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.

  1. FIRST, AN OVERVIEW OF SOME A/C ISSUES:

    1. My view that many A/C relationships do indeed go wrong is based on several factors:

      1. My experience of 40+ years of hiring, dealing with and firing attorneys.

      2. The many attorney horror stories I have heard from friends and colleagues over the years.

      3. 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.

    2. 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?

      1. 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.

      2. 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.

      3. 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.

      4. 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%?

      5. 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.

      6. 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.

      7. 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.

      8. Some attorneys aren't as intelligent or as wealthy as their clients, which causes all the conflicts, inferiorities and behaviors one can imagine.

      9. 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.

    3. Now let's talk about some "clients" through the eyes of attorneys, which is not always a pretty picture in concept or reality either.

      1. 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.

      2. 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.

      3. 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.

      4. 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.

      5. 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.

      6. Client's don't always pay their legal bills on time, or at all, for a variety of reasons, some valid some not.

    4. 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.

      1. 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.

      2. 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.

      3. 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.

      4. 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.

      5. 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.

      6. 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.

      7. 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.

      8. 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.

      9. 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.

      10. 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.

  2. 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.
  3. Q & A Session

Thank you for your attention and energy!