Working With a Lawyer – Part 1

In this Part 1 of this 2-part article, you will have an opportunity to read about the role of your lawyer and about establishing a strong lawyer-client relationship. In Part 2 you can read about various points on what it takes to build a strong lawyer-client relationship with your lawyer.

The Role of Your Lawyer

Many people may not understand the role of a lawyer in representing a client. Lawyers do charge a lot, but that doesn’t put them in control of their client’s destiny. When a major decision must be made, your lawyer would provide you with information, advice and recommendations about the decision, but the decision is yours to make. When a lawyer makes a decision on your behalf without your knowledge or consent, and without taking his or her time to provide you with the details beforehand, it is time to hire another lawyer. Likewise, if you just hand your legal matter to your lawyer while expecting him or her to pull a miracle and decide the success of your case, you’re just asking for trouble.

A decision carries consequences. A legal decision carries legal consequences that you need to deal with as a result of making that decision. A lawyer is always obligated to use his or her best efforts on your behalf while applying his or her legal training, knowledge, experience, resources and skill to resolve your legal issue. But it is your obligation to remain informed and fully involved in your case. The success of your case doesn’t solely depend on your lawyer’s ability, but in the team work between the two of you.

Establishing a Strong Lawyer-Client Relationship

Some people may believe that once they hire a lawyer, they can simply put their legal issue behind and let their lawyer win the case. In reality, hiring a lawyer is just the beginning of a successful teamwork. The success and the degree of success of your case will depend on how good your “legal team” plays. Sometimes your legal team will consist of just you and your attorney. But in most cases, your legal team will include other people, such as legal assistants, consultants, experts, court reporters and the like. But regardless of who might be a part of your legal team, you and your lawyer are the key players in the success of your case. Developing a good working relationship between you and your attorney from the very beginning and all throughout the life of the case will radically increase the odds of a positive outcome.

A strong lawyer-client relationship is a two-way process. It requires both of you and your lawyer to provide each other with information necessary to reach satisfactory resolution of your legal issue. It requires a very good and an open communication. Your lawyer needs to keep you advised of the status of your case, inform you of important developments, include you in the decision-making process, prepare you for important events, such as testifying in court or answering questions in a deposition, and so on. But, you must also hold up your end of the responsibilities. You need to be aware that a failure to provide all relevant information to your case and to provide it when requested by your lawyer may have an unfavorable effect on the lawyer’s ability to represent you. You and your lawyer need to agree on the most effective and efficient way to communicate the information.

If you’re concerned about how your lawyer handles your legal issue, freely express these concerns directly to your lawyer. And don’t wait for it to build up. Addressing these concerns promptly will avoid damaging the level of trust that is essential to the relationship. But, if your concerns are never resolved even after discussing them with your lawyer, you’re fully entitled to seek another attorney. However, you’ll still be responsible for paying the legal fees to that lawyer. And, if you happen to fire your lawyer, remember that you’re entitled of getting a copy of your file.

Please refer to Part-2 of this 2-part article to read about various points that will add to developing a strong work relationship with your lawyer and lead you to more successful results in your lawsuit.

Working With a Lawyer – Part 2

Please refer to Part-1 of this 2-part article to read about the role of your lawyer and why it is important to have a strong lawyer-client working relationship with your attorney.

The following points will add to developing a strong work relationship with your lawyer and lead you to more successful results in your lawsuit.

First and Foremost, Give Your Lawyer the Whole Story – As soon as you hire your lawyer, tell him or her everything that is related to your case and provide him or her with every relevant document, even those facts and details that you think are damaging to your case. Lawyers have been trained to sift and sort through the information you provide and determine what information is useful for your case and what isn’t. Every fact and detail could be crucial to your case. Facts which may not seem important to you may have serious legal consequences. Your lawyer might be able to use a fact or a document you thought was unimportant as the basis for a creative legal argument. And if something might harm your case, your lawyer will have plenty of time to prepare defensive maneuvers.

Respond Promptly – This factor alone will certainly damage the relationship between you and your lawyer and almost always hurt your case – that is if your response is of an irresponsible nature. Lawyers often have to work under very tight deadlines. Your prompt response to your lawyer’s requests will insure those deadlines are met and your case is flowing smoothly. Your prompt response will also give your lawyer enough time to go over your information and better prepare his or her next step. If you are not able to respond quickly for one reason or another, let your lawyer know immediately. Your lawyer might be able to get an extension of time from your opponent or the court, or rearrange other matters to accommodate the delay.

Cooperation – During the course of your case, your lawyer will ask you for particular documents or certain facts relevant to your lawsuit. Instead of making your lawyer hunt down those details, remember that you’re the one who is undertaking this legal action. In most instances you have much easier access to the information relevant to your case than any one else. By cooperating with your lawyer in gathering the important details for winning your case, you will not only help your situation, but have your lawyer spend less time, which will reduce your legal cost.

At a beginning of a lawsuit, your lawyer may ask you to write down a summary of events leading up to the lawsuit. Make sure that what you write is extremely accurate – only known facts. Your lawyer will base your claims and defenses on this information.

