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How To Manage Your Lawyer
Without Losing Your Mind, Your Sleep or Your Wallet
March 8, 2004; Speech by Steve Markoff to Woodbury University, Burbank CA
[Questions for Audience:
As a small test sample of those horror
stories - let's see if any of you have had experiences, and if so were
they good or bad experiences?
- How many of you have ever hired an attorney or know of a family member or close friend that has?
- Of those, how many were good experiences? How many weren't?
That's about ___% on the good experience side - not encouraging.]
Tonight we will explore attorney/client
relationships, why so many of those relationships go wrong - why so
many clients are filled with dread over legal issues, and why do so
many clients feel so helpless dealing with their own attorney.
Who is to blame for the attorney/client
("A/C") relationships going wrong - or is the blame shared - and
importantly, how can you manage your attorney without losing your mind,
your sleep…or your wallet. I'll divide the next hour into three
segments.
First, an overview of some A/C issues,
then I'll go over, and hopefully promote a discussion on the uses of
the legal contract booklet you many have received - and which is
available over there… and lastly some Q&A time.
Given the breath of the topic and the
limited time tonight I'll touch on the main issues as I see them -
noting that many interesting and important pieces of this question will
have to wait for another time.
Style wise, please feel free to raise your hands with questions anytime during this discussion.
Please note, for brevity, I'll use the pronoun "he" to mean he and she.
- FIRST, AN OVERVIEW OF SOME A/C ISSUES:
- My view that many A/C relationships do indeed go wrong is based on several factors:
- My experience of 40+ years of hiring, dealing with and firing attorneys.
- The many attorney horror stories I have heard from friends and colleagues over the years.
- Attorneys jokes. I think it is fair to assume there must
be some cause for the effect of the vast number of attorney jokes
repeated over millenniums.
Let me read just three:
- "The lawyer has learned to flatter his master in word and
indulge him in deed; but his soul is small and unrighteous…from the
first he has practiced deception and retaliation, and has become
stunted and warped. And so he has passed out of youth into manhood,
having no soundness in him."…Plato, 321 BC
- "The worst of law is that on suit breeds twenty."…George Herbert., 1593-1633 (A Wales born poet).
- "God works wonders now and then; Behold! A lawyer, and honest man."…Ben Franklin, 1733.
What does it suggest that such thinkers have purportedly painted such
unflattering portraits of lawyers over such a long period of time?
Have the attorneys been unfairly singled out in jokes, or is
the old adage true - where there are jokes there are problems? I think
it's the latter.
- What is the difference in the A/C relationship from other
professional and daily life relationships - and specifically, what do
we know - or think about attorneys?
- Attorneys are schooled and trained specifically on how to work and
prosper in and adversary legal system - not on one based on friendship,
trust or conciliation.
- Law school training includes rhetoric - an important part
of being an advocate, which some would say is how to successfully argue
both - or any side of any issue. Such advocacy is not normally training
that your physician, architect or your auto repair specialist has had -
although sometimes it may feel like it.
- Many attorneys seem to be more interested in winning than
in best serving their client. What is "winning" a case, especially if
it is a Pyrrhic victory where the client wins at such a high cost that
overall the client loses?
Often it is difficult early in a case for an attorney to make a
realistic dollar-value of a case, including factoring in the
probability of success less the expected cost of the litigation and
also guessing about the quality of the information on which he bases
his estimates on.
Moreover, when an attorney's and his client's interests are not
thoroughly aligned - which is normally the case, there are many
pressures on the attorney to pursue his interests ahead of his clients.
- Although communications is an important part of any
attorney's job, surprisingly many of them are poor communicators with
their clients, in part because they have been trained in the art of
verbal concealment - or verbal war; in part because many of their words
are "profession specific" - legalize to many of us, or because many use
meaningless or obfuscating words that convey little and that often
confuse or mislead the listener - common words such as could, may or
the ever popular phrase it's possible.
Such words convey little if any information - particularly in a
legal context - when preciseness has such value - because as we all
know, almost anything could, may or could possibly happen.
Could an elephant fall on this building tomorrow? Well, it
could if the old Barnum and Bailey circus plane was flying overhead and
somehow blew up, but the chance of that happening is so low, few sane
folk would concern themselves with that possibility.
For example, what would it mean if your attorney told you that
you could win your case? If you then pushed him for real information
wouldn't you react differently to your legal issue if he said your
chance was only 20% of winning - than if he said your chance of winning
was 80%?
- Many attorneys find it quite natural to give you less than
full or useful information when discussing your case or related issues,
because they are afraid that telling you everything might less their
control over you - because if you knew their concerns about the case
you might not pursue it, which would cause them to lose their potential
income.
- Attorneys know that it's rare when all the facts of a case
are clear or fit nicely under the law, and some will tout the case in
part because they fear losing the business - and realize their
behavior, knowing that right behind the next corner is a really slimy
attorney that will tell the perspective client anything to sign him up.
- Many attorneys have a good idea of how the other side in a
legal fight might react, but of course their views are never 100%
accurate, and are subject to the reality of how the other side actually
reacts - and to tell a client of this great unknown would in the eyes
of some attorneys - make them seem less knowable - and valuable to
their clients.
- Some attorneys aren't as intelligent or as wealthy as
their clients, which causes all the conflicts, inferiorities and
behaviors one can imagine.
- Lastly, although it's sad to say, many don't abide by, or
don't even understand, what a fiduciary responsibility is, or how to
carry it out.
Are these views of attorneys too harsh? Perhaps, but from my
experience of working with perhaps 50 different attorneys over the
years, these views have been shaped and hardened by my experiences -
many not so pleasant.
It is, however, important to note that I have had the pleasure
of meeting and working with a handful of attorneys over the years who
have been simply terrific - which I'll define as strategic, honest and
good with people - but even those relationships have had rough spots
from time to time - as many good relationship do.
