Lawyers, Litigation/Trial Law

1. Lawyers: Hiring a Lawyer: What Smart Shoppers Need to Know

I’ll not rest until everyone sees that it is a shame to be a lawyer.

—Adolph Hitler

If you were employing a carpenter to build a house, it might be helpful if you had some idea of how you want the house to look and how you intended to use it. Your chances of actually getting the house you want will improve if you have at least some idea about how houses are built, what carpenters do, how electricians and plumbers work, and the types of materials that are usually used in building the house you want.

Now that you are about to employ a lawyer, you need to understand what a lawyer can and cannot do for you. Although some in our society routinely use lawyers and understand their power, use, and function, many have not really thought about what lawyers do.

Be Informed or Be a Victim

I wish that I could report that all clients have a positive experience with their lawyers. Unfortunately, as a practicing lawyer, I am exposed to many people who have had a bad experience with a prior lawyer. There are a variety of reasons for this. A few lawyers are obviously awful human beings with whom no one should have to deal. Some have a really bad “bedside manner.” Sometimes the reason for the dissatisfaction is the client. Some clients are just impossible to please and would not be pleased even by a saint.

But this problem is more complicated than bad lawyers and unreasonable

clients. Sometimes (. . . ) clients are unhappy with their chosen lawyers because they were unsophisticated and passive shoppers. These passive shoppers, apparently, choose lawyers while on “autopilot,” having little or no idea of what they are looking for in a lawyer or what a lawyer will or can do for them. Many of these unsophisticated shoppers, it seems, find lawyers who are also on “autopilot.” The client doesn’t ask about anything, and the lawyer doesn’t tell them anything because they don’t ask, until one day when the client figures out that they’re unhappy with the direction things are going. In short, these unhappy people didn’t understand that hiring and using a lawyer is a participation sport. If you sit on the sidelines mentally, you just get potluck and, in an adversary system, potluck is usually not good. Another set of (. . . ) clients ends up unhappy because they got precisely the kind of lawyer they “asked for.” These unhappy souls are usually people who hired a lawyer when they were extremely angry, frightened, or hurt. The sole factor considered in the selection of their lawyers was whether the chosen lawyer would be good at striking out, hitting back, or getting even with their [opponent]. To put it bluntly, these people were looking for a lawyer with a personality disorder, and that is what they got: a “loose cannon,” a “mad dog,” or a “time bomb.” When they were hiring this personality type, it never occurred to them that they would have a great deal more contact with this unpleasant person than their [opponent] would.

. . .

Dump the Simplistic View

Many people view the law office as a sort of stationery store in which the lawyer draws documents. These people think that they are purchasing documents. While the preparation of documents is important, it is the least important of the services that your lawyer has to offer. If you use your lawyer only for this purpose, you are paying a high price even if you go to the most cut-rate guy in town. More importantly, you are missing the real benefits that a lawyer can provide to help you succeed in your divorce.

You Are the Captain of the Ship

Lawyers are consultants, not dictators. No, this does not mean that you should micro-manage your case, telling your lawyer what pleadings to file, what evidence to present, what phone calls to make, and when and how to schedule hearings. It also does not mean that your lawyer will agree with you or give you only the advice that you want to hear.

But it does mean that you are in control of the overall direction of your case, whether or not you will accept a settlement, make a settlement offer, go to trial, agree to fight for custody or give up custody of your child, and anything else that has to do with the ultimate outcome of your case.

The central concept is that lawyers represent clients. No, I’m not trying to insult your intelligence. I really want you to think about this. Sometimes, it’s in the most seemingly obvious things that we get the horse hitched up to the wrong end of the cart. In a society that operates on profit, we occasionally lose sight of who the customer is. Some salespersons at car dealerships have the mistaken belief that automobiles and those who buy them exist for the benefit of the dealership and the people who sell cars. This same attitude can be detected occasionally among those who sell insurance, groceries, hamburgers, undergarments, and those who treat the sick and take care of the dead. This tendency to confuse the person who is to provide the service with the person who is supposed to receive the benefit is sometimes strong enough to motivate unnecessary surgery. Think about this. One human being will cut on another just to get paid.

The legal profession is not exempt from this confusion of the servant with the one who is to be served. In our ranks are those who act as if God made clients so that lawyers can have lawsuits. As in other trades and professions, often lawyers are unconscious of having lost sight of the customer. Like everyone who is absorbed in his or her work, lawyers become accustomed to going through the same routines and having the rent and the payroll due at the same time every month. This, of course, is a part of the lawyer’s or the law firm’s absolute reality. A lawyer must do the work and get paid for it or find some other line of work.

But, I will not let the legal profession off the hook by saying that the only lawyers who have lost sight of the customer are those who have done so unconsciously. In the legal profession, as in every trade or profession, are those whose only goal is to make the sale. This make-the-sale-at-any-cost is done in a variety of ways. The legal profession has a reputation for “creating needless litigation.” But needless litigation, though widely condemned by the general public, is but a small part of the real problem. There are lawyers who never litigate who are geniuses at charging for ridiculous and needless services. A common abuse arises in legitimate cases in which one of the lawyers insists that even the simplest issues be handled in the most complex and difficult manner. This is done in a variety of ways, but it always has as its central theme an unwillingness to be reasonable, which is often accompanied by rudeness and condescension—you know, the very things your mother told you were the best way to start a fight over nothing.

Lawyers providing unnecessary or counterproductive services do not do so in a vacuum. For such lawyers to exist, there must be clients who are at least susceptible to being sold such “services.” In fact, believe it or not, there are many clients who demand lawyers willing to be unreasonable and rude, thereby creating costly and needless expense for themselves and their opponent. You probably have better things to do in life than waste your time and money playing these games. But this is only half the picture. Your [opponent] may seek a lawyer who will provide the drama that is missing from his or her life. If your [opponent] chooses this approach, you and your lawyer may have little choice but to respond to an opposition that desires to do everything the difficult and expensive way.

You, on the other hand, can make sure that your [lawsuit] is not “lawyer-driven” and that the services that are being performed on your behalf are undertaken because you need them and not because it is financially beneficial to your lawyer. You can do this by remembering that.

• Your lawyer works for you and not vice versa; you hired him or her, and you have an absolute right to fire him or her at any time for any reason.

• Decisions in your case should be fact-driven and not based on your lawyer’s ego needs, his or her self-image, or demonstrations of loyalty to you or of his or her aggressive nature.

• Your lawyer has a fiduciary duty to you; this is the highest duty recognized by American law; among other things, it means that your lawyer must always place your interest above his or hers and be scrupulously honest about every aspect of your case.

• You always have the right to ask why something is being done; if there is not a good reason for doing it, then maybe it doesn’t need to be done; just because you can do something to your opponent doesn’t necessarily mean that you should do it.

• Although procedural decisions should largely be made by your lawyer with your informed consent, you are in control of the ultimate issues and decisions about what is and is not valuable in your life and your lawsuit.

• Both you and your lawyer should be involved in a cost-benefit analysis of the various aspects of your case; while some things may be required for the defense or prosecution of your case, others may be optional.

• A huge part of your lawyer’s job is to tell you things you may not want to hear; if your lawyer is always agreeing with you rather than suggesting that you consider your options or examine your approach, you might want to check your wallet.

• You must have a general idea of what your lawyer’s function is in order to evaluate his or her activities and obtain the result you desire; most of the rest of this chapter is devoted to discussing that subject.

 

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 69-73