Lawyers, Litigation/Trial Law

8. Lawyers: Some Lawyer Types to Avoid

Avoid the kamikaze lawyer.

We all want lawyers who will fight for us. Lawyers pride themselves on fighting for their clients. Lawyering is, after all, not a profession for timid souls or persons with thin skin.
Should you encounter a lawyer who makes speeches about or implies how he will win your case at all cost; that he will crash and burn for you if necessary; will lie, cheat, steal, or trick the other side or the court, then you need to find another lawyer.

Think about it. The legal system, in general, and lawyers, in particular, belong to a network. It is a community of people who handle the same kind of business day after day, year after year. To handle the large volume of cases that must be handled, lawyers and judges must rely on what they are told by each other, even when they are on opposite sides.

Some things are considered appropriate; others are not. Lawyers expect each other to throw hard punches. But most lawyers and judges will only allow one unprotected punch below the belt before they start returning in kind or stop doing business. Your lawyer is allowed to disagree strenuously on your behalf. He is not allowed to say one thing and do another. Your lawyer is expected to present your case in the very best light and not reveal weaknesses in evidence. On the other hand, if he gets caught misrepresenting facts, it will not only adversely affect your case, it will adversely affect his credibility with the lawyers and judges in the community. It is a fine line, but it is taken very seriously by those working regularly in the courthouse.

In short, all of the kamikazes have already crashed; some of them just don’t know it yet. If your lawyer is willing to use unscrupulous methods in your case, he probably has done so for someone else before now. Seldom do you find a judge who smiles at this sort of thing. Even less often do you find judges or lawyers with short memories concerning things like being hit from behind. Hence, when you hire a lawyer who does business like this, you get all of his liabilities as well as the benefits. Usually the costs vastly outweighs the benefits.

Avoid the lawyer who claims to have “special knowledge” or “insider contacts.”

Remember, since judges are lawyers, all lawyers went to law school with judges and have friends who are judges. Usually both lawyers in a lawsuit know the judge and, if they don’t at the beginning of the case, both lawyers will certainly have a “relationship” with the judge by the end of the case. Therefore, if a lawyer says or implies that he or she is the lawyer for you because he or she has a “special” relationship with the judge, run away to some other lawyer as fast as you can. Many times lawyers are happy with the judge and glad to be in the court in which the case is filed because the particular judge will listen to both sides or because they feel that they know how to communicate with this particular judge. But, these are advantages that are not unique to one lawyer, and this is a far cry from “having a judge in my pocket.” Statements of this type from a lawyer are unethical, inappropriate, and potentially illegal. In my experience, when a lawyer tells or implies to a client that he or she has “insider” connections, the client is the one who frequently gets left holding the bag.

Avoid the lawyer who is certain about everything and has no doubts.

George Armstrong Custer was the general who commanded the army against the Indians at the battle of Little Big Horn. Although Custer himself was killed in that battle, his spirit is still alive in the form of those who have personalities just like his. Their motto should be “often wrong, but never in doubt.” The reason these always-certain personalities get along so well as judges, doctors, lawyers, and business executives is because society is organized so that someone else has to suffer the consequences for their mistakes. For example, if a judge gives a child to an abusive parent, the child’s life may be ruined, whereas the “infallible” judge never thinks of the case again. (At least Custer was among those who died for his mistakes.) Nothing, or at least not much of anything, on this earth is for certain. If your lawyer won’t even discuss risk, probabilities, and possibilities, you might want to consider a second opinion or selecting a different general to lead your troops.

Avoid the lawyer who is cynical or condescending.

Of course, as with the rest of the human race, lawyers don’t come right out and say, “Oh, by the way, I’m cynical and condescending.” Additionally, some of the “best” sales people are the ones who are the most cynical. Because these people are cynical about you and your problems, they can and will say whatever needs to be said to sell you and keep you sold. But, if you listen closely, usually you can detect when someone thinks you and your problems are beneath him or her. If you get these signals, it’s time to look elsewhere for your legal help. You need someone who is genuinely committed to your legal representation. This is not possible for a person who sees himself or herself above it all.

Avoid the lawyer who is “emotionally involved” with you.

A lawyer who is “in love” with you is no better than the cynical lawyer who does not care about you at all. You probably know by now that we do not make good judgments about or for people with whom we have close attachments. A certain amount of “surgical objectivity” is required of your lawyer. Yes, your lawyer needs to understand your pain.

