the issue is important. If you do not feel comfortable talking to your attorney about the issues in your case, the relationship is going to be very strained. Each case is different, but in every situation, you will likely need to have good communication with your attorney to obtain the best possible result. If you have a divorce case, issues involving past abuse, infidelity, excessive drinking, etc. will need to be discussed candidly. When you are interviewing a prospective attorney, pay attention to how comfortable you feel discussing these matters with him or her. Similarly, if you were arrested for a DUI coming home from New Year’s Eve, your drinking history is likely to be an important consideration. You need to feel comfortable telling your attorney everything about your past. Even in a business transaction, this is a very important consideration. If your small business is negotiating a deal with an important client, you should be comfortable explaining all the details of your financial situation to your attorney. He or she needs to know if you have significant cash flow problems because it may impact how the deal is structured. If you do not feel comfortable telling them what is happening, you probably will not get a result as favorable as you could have obtained.
Finally, you probably noticed I did not ask about how many cases the attorney has won. There are several reasons I do not believe it is overly helpful to focus on “wins” when choosing an attorney. First, I still believe in the system enough to say that facts win cases more than lawyers do. Second, it may be difficult to determine a “win,” especially with cases that do not go to trial. The vast majority of cases, probably around ninety percent, are resolved without a trial. In these situations, each side probably gave up a little to reach an agreement, and there may not be a clear-cut “winner.” Even in cases that go to trial, it can be difficult to determine who “won,” at least in some circumstances. For example, I have tried a parenting case where mom wanted all the parenting time because she felt dad was a danger to the child, and dad wanted 50-50 shared parenting time. The court decided dad was not dangerous, but gave him less than half the time for the first couple of years (he received about 30% of the parenting time at first, building up slowly). Who won that case? Both sides believed they lost the case because they did not get everything they wanted. Finally, a “winning percentage” may not be very meaningful without some context. If you are charged with a federal crime and the attorney you prefer wins one out of five cases, do you feel comfortable hiring her? What if you learn the prosecutor only tries cases he believes are slam dunks and, as a result, wins convictions more than 95% of the time? The attorney you are interviewing with a 20% win rate suddenly looks better as she wins four times more often than the average attorney. But, without the context, her win rate may seem low.
I hope this provides some useful tips on things to consider if you ever need to hire an attorney. The best plan is to ask lots of questions – of your friends, your fellow ACA members, and the potential attorneys themselves.