Everything You Should Know About Hiring a LawyerProvided by LegalMatchAll rights reserved. Copyright 2011 LegalMatchSelf-publishing & design partners: Studio6Sense www.studio6sense.com
Contents1. Introduction.12. Questions for Your Attorney.23. Tasks and Responsibilities.64. Fees and Pricing.115. Confidentiality and the Attorney-ClientPrivilege.176. Developing a Winning Trial Strategy.237. Communications with the OpposingCounsel: What the Opposing LawyerCan and Can’t Do.298. Conflicts of Interest and AttorneyMalpractice.339. Firing a Lawyer.3710. After Trial.4311. Conclusion.48iii
ChapterOneIntroductionThank you for your decision to work with LegalMatch. Weunderstand that this may be the first time you have ever hadto hire an attorney. When hiring a lawyer for the first time, it’snot at all unusual to ask such questions as, “What are my rights as aclient? How does a trial work? What is my role as a party in a lawsuit?What should I expect from my lawyer?”At LegalMatch, we understand your concerns, so we are providing thisguidebook to help address any inquiries you might have. The purposeof this handout is to teach you just about everything you should knowabout hiring a lawyer. This book contains many legal tips and pointers that will help you at every phase of the legal representation- fromhiring a lawyer, to preparing for trial, and even after the end of litigation when your legal issue has been completely resolved.Preparation is one of the key ingredients for succeeding whenever youbegin a new project. Your success is our top priority, and we want youto be as prepared as possible during every step of the way. A thoroughread through this handbook will help you be more informed so thatyou increase your chance of success. Enjoy!1
ChapterTwoQuestions forYour AttorneyWhat Questions should I ask my Lawyer?You will probably have many questions for your attorney when youfirst meet with them. Your lawyer knows that you will have plenty ofinquiries regarding your case and their own services. Asking your lawyer questions is absolutelyencouraged- in fact, the questions you ask mayprovide your attorney with information that willbe helpful to your case.However, you don’t want to involve your attorneywith inquiries that are unrelated to your particular situation. Understand that both you and yourlawyer may not have all the time in the world to go over every singlequestion. It is much better for both you and your attorney to plan outyour questions ahead of time before the interview.You may wish to consider dividing your questions into two categories:information regarding the lawyer and information regarding yourcurrent legal case:2
Information regarding your Lawyer:Background check What school did you obtain your law degree from? Which jurisdictions are you licensed to practice in (thismay be important if you’re dealing with out-of-statematters) How long have you been practicing in this particularfield of law? Do you have any areas of expertise or any specialknowledge that might be useful for my claim?The Lawyer’s role in their firm Are you a partner, associate, or a founding member ofthe firm? Will you be working alone or with a partner? Will a teambe working on my case? Will you be assigning any portions of the work to otherfirm members?Personal views and conflicts of interest Do you hold any personal views or opinions that mightprevent you from effectively representing me in court (forexample, whether they have any personal, moral opinionsabout your legal claim, etc.) Have you worked on other similar cases involving mattersthat are substantially related to my claim? Have you worked for the opposite party in anotherlegal case? Are you currently representing another party thatmight be opposed to my claim, such as an outsideinsurance company?3
Information regarding your Current Legal Case:Past success in related cases Have you ever handled a case like mine? What is the rate of success for clients in similar typesof claims? How many cases have won and how many have settledwith this type of matter? What is the projected amount of monetary damages thatI will be entitled to receive?Fees and costs Can you present me with a ballpark figure of how muchthe entire process will cost, including legal fees andcourt costs? Will you be working on a contingency fee basis or a flathourly rate? Will you accept payments in increments? What forms of payment do you accept (i.e., check, creditcard, etc.) Will you be sharing the fees with any other attorneys?Projected outcome of the case Are you able to anticipate the various strengths and weaknesses of the opposing party’s arguments? How long will the case take in order to resolve the dispute(this might also be related to the overall cost of thelawsuit) Are there any alternatives to litigation, such as mediationor alternative dispute resolution (ADR)? Will you be ableto represent me in such alternatives?The questions above are only general suggestions- be sure to includeany inquiries or concerns that could be relevant to your legal claim.Again, be sure to ask the questions that are the most applicable toyour case.4
Are There any other Considerations toThink About?You should be aware that conflicts of interest can present challengesfor your legal claim. A judge can actually dismiss an attorney fromworking with a client if they have a conflict ofinterest which would impair their ability to repreDid you know? sent you. The most common conflicts of interestIn the year 2008, attorneys heldare if the attorney is financially invested in yourabout 759,200 jobs in the Unitedsituation, or if they have previously worked forStates. Employment in the legalfield is expected to increase bythe opposing party.about 13% for the fiscal yearsof 2008-2018.Also, in very rare instances, sometimes an additional attorney may be needed. For example,some jurisdictions allow an attorney to negotiate a separate, unrelated business transaction with the client they are currently representing. In such instances, a different attorney might be needed tomediate the contract.Finally, you should understand that due to time and financial restraints,it might not always be possible to constantly stay in communicationwith your attorney. You will likely check in with your attorney over thephone at designated times. You will probably only be meeting withthem in person if important developments emerge. In between communications with your attorney, be sure to keep track of any additionalquestions that might come up as the case progresses.5
Chap terThreeTasks andResponsibilitiesHow are Tasks Divided between the Lawyer andthe Client?Rules of professional conduct and ethics govern how tasks are to bedivided between the lawyer and client. States may also have theirown laws regarding the division of tasks, which are normally entitled“Allocation of Authority between Lawyer and Client”.As a general rule, it is the client’s job to make the major decisions intheir case. The lawyer is required to abide by these decisions according to the client’s desires.The lawyer’s job is therefore to select the means to complete the client’s goals. They are responsible for tasks involving legal procedures,strategies and court tactics. Even still, the lawyer is required to consultwith the client about the course of action to be taken according tothe law.This means that you and your lawyer will need to cooperate thoroughly and communicate very clearly regarding what you wish toachieve in court. That way, your lawyer will know which actions totake for your particular circumstances.6
What Tasks is my Lawyer Responsible For?Your lawyer is responsible for making decisionsregarding legal procedures and legal strategies.The lawyer’s tasks mainly deal with technical, legal,and tactical matters, since the client is not expectedto know the ins and outs of court procedures.For example, lawyers are responsible for the following tasks:Procedural Issues: Ensuring that the claim is filed within the deadlinesknown as the statute of limitations Selecting venue (the location where the case will be heard) Filing the appropriate papers with the court Responding to any court papers filed by the other partysuch as requests for documentsStrategic Matters: Investigating the case through discovery (obtaininginformation from the other party) Speaking for the client in court Selecting a jury Handling trial Appealing your case Recommending courses of action the client should takeat all stages of the case Regularly communicating with the client to provideupdatesThere is not really a “bright line” dividing rule between what is considered to be a strategic task or a substantive issue. Make sure to consultwith your lawyer regarding any major changes or revisions to yourcase.7
Which Tasks am I Responsible For?You are responsible for making all the substantive decisions of yourcase, including: What type of claim to file Whether to pursue a lawsuit or settle the legal matter out ofcourt (you still may need a lawyer to represent you in out-ofcourt settlements) Criminal cases: What type of plea you will be entering, i.e., guilty, notguilty, no contest, etc. Whether to request or waive a jury trial Whether or not you will testify at trialYou should inform your lawyer of the main direction in which youwant your case to proceed. They will respond accordingly with suggestions as to how to achieve the overall aim of your legal claim. In otherwords, your attorney needs your permissionbefore acting in substantive matters.Amazing isn’t it?.Lawyers often perform a varietyof tasks. 37% of American lawyerswork over 50 hours per week.For lawyers engaged in privatepractice, tasks include researchand writing, meeting with clients,and arguing in court. Lawyers whowork on a salary basis sometimeshave more structured work hours.Feel free to ask your attorney about the variousways in which your case can be argued and ifthere are any exceptional alternatives whichmay be appropriate for your case.So, while you’re not expected to have even abasic understanding of how the law works, youshould have a good idea of what you expect toget out of trial. For example, you should havean idea of how much monetary compensation you might be asking foror what types of relief you need. This makes it easier to tell if you havean actual case or if the lawsuit is “frivolous” (too trivial to be heardin court).8