But, if you require him or her also to become your confessor, admirer, close friend, and confidant, you will have lost the objective view needed in your lawyer.
Avoid the captured lawyer. You need honest, objective advice. This is difficult to get from someone you “own.” If a lawyer reports to you in your company chain of command, has your father or uncle as his or her best client, or cannot tell you “no” because he or she is married to your sister or brother, this lawyer is not in a position to tell you things you don’t want to hear.

Perhaps, just as importantly, you won’t listen to what this lawyer says when it doesn’t agree with what you want to hear. This “trapped” lawyer is not the person you need. Your slave cannot give you good legal advice.

Avoid reliance on so-called listings or “top ratings.”

Earlier in this chapter we discussed board certifications awarded by the Texas Board of Legal Specialization. As I stated, a board certification has its limitations and does not provide nearly all of the information needed to select a lawyer. But, board certification is the real thing in the sense that it is based on objective standards. It really does require a lawyer to pass a formidable examination, meet a certain level of experience, and have confidential recommendations made by other lawyers who have observed the lawyer in practice. Many other listings and ratings of lawyers do not have objective standards—unless you consider a beauty-pageant-like selection process to be objective. Many of these “top listings” have more to do with advertising than with actual qualifications.

Some lawyers even campaign for these listings by requesting their friends to vote for them. No doubt some of the lawyers chosen for these special honors and “outstanding” lists are good lawyers. But, you should not make your choice based on a listing in “Who’s Who Among Great Divorce Lawyers” or “Best Lawyers In The Birdville Metropolitan Area” or “The Classy Lawyer Magazine’s Best Lawyers In Texas” or any lawyer’s claim to be “A-rated” in anything or anywhere. The questions you need to ask yourself are, “How would The Classy Lawyer Magazine know who is best?” and “What are the politics of getting on this list?”

Of course, to answer these questions, you would need a degree in sociology and the investigative budget of a metropolitan newspaper. So, instead, why not spend your time and energy interviewing lawyers and making your choice of who will represent you based on information that is readily available from meeting, questioning, and checking out a few lawyers?

Avoid lawyers who make exaggerated claims or tell you that they don’t lose cases.

Unfortunately, Perry Mason made a big impact on the public’s concept of what lawyers do. If any physician talked in terms of never having lost a patient, any thinking person would know that he hadn’t treated very many patients or that the patients he had treated were not very seriously ill. In any event, he is not practicing medicine, but rather is taking an ego trip.
Lawyers are in precisely the same position. If you open a law office, cases are going to walk through the front door that are terminal. The people with these cases often need help worse than anyone else. If the lawyer is really doing his job, the issue becomes how to mitigate damages or reduce punishment, rather than worrying about winning or losing.

It is unethical for a lawyer to make promises about the outcome of your case. Good lawyers are very careful to tell you that they are merely making predictions. Many things are fairly certain at the courthouse. But when you start hearing the guarantees about outcome, it is time to get it in writing (preferably backed up by a bonding company) or leave.
Avoid loud mouths.

In every city there seems to be some lawyer who is a name-dropper and wants everyone in every restaurant to know that he or she is the busiest attorney in town and represents all the important people. I have even know some lawyers to play this game on television or in the newspapers. If a lawyer tells you about his or her other important clients, this is not the lawyer for you unless you enjoy having your life and secrets scattered about.

Be suspicious of more-for-less claims.

Our court system operates on the free enterprise system. This means that if you want to be heard in court and have your rights protected, you must pay legal fees and expenses. The philosophical problems with this approach to justice are obvious and could be discussed at length. On your way to court is not the time to get involved in such discussion. It is a reality that you must accept if you are going to survive your divorce.

The point is, economic rules apply. Fortunately for you, since the supply of lawyers is large, the price of competition is great. Although there are lawyers who gouge on the price, I trust you will look out for those. But also watch out for the lawyer who says he or she can provide greater services for lower prices than anyone else. In a competitive market, things don’t work this way. And since legal services are not tangible items, it is safe to bet that he or she who promises more for less may really be giving less.
Since you write the check to the lawyer, you may be tempted to see the lawyer as only an economic predator in the jungle of the free enterprise legal system. Remember, the lawyer also is one of the hunted in this jungle. His cost for library, secretaries, space, and other costly necessities is much the same as that of every other lawyer. Hence, when a lawyer promises you more for less, he or she is either dumb, malicious, or is charging someone else extra, to provide charming, deserving people like you with charity—just the way the grocer charges some people double for beans so you can have yours free.

