Well, I dragged this out for a while, didn't I? I s'pose I should wrap it up. If you want to refresh your recollection, you can check out the first part here, the second part here, the third part here, the fourth part here, and even take some quick detours in why litigation costs so much (with a bonus explainer about how attorneys charge) here and a brief explanation about why you shouldn't lie to your attorney here.
But enough with that. It's not like anyone clicks the links. If I wanted you to click the links, I'd post them as youtube videos, with a picture of a shocked woman, a giant red arrow, and a title that would be something like ... oh ... 7 WAYS YOUR ATTORNEY IS TOTALLY SCREWING YOU (YOU WON'T BELIEVE THE LAST ONE)!
Do you know why I don't do that? Because I couldn't keep the list to just seven. Ahem.
So let's assume you have followed my advice, and you are about to pull the trigger on an attorney. How do you know if this attorney is, like, any good? Well... there is no single, simple answer. But let's break this down a few ways.
1. They don't overpromise.
There's the old joke about wanting to hire a one-armed attorney, so they won't say, "On the other hand ..." But a good attorney both knows the law, but also deals in probabilities. Most things, even "blackletter law,"* are not always going to be slam dunks. Things can happen- bad facts, weird decisions by judges or juries, or something else completely unexpected.
In addition, it is often remarked that the true super-power of any great attorney is to turn all issues of fact and law into issues of procedure. The opposing attorney might have all sorts of procedural mechanisms to gum up the works.
If your attorney is confident, that's great! They might even tell you that you have a great case (although, if you went to them for a will, you might have questions...). But you should respect an attorney that explains to you the possible hurdles that might come up- because a good attorney is like Edwin Moses, always looking for the hurdles.
*Bonus definer: Blackletter (also written as "Black letter" or "Black-letter") law is a term attorneys use to refer to legal rules (from cases or other sources like legislation) that is generally free from doubt. So it is "blackletter law" that a contract is formed by offer and acceptance with adequate consideration.
2. They explain things to you.
I've previously discussed how the law is like a different language. Because, between the Latin and the old legal French and the jargon and the use of case names as a short cut, it is! And attorneys will often forget, when talking to clients, that the clients may not fully understand what they are saying.
Let's say that your attorney tells you, "Look, we're going to MTD this, because it doesn't clear Iqbal/Twombly. It's probably just procedural though, and I think they'll eventually get it right, but it may allow us to attack them with a jurisdictional MTD if they re-plead." You need to ask your attorney ... what does that mean? What is a "MTD?" What is "Iqbal/Twombly?" What is this "jurisdictional" thing you're talking about?
You are the client- which means you are the boss. The attorney needs to be able to explain things to you, in a way that you understand, so you can give informed consent. "Oh, so that process server handed you a complaint, which started the lawsuit. I reviewed it and realized that the plaintiff didn't put in enough facts for their claims against you. So we are going to file a motion to dismiss based on the failure to provide enough facts to support the lawsuit. Now, normally this would just make them file an amended complaint, with more facts. But I think that there is an issue with the lawsuit, and if they are forced to plead more facts, we can dismiss it entirely because the court wouldn't have the ability to hear the lawsuit. So we could win, but I won't know until we see an amended complaint."
If an attorney can't, or won't, explain things to you so that you can understand it? That's a red flag.
3. They are available.
Look, there are a lot of people (and corporations) that are happy letting their attorneys do "their thing" (drinking, delighting in the misery of others, kicking orphans) so that they don't have to stress about it. Which is great! That's why you are paying them.
But there are times when you need to talk to your attorney. Maybe you remembered another fact. Maybe you want to check in on the litigation strategy. Maybe you want to know why there is a bill for 3 hours, and the description says, "Margaritas and Blow." You should be able to reach your attorney.
Don't get me wrong. Attorneys can be busy too. We have these things, like "hearings," and "trials," and "writing appellate briefs," and "attending the bar disciplinary proceeding to explain why billing clients for Margaritas and Blow is more of a admonishment than a disbarment." But if your attorney is consistently not communicating with you? Major red flag. Again, you are paying the attorney, and if they seem to take at least a week or more to get back to you, they aren't prioritizing you.
4. They discuss options in terms of costs and benefits.
This is the big one. Obviously, it will be a little different for an attorney who has taken your case on a contingency basis. But if you are paying your attorney an hourly rate, they should be discussing your options not just in terms of how it will impact your case, but also in terms of how it will impact your wallet.