What Happens if I Disagree with my Attorney overour Tasks and Responsibilities?It is the lawyer’s job to abide by the decisions of the client. However,lawyer ethical rules state that the lawyer may limit the scope of representation only if such alterations are reasonable and the clientgives informed consent. A client may elect to fire their attorney atany time, though this might not always be a practical option if trial isalready underway.A good example of a typical dispute between a lawyer and client isthe decision whether to file an actual lawsuit or to settle out of court.As mentioned, it’s the client’s decision whether to pursue a trial orto settle. However, it is also the lawyer’s responsibility not to file alawsuit that is frivolous or lacking merit. In this situation, the lawyerand client would need to discuss whether the lawsuit has the properbasis to be filed in court.The client cannot request the lawyer to do anything illegal, and vice versa. On the other hand,you should expect your lawyer to discuss all thepossible legal consequences of any proposedcourse of legal action. Your lawyer might instructyou to make a good faith effort to determine thescope, meaning, application, or validity of anygiven law.How Important is Communication when it comesto Dividing Tasks?Communication is key when it comes to dividing tasks between youand the lawyer. In general, your lawyer should consult with you onevery major decision before they return a response to the judge.It’s always best if both you and your lawyer are in agreement on adecision.9
If you both are attempting to accomplish different objectives, it willseriously affect your case. The best way to avoid such conflicts is tocommunicate clearly and frequently.Thus a main role of the lawyer is to arrive at a balance between the client’s particular needs and the requirements and limitations imposedby the law. The lawyer is basically a mediator between the client onthe one hand and the legal system on the other (including the court,judges, and opposing lawyers). You can think of your lawyer as a sortof translator or interpreter for their clients, since laws can sometimesbe complex and difficult to understand. However, it’s up to you tomake major decisions in light of what the law says.10
ChapterFourFees and PricingHow Does Pricing Work?The total cost for any given legal case depends on a variety of factors.The overall price can be divided into two areas: fees that you pay toyour attorney, and the costs associated with the litigation. Both ofthese are affected by such factors as: The type of legal claim involved (i.e., a contracts suit vs. afelony case) The economic conditions and the standards of living ofyour jurisdiction The field of law involved (i.e., immigration law vs. divorce law)There are many different pricing options and fee arrangements thatcan be used when you hire an attorney. The purpose of this chapter isto clarify different pricing options and to illustrate when and how theymay be used.11
What is the Difference Between “Fees” and“Costs”?The word “Fees” refers to the payment that your lawyer receives inexchange for the work done on your case. These are specified in a feeagreement, which is a written agreement signedbetween the lawyer and client before work on theFor your information case begins. The fee agreement specifies detailsUpon graduation, most lawsuch as whether the lawyer will be paid on anyers begin their legal careershourly basis or on a contingency basis, and whetheras associates with a salariedposition in a law firm. Otherpayment can be made in installments (more on feepopular career paths includearrangements below).In contrast, “Costs” usually refers to any expensesthat are related to the lawsuit such as court filingfees, photocopy costs, and other administrativematters. Sometimes the client will pay these costsand sometimes the attorney will pay for them,depending on what is stated in the fee agreement.becoming a firm partner, starting a solo practice, or teachinglaw. Americans and lawyersspend over 150 billion peryear in legal fees andcourt costs.The client (you) will usually have to pay for the following costs: Court filing fees Photocopy charges Mail delivery charges including courier, postage, and overnightservices Long distance phone charges Expert witness and court reporter charges Travel and transportation charges, so long as they arereasonableYour attorney will usually pay for the following costs: Standard office staff and secretarial services12
