http://lawyeronaleash.comindex.php/blog/ How To Hire, Work With, and Control Your Lawyer en gideon@yahoo.com Copyright 2011 2011-12-27T22:04:09+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/the-law-books-are-just-props/ http://www.lawyeronaleash.com/index.php/blog/comments/the-law-books-are-just-props/#When:22:04:09Z It's one of the most familiar images in lawyer advertising--the attorney who is sitting or standing in front of a shelf full of law books.  Sometimes the image is taken in a lawyer's office or conference room, and sometimes it's in what looks like a law library.  For many, this image connotes class. And for some, it suggests that the lawyer is smart, having read of all these large and imposing volumes. There is a reason why the books look old and distinguished.  Many have't been printed in hard copy for years.  Twenty years ago when I was in law school, legal research was a labor-intensive and manual exercise.  All of the law books were printed in these bound volumes and the supplements that showed the most recent court decisions were printed on extra thin paper.  And if I wanted to to see which cases had referred to a particular court decision, I also had to look that up manually.  Law firms needed to devote a large amount of floor space to their law library.  Those days are long gone. Today, a vast majority of legal research is conducted online.  The law books are mostly for show.  Remember that the next time you see this image in lawyer advertising or when you are sitting in a lawyer's office or conference room.  Hiring a lawyer is too important a decision to be influenced by such images. So please repeat after me:  the law books are just props. 2011-12-27T22:04:09+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/how-to-challenge-your-lawyers-bill/ http://www.lawyeronaleash.com/index.php/blog/comments/how-to-challenge-your-lawyers-bill/#When:23:21:56Z Most billing disputes between attorneys and their clients can be resolved quickly.  And, as with many aspects of the relationship with their lawyer, clients have more leverage than they realize when it comes to complaining about or objecting to their lawyer's bill or invoice. The most important thing a client can do is to object to the attorney's bill in a specific way as quickly as reasonably possible. A timely and specific objection to your lawyer's invoice can be much more effective than a similar complaint to another service provider, such as a plumber. That's because lawyers and plumbers are subject to very different rules relating to how they handle money they receive from their clients.  What do you think happens when you write your plumber (or most other service providers) a check at the beginning of a project?  They deposit the check into their business bank account and are free to spend it right away.  That's not true of lawyers. In most states, lawyers are required to maintain at least two separate business accounts. One, which is generally called the Client Trust Account, is reserved for money that the lawyer is holding on behalf of clients and unearned fees. The second is a General Business Account, from which lawyers run their business and pay for expenses such as payroll.  When a lawyer receives your check or other payment when you first hire them, the lawyer is generally required to deposit your money into the Client Trust Account.  Moreover, lawyers generally may not withdraw money from the Client Trust Account until they have earned your fee. Once they earn the fee, however, lawyers must promptly withdraw the money from the Client Trust Account. This is because lawyers must keep your money separate from theirs. Thousands of lawyers have been disciplined and some have lost their law license because they didn't keep your money separate from yours.  Lawyers who mix the two together are said to have commingled the money and that is a very bad thing for a lawyer to do. So what happens when your lawyer sends you an invoice or bill?  If you don't complain about it or object to it within a reasonable time, the lawyer is deemed to have earned that fee and must withdraw the earned fee from the Client Trust Account and deposit it into the General Business Account.  But, and this is the critical part, the lawyer can't withdraw from the Client Trust Account funds that are disputed by the client.  Thus, a written and specific objection to the bill can be much more effective than, for example, contesting the charge with a credit card company.  Lawyers aren't happy when clients challenge credit card charges, but they are often even more interested in making sure that the State Bar or other disciplinary authority doesn't get involved in billing disputes. A rational lawyer will not want to mess around with any obligation relating to their duties to keep their money separate from their client's money.  This does not mean they will necessary agree with your complaint or objection, but it does mean that your complaint is unlikley to be ignored. Because lawyers are obligated to withdraw money from the Client Trust Account as soon as it is earned, it is important that you act quickly.  Review the bill as soon as it arrives and if you have a specific question or objection, let the lawyer know as soon as possible. Better yet, put the objection or question it writing.  Be specific.  