Litigation is incredibly expensive. At any given time, you could pay for MOAR. MOAR discovery. MOAR motions. MOAR experts. MOAR procedural attacks. But all of this comes with a cost. A good attorney will be candid about how much benefit these options will provide.
Which brings up three related issues-
A. Most new clients want to know, when they first walk in, "How much will all of this cost?" Yeah, no. Obviously, if it's writing a will or something, that can be done. But it's nearly impossible to determine how much litigation will cost at the beginning of the case. Massive cases might settle within a few days, while (true story!) the simplest case imaginable might end up costing $400,000 in attorney's fees, because the other side chose to go "scorched earth." (Fun fact- in the end, the scorched earth only scorched themselves, as they had to pay the other side's attorney's fees.)
B. A good attorney will usually be upfront about how litigation works. It is stressful, and almost no civil litigation ends in a trial. Many clients will say, "I don't care how much this costs, I am litigating over the principle." The good attorney will tell the client that they will feel differently after a year of legal bills (and no, it usually doesn't dissuade the client, but the year of legal bills does.)
C. The only people truly "made whole" by litigation are attorneys. I kid, kind of. Obviously, if you get an attorney on contingency, you will get money you otherwise wouldn't have. But remember two things- first, we follow the "American Rule" which means (absent a statute or a contractual provision) both sides par their own attorney's fees. Second, even if you prevail, and even if you are entitled to attorney's fees (say, by contract), you will never get all of your attorney's fees. Instead, there will be more hearings, and people will argue (that you will pay for) and the Court will reduce what you are entitled to. And none of that takes into account your time and stress. That doesn't mean litigation isn't worth it, but only that your attorney should be advising you of these issues.
5. Trust your instinct.
The final thing I will leave you with is this- we all have instincts. They may not be perfect, they may sometimes lead us astray, but they are often the way that we are processing information that doesn't quite rise to the conscious level. Trust those instincts. Far too often, when it comes to specialist, whether it's a contractor or a mechanic or an attorney, we ignore a bad gut feeling because "the expert knows better." Don't do that. At a minimum, try and understand where it's coming from. Listen to what your body is trying to tell you, because your body isn't paying any attention to the books behind the attorney (neither is the attorney, it's all on computer now).
And with that, the "how to pick your attorney series" is done! If you want a TLDR- get a referral from someone you know and trust. If the referral doesn't help you, see if that attorney can refer you. And then pay attention. Make sure that the attorney consults with you (and responds when you call), explains things to you, isn't overpromising, and present options in terms of the costs and the benefits of those options.
But enough with that. It's not like anyone clicks the links. If I wanted you to click the links, I'd post them as youtube videos, with a picture of a shocked woman, a giant red arrow, and a title that would be something like ... oh ... 7 WAYS YOUR ATTORNEY IS TOTALLY SCREWING YOU (YOU WON'T BELIEVE THE LAST ONE)!
Do you know why I don't do that? Because I couldn't keep the list to just seven. Ahem.
So let's assume you have followed my advice, and you are about to pull the trigger on an attorney. How do you know if this attorney is, like, any good? Well... there is no single, simple answer. But let's break this down a few ways.
1. They don't overpromise.
There's the old joke about wanting to hire a one-armed attorney, so they won't say, "On the other hand ..." But a good attorney both knows the law, but also deals in probabilities. Most things, even "blackletter law,"* are not always going to be slam dunks. Things can happen- bad facts, weird decisions by judges or juries, or something else completely unexpected.
In addition, it is often remarked that the true super-power of any great attorney is to turn all issues of fact and law into issues of procedure. The opposing attorney might have all sorts of procedural mechanisms to gum up the works.
If your attorney is confident, that's great! They might even tell you that you have a great case (although, if you went to them for a will, you might have questions...). But you should respect an attorney that explains to you the possible hurdles that might come up- because a good attorney is like Edwin Moses, always looking for the hurdles.
*Bonus definer: Blackletter (also written as "Black letter" or "Black-letter") law is a term attorneys use to refer to legal rules (from cases or other sources like legislation) that is generally free from doubt. So it is "blackletter law" that a contract is formed by offer and acceptance with adequate consideration.
2. They explain things to you.
I've previously discussed how the law is like a different language. Because, between the Latin and the old legal French and the jargon and the use of case names as a short cut, it is! And attorneys will often forget, when talking to clients, that the clients may not fully understand what they are saying.
Let's say that your attorney tells you, "Look, we're going to MTD this, because it doesn't clear Iqbal/Twombly. It's probably just procedural though, and I think they'll eventually get it right, but it may allow us to attack them with a jurisdictional MTD if they re-plead." You need to ask your attorney ... what does that mean? What is a "MTD?" What is "Iqbal/Twombly?" What is this "jurisdictional" thing you're talking about?
