Hiring An Attorney: FAQ

For most people, the need to hire an attorney is a first time ever event. They do not know, or even know of, an attorney they can or should call about their problem or situation. Naturally, there are questions about how much an attorney will cost and, in many instances, about whether an attorney's services are even needed in the first place. In other, more exigent circumstances wherein the need for legal advice is all too clear, the task of quickly finding and hiring an attorney who is not only a "good" lawyer but also the "right" lawyer can be an overwhelming experience. The following information is intended to address some common questions and issues confronting anyone who is contemplating hiring an attorney and, it is hoped, help facilitate the process of finding appropriate legal representation.

1.    How Do I Find And Hire The Right Attorney?

The answer to this question depends in part on whether you have been sued by someone or are contemplating suing someone, or whether you simply need some legal advice about your rights and obligations in a particular circumstance.

          If You Have Been Sued:

If you have been sued by someone and you have insurance, for example, homeowners', renters', automobile, commercial, professional liability, or title insurance, you should promptly notify your insurer about the suit ("tender your defense," as it is called) and then follow your insurer's instructions carefully. Depending on the type of lawsuit and specific claims against you, you may wish to tender your defense to more than one of your insurance companies because you may have coverage under more than one policy. If your insurance company accepts your tender, your insurer will retain legal counsel for you. If your insurance company informs you it may need some time to review your tender and the deadline for responding to the lawsuit is very near, or if your insurer declines your tender, meaning it has concluded it has no duty to defend or indemnify you under the terms of your policy, you should hire your own attorney at your own expense without delay to insure that your rights and interests are preserved and protected in a timely manner and that the person suing you does not take your default. If you have questions or want help concerning tendering your defense, then retain an attorney to assist you.

          If You Are Contemplating Bringing Suit, Want A Legal Opinion About Something,
          Or Otherwise Must Hire Your Own Attorney To Defend A Suit Brought Against You:

For someone who has hired an attorney before and was pleased with the service provided, you may wish to call that attorney to ask if he or she handles the kind of matter you are presently confronted with. If not, then perhaps that attorney will be able to provide you with the name of a referral. If you are unable to obtain a referral from your former attorney or anyone else you know, then the Internet and Yellow Pages are terrific resources. The State Bar of California and your local County Bar Association (www.sonomacountybar.org) maintain excellent websites containing much useful consumer information. Regardless of how or where you conduct it, your search should consider three important criteria. The first two search criteria concern the prospective attorney's practice areas and location. The third search criterion concerns what I like to call "the intangibles." I will discuss each in turn.

In the very first conversation you have with any prospective attorney, it is imperative you inquire about his or her experience level and background in handling questions of law and fact unique to your case. Don't be shy about asking, either! If the attorney does not regularly handle cases like yours, my advice is, keep looking. While it may seem obvious that if you have been injured you would want a personal injury attorney, or if you had an easement problem you would want a real estate or land use attorney, it is often the case that people hire an attorney with the wrong professional background. Changing, or "substituting in," as it is called, a new attorney later can be more than an inconvenience. Substituting in new counsel months or more into a case can be, and usually is, expensive, for new counsel must "get up to speed" (at your cost). Invariably, too, all forward progress toward a resolution of the case is slowed, if not halted, for a period of weeks or months, depending on the complexity of the matter, while the attorney catches up. Changing attorneys also sends an unmistakable message to your adversary that "your team" is in turmoil, which in turn signals weakness. This is the last thing you want to have happen to your case.

Where an attorney is located – in relation to the city in which you live and where the court is situated – is also a consideration but less important than the above, in my opinion. Hiring a "local" attorney is always a convenience, especially when you want to meet with him or her to discuss your case or review documents. In the typical case, however, after your initial face-to-face meeting with your new attorney, additional face-to-face meetings take place much less often than you may think. In fact, in the majority of cases, most subsequent communications with your attorney will be by telephone, letter, fax or email. While there is no denying the convenience of having your attorney literally minutes away from your home or the court, the foregoing considerations enable you to retain an attorney 25 or 50 miles away or more without hindering attorney-client communications or overall efficiency in the representation. The only potential downside to retaining a more distant attorney is increased fees, if you are paying your attorney by the hour, including travel time. However, most courts, including the Superior Courts in Sonoma, Mendocino, Lake, Marin and Napa Counties, today permit counsel to appear at virtually all court hearings (except settlement conferences and trial) via telephone, which should cut hourly fees related to travel time to an acceptable minimum. Added hourly fees may be unavoidable, though, if your case has many witnesses to be interviewed or deposed, or real property which must be visited or inspected, and your attorney must travel for those purposes. In short, in weighing the above considerations, I believe that as long as you are satisfied you have found a "good" lawyer who is also the "right" lawyer you should not hesitate to retain him or her simply because his or her law office is not in your hometown or the same city as the court.