Be suspicious of a lack of experience.

Good lawyers, like fine wine, are not made overnight. In law practice, as in everything else, experience is important. This is not to say that a lawyer with twenty-years experience is better than one with two years experience. The contrary is sometimes true. Experience varies. One lawyer who has been in practice for only one year may have tried more cases than another who has practiced for ten years.

A debate has been going on for years about which is more important, theoretical knowledge as it is gained in school or practical experience as it is gained on the job. Those engaging in this argument usually overlook the obvious answer: both. The legal profession has not yet bit the bullet and faced the fact that a formal internship or apprenticeship is needed after law school.

The profession has been able to avoid this because practically every lawyer, sooner or later, gets this experience informally. But, unless your divorce is exceedingly simple, you do not need to be represented by someone who is just out of law school and getting this experience at your expense, without the supervision of a more experienced lawyer.

Don’t make the perfect the enemy of the good.

No, all lawyers are not equally competent. But, words like “competent,” “smart,” “powerful,” and “articulate” must always be qualified. If some lawyer is said to be competent, the question must be asked, “Competent to do what?” The law is so vast and the skills required for different aspects of law practice so broad that no one can be competent to do everything. A lawyer who is a good tax lawyer may or may not be a good trial lawyer. The best trial lawyer in town before a jury may have previously offended the judge in your case and be very ineffective in that court. The most brilliant legal scholar in town may be totally disinterested in your case and give it only passing care and interest.

The looking-for-a-savior mentality is not helpful in choosing a lawyer. Lawyers, politicians, doctors, and others sometimes try to sell themselves by playing the role of the benign super-protector. The truth is that the perfect quarterback does not exist and never did, except in the minds of those who attended the game only on the day when their quarterback could do no wrong.

When you hire a “good lawyer,” you will be hiring a real person, someone with strengths and weaknesses. Not infrequently, the lawyer’s strong points will also be his or her weaknesses. For example: If your lawyer is a passionate advocate on your behalf, he or she may not be as coldly objective about your case as is needed. Or, if the lawyer possesses an incredible objectivity, it may be that he or she will lack the passion to fight for your cause when it is difficult or discouraging. A lawyer who is an extremely competent trial technician may ruin a settlement because aggressive behavior in his or her personality blocks the perspective needed to see the advantages in a settlement. There are strength-weakness tradeoffs in every personality, although they are more apparent in some than in others. The recognition of these strength-weakness trade-offs will allow you to recognize that you need an attorney with balance and humanity, rather than some imaginary super-lawyer.

Be careful about lawyers who are too easy to hire in complex cases.

Most of us are more comfortable in less formal relationships. Stiff relationships tend to “put us off ” or make us suspicious. But, the important things in life require a little formality. If you find a lawyer who is very casual about taking you on as a client, this lawyer may be very casual about the way your case is handled. This may be all right for a very simple case, and it works for many lawyers who operate high-volume, clinic-type practices that cater to very simple divorces. However, a lawyer who undertakes a complex case in a casual manner very likely won’t be able to follow through on the commitments necessary to meet the challenges in such a case.

Most lawyers who are serious about what they do will be concerned about whether you have the financial, emotional, and mental resources necessary to follow through in your divorce. Clients who can’t afford legal fees have the potential of literally putting a lawyer out of business.

The court system, landlords, employees, and software companies, to name just a few, require lawyers to make payments to stay in the game. Likewise, most lawyers have experienced a client’s unanswered phone in the days leading up to a hearing or trial. Having a client who doesn’t show up either mentally or physically is no fun.

If your lawyer does not clearly tell you what the agreement is between the two of you, that should be your cue to ask yourself whether this lawyer is really taking your representation seriously. Those who rent expensive equipment or make agreements involving substantial money do not do so without firm understandings. In all except the simplest cases, undertaking your representation is just such a substantial undertaking.

