Lawyers – what would we do without them? More than half of the signers of the United States Declaration of Independence were lawyers, including John Adams and Thomas Jefferson. 19 of 43 presidents have been attorneys. More than a third of the House of Representatives are lawyers, along with 60% of the senators.
For better or for worse, whether you like them or not, attorneys are ubiquitous in American life.
How the Law Affects You
Laws touch every aspect of modern life, from the contracts we sign to purchases of automobiles and health insurance, to the protections we enjoy when taking a cruise or flying an airplane. Some areas of law are particularly complex, based upon years of judicial rulings and interpretations or constantly changing regulations.
The ownership of property in a marriage – whether it is you, your spouse, or the two of you jointly – depends upon the laws affecting property in the state where you live. The amount of federal and state taxes you pay on different sources of income continually changes as laws are amended and interpreted. A dispute about the height of your fence between you and your homeowner association or the amount of personal liability to which you may be subject as a home or business owner is a matter of law.
Knowing how laws affect you and understanding which type of attorney best represents your interests if a dispute arises is critical to protecting your rights, your property, and your freedom.
Because laws are so broad, complicated, sometimes obtuse, and constantly changing, many attorneys concentrate in a particular specialty, even receiving independent certifications of their expertise. A recent review indicated more than 30 different organizations offering specialty certification programs.
Of course, such specialization and certification of the attorney usually means higher fees for their clients. At the same time, hiring a board-certified attorney for matters in his or her specialty ensures that you have someone who knows the law and is experienced in the issues that matter to you the most.
There are a number of specialty lawyers that you are likely to need:
- Bankruptcy. Free enterprise creates winners and losers; the latter may be required to orderly liquidate assets to pay creditors and start anew. Bankruptcy attorneys represent both creditors and debtors through repayment, restructuring, reorganizing, and rebuilding their companies and their lives.
- Corporate. Incorporating a business, forming a partnership, borrowing or lending money, and hiring and firing employees are activities necessary to most business operations, and are regulated under a plethora of federal, state, and local laws and regulations. Corporate attorneys are critical in today’s competitive, litigious world.
- Family. Marriage is a legal contract, perhaps with prenuptial and postnuptial agreements. Statistically, divorce occurs in half of all marriages with issues of property, child custody, continuing parental rights, and obligations. Powerful emotions predominate, and negotiations are generally required before a successful outcome is reached.
- Tax. Sometimes it’s not a matter of how much you make, but how much you keep. Government entities of all types and size – federal, state, county, city, school district – need funds in order to operate; the source of those funds is you and your business. A tax attorney helps you mitigate the cost of those taxes by understanding the rules, interpretations, exclusions, and calculations of complex, often arcane regulations.
- Trusts and Estates. Many of us have desires for how our property will be handled at our death, whether it is sold, given away, or transferred to our beneficiaries. We typically want to pass on as much of our estate as possible to our loved ones. Trust and estate attorneys draw wills, manage assets through probate, or function as executors of will in order to convey property according to the deceased’s wishes as quickly and painlessly as possible while minimizing tax and administrative costs.
Large law firms usually have groups of lawyers, researchers, and legal assistants working in each specialty area, while small firms and solo practitioners tend to offer advice in multiple areas simultaneously. For example, my attorney has helped me set up a number of corporations, drawn up wills and trusts for my wife and me, and represented me in court on business matters. He also helped a family member through an acrimonious divorce.
On those occasions where the issues were beyond his expertise or required extensive resources, he assisted me in finding legal specialists, evaluating their credentials and experience, negotiating their fee arrangements, and provided general oversight during the progress of the matter until resolved. He remains my most reliable and trusted adviser.
If you are involved in a lawsuit as a plaintiff (where you are suing someone) or a defendant (where you are the person being sued), you need to be certain that you engage an attorney with plenty of experience representing plaintiffs or defendants in similar suits. “Inexpensive” can equal “inexperience,” and inexperience can lead to you losing your case. Most people have heard the old adage, “A man who represents himself in court has a fool for a client.” Going into court without legal training would be like entering the boxing ring against a professional boxer – you might win, but you’re certain to be bruised and bloody after the event.
Trial attorneys are the stars of the legal fraternity, akin to surgeons in the medical community. While most attorneys can represent a client in a courtroom if they are properly licensed, not all lawyers are equally comfortable in the role. Like people in other professions, lawyers differ in personality, intelligence, and interest. Only some attorneys seek the spotlight, eager to challenge and confront hostile witnesses, cajole skeptical, often disinterested judges, and appeal to a diverse group of wary jurors whose primary interest is to go home as soon as possible.