Lastly, the intangibles. A critically important question you should ask yourself during your initial interview with a prospective attorney is, "Can I work comfortably and productively with this person?" You better be able to because you could be working closely together as a team for the next several years on matters which may have profound, lifelong consequences for you and yours. Call it bedside manner, ability to effectively communicate or whatever you like, but the simple truth is, while most attorneys have these interpersonal skills to one degree or another, many could use considerable sensitivity training in this area. For these reasons, there are a number of telling signs you should be watchful for during your initial interview with any prospective attorney, such as: Is the attorney carefully listening to what your have to say and providing thorough, direct answers to your questions? Is the attorney explaining things to you in simple, plain language or talking "over your head" in legalese? Is the attorney expressing sincere interest in your case and stating he or she has the experience and present willingness to help? Is the attorney accepting telephone calls during your meeting or interrupting your meeting to tend to other matters? Obviously, you can only tell so much during a first meeting with anyone. On the other hand, initial impressions can be very revealing. Trust your instincts when contemplating hiring any attorney. Just because a particular lawyer may have been practicing for 20 years and have a general reputation for being "good" does not necessarily mean he or she is the "right" lawyer for you or your particular case.

2.    How Much Is The Attorney Going To Cost?

Most people contemplating hiring an attorney are understandably concerned about the cost. Accurately predicting the legal cost of a given matter is often difficult, especially at the outset of a representation likely to involve litigation. In those matters, absent information about the wide-ranging factors impacting costs of suit, the attorney will likely be able to provide you with only an educated estimate of your future costs. In general, some of the variables which can, and usually do, impact the cost of representation are the extent to which liability is or will be contested, the presence or absence of disputed issues of law or fact, the number of witnesses involved, the presence or absence of insurance-paid defense counsel on the other side, the extent of your adversary's financial resources and resolve to fight regardless of the cost, and whether your adversary will file a cross-complaint against you (i.e., sue you back). In sharp contrast, many legal services not involving litigation – for example, business formations, uncontested divorces and simple wills and living trusts – are routinely performed for a fixed fee which the attorney will disclose to you at the commencement of the engagement. This will be more fully discussed below.

3.    Written Fee Agreements

No matter what kind of legal matter you have, applicable law provides that, if it is reasonably foreseeable that the total cost of the representation, including but not limited to attorney's fees, will exceed $1,000, the contract for services between the attorney and client must be in writing.

          The Most Common Fee Arrangements

Most fee arrangements between attorneys and their clients involve one of the following types of agreements:

Fixed Fee: As mentioned above, many legal services which do not involve litigation, such as, incorporating a business, uncontested divorces or preparing a simple will and trust, are frequently performed for fixed, stated fee. Be certain to ask the attorney whether there will be any incidental costs added to the bill.

Hourly Fee: This will vary from attorney to attorney. Whatever their hourly fee, most attorneys will require you to pay fees and costs in advance and at all times maintain some minimum amount of money in your client trust account. Your fee agreement should clearly set forth all payment requirements, including the hourly fees charged for support staff (e.g., a paralegal) who may work on your case. Remember, the attorney that charges the highest hourly fee is not necessarily the best attorney or the "right" attorney for you.

Contingent Fee: Most often used in a personal injury case, a contingent fee agreement specifies that your attorney will receive a fee equal to a specified percentage only if you obtain a recovery by means of a settlement, compromise, award or judgment. Some contingent fee agreements require the client to advance all litigation costs (e.g., filing fees, deposition costs, copy charges, investigators, expert witness and jury fees) while others provide that all costs will be advanced by the attorney. When the attorney has advanced all costs, the percentage fee (33% to 40% is common) will be computed after all costs are repaid. All contingent fee agreements must disclose that attorney fees are not fixed or established by law and may be negotiated. If you are contemplating entering into a contingent fee agreement with a prospective attorney, be certain to first ask him or her to carefully explain exactly how it will operate and what costs are likely to be incurred.

Retainer Fee: Much less common than a fixed, hourly or contingent fee agreement, a retainer fee agreement entails an advance payment to an attorney to secure his or her availability to perform certain legal services for you within or over a specific time frame. In the appropriate circumstances, a retainer fee is deemed earned upon receipt by the attorney and may or may not be refundable to you even if the attorney ultimately performs no work for you. Large corporations or individuals that, as part of their day-to-day business operation, have an ongoing need for legal consultation often find this arrangement economical and useful.

Statutory Fee: Some legal fees are established by law or established by the court, such as workers' compensation and some probate work.

4.    My Philosophy And How I Conduct My Practice

No matter who my client is, and no matter how "big" or "small" the case is – every case is important – my philosophy about the representation and my approach is always the same: Treat each client as an individual and with respect, help the client identify realistic goals and expectations at the outset of the engagement, prepare a plan of action that is consistent with those goals and expectations and with the client's financial interests in the case, implement the action plan, push the case diligently forward and, above all else, always keep the client fully informed and assured I am doing all that can be done to advance their cause.

There are thousands of attorneys practicing in Sonoma, Mendocino, Lake, Marin and Napa Counties, so you have choices. Whomever you hire, always remember that you and your case deserve be treated and handled as I described above.