Let the lawyer know what aspect of the bill is confusing or potentially wrong.  Don't just say that you have general questions about the bill without providing any details. Indicate the specific line items on the bill that you object to or don't understand. The more specific your complaint, the harder it will be for the lawyer to transfer the full amount of the invoice out of the Client Trust Account. The lawyer should, when receiving your objection, withdraw from the Client Trust Account an amount that is equivalent to the undisputed portion of the fee or invoice. Nothing about this discussion means that you can't object to a bill, in part or in whole, after the lawyer has earned the fee and transferred the money into his or her General Busines Account.  You can, and there are procedures in almost every state for resolving fee disputes between lawyers and their clients.  Most lawyers will act reasonably when they receive your objection, whether or not they have already withdrawn the money from their Client Trust Account.  You have more leverage, however, if you provide specific objections as soon as you reasonably can. It's the difference between preventing money from being withdrawn in the first place and trying to get it back later on.     Attorney Discipline, Attorney Fees, California Lawyers, Fee Dispute With Your Lawyer 2011-10-08T23:21:56+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/legalese-translator-what-is-an-attorneys-service/ http://www.lawyeronaleash.com/index.php/blog/comments/legalese-translator-what-is-an-attorneys-service/#When:20:45:57Z Lawyers who are representing clients in a lawsuit, either the plaintiff or the defendant, will periodically mention that they used an attorneys' service. On some level, everything a lawyer or lawyer does could be thought of as an attorneys' service.  That's why the phrase is often misleading to non-lawyers. The phrase,'attorneys service' has a very precise meaning in the context of a lawsuit.  It refers to an outside company hired by the law firm to physically take legal papers to the courthouse and have them filed with the court clerk.  It's inefficient for a lawyer to take the time to drive or walk to the courthouse and potentially stand in line to perform a largely administrative task. That's where the attorneys' service comes in. They employ messengers who for a flat fee will deliver the papers to the court and return with a copy bearing the court's date stamp. That's how lawyers prove that they filled court papers on time and didn't miss any deadlines. If you are filling out any of the court documents yourself, find out whether you can use your law firm's attorney service.  You too may be able to avoid having to take time from your job to physically go to court to file documents. And if you are like most people, and your lawyer is filling out or drafting all the court documents, at least you now know what your lawyer means when they use the term, "attorney service." Legalese Translator 2011-07-19T20:45:57+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/burning-through-your-retainer/ http://www.lawyeronaleash.com/index.php/blog/comments/burning-through-your-retainer/#When:11:38:54Z "I know lawyers who won't even start discussing settlement until they have burned through their retainer."  This comment was made by a family law attorney about other lawyers in that field. I wish I could say the comment shocked me, but it didn't.  There are some lawyers who feel entitled to the retainer they collect. They view it as a minimum payment for every case.  That, of course, isn't what a retainer is designed to do.  It's supposed to be a way for the lawyer to make sure that clients are serious about moving forward.  It's a way for the lawyer to deal with a legitimate problem--clients who ask the lawyer to do work on their behalf, but don't pay for the lawyer's work.  The retainer is especially appropriate if the attorney and client haven't worked together before. But that doesn't mean that the lawyer is automatically entitled to be pocket the entire amount of the retainer.  Retainers come into play when clients are paying by the hour.  Thus, lawyers are entitled to the retainer only if they legitimately devote enough time to cover the retainer amount. As the client, there are a few things you can do to avoid lawyers who see the retainer as a minimum down payment.  First and most importantly, avoid non-refundable retainers.  Second, negotiate the smallest retainer you can.  It's hard to know in advance which lawyers have the entitlement mentality, so protect yourself and put the lawyer in the position of having to invoice you for the vast majority of the hourly work they do for you.  You can save thousands of dollars in legal fees by holding firm and negotiating a small initial retainer. Attorney Fees 2011-07-11T11:38:54+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/legalese-translator-what-does-leave-to-amend-mean/ http://www.lawyeronaleash.com/index.php/blog/comments/legalese-translator-what-does-leave-to-amend-mean/#When:16:09:16Z You have been sued and your lawyer calls you to tell you the good news:  The judge granted your request to dismiss the other's side's lawsuit or portions of it "with leave to amend." A motion to dismiss is an attempt to get rid of a lawsuit (or a part of it) right after it is filed.  