Standard office materials and supplies Local phone charges In-town or local meals Special travel arrangements such as first-class travel costs orout of town mealsPayment for these associated costs should be addressed in your feeagreement. If you have questions regarding any other costs, be sure toask your attorney about them.What is Contained in a Fee Arrangement? Should IHave a Fee Arrangement?You should always have a written fee arrangement when working withan attorney. This is to be signed and agreed upon by you and yourattorney at your first meeting. The fee arrangement is basically a contract which outlines the manner in which you will pay your attorneyfor their services. Fee arrangements should address the following: What types of services your lawyer will perform for you The type of fee (hourly, contingent, etc.) Whether or not you will pay a retainer fee (similar to a downpayment) An estimate of total fees and costs How often you will be billed Specification of which costs you will pay for and which costsyour attorney will pay for If your lawyer will be working on a contingency basis, howmuch they will receive if you winYour fee agreement should be as specific as possible so as to avoidbilling disputes. The type of fee arrangement that you agree upon canhave a great impact on how much you have to pay overall.13
What is a “Contingency Fee” Basis?A contingency fee or contingent fee means that your lawyer will notcharge a specific amount. Instead, your lawyer will earn a percentage of the judgment if any is awarded. The word contingent means“depending upon”, which means that the amount your lawyer takes isdependent upon the outcome of the lawsuit.Most contingent fees are in the amount of onethird of the judgment or settlement amount.Thus, if you awarded a sum of 90,000, yourlawyer will be entitled to one third of the amountor 30,000.This percentage can be negotiated between youand your attorney depending on the type ofclaim. In some types of cases, contingent feesare prohibited (such as in most divorce cases).Contingent fee arrangements are most commonly employed in personal injury and employment cases, but they can also be found in realestate, probate, and business litigation matters, among others.What Other Types of Fee Arrangements areThere?There are many different types of fee arrangements besides contingency fees. The most common types of attorney fees include: Hourly Fees: This is where the attorney charges based on theamount of hours of work they put into your case. This is themost common type of fee, used in both civil and criminal cases.The total amount of hours will vary greatly depending on thenature of the case. Be sure to ask your attorney for an estimateof hours if they will be charging on an hourly basis.14
Flat Fees: This is an overall charge paid up front for the entiretyof the legal representation. It is usually employed when theservices are more predictable, such as in criminal cases. Yourlawyer should explain to you exactly which expenses and services are included in the flat fee. Retainer Fee: This is an advanced payment (like a downpayment) when the lawyer is charging an hourly rate. Theclient deposits their money into the lawyer’s trust account, andthe lawyer will deduct fees as the services are completed. Anyremaining retainer fees are generally refundable to the client. Statutory Fee: this is a fixed fee that is set by law or statute.Some types of legal work require the court to approve the fee.These are the most basic and common types of lawyer fees. Othertypes of fees are: Consultation Fee: some lawyers charge a fee for your firstmeeting. The fee may either be a fixed fee or an hourly fee.During this initial consultation, several important determinations are made or advice may be given. Referral Fee: Sometimes an attorney who has agreed to acceptyour case may have to transfer or refer your case to anotherlawyer. In this case, the attorney may charge a portion of thenew attorney’s total fee. Some jurisdictions prohibit referralfees unless the first attorney did substantial work on your case,informed you of the referral fee, and such fees are reasonable. Modified Contingency Fee: this is where the lawyer chargesa lower hourly rate but is awarded a portion of the judgmentamount or a bonus if the case is successful. Blended Fees: these are employed if several lawyers workingfor the same firm will contribute to the case. The separatework done by each attorney is combined into a single bill andcan result in an overall lower cost.15
Accommodation Rate: this is not really a fee but is a demandletter written by the attorney to someone who owes youmoney. Most lawyers will charge a very small fee for thisservice.No two legal cases are the same, so you should understand that itmay be difficult to obtain an exact estimate of fees and costs. This isespecially true for cases involving hourly fees or contingency fees. Youshould review the different types of fee arrangements before meetingwith your attorney for the first time.16
