This article is designed to help you understand how to enjoy the time you spend dealing with an attorney versus allowing the experience to turn into the horror story so many people expect it would be. Okay, “enjoy” may be overstating it a bit. After all, when dealing with an attorney you are typically dealing with situations of high importance which can be very expensive and stressful. Hourly rates can range from a few hundred dollars an hour to many times that depending upon the skill and expertise of the attorney. Even though this article may not turn your dealings with an attorney into a pleasant experience, it does include a number of important tips that are intended to assure as little unpleasantry as possible.
When to involve legal counsel
Just like the best time to see a dentist is before you have a mouth full of cavities, the best time to see your attorney is before you have giant mess on your hands. From a construction law standpoint, the very best use of attorney dollars is paying an attorney to prepare, or at the very least, review contract documents before they are signed. By doing so, you should have a reasonable expectation of entering a contract that clearly manages risk. In other words, prior to signing an agreement, your attorney should be able to help you understand the responsibilities and risks inherent in the proposed agreement, and what you can do to avoid or manage those risks.
The rule of earlier is better also applies to using an attorney to help deal with conflict. Speaking to an attorney at the first sign of conflict has two obvious benefits. First, the attorney can identify and as necessary, assist the client in satisfying contractual or statutory conditions precedent. Many claims end before they even begin because the claimant failed to comply with contractual or statutory requirements. These requirements can take different forms, for example deadlines or content that must be included within a specific document. The second benefit of speaking to an attorney as soon as a potential dispute is identified is the attorney’s ability to then advise the client on a big picture strategy designed to assist in setting up a claim or defense as advantageously as possible. An attorney may be able to suggest strategies for communication aimed at preventing a dispute from maturing, or when that is not possible, help frame the dispute in your favor. Advantageously structuring a client’s position relative to a dispute before the dispute has matured into formal claims and defenses is often enough to prevent the dispute from ever reaching maturity.
How to select the right attorney
First and foremost, it is imperative to assure that any attorney you are considering has the expertise and experience required to handle the dispute you are facing. I am constantly surprised by how often parties engage counsel on construction law disputes that have little or no construction law experience. Again, using the dentist analogy, common sense dictates that you would not go to an orthodontist for a tooth cleaning any more than you would go to a general dentist for braces. The exact same logic should apply when choosing an attorney.
Many, if not most attorneys provide prospective clients with an initial consultation that is either free of cost or charged to the client only to the extent the attorney is engaged. However, prospective clients frequently fail to take advantage of this significant opportunity to save money. From the attorney’s perspective, the reason for an initial consultation is to assure that the attorney understands the assignment and is comfortable handling it before committing to do so. Accordingly, attorneys will typically request basic background information in advance of an initial consultation to review prior to the consultation. Thus, prospective clients that use the initial consultation as little more than an opportunity to meet an attorney are missing out on a tremendous opportunity to understand their dispute from the attorney’s point of view. An informed client should use the initial consultation to ask as many questions as they can about not only the attorney’s experience or billing practices, but also the attorney’s evaluation of the case, anticipated budget, expected duration, and strategy.
If you can appreciate the significant value of the information a prospective client can obtain during an initial consultation, then the logic of the next suggestion should be self-evident. Prospective clients should take advantage of free initial consultations by meeting with as many prospective attorneys as is necessary to find the right attorney for your assignment. Just as a person diagnosed with a serious illness should obtain a second or third opinion prior to deciding upon a course of treatment or the doctor to provide such treatment. A person dealing with an important legal matter should meet with multiple attorneys prior to agreeing upon a strategy and find the right attorney to implement that strategy. The most basic legal dispute will involve a significant amount of stress, anxiety, and more than likely, expense. Understanding that, it is foolish not to take advantage of every opportunity to assure you wind up engaging an attorney that cared enough to prepare in advance of your meeting and that has the knowledge, expertise, and experience to clearly describe how the attorney plans to handle the proposed assignment.
How to efficiently use legal counsel
A discussion as to the client’s budget for the assignment should begin as part of the initial consultation and should continue throughout the representation. Attorneys that are not being paid for their work are generally allowed to not only terminate representation, but assert retaining and charging liens to secure payment for services provided. Accordingly, every client should discuss a proposed budget with their attorney on the front end of a dispute and periodically throughout the matter as the case develops and things change. Any client with a limited or defined sum of money that is willing or able to apply towards legal representation, should openly share such information with their attorney as early in the process as possible so that the attorney can consider their ability to deliver the requested legal services within the specified budget.
After an attorney has been engaged, the most effective way to efficiently deal with the attorney is to have an organized strategy for communication in place from day one. Attorneys that bill by the hour are selling a limited resource, the billable hours that can be eked out of a workday. A successful attorney needs to bill all time they spend working on a client’s matter. However, perhaps the most often uttered complaint about attorneys with hourly engagements is that they bill for every single phone call or email.
Clients that make this complaint have only themselves to blame because the complaint arises from the client’s failure to understand the implication of billing practices that employ minimum billing increments and the client’s failure to employ an organized strategy to deal with same. When an attorney has a minimum billing increment of .2 hours, the client is going to be billed for 12 minutes of legal fees whether the attorney spends 12 minutes on the task or not. Understanding this, you can see how quickly legal fees can mount by sending an attorney a series of “quick emails” or calling an attorney with several “simple questions.”
How do you address this issue? Understanding the implication of minimum billing increments is the first step and planning accordingly is the solution. Instead of sending an email to your attorney every time you have a question, maintain a notebook where you write down questions to address with your attorney during your next conference. Obviously, emergencies can arise and when they do, you would be foolish not to reach out to your attorney immediately. However, if during the conference necessitated by an emergency you are able to address five non-emergent questions, thoughts, or concerns that you had jotted down to discuss the next time you met with your attorney, you will have saved an entire billable hour versus having sent those five simple issues in separate emails, each of which would have triggered a .20 minimum time entry.
How to efficiently use the legal system
Ask almost anyone that has been a party to a lawsuit that went to trial, and they will proclaim that a bad settlement is very often better than a great lawsuit. Attorneys are expensive. Litigation is time consuming and stressful. What do you do with that information? If you are smart, you will use it as a motivating factor to encourage you to find the earliest possible opportunity to end the case on terms that you can live with. Litigation should be viewed as a matter of last resort, and as such, during litigation parties should anxiously explore any opportunity to bring the dispute to an end.
Decision making by a client during litigation should be driven by what the party “needs” out of the litigation versus what the party believes it is entitled to, wants to receive, or believes justice would dictate, and to do otherwise almost assures disappointment in the final result. If despite my warnings, a client insists on speaking to me about “what is fair” or “what justice dictates,” I remind the client that while we have the best justice system in the world, it is far from perfect, and suggest the client spend their hard-earned dollars on a psychologist working through their sense of fairness or justice rather than spending those dollars on an attorney seeking an end that matches the means.
John J. Thresher, a Florida Bar Board Certified Construction Specialist, is one of the construction industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar on this or other legal topics, email firstname.lastname@example.org, or visit www.zinzowlaw.com.