To
Have or Have Not: Why Do I
Need a Lawyer
Many people
have e-mailed me asking if they
need a lawyer to handle their
divorce. "We agree on everything," e-mails
often say, "why do I need
a lawyer?"I have two
thoughts on this: First, all
language used in legal documents
has a certain meaning -- and
that meaning might change, depending
on how courts are interpreting
statutes and other things, such
as changes in the law. It is
very good if two divorcing people
can reach an agreement as to
TERMS, but each should have an
attorney to draft or review documents
so that they can be sure the
documents are in proper form
and actually say what the parties
have agreed. Also, there
are local nuances for the filling
of divorces as well as requirements
for the recording of deeds and
other related issues.
 If you
choose the right lawyer, he or
she should listen to what you
want, advise you of any legal
implications you have forgotten
or overlooked, and then do his
or her best job to draft the
documents in the way YOU want,
explain what is happening or
any additional requirements,
and provide representation in
case a dispute later arises that
concerns differing interpretations.
Second, although
I do travel out of county, it
is important to consider having
an attorney who is local to your
county and knows the ins-and-outs
of your county and its particular
judges. I really resent having
to say this, but often the person
who has a local lawyer has the "home
town" advantage. I get hired
to go to small counties when
my client doesn't trust the local
bar or can't find someone in
the local bar to fight for them;
but I do recommend that people
consider having a local attorney,
to get the "home town" edge.
If
you have a lawyer in your geographical
area that has done well for you,
stick with him or her. A good
lawyer will not press you to
create or continue needless controversy,
but a good lawyer will ALSO tell
you what an agreement you are
contemplating means, or doesn't
mean, so you go into every legal
transaction with "eyes
wide open."
A Flashlight
Many
people ask me if they and their
spouses can use the same lawyer
in a divorce, or if they need
a divorce lawyer since their
spouse has one that will draw
up the papers.
Representation
of two parties to a divorce is
an ethical violation. But over
and above that, to those people
who are trying to cut costs by
using the same lawyer or just
one person getting a lawyer,
I say this: If you are in a cave
with somebody and they have a
flashlight but you don't, you'll
be okay IF you can trust them
and IF they are going the same
place as you. But if you can't
trust them, or if their destination
is different than yours, you're
likely to be left in the dark.
The same thing is true with lawyers:
If the other guy has one, you're
okay IF you can trust them and
IF they have the same goals as
you. But if they are not trustworthy
or have conflicting goals, then
you better get yourself a flashlight.
Choosing An Attorney
The choice of a lawyer is a
tricky business, as personal
as your choice of friends, furniture,
or deodorant. They come in all
shapes and sizes, and you not
only have to find out whether
your case is right for them,
but also if they as an attorney
and as a person are right for
you. Regarding how to choose
an attorney, here is what I tell
people, including family and
friends.
- Ask for a free consultation.
Anybody who (A) wants your
business; and (B) is honest,
will talk to you for a half
hour or so without charge.
I myself do this most of the
time; exceptions are if I have
already spent more than a half
an hour on the telephone with
the person doing the initial
interview.
- During the initial
free consultation, size the
person up. How do you react
to them? Do you feel intimidated?
If you do, that's a bad sign;
it means you will hesitate
to ask the lawyer to do what
you want.
- Check out the lawyer's
office. Is it lush? That's
impressive, but probably means
he/she spends your money on
office furnishings. A nice
conference room is important
but the rest of the office
should be efficiently organized
and fairly utilitarian. The
myth of luxurious offices meaning
a successful lawyer might still
be true at times, but when
I go into a posh office, all
I think is, "Here's a
guy who charges his clients
too much."
- Make a list
of questions you have (even
if you don't know if they are
relevant) and ask the questions
of the lawyer in the initial
visit. Gauge your opinion of
the lawyer on what that person
says and how he or she responds
to being questioned. Does the
attorney treat you as impertinent
for asking? Does he or she
have answers -- and do your
questions inspire questions
of you in return? If so, it
is a good indication the lawyer
is a rapid thinker who can
assess the situation, respond
with what he or she knows,
and search for additional relevant
information.
- What are your goals,
and what are the lawyer's goals?
Is the lawyer willing to work
for your goals?
- Take a friend
or family member with you.
Don't tell the lawyer anything
that needs to be confidential
with a 3rd party present, but
let your visitor observe some
of the exchange at least, to
get a third opinion of the
lawyer.
- If possible, ask for
a reference of a former client
or the name of a case he or
she has handled. This might
not be possible because of
client confidentiality, but
sometimes clients will consent
to give a reference.
- Never pick
your lawyer on the first visit,
and never just visit one lawyer.
You need a standard of comparison,
and you need to be able to
sit back in the privacy of
your home and think, "Did
I like this lawyer? Did I feel
comfortable with his or her
style? Did he or she impress
me as someone who will fight
when it is necessary, negotiate
with skill and style, and earn
the respect of a judge? Does
this person respect me, and
respect my goals?" Your
answers to these questions
should make you feel as though
you can trust the lawyer.
Finally, if you hire a lawyer
and later feel that your choice
was wrong, consider terminating
his/her services. I have done
a number of Motions to Modify
for people who said, "I wanted to fire my lawyer but he/she
talked me out of it." I routinely believe that
it was a mistake. A crisis of confidence is not a good
sign. I have had several clients over the years that
lost confidence in me, and I felt they made the right
choice to change lawyers. I'm a good lawyer, but if
you don't feel comfortable with me, you should have
a different lawyer. Lawyers are like hairdressers:
You have to be able to trust them with sharp scissors
close to your ears.