Preparedness – Always remember that your attorney’s time is your money. Better prepared you are, less money your legal matter will cost you. When you meet with your lawyer, have with you already prepared written summary or detailed notes outlining your problem or questions; bring copies of all documents, letters and other correspondence relating to your case. Also, provide your lawyer with a list of all names, addresses, and telephone numbers of persons involved in the case. This will avoid unnecessary delays. Be as brief as possible in all interviews with your lawyer, and stick to business. At the rate that you are charged for calls and conferences, socializing gets very expensive.

Keep Your Lawyer Informed – Your lawyer can work only with the information that you provide him or her with. Failure to keep your lawyer updated with information about any new developments relevant to your case can be disastrous to your final outcome. Tell your lawyer immediately of changes or new information that might affect your case. On the same note, holding back information can as well prevent your lawyer from obtaining your desired results. That’s why it is very important for you to be truthful and complete about the facts of your situation.

Keep Your Schedule Flexible – There are certain legal events in which you must participate. Very often these events are scheduled weeks or even months in advance. Most of these events can be rescheduled to accommodate your schedule only if your lawyer knows in advance. But, be prepared to change your plans if you must because sometimes a judge may insist on holding the scheduled meeting whether your schedule permits or not.

Various Other Points

– Take your lawyer’s legal advice seriously. When an attorney gives legal advice, the attorney may be liable for malpractice if the advice is wrong. For that reason attorneys are hesitant to give legal advice and expose themselves to liability without first checking the most current legal facts. And that takes time. That’s why they charge a fee for legal advice because they give you facts and not an opinion. So when your lawyer gives you legal advice relevant to your legal issue, you better follow up on it because it’s a real deal.

– Many legal problems cannot be explained simply. We live in a complex society with an extremely complex legal system. So if you don’t understand something that your lawyer says, don’t just take it as is – ask for an explanation. Maybe you need to ask your lawyer to explain it with a non-legal jargon.

– Respect your attorney’s time. Avoid phoning repeatedly about every single question that comes on your mind. First of all you will pay for the time spent on the phone. Second, your lawyer has other clients who require attention too. So, it would be in your best interest and is usually more cost-effective to ask several questions at a time, rather than calling each time a question arises. By all means, do not wait to call your lawyer if your question is so important that it will affect your case significantly.

– Avoid legal debate. If you sometimes feel that your lawyer is not quite handling your legal issue the way you think he or she is suppose to, try to first gain an understanding by asking your lawyer questions about his or her course of action instead of directly engaging into a debate. But if you really must engage into a debate because you’re certain that you know it better, check the facts before you start the discussion. You don’t want to embarrass yourself when your lawyer proves you wrong. Lawyers have extensive legal training. Their actions sometimes may seem weird to you but they may be just the right move for obtaining positive results for your legal issue.

– Respect your lawyer’s pride. One common characteristic amongst all lawyers is their strong pride. That comes with their profession. Sometimes it may feel that this pride borders on arrogance or egotism. Maybe so. But, so what? Actually, this feature may win your case. It gives lawyers more confidence even if they lack the experience. So, treat your lawyer with respect and he or she will do more than their very best to get you your desired results.

– Your lawyer is a professional. As such, address your lawyer in a professional way in your communication, whether written or oral. You’ll get much better results. For an example, which of these two sentences do you think would get you better response by your lawyer? “We need to talk right now because my case is not moving the way I want and I want to see what you’re doing wrong” – or – “I would appreciate if we could schedule 30 minutes of your time to discuss the current developments of my case.” You get the point.

– Communicate your goals very clearly. Tell your lawyer exactly what your expectations are from your legal matter. If you deliver unclear picture to your lawyer, he or she wouldn’t know how to set the “Theory of the Case.” This is the first and most important step that will support every step of the trial. Your lawyer needs to know exactly what your case is truly about and establish your final objective accordingly.

– Be on time for appointments, whether in court or for anything related to your case.

– Be patient and understand that legal problems require time and research.

– Respond promptly to your lawyer’s requests and phone calls.

– And of course, pay your legal fees promptly as agreed in the fee arrangement you made.

The Need For An Entertainment Lawyer In Film Production

Does the film producer really need a film lawyer or entertainment attorney as a matter of professional practice? An entertainment lawyer’s own bias and my stacking of the question notwithstanding, which might naturally indicate a “yes” answer 100% of the time – the forthright answer is, “it depends”. A number of producers these days are themselves film lawyers, entertainment attorneys, or other types of lawyers, and so, often can take care of themselves. But the film producers to worry about, are the ones who act as if they are entertainment lawyers – but without a license or entertainment attorney legal experience to back it up. Filmmaking and motion picture practice comprise an industry wherein these days, unfortunately, “bluff” and “bluster” sometimes serve as substitutes for actual knowledge and experience. But “bluffed” documents and cture production procedures will never escape the trained eye of entertainment attorneys working for the studios, the distributors, the banks, or the errors-and-omissions (E&O) insurance carriers. For this reason alone, I suppose, the job function of film production counsel and entertainment lawyer is still secure.

I also suppose that there will always be a few lucky filmmakers who, throughout the entