(An expansion of an article for The Inn Times published in 1999)
By: Charles A. Hillestad
At some point in your business operations, you will likely need a lawyer. Even if you never need one personally, you will be asked to recommend one for someone else. Given the multitude of attorneys in the phone book, how do you find a good one for the particular task at hand.
Specialization Lists
It is just like medicine. For every task, there is a specialist. Even what is known as “General Practitioner” lawyers are really a specialist of a sorts. They confine their work to a relatively small group of activities out of all the potential areas of practice. Few, if any attorneys, are willing to accept every single legal matter that walks through the door.
The prime reason is that with compilations of new laws and cases being added to library shelves at the rate of literally yards per year, it is next to impossible for any one lawyer to be an expert in all fields of endeavor. Attorneys, by necessity, almost have to specialize. It is too difficult and time consuming, not to mention dangerous, for attorneys to remain unfocused in their type of practice even in small towns.
Therefore, start by looking for an attorney who handles the specific type of problem you are facing. That cuts down the choices somewhat, but even among the subspecialty practitioners, there may be dozens or hundreds to choose from. How do you go about further narrowing the candidates out of all the licensed lawyers available?
Advertisements
You could choose from the biggest or splashiest ads. Don't. Remember, an ad is merely someone saying something nice about themselves and paying for the privilege of placing it where you will see or hear it.
Ads though, at least yellow page ads, are useful if only to the extent of helping confine the search to those attorneys who claim expertise on the particular subject matter subcategory you need. Fortunately, most yellow pages usually have sublistings under the Attorneys category by specialty practice such as real estate lawyers, labor lawyers or litigation lawyers. It is a good place to start.
Bar Association and Prepaid Legal Insurance Approved Lists
Insurance companies sometimes offer prepaid insurance coverage to provide you legal services much like Health Maintenance Organizations do in the field of medicine. If you are insured under such a program, call and they let you choose from a list of approved attorneys.
Similarly, sometimes the state or local Bar Association has a number to call for lawyer referrals. You typically tell the Bar office your special needs and they name an attorney or three located relatively close to you who do that type of work.
Both programs have great potential, but the critical question remains about how the attorneys are selected to be on the lists. If the agencies carefully review the respective attorneys’ qualifications to claim expertise, then, you have an outside agency, albeit a not terribly independent one, presumably exercising some intelligent filtering of the list on your behalf. If, on the other hand, they simply allow any attorney willing to pay their fee for sending them business to be placed on the lists, then any referral you receive is no better than an ad. Ask how their referral lists are selected.
Whether you use the State Bar referral list or not, the Bar ought to be called anyway on at least one point. Once you have narrowed the list of possible attorneys through your own means, call the Bar and ask if there have ever been any complaints regarding the attorneys on your "short list" and, if so, what was the result. Was the attorney ever disciplined or suspended? Have there been many complaints about that particular attorney regardless of outcome?
Referrals by Friends and Neighbors
If someone hired an attorney before and was pleased with the result, that is useful information to know. Make sure though that information is first hand knowledge and not merely repeating what some cousin or a third party said. The latter would have no more weight than a rumor. And, make sure the work was relatively recent. What an attorney did twenty years ago might not be relevant to how he or she is today.
Choosing Friends or Neighbors Who Happen to Be Attorneys
Tough decisions sometimes need to be made in legal controversies. It is often best therefore if the one giving advice is a totally disinterested party. In other words, it might not be best to hire relatives who happen to be attorneys. Shy away as well from choosing neighbors and friends.
Imagine what happens if something goes wrong. It is similar to the reasons it is not a good idea to date co-workers. How can you avoid them later if you are ever mad at them? Save lawyer friends, lawyer neighbors, and lawyer relatives for "second opinions" if necessary.
Referrals by Other Attorneys
If one attorney sends you to another attorney, that deserves a fairly heavy weight in your consideration. Most attorneys would be reluctant to send you to someone who would not do a good job. If that happened, you would not trust the judgment of the referring attorney anymore either.