If it's granted, the case can be over or a part of the lawsuit can be thrown out for good. Lots of defense lawyers like to file these motions if they can. The idea behind "leave to amend" is pretty straightforward, but it may involve tricky strategic considerations when you have been sued. "Leave to Amend" is a judge's way of saying, "I'll give you another chance."  In other words, when a motion to dismiss is granted or approved by the court with "leave to amend," the result is mixed for both sides. The plaintiff has at a minimum been delayed, but he or she does get another chance to file the lawsuit. Motions to Dismiss can be expensive when you are paying by the hour. They often cost $10,000 or more (depending on your lawyer’s hourly rate and the complexity of the issues involved).  That's why you and your lawyer need to carefully weigh the benefits relative to the risks that the court will give the the plaintiff another chance to file the lawsuit. Some lawsuits suffer from a technical defect. For example, the lawyer who filed the lawsuit forgot to include some allegation that is required by law.  If it's easy for the lawyer to cure the defect, it's probably a waste of your time and money to pay for a motion to dismiss.  The judge will likely grant the other side "leave to amend," and you will just be paying your lawyer to help educate the other side's lawyer how to make the lawsuit better for the person or entity that is suing you. On the other hand, some lawsuits are big enough and some issues are important enough to risk having the judge give the other side another chance.  Judges are often reluctant to throw out a lawsuit without giving the plaintiff's lawyer at least one additional chance to fix any problems with the lawsuit.  Thus, you should discuss with your lawyer the likelihood that you will have to pay to file more than one motion to dismiss (one to try to dismiss the lawsuit in its initial form, and then potentially another when the other side takes its second chance). There is no hard and fast rule as whether you should take the risk that a motion to dismiss will be granted with "leave to amend."  Sometimes it's a good risk to take and sometimes it isn't.  But a client can't make a sensible strategic decision about this issue unless you know what "leave to amend" means and how it may impact your specific lawsuit.     How To Work With Your Lawyer, Legalese Translator 2011-06-27T16:09:16+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/dont-use-a-shadow-lawyer/ http://www.lawyeronaleash.com/index.php/blog/comments/dont-use-a-shadow-lawyer/#When:16:19:27Z When you hire a lawyer, give them a chance to show you what they can do for you.  It can be tempting to get a second opinion for every decision they make or recommendation they give, especially if you know someone who practices in the relevant area and can give you advice for free.  But in my experience it often does more harm than good to ask your sister-in-law, uncle, college roommate, or whatever lawyer you happen to know to shadow the lawyer you are paying.  There are times where it makes sense to seek a second opinion, but lawyers and clients work best when they are forced to communicate with each other and address the bumps in the road that arise. When you run every decision your attorney makes by your friend, you undermine trust and impair the normal development of the attorney-client relationship.  This is especially true if the lawyer you are paying knows or finds out that you are using a shadow.  They correctly conclude that you don’t trust them, and too often that causes them to work less hard than they otherwise would. I’ve spoken to several lawyers who basically take the position that clients who use shadows from the beginning of a relationship are the kind of clients that should be avoided. And you should generally avoid using a shadow lawyer even if you don’t disclose that fact to the lawyer you are paying.  It’s the functional equivalent of having a girlfriend or boyfriend on the side.  This isn’t to say that I think using a shadow lawyer is immoral or that it somehow breaks a promise to the lawyer to be exclusive with them.  Using a shadow lawyer, however, means that your commitment to the lawyer is diminished. And that tends to negatively impact the results you and your lawyer can achieve together. If you are having series concerns with your lawyer’s performance, discuss them with the lawyer. And if you remain dissatisfied, and the issue is significantly important to you, consider replacing that lawyer outright.  That is better alternative to using a shadow lawyer. Who after all wants to be constantly second guessed? Would you want to be?  Neither does your lawyer. How To Work With Your Lawyer 2011-06-20T16:19:27+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/docstoc-for-free-legal-documents/ http://www.lawyeronaleash.com/index.php/blog/comments/docstoc-for-free-legal-documents/#When:14:12:45Z If you are looking to save money on the drafting of legal documents, you should checkout docstoc.com Docstoc allows you to search and download thousands of legal, financial, real estate and related documents. Many of these documents are free. There is a right way and wrong way to use legal documents you find on Docstoc.  