You are the client- which means you are the boss. The attorney needs to be able to explain things to you, in a way that you understand, so you can give informed consent. "Oh, so that process server handed you a complaint, which started the lawsuit. I reviewed it and realized that the plaintiff didn't put in enough facts for their claims against you. So we are going to file a motion to dismiss based on the failure to provide enough facts to support the lawsuit. Now, normally this would just make them file an amended complaint, with more facts. But I think that there is an issue with the lawsuit, and if they are forced to plead more facts, we can dismiss it entirely because the court wouldn't have the ability to hear the lawsuit. So we could win, but I won't know until we see an amended complaint."
If an attorney can't, or won't, explain things to you so that you can understand it? That's a red flag.
3. They are available.
Look, there are a lot of people (and corporations) that are happy letting their attorneys do "their thing" (drinking, delighting in the misery of others, kicking orphans) so that they don't have to stress about it. Which is great! That's why you are paying them.
But there are times when you need to talk to your attorney. Maybe you remembered another fact. Maybe you want to check in on the litigation strategy. Maybe you want to know why there is a bill for 3 hours, and the description says, "Margaritas and Blow." You should be able to reach your attorney.
Don't get me wrong. Attorneys can be busy too. We have these things, like "hearings," and "trials," and "writing appellate briefs," and "attending the bar disciplinary proceeding to explain why billing clients for Margaritas and Blow is more of a admonishment than a disbarment." But if your attorney is consistently not communicating with you? Major red flag. Again, you are paying the attorney, and if they seem to take at least a week or more to get back to you, they aren't prioritizing you.
4. They discuss options in terms of costs and benefits.
This is the big one. Obviously, it will be a little different for an attorney who has taken your case on a contingency basis. But if you are paying your attorney an hourly rate, they should be discussing your options not just in terms of how it will impact your case, but also in terms of how it will impact your wallet.
Litigation is incredibly expensive. At any given time, you could pay for MOAR. MOAR discovery. MOAR motions. MOAR experts. MOAR procedural attacks. But all of this comes with a cost. A good attorney will be candid about how much benefit these options will provide.
Which brings up three related issues-
A. Most new clients want to know, when they first walk in, "How much will all of this cost?" Yeah, no. Obviously, if it's writing a will or something, that can be done. But it's nearly impossible to determine how much litigation will cost at the beginning of the case. Massive cases might settle within a few days, while (true story!) the simplest case imaginable might end up costing $400,000 in attorney's fees, because the other side chose to go "scorched earth." (Fun fact- in the end, the scorched earth only scorched themselves, as they had to pay the other side's attorney's fees.)
B. A good attorney will usually be upfront about how litigation works. It is stressful, and almost no civil litigation ends in a trial. Many clients will say, "I don't care how much this costs, I am litigating over the principle." The good attorney will tell the client that they will feel differently after a year of legal bills (and no, it usually doesn't dissuade the client, but the year of legal bills does.)
C. The only people truly "made whole" by litigation are attorneys. I kid, kind of. Obviously, if you get an attorney on contingency, you will get money you otherwise wouldn't have. But remember two things- first, we follow the "American Rule" which means (absent a statute or a contractual provision) both sides par their own attorney's fees. Second, even if you prevail, and even if you are entitled to attorney's fees (say, by contract), you will never get all of your attorney's fees. Instead, there will be more hearings, and people will argue (that you will pay for) and the Court will reduce what you are entitled to. And none of that takes into account your time and stress. That doesn't mean litigation isn't worth it, but only that your attorney should be advising you of these issues.
5. Trust your instinct.
The final thing I will leave you with is this- we all have instincts. They may not be perfect, they may sometimes lead us astray, but they are often the way that we are processing information that doesn't quite rise to the conscious level. Trust those instincts. Far too often, when it comes to specialist, whether it's a contractor or a mechanic or an attorney, we ignore a bad gut feeling because "the expert knows better." Don't do that. At a minimum, try and understand where it's coming from. Listen to what your body is trying to tell you, because your body isn't paying any attention to the books behind the attorney (neither is the attorney, it's all on computer now).
And with that, the "how to pick your attorney series" is done! If you want a TLDR- get a referral from someone you know and trust. If the referral doesn't help you, see if that attorney can refer you. And then pay attention. Make sure that the attorney consults with you (and responds when you call), explains things to you, isn't overpromising, and present options in terms of the costs and the benefits of those options.