- Now let's talk about some "clients" through the eyes of
attorneys, which is not always a pretty picture in concept or reality
either.
- Many clients tell their attorney much of the background of a legal
case, but often forget to mention mitigating facts - facts that they
would like to forget - or hide. When those facts come out - as they
usually do, their exposure can undermine hours of expensive legal work
and erode an attorney's empathy for a case and its client, as well as
embarrass the attorney in the eyes of the other side, or worse, the
judge or jury.
- Many clients impute the actions, even minor ones, of the
other side with the worst of motives, while excusing their own bad
behavior as simple error or done in good faith with the finest of
intentions.
- Clients forget their attorney's only product is their time
- and forget that all time an attorney spends with them, be it one
minute or 30, keeps them from doing work for others, and being paid for
that work. Some clients even confuse their attorney with their friend
or therapist and are then outraged when they receive a bill for such
time.
- Many clients won't take the time to involve themselves in
the legal issues, in part because they don't think they are smart
enough to adequately understand the vagaries of the law, or because
they feel they are above the grind of minutia and technicalities needed
in a legal case, or are busy with other things - until an adverse legal
event gets their attention - and then recriminations and fear can
control their thoughts and actions.
- Clients run hot and cold with their interests, energy,
resolve and their pocketbooks in pursuing a legal matter - and to what
degree and when - depends on many factors - such as how they feel when
they receive their legal bills or what is going on in their personal or
business lives as the legal issue drags on and on.
- Client's don't always pay their legal bills on time, or at all, for a variety of reasons, some valid some not.
- Now that I have tried to set out some background on
some attorneys and their clients, I'll suggest specific actions that
should maximize the outcome of your experience with your attorney.
- Make sure you have first exhausted your non-attorney options, as
going to court at best is difficult, expensive and time consuming, and
because at the end of a legal action, the judge or jury will most
likely look at the issues involved with little emotion - and fix fault
only on the evidence before them, not on your feelings.
- Before you hire an attorney, know why you have hired him.
If it is because you're angry and want to punish someone - or destroy a
group or show so-and-so you can't be treated so, take a deep breath,
wait a week, and if time permits, then rethink the issues.
If you have no choice, if for example you have been sued - or are
about to be, then knowing your goals or intentions at the beginning of
a legal matter will help you make better decisions about which path to
go down - in pursuing or defending the matter.
Just as it's more expensive to shop at supermarkets when you're
hungry, it can be very costly starting a legal action when you're
angry. Anger tends to cloud judgment, and clear thinking and judgment
are key when entering the legal arena.
- Make sure you have the stomach, resources and resolve to
get involved in the legal process - carefully understand and weigh the
cost benefit of doing so - if you have the time or choice.
- The best time to go to court is when your side has clear
hard documentation (fax, letters, email, notes of meetings or
conversations or things jotted down on a calendar or scrap of paper) of
the issues, provable damages, and you have the resources and time to
see the often tortuous legal process through to its conclusion.
- Be clear in your own mind that your attorney works for
you, not visa versa, and that if he isn't treating you as you want to
be treated, you can always argue, question, get second opinions or
replace and fire him.
- When explaining your legal situation to your attorney,
give him - right from the beginning all the information - and don't
leave out mistakes you have made or cover up things you hope the "other
side" won't find. If you think of something you forgot, or are
embarrassed about, bite your lip and tell him immediately - so he can
work to mitigate the unpleasant news.
If you want a good relationship with your attorney and you expect
to rely on his advice - arm him with all he needs to know in a timely
manner. Your attorney won't like adverse surprises any more than you
would, but he needs to know about them to best represent you.
- Expect and demand clear communication with your attorney
at all times, and be glad, not upset, when your attorney tells you of
his concerns with your case or parts of it.
You want him to be an advocate of your case with the outside world
- but not with you. You, the client, should always know what your
attorney really thinks about your case, the good and the bad.
- Treat your A/C relationship with the same care, distance
and oversight you would treat other relationships - for example, with
your car mechanic, physician, realtor or house painter.
Do your homework, compare, talk numbers - percentages and dollars -
and keep asking questions as you move forward and through the legal
process.
If your house was being painted, it would make sense to see how
the painters are doing as they progress. Likewise you should stay
updated on your legal issues.
As it's common to obtain several medical opinions on the
treatment of a serious illness - so should you seek a second opinion on
important legal matters.
- A few general tips when dealing with legal issues:
- Remember their attorney will probably be as good as yours.
- What you don't want to surface in a legal matter surely will.
- It's cheaper if your attorney has a good relationship with the opposing side.
- Work to hire an attorney who is good with you and other,
is smart, strategic (so neither you nor he is surprised as the case
moves forward), and, of course, honest.
- And perhaps the most important - know that although your attorney
assuredly knows more about the intricacies of the law than you do, and
even though your attorney may be more intelligent or smarter than you
are, with work and common sense, you are smart enough to reasonably
manage him in a way that works for you - or to fire him when you aren't
properly treated.
Managing your attorney probably won't be an easy task, but the A/C
stakes are often high and you should be prepared to put in the effort
to mold and manage that relationship - or it stands a good chance of
falling apart at considerable cost.
- With that overview of A/C issues, let's now talk about
a tool that can help you and your attorney better understand each other
- which should enhance that relationship.
That tool - the best one I have seen, and I'm slightly biased, is
the Legal Agreement Booklet and its 23 paragraphs I have penned over
some years - that is essentially a compendium of all the mistakes and
land mines I found dealing with attorneys over the last 40+ years.
- What attorneys say, do about it.
- Go through it, paragraph by paragraph.
- Q & A Session
Thank you for your attention and energy!
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