Flexible
Holidays
Thanksgiving has come
and gone, and I would like to
share my perspective. I was in
a trial on the Wednesday before
Thanksgiving, and when I got
out of trial, there must have
been ten messages from various
clients all to the same end: "Where
is my child going to spend Thanksgiving?" At
the risk of sounding pompous,
I would like to point out that
a day is, after all, just a day.
Oh, I know, that's easy for me
to say -- it's well known that
my son's father has never seen
him, and I get to have him on
every holiday there is and a
few we just make up! Having said
that, I also know that every
day is a day on which I give
thanks that my son and I have
this world together.
Judge Christine
Sill-Rogers once responded to
a mother's request that my client "share" each
holiday by saying that she " was
not going to make this child
drop her fork in the middle of
pumpkin pie to rush to another
parent's household". When
you get over the hurdle of "sharing" time
with a person for whom you no
longer feel the same love that
compelled you to procreate with
them, you must move onto the
next hurdle: There are going
to be some holidays spent with
the other parent. Your response
can either be to feel cheated
and resentful, or make Christmas
Eve -- or the Friday after Thanksgiving
-- the new traditional Day of
Celebration in alternate years.
It's that simple: Human organisms,
as all other organisms, must
adapt or perish. The law can
only fix so much. The rest is
up to you.
The Economics of Hiring a Lawyer
A lot of people have asked me
if lawyers should take payment
plans. 'They all want several
thousand dollars in retainers,'
they tell me. 'What is the money
for?' The short answer is, that
most lawyers put the money in
an interest- or noninterest-bearing
trust account and bill against
it until it is consumed. Whether
the account is interest-bearing
or not has little effect on the
client, since the interest goes
to a fund and not the lawyer
or the client. The lawyer bills
against the retainer hourly for
legal fees (in Kansas City, these
rates can range from $100 to
$300 for lawyers, and $50 to
$150 for paralegals) and also
for the costs -- depositions,
postage, long distance, mileage,
copies, delivery, service, filing
fees, and so forth. The fees
are billed monthly and the costs
can be billed monthly or as incurred.
As
for payment plans, bear in mind
that the lawyer does not work
for his or her clients "on
a budget" that is, two hours
a month or four hours a month.
The lawyer must do all the work
that comes up for the client's
case each month. To ask a lawyer
to accept two hours' of pay a
month (particularly where the
first 2/3 - 3/4 of each hour's
billing goes to overhead for
a solo practitioner or a small
firm), is the same as asking
for an interest-free loan for
the balance of your bill. Most
lawyers cannot afford to have
all that uncollected billing.
By the same token, in our profession
the collection rate for clients'
bills is generally around 40%.
That means, 60% of all time billed
is never paid. Having a large
retainer in the bank insures
that the lawyer will be paid.
Even my clients who set up payment
plans regrettably feel perfectly
free to stop paying if they have
other financial commitments.
We all know that the electric,
gas and phone companies have
a remedy if you stop paying --
your services are terminated
-- but lawyers have ethical obligations
and might not be able to withdraw
just because you don't pay your
bill. Moreover, lawyers who have
finished your case have no leverage
to get you to pay. Should it
surprise you that they want to
make sure their bill is paid
before taking the case to trial?
I do make payment agreements,
myself, but I am 'burned' at
least the average 60% of the
time, by people who sat in my
office and swore they would pay.
It makes me less likely to be
agreeable for future clients,
but I still endeavor to work
out written payment plans for
each hourly client.
The best way
to handle the situation is to
discuss with the lawyer you plan
to hire in advance what he or
she thinks your average monthly
bill will be, and develop a plan
for making reasonable payments
every month. Particularly where
out-of-pocket costs are concerned
(depositions, for example) don't
expect the lawyer to incur or
advance the bill if you have
no resources with which to reimburse
the lawyer or pay the bill.
Bear
in mind that the lawyer has obligations,
too, and doesn't say to you,
'I can only work on your case
an hour each month'. If you hire
a lawyer, you should understand
that a contested case -- particularly
a family law case -- might run
$1000 or more in many months
--- so if you are only paying
$100 or $50 a month, that lawyer
is lending you the balance, interest-free,
and at the cost of his or her
own overhead and salary. It is
more fair to borrow from family
or friends, or borrow from a
bank, than to expect the lawyer
to lend you money under circumstances
that you yourself would never
find acceptable. Would you give
someone a $5000 interest-free
loan, for an indefinite period
of time? Probably not, unless
it was a very close family member.
Hiring a lawyer is a business
transaction: Lawyers try to carry
their share of the bargain, and
you should too.
On the other hand,
you should get a monthly, itemized
statement of your account. If
you have questions about your
bill, the lawyer should not charge
you to discuss it. I am not saying
it's an ethical violation, because
I don't know whether or not it
is. But it doesn't seem sound
practice because it is not really "lawyering".
Above
all, be open and honest with
your lawyer at the time you are
considering hiring him or her.
Let him or her know your financial
situation before you hire him
or her. If the lawyer can't give
you an estimate of how much you
might reasonably expect to spend
on a case, talk to another lawyer.
In this day and age, attorneys'
fees are rarely awarded, so you
can plan on paying your own bill.
Make sure you are getting value
for your dollar, but also make
sure you don't take on a legal
fight that you cannot afford. |