ChapterFiveConfidentialityand theAttorney- ClientPrivilegeClient confidentiality is at the heart of your new attorney-client relationship. If your lawyer is to represent you effectively,it is very important for you to feel a sense of trust and confidence in your legal counsel. Your legal issue may involve a number ofsensitive and private matters. Understand that all attorneys are heldto very strict standards when it comes to keeping your informationconfidential.As a client, you are expected to share with your attorney as muchinformation as needed to further the cause of your case. However, asa client you’re also entitled to understand what your rights are concerning the standards of confidentiality. What follows is an explanation of the various confidentiality standards that all lawyers areheld to.17
What Confidentiality Standards is my LawyerBound To?To begin with, you should understand that there are two basic standards that lawyers must adhere to when it comes to keeping your personal information confidential. The first is called the lawyer’s Duty ofConfidentiality, while the second is called the Attorney-Client Privilege. Each of these will be discussed in detail below.What is the Lawyer’s Duty of Confidentiality?To put it briefly, the Duty of Confidentiality states that yourlawyer cannot reveal anything that is related to your legalrepresentation without your consent. Thus, your lawyer isprohibited from revealing any matter that might be relatedto the legal claim for which you have hired them.This is a very broad standard which applies to all mattersrelated to your claim, not just confidential communicationsor communications that were intended to be confidential.So, for example, if you hired a lawyer for a divorce claim andhave told them information regarding a previous divorce,they are not supposed to disclose this information to otherpersons since it may be related to your claim.What are Some Other Features of the Duty ofConfidentiality?The source of the information does not matter with respects to theduty of confidentiality. If your lawyer has learned information aboutyou from a person besides yourself, they cannot disclose the information if it is related to your claim.Also, the duty of confidentiality begins even before a lawyer-client relationship has officially been formed. When you initially meet with anattorney, you will likely have to disclose a certain amount of information even before you hire them. This is to allow the attorney a chance18
to see if they can take your case or not. This information is also to be kept confidential if it relates toyour particular legal claim. The duty also applieseven if no formal lawyer-client relationship isever formed.The main thing to rememberwith the Duty of Confidentiality is that it only pertains tomatters related to your legalclaim. Thus, your lawyer maybe allowed to reveal information that is not related to yourlegal representation.Finally, the duty of confidentiality extends indefinitely, even after the case is resolved and the attorney-client relationship has formally ended. Yourlawyer is not allowed to disclose confidential information related toyour claim after they are done representing you in court.What is the “Attorney-Client Privilege”?On the other hand, the Attorney-Client Privilege is a much stricterstandard. It protects communications between a client and their attorney for the purpose of obtaining legal advice or assistance. It protectsboth the client and the attorney from being compelled to reveal confidential communications in a court of law.In order for a communication to be protected under the attorneyclient privilege, the following five elements must be met: The person claiming the privilege must be a client, or hadsought to be a client at the time of communication The person receiving the communication must be acting as theperson’s lawyer The communication must be private, that is, between a clientand attorney only, with no involvement from non-clients The communication must be made for the purpose ofsecuring legal advice, services, opinions, or assistance in a legalproceeding The privilege may only be waived by the client, and they mustdemonstrate informed consent to waive- the lawyer cannotwaive the privilege for you19