The referral however cannot be accepted completely at face value without further inquiry. Attorneys referring outside their own specialty or outside the locale where they practice tend not to know much about the other attorney. The referring attorneys might be simply making the recommendations based on old school ties or merely paying back a referral they had once received themselves.
Ask what relations the attorneys have had with the ones they are referring. Have they seen them in court or seen their work?
Articles and Speeches
Sometimes you read articles or hear speeches given by or about attorneys. If it is an article about an attorney, read it with the proverbial grain of salt. It is one thing if an investigative reporter who actually has the qualifications to make such judgments goes out and compares various attorneys to each other. It is something quite different if it is merely a "puff piece" feature story about a particular attorney.
Newspapers and magazines, especially small ones without large staffs, have a distressing habit of often printing press releases verbatim without any independent research or interviewing to see if the statements made by the attorney are actually correct. It is understandable. The publications have a lot of blank pages to fill.
Worse yet, the reporter or editor occasionally may have undisclosed political or personal motives for doing the puff piece. In any event, if they basically just print the press releases as received, it is almost as if they printed the attorney's ad.
This is not to say the attorneys who send in press releases deliberately lie. Despite popular opinion, there are ethical constraints on attorneys regarding being accurate, even in ads and press releases. The point being made here is merely that feature stories all by themselves offer no independent corroboration of an attorney's competence.
Articles or speeches by an attorney might be more useful. Even if a listener or reader is not trained sufficiently to know if what the attorney is saying is correct, the listener or reader certainly has an opportunity to judge the attorney's command of the English language.
Legalese and the English language are not one and the same by the way. In any event, can the attorney write/speak clearly and without ambiguity? Are the arguments well presented in a form fully understandable to the audience? Is it convincing? If not, hire someone else. That person likely will not be any better in court or in the office.
If you are considering hiring an attorney and have seen or heard nothing by that attorney, ask him or her to give you a sample or two of something they have recently written. Read it. Maybe even ask to see a list of their published articles or a list of where they have spoken to demonstrate they consistently are able to persuade their peers to print, read or listen to their work.
Former Politicians
Some people gravitate toward former city council members, former district attorneys, former county attorneys, former county commissioners or the like. Some even pick attorneys because they are related to an office holder such as being the son of the mayor or former mayor or married to a judge or former judge. The assumption is they wield power and influence.
Maybe that is so on occasion, with some individuals, assuming they are still in office. On the other hand, once they (or their relatives) are out of office, that might very well not be true. In fact, they could have managed to make a lot of enemies. It is hard to avoid and if they lack the power to retaliate any longer, both they and their clients might become targets for revenge by disgruntled voters and others who felt abused when that attorney or their relative was in office. Don't make any judgments about an attorney's competence solely because that attorney or that attorney’s parents, spouses or siblings once held office.
Besides, why are they no longer in office? Was it the quality of the job they did? Election to office itself is certainly no guarantee of competence as a legal counsel.
Track Record Winning cases is an important ability in an attorney, but number or percentage of wins or total dollars recovered is not necessarily a good indicator of who is the better attorney.
Some former prosecutors might brag, for example, that they have won 90% of their cases. That is probably however a much poorer record than a public defender who won 30% of his or her cases assigned. Remember, prosecutors get to pick and choose the cases they want to fight. They generally only try cases they are pretty convinced they can win. A public defender, in contrast, must take every defendant assigned to them and must go to trial if the defendant will not accept a plea bargain. Sadly, many defendants are probably guilty of what they are accused. It is true some are innocent and even the likely guilty have a right to a presumption of innocence in court. Nevertheless, to achieve a 30% win rate representing assigned criminal defendants (i.e. the attorney does not get to decide who is to be defended) would suggest phenomenal ability. Consequently, the fact that someone won a case is useful information, but by no means conclusive.
Besides, every case is different.
Rating Systems
It is too bad there is not a rating system for attorneys like there is for restaurants or movies. Perhaps you then would hire only, say, four "gavel" grade attorneys.
Actually there is such a system in place or at least a piece of one. Martindale-Hubbell, a national company, has been around for many decades. Every year, it has been publishing a list of many, probably most, of the private practice attorneys in the country. The list was developed so that lawyers in one part of the country wanting to find an attorney elsewhere would have some place to start looking. In other words, it is usually what attorneys use to find other attorneys.
The list which has grown to many volumes and occupies about six feet worth of shelf space for the complete set each year. It tells where the listed lawyers went to school and when, which is useful information all by itself. It sometimes gives their representative clients and specialities. Best of all, it rates them by polling their peers periodically in a secret ballot.
"A" is the highest and best rating for legal skills. Below that only “B” and “C” skill levels are listed. If the attorney’s peers rank the attorney below “C,” no rating on skills is published. “V” is the highest and best rating for ethics. It is also the only rating reported on for an individual attorney’s ethics. Either the attorney receives the very ethical category or nothing at all is published.
As a result, if the lawyer has an AV combined rating, it is a strong plus in deciding whether to employ that attorney. It is usually the grade other attorneys look for when hiring an attorney not personally known to them.
When going through the listing material, the astute researcher looking for an attorney to hire takes care not to confuse the biographical or resume information published in Martindale-Hubbell with the ratings. The astute researcher will note that while most attorneys probably have just a contact listing of a line or two and some have literally pages of biographical information, not every attorney has a rating. Keep in mind the biographical information is provided directly by the attorney. It is essentially an ad. It may be truthful, but it is still just an ad. The longer listings are because a larger sum of money was paid to be listed.
That is not true of the ratings however. Those cannot be bought. Even if an attorney paid nothing to be listed (and that is what the one or two line listings are all about), that attorney could still qualify for the top AV rating. Similarly, even the largest biographical resume listing will not guarantee an AV rating.
Some attorneys are not rated at all. There are two likely reasons for that according to the publisher. If it is a relatively new attorney, the easy explanation is that the attorney simply might not be sufficiently well known to be rated by his or her peers. The other possible reason has already been mentioned. It is because Martindale-Hubbell does not print adverse or “bad” ratings it receives. If the attorney’s peers have indicated the legal skills are below a certain minimum, no rating is published. That tends to suggest, if an attorney has been around for a substantial period of time in the same community, but is still not rated, then further investigation of that attorney is in order as to why.
Although Martindale-Hubbell was designed to be used by attorneys hiring other attorneys, there is no reason why it would not be equally valuable to others such as yourself. You can obtain access to the same information. One way probably is to contact your local County Courthouse which may have a set of Martindale-Hubbell volumes in hardback in its law library. Often, you can get to see that set simply by asking at the County Clerk’s office. Those volumes are organized by state and the attorneys appear alphabetically by city within each state. The biographical or “resume” portion is in the “white pages.” Review those of course, but what you want to look at are the abbreviated ratings which are located up front in a separate section in each book on the pages which are color tinted.
An alternative route is to check the Martindale-Hubbell web page at www.lawyers.com. Since May of 1998, a section of the company’s internet site contains the ratings and an explanation of their meaning.
In any event, whether you use the Martindale-Hubbell data directly or not, always at least ask the lawyer personally when you are interviewing them what is his or her latest rating from Martindale-Hubbell. If they do have a rating, ask them to send a copy of the page from the guide book which shows their personal rank. If they do not have at least a CV rating or, worse, no rating at all, ask why not. If they say they have never heard of Martindale-Hubbell, hire someone else.
When possible, always ask about an attorney’s Martindale-Hubbell rating. It is probably one of the more immediately valuable pieces of information you can potentially uncover about most attorneys. Remember, the publication is actually coming out and saying one attorney is better than another at that moment in time.
Legal Education
Among the biographical data available from many sources on attorneys is where they went to school. Unfortunately, just because the attorney has passed a state’s bar entrance exam is no assurance of quality. Passing the bar is the “lowest common denominator” for attorneys.
Find out where the attorney in which you are interested went to school. There are about a dozen so called "National Law Schools" that consistently graduate a fairly high quality law student. These are schools like Harvard, Yale, Columbia, Notre Dame, Michigan, Boult, Stanford and a few others. The list changes slightly each year. There will be differences of opinion, but ask any three lawyers to name the nation’s top ten law schools and you will tend to find five or more of the same schools appearing on each person's list. What distinguishes these schools is not just top quality instructors and not just a “national” as opposed to localized orientation in the instructors. What also makes them different is the academic excellence of the average student of those particular schools.
Frankly, the top 1% of the incoming freshmen at, say, a “Podunk State” or other local law school are typically every bit as gifted as the top 1% of freshmen at one of the named "National Law Schools." If your prospective choice to hire graduated with honors and was on law review at just about any law school, even a "no-name" one, that would be a very good sign. The difference is in the bottom half of the classes at the respective schools. There tends to be a substantial difference between the “average” or median student at each school. The prime reason is that there were far more applicants at National Law Schools for the same limited number of openings. The competition is incredible. The admissions committee simply has an easier choice to fill the spots.
Does this guarantee you will not find poor practitioners who graduated from a National Law School? Of course not. There are always those who are good students, but poor lawyers. There are those who get into substance abuse after they are licensed. There are those who get distracted; those who get over worked; those who “lose it.” Besides, mistakes can happen even with the best credentials. But, if you want to at least increase the odds in your favor of finding a competent lawyer, hiring one from one of the top rated schools usually cannot hurt.
Experience
A decent legal education is only part of the picture. Brand new attorneys, even after three years of concentrated legal study, with top grades at a premier school often don't know where to find the proverbial courthouse door. They were trained in class how to analyze and where to research issues. They were given a basic vocabulary and hopefully, a sense of ethics, but law schools teach little of day-to-day practicalities. In other words, has the attorney either been around long enough to have made his or her learning mistakes on someone else or are they at least under close supervision from someone who has?
That brings up a related issue. What does the attorney cost? The automatic assumption might be to hire the attorney with the smallest hourly rate. That could be a mistake. A more experienced attorney may charge twice as much per hour, but get it done four times as fast. Experience is no guarantee, but it is a factor.
Of course it must also be said that merely because someone charges a lot, that is no assurance of experience or quality either. The operative questions to ask have to do with actual experience and experience with the particular problem at hand.
Attitude
Many people think that the attorney for them should act like the proverbial shark, always on the attack and always trying for the total “kill.” This is the “win at all costs” approach. The costs though may ultimately be paid by you.
Naturally, no attorney would be worth his or her fee unless they were capable of vigorously asserting their clients' positions when need be. However, unrelenting aggression or even inability to compromise can be counter productive at times.
The objective of the game normally is not to utterly destroy the other side, as ego satisfying as that might initially sound. In actuality, the goal is usually to find an accommodation that will allow you, the client, to achieve the monetary or other goal sought. If that can be done politely in a friendly manner, so much the better. Things will be tense enough without adding an unnecessary burden of stress from the open hostility. If the lawyer brags about his or her "street fighting" ability or the “big cases” won, thank them politely and interview the next on your list. Macho posturing should not be needed to impress you.
Something of the attorney's attitude can be guessed by how the attorney deals with you. Do you get quick responses to your calls? Do you spend a short time or a long time in waiting rooms especially when you have an appointment in advance? Does the attorney, occasionally at least, answer the phone personally rather than always being screened by employees? If screening is always the case, does the receptionist ask who you are before or after you are told the attorney is in conference?
Does the attorney tell you costs, fees and billing practices up front? Is the attorney willing to put that in writing? Is the attorney patient in explaining things to you? When complicated documents are placed in front of you for signing, does the attorney at least offer to explain them?