The wrong way is simply to copy a document you find and use it wholesale.  This is a somewhat risky but defensible strategy if the document in question is from your state and deals with a minor matter.  But for a vast majority of legal issues, it's reckless to just cut and paste a document you see on online. That would be like trying to transplant someone else's organs with the help of medical experts. Docstoc can, however, help you save time and money when dealing with your lawyer.  It is generally cheaper for you to have lawyers review documents than draft them in the first instance. Thus, the right way to use Docstoc is to use the documents that you download as a starting point for the legal advice you are seeking.  Rather than paying your lawyer to draft contract language, have them focus on higher level tasks, such as evaluating whether a particular document could be amended to better fit your strategic goals.  A recent conversation I had with the owner of a web design firm provides a good example.  His standard contract provides for flat fee payments.  He doesn't have a version of his contract that sets forth hourly rates.  His lawyer has expressed a willingness to draft such an agreement, but the web designer hasn't gotten around to it yet. A search for "web design contracts" on Docstoc revealed approximately a dozen different contracts.  I suggested that the web designer review these contracts and find the contract language that seems to best address his issue--charging hourly rates.  Given that this is likley to be a recurring issue for the design company, and that each contract is worth thousands of dollars, this is too important an issue to warrant the cut-and-paste approach.  But the web designer and you can make the process of working with your lawyer more effective if you present sample language for your lawyer to review. 2011-06-10T14:12:45+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/california-client-security-fund/ http://www.lawyeronaleash.com/index.php/blog/comments/california-client-security-fund/#When:19:52:33Z If a California lawyer has cheated you or acted dishonestly, you may be able to get some of your money back. California in 1972 established a Client Security Fund.  In a typical year it pays victims of dishonest California lawyers between $2 million and $ 4 million. There are important restrictions.  You have to show that you were cheated, not just that you were dissatisfied with your lawyer's performance or that the lawyer committed malpractice.  It generally has to involve something like actual theft or taking your fees and then doing essentially no work.  The money that you are trying to recover must have been received by the lawyer.  In addition, you have to file a disciplinary complaint with the State Bar of California before you are eligible for any compensation.  if the lawyer is disciplined and also found to have been dishonest, you then may be eligible to receive some money.  Awards are limited to $50,000.  The California Client Security Fund is in some sense a payor of last resort.  Generally speaking the State Bar seeks reimbursement as part of the disciplinary process.  The Fund is designed to help victims of attorney fraud and dishonesty where the lawyer lacks the resources to pay back the people he or she has harmed. The California Client Security Fund, which in other states is sometimes referred to a Client Recovery Fund, is hardly a panacea.  It takes approximately a year for eligible people to receive any funds.  It is, however, better than nothing. In a typical year about 700-800 people receive some kind of payment from the Fund.  In a state with more than 150,000 lawyers, that is a very low number.  I suspect that few people know about the Fund.  You can find out more information about the California Client Security Fund, including downloading an application for payment, by clicking here. If you are wondering where the money in the Client Security Fund, comes from, it's not from taxes.  California lawyers contribute to the Fund as part of their professional dues. It's one of the things that lawyers do that makes them professionals rather than just business owners. Please keep the Client Security Fund in mind the next time you hear someone bad mouth all lawyers. California Lawyers, Cheated By Your Lawyer, When Things Go Wrong With Your Lawyer 2011-06-05T19:52:33+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/why-lawyers-are-assholes/ http://www.lawyeronaleash.com/index.php/blog/comments/why-lawyers-are-assholes/#When:13:58:01Z When people complain that they don't like the lawyer on the other side of a law suit or negotiating table, it often shows that they, the person complaining, doesn't know or fully appreciate what lawyers do. To fully understand this, you need to know what we often mean we say that someone is nice.  Being nice has many dimensions but one of them is being forgiving; it's giving someone some slack.  It's the driver who lets you cut in front of them in line.  It's the clerk at the store who gives you a free sample even though they aren't supposed to.  