Unlike the duty of confidentiality, the attorney-client privilege is available only where a formal attorney-client relationship has been formally established. Under federal laws, the privilege continues evenafter representation is complete. It continues even after the client hasbecome deceased, unless they have given prior permission to make adisclosure. State laws vary regarding how long the privilege lasts.The attorney-client privilege is actually an evidentiary rule and isintended to encourage frank and open dialogue between the clientand the attorney they have hired. The idea is that if you know that youor your attorney will not be required to disclose sensitive information,you will be more likely to provide them with detailed disclosures. Theattorney-client privilege is one of the most powerful evidentiary rulesavailable to clients.Are there Circumstances When My Attorney canReveal My Confidential Information?Yes, there are exceptions to both the duty of confidentiality and theattorney-client privilege. If the communication falls into any of theseexceptions, the attorney’s obligation to keep the information secretis no longer applicable, and they may reveal the information before ajudge or other authorities.Information that is normally protected under the Duty of Confidentiality may be disclosed under the following circumstances: Consent: Information may be revealed if the client consents todisclosure. This may either be express (i.e., oral or in writing) orimplied from the client’s conduct. The client must be informedas to the consequences of disclosure. Self-Defense of Attorney: The attorney can disclose confiden-tial information if it is necessary to defend themselves against apersonal claim that the client filed against them.20
Prevent Client from Committing a Crime: If the client is aboutto commit a crime involving the death or serious bodily injuryof another, the attorney can disclose information regardingthe crime. This also applies to crimes involving seriousfinancial loss. Court Order or Rule of Law: If a court orders the attorneyto make a disclosure, or if it is required by law, they will berequired to follow the judge’s instructions.Exceptions to the attorney-client privilege include: Disclosure by Client: If the client discloses information to aparty other than their attorney or staff, they have effectivelywaived (lost) the privilege. The communication can then beused in court. The client can also consent to disclosure. Crime/Fraud: If the client sought the lawyer’s services in orderto commit or aid in the commission of the crime, the lawyercan reveal the information. Joint Client Exception: Suppose the attorney is hired by twopeople to represent them as joint clients. If they subsequentlyfile a lawsuit between themselves, either party can use theattorney as a witness if they desire. The attorney might thendisclose information about either party. Self-Defense of Attorney: As a defense in court, the attorneycan disclose the client’s information if the client chooses tosue them.Thus, it is important for you as a client to be aware of the limits of theconfidentiality standards. Understand that there are certain circumstances wherein the dialogue between you and your attorney can bedisclosed, though this is relatively rare.21
To Whom Can My Confidential Informationbe Disclosed?There are certain instances when confidential information might be required for submission as evidence in court. For lawyers in the same firm to dowork on one case. In this situation, your communications might be made known to other lawyers inthe firm. This is typically allowed by state laws, sincethe lawyers in the same firm are bound under thesame confidentiality standards. However, if you areopposed to a different attorney performing work onyour case, you should inform your lawyer of yourconcerns.What Happens to My informationOnce the Case is Over?Consider this Law school is where lawyerslearn basic skills and etiquettein dealing with clients. Thereare currently 200 law schoolsaccredited by the AmericanBar Association (ABA). Lawschool enrollment peaked in2009 with 142,922 studentsenrolled. The legal field isbecoming more and morespecialized, with some attorneys working as “specialistswithin a specialty”.Both the duty of confidentiality and the attorney-client privilege continue even after the case has been concluded. No matter what theresults of the case are, your attorney is not allowed to disclose anyinformation according to the duty and the privilege.This is why it is always important to inform your attorney if a differentattorney has worked on your case before, or has worked on a similarcase you were involved in. Such information remains confidential andcan have consequences regarding what may or may not be disclosedin a subsequent case. Be sure to inform your lawyer of any past lawsuits as well as the entire history surrounding your legal claim.22
ChapterSixDeveloping aWinning TrialStrategyMost lawsuits are adversarial in nature. This means thattwo parties will be presenting their legal argum
You will probably have many questions for your attorney when you first meet with them. Your lawyer knows that you will have plenty of inquiries regarding your case and their own ser-vices. Asking your lawyer questions is absolutely encouraged- in fact, the questions you ask may provide your attorney with information that will be helpful to your .
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