Do not be put off if the attorney, in the privacy of his or her office, points out the holes in your position or the weaknesses of your case. That is what you want, an objective unemotional analysis of your position. You do not need a “yes man.” You need intelligent counsel as to the minuses as well as the pluses. Do not confuse their private analysis delivered to you with how they present your case to the other side.
Alternate Dispute Resolution
Even if it is a great case, does the attorney itemize for you all the various ways to avoid going to court? If the attorney does not even talk about alternate dispute resolution such as mediation and arbitration, or if the attorney does not even talk about tribunals such as small claims court or administrative hearings which do not normally have attorneys present (earning their expensive fees), or if the attorney does not even try negotiation first, you should consider seeking another attorney. Any attorney who does not immediately explore such options may be more interested in his pocket book than yours. If the attorney encourages you to go straight to court on a low dollar recovery item, even a likely “winner” case, that attorney possibly does not have your best interest at heart.
Business Sense
A wise attorney who is concerned about your pocketbook also lets you know that there are non-monetary costs to disputes. If you don’t hear that attorney tell you about the likely time you will spend away from your job in preparation and depositions and preliminary hearings, if you don't hear about the stress and potential adverse PR, if you don't get a true cost/benefit analysis on each alternative in advance of your decision making on whether to proceed, then the attorney is not doing the job for you that should be done.
You might want to make sure a lawyer has business sense as well as an understanding of the law. Has the attorney ever been anything besides being a lawyer? Of what value to you is a win of a $1000 judgment that costs $2000 of attorney time, not to mention your own lost productive time, emotional wear and tear and maybe an embarrassing article in a newspaper. You might have been better off not bothering. Sometimes that cannot be helped. Nevertheless, was the possibility discussed in detail?
In any event, it is important for an attorney to have proper perspective. And, sometimes legal issues are not the whole story.
Finally, does the attorney offer lots of solutions and suggestions? Keep in mind, there is seldom just one right answer. Few things are black and white. Yes/Nos are never enough information for you to make a useful business decision.
Potential Questions to Ask When Interviewing Lawyers
1. Where did you go to law school?
2. When did you graduate?
3. What was your class standing?
4. What are your specialties?
5. Have you done this particular type of work before?
6. When and for whom?
7. Who are some representative clients of yours?
8. Do you mind if I call them?
9. How do I reach them?
10. Do you mind if I call you at night or on weekends if something comes up?
11. What is your home phone?
12. Have you written any articles or speeches on the subject?
13. Could I read a few?
14. What non-lawyer licenses do you happen to hold?
15. Will you be doing the work for me yourself or will it be some associate or paralegal?
16. What is their billing rate and experience?
17. What is your billing rate?
18. For what will I be charged extra?
19. What is this likely to cost me in time and other risks as well as money?
20. How will I be billed and how often?
21. Will it be a detailed billing indicating the itemized work done by day and minutes?
22. Will I get copies of documents and letters as we go along?
23. Will I know in advance what it is you are doing?
24. What is your honest assessment of my case or circumstances?
25. Are there alternative approaches?
26. What is your style of operations?
27. Do you have a firm brochure or resume?
28. Name the other firms where you have been employed?
29. How can I reach them?
30. Are you computerized?
30. What computers and modems do you use?
31. Can I reach you that way?
Don't be afraid to ask questions. It's your nickel. If the attorney is impatient with questions about himself, is it likely he or she will be any less so with questions about the case after you hire that firm?
Conclusion
Hopefully, the foregoing can help you find a good attorney. It is not necessary that the attorney selected have all the attributes discussed above. In fact, any one of the indicators might be sufficient to help you select. Moreover, even if an attorney did have all the indicators of possible success, that is not a guarantee. Take the above hints for what they are, merely clues to help you sort out likely prospects to hire when there are a myriad of choices.
Some of the same approaches are useful, by the way, in finding other professionals such as accountants or doctors. Good hunting.
|