Most people get a false impression of a lawyer’s skills due to the popularity of television series. There are few attorneys with the country charm of Matlock, the intensity and talent of Bobby Donnell of “The Practice,” or the extreme conservatism and quirkiness of Denny Crain in “Boston Legal.” Good trial attorneys meticulously sift through reams of confusing, often conflicting data to find a single significant fact, tediously question recalcitrant witnesses intent on hiding details, and construct a simple, persuasive presentation for a judge or jury, a story which is compelling as well as consistent with the facts. The best storyteller usually wins.
Compatibility With Your Lawyer
There is no requirement or reason that you should like your attorney as a precondition to his or her engagement. You should, however, respect him or her and his or her abilities since you will be trusting the attorney to protect your interests and property. Competence is far more important than charisma or charm. It’s nice, however, to find all three attributes in the same person.
From time to time, I have worked with attorneys with whom I had personality conflicts. While our partnerships were generally successful, our relationship made the process more intense and uncomfortable than necessary. As a result, I have a single rule when I look for legal advice: If we can’t get along, you (the attorney) had better be really good at what you do – with a string of victories to prove it. I recommend a similar attitude to you in your search for legal advice.
Excluding a contingency arrangement, you should expect to make an initial deposit as a retainer when you initially hire a lawyer. As fees and expenses are taken from the initial deposit, it is likely that you will be required to make additional payments. Since a lawsuit can extend over years – from initial engagement to final judgment – you should be prepared for significant out-of-pocket costs before the case is over.
Attorneys charge for their services in a variety of different methods:
- Fixed Fee. Many legal matters, while complicated to a layman, are actually simple affairs requiring an attorney to do no more than format and customize pages of legal boilerplate, routine provisions in a contract, form, or legal pleading which are stored in a computer and cut-and-pasted into a final document. Examples where boilerplate is often used are incorporation papers, wills, trusts, and various court pleadings such as uncontested divorce or the dissolution of partnership. In such cases, attorneys often provide their services for a single inclusive dollar amount.
- Time and Expenses. The most common fee arrangement is the standard billing of expended hours multiplied by a fixed hourly fee. There may be a list of different hourly rates where the attorney’s associates will do the work, or a list of rates based upon the work itself which may vary by complexity, required customization, or importance. Expense items such as copying papers or providing electronic versions of information are typically identified with their specific charges.
- Contingency. Occasionally, an attorney will agree to represent a plaintiff in return for a specific percentage of any judgment subsequently collected; defendants rarely have the opportunity to participate in similar agreements. A common arrangement might be 33.3% of any judgment or award plus reimbursement for third-party costs which the lawyer has advanced. From your perspective, the advantage of a contingency arrangement is that you incur no costs to file or pursue the case through settlement or judgment. At the same time, it is likely that the total fees paid in a successful case will be much higher than what would have been paid under a standard time and expense fee agreement. There is some psychological benefit in a lawsuit, however, where the lawyer has agreed to a contingency arrangement; he or she thinks that the likelihood of winning are such that he or she is willing to risk the fees in pursuing the case.
Recovery of Your Legal Expenses
If you have engaged an attorney to represent you in a lawsuit, whether as a plaintiff or defendant, the attorney fees should be included in the damages sought in the initial suit or counter-suit. If you win, the other side must reimburse you for legal expenses subject to the agreement of the judge or jury that the fees were reasonable and documented. If you lose the suit, it is likely that you must pay the other side’s attorney fees with the same requirement that they be reasonable and documented.
Contracting an Attorney
The engagement contract between you and an attorney contains a description of the legal services to be rendered (the “deliverables”) as well as any physical documents such as a will, incorporation filings and papers, trust documents, and the fee agreement.
If the services involve a lawsuit, the fee agreement typically excludes any fees for legal services after the initial judgment is rendered. An appeal of the judgment by either side usually requires another fee negotiation and, possibly, a new retainer fee. It is important to address the possibility of an appeal during initial discussions with your attorney to avoid any surprises later.
Living in today’s complex society, accumulating assets over a lifetime, starting and running a small business, and being sure your estate is handled as you wish often requires the advice and assistance of an attorney to protect your interests or accomplish your goals. J.P. Morgan, the infamous financier and tycoon of the 19th Century Gilded Age, reputedly said, “I don’t know as I want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do.” Good legal advice may be hard to find, but it is indispensable.
What has been your experience with attorneys?