Some people are alarmed if a lawyer or other professional presents them with an engagement letter or a contract of employment. A cause for greater alarm should be if you are not presented with such a contract or engagement letter. True, many of the terms of this agreement will limit and define what the lawyer will do for you. But, this written agreement tells you exactly what you are contracting for, what your obligations are, what your lawyer is obligated to do for you, and what you can expect.

Likewise, you should not be pressured into quickly signing a contract for employment or an engagement letter. Although most lawyers have standard agreements that they routinely use with clients, this may be your only time ever to hire a lawyer on a substantial matter. Therefore, the contract between you and the lawyer should not be treated as something that you must quickly sign “as is.” This is just another way for a lawyer to treat you and your case as another run-of-the-mill matter.

Lawyers who take their relationships with their clients seriously want the client to understand and actually agree with any hiring agreement that is signed. These lawyers will not object to your taking the agreement and considering it over hours or days and discussing it again before signing it. Undertaking the representation of a client is a serious matter that deserves serious consideration. You need to make sure that this is your lawyer’s attitude toward you and your case.

Be careful about “flat-fee” or “fixed-fee” contracts in complex matters.

The problem for lawyers in divorce cases or other complex litigation is that the lawyer has very limited control. No lawyer can know how long a lawsuit is going to take or what issues will arise. Therefore, if a lawyer agrees to take your contested divorce case on a so-called “flat fee,” you should be very suspicious. You may think that you are “cutting a good deal” and that the lawyer will be forced to take the risk for anything that goes wrong in the case. My experience in watching lawyers who operate in this manner suggests to me that the more likely scenario is that at some point your “flat-fee” lawyer will just stop working on your case.

An hourly rate can be very high and painful for clients, but it is usually the best and fairest alternative. The only alternative for lawyers who are unwilling to be put out of business or simply breach an agreement with a flat-fee client, is to set flat or fixed fees so outrageously high that they will cover all contingencies.
Contingent fees in which the attorney takes a percentage of the recovery are properly frowned upon in divorce cases. This is because the recovery of at least a portion of the community property is a virtual certainty. Perhaps contingent fees should be reserved as a rare last resort in cases in which a spouse is going to lose his or her interest in property unless unaffordable representation is obtained. Find an attorney who you believe will be honest and fair with you in charging hourly rate fees.

Think hard about whether you want an attorney who does not carry malpractice insurance.

I cannot say that I would not hire an attorney who does not carry malpractice insurance. This is because I know a few very good attorneys who, after thinking about it, have decided that they will not have malpractice coverage. Because I am personally acquainted with other outstanding attributes that each of these lawyers has, I would, without hesitation, engage one of these lawyers to represent me. But, I must hasten to add that, for lawyers I don’t know, whether or not they have malpractice insurance would be an important factor in my deciding whether to hire them.

Does having malpractice insurance make someone a better lawyer? Absolutely not. Does having malpractice insurance mean that a client has a better guarantee of getting a good result from a lawyer? Again, absolutely not. Most decisions made by lawyers are “judgment calls” in which the lawyer is allowed to use his or her best judgment without incurring any malpractice liability regardless of whether the decision turns out to be prudent in hindsight. But, I believe that having malpractice insurance indicates that the insured lawyer has an attitude of responsibility toward the client. This may not always be true, because some lawyers have malpractice insurance to protect their wealth. Most lawyers, like most Americans, however, are probably “judgment proof.”

That is, the assets they own are all in exempt property such as homes, retirement plans, automobiles, insurance policies, etc. When these lawyers make the rather large sacrifice of purchasing malpractice insurance, a part of the reason may be for their own financial protection, but there is also another element that has to do with seeing to it that clients are protected if someone in the office drops the ball. Also, it seems to me that many lawyers who don’t carry malpractice insurance are also the ones who cut corners in other ways, including their own access to legal materials, the quality and quantity of staff used to service clients, continuing legal education, etc. Of course, all of these other things are extremely difficult to quantify. But, that’s the beauty of malpractice insurance. It’s an objective question that can be answered with an objective answer. Either a lawyer does or does not have it and, if so, can tell you the limits of liability.
Use your own judgment. If you go into the average lawyer’s office and ask about malpractice insurance, you may be shown the door or you may be labeled as a “troublemaker.” But it really is a fair question for any lawyer. It is also a question that should be asked of the State Bar of Texas. Why aren’t all lawyers required to have malpractice insurance of some kind?

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 86-96.