It's the police officer who gives you a warning instead of a speeding ticket. It's the teacher who allowed you turn in your homework one day late. In many aspects of our daily lives we expect to receive a certain amount of leeway. That's why people who don't give you that margin of error are often considered assholes. It's the police officer who writes us a parking ticket even though the meter expired just a minute ago. There are, of course, attorneys who aren't the nicest of people.  They are abrasive and difficult in many circumstances.  But in my experience, most lawyers aren't like that.  But lawyers are often brought into situations where their role is not to give you slack.  Someone has decided--usually the client--that this particular issue is sufficiently important to justify precision and attention to every last little detail.  It's the lawyer who writes the cancellation notice on the very last day the contract can be terminated.  It's the lawyer who insists that the contract include a particular clause written in a specific way. Lawyers tend to be involved in situations where cutting someone slack may not be in the interest of their client.  That more than anything is why lawyers are assholes.  And when people complain about that, especially if you are on the other side of the table from their client, you are often giving that lawyer a compliment.  So keep your complaints to yourself or vent to your lawyer about how big an asshole opposing counsel is.  Better yet, understand that it's just part and parcel of the dynamics of being involved in a situation where lawyers are also involved.   How To Work With Your Lawyer 2011-06-02T13:58:01+00:00 http://www.lawyeronaleash.com/index.php/blog/comments/money-saving-tips-when-your-lawyer-charges-425-an-hour/ http://www.lawyeronaleash.com/index.php/blog/comments/money-saving-tips-when-your-lawyer-charges-425-an-hour/#When:18:51:37Z What do you do when your lawyer is charging you $425 an hour?  That's more than seven dollars a minute or roughly what you would pay 58 minimum-wage workers for an hour of their time. For much of my working life I have been on the receiving end of this transaction.  I was largely walled off from its real impact because I worked for large law firms where the accounting department handled the invoices and I rarely had to talk to clients directly about their bill.  Now I'm in the unusual position of paying for a lawyer's time. What I'm about to write is not an indictment of or a reflection on the specific lawyer involved.  But in a word, paying someone $7 a minute is shocking. So here are three money-saving tips when you are meeting your lawyer and they are charging you hundreds of dollars an hour. First, find out the increment at which a lawyer bills.  There can be a big bottom-line difference between a lawyer who charges in quarter-hour segments and one who charges in ten or six-minute segments. When the smallest increment of time is 15 minutes, the minimum itemized amount is more than $100.  Thus, everything the lawyer does at a rate of $425 an hour costs you at least $106.25.  That's the downside of quarter-hour billing. By contrast, in this example the minimum charge for a lawyer keeping time in tenths of hours is $42.50.  I don't believe that quarter-hour billing is inherently unethical for lawyers, although some courts have so ruled in specific circumstances.  Moreover, there is no guarantee that it will be more efficient for you to work with a lawyer who charges in smaller increments. It depends on how much they accomplish with their time.  All things being equal, however, I prefer working with lawyers who charge in something other than quarter-hour increments. Second, and more importantly, it's essential that you eliminate or delegate non-essential activities.  I could pay the lawyer's paralegal $175 to prepare some documents.  That's certainly cheaper than having the lawyer do that work.  Better yet, figure out if you can do the work yourself.  That's what I'm doing.  This lawyer was selected in part because of her willingness to let me prepare some of the forms and have her staff review them.  I know that many of you are not in the position I am and therefore filling out your own forms may be a less attractive option.  But even if you are not inclined to fill out your own forms or, for example, to provide your own documents in response to discovery requests in litigation, you may be able to find someone with some legal experience to help you.  This isn't a substitute for working with your lawyer; it is, however, a way to reduce the costs of some of the more labor-intensive and routine aspects of working within our legal system. Third, and this is the most difficult strategy for me to carry out, you have to throw out some of the accepted rules of social interaction. You won't be surprised to know that I can be chatty.  But that's not a smart strategy when paying $7 a minute.  Don't be rude. But be firm, precise, and even ruthless about how you spend the time with your lawyer. Let them know that you are all about taking care of the business at hand. Don't spend your time listening to war stories, or sharing funny anecdotes.  Prepare a written agenda.  I'm planning to bring an alarm or egg timer to my next meeting.  I especially like the idea of turning over an egg timer every ten minutes. It's a handy visual refrence point for you, your lawyer, or anyone else attending that meeting. I'll let you know how this egg-timer strategy pans out. Attorney Fees, How To Work With Your Lawyer 2011-05-30T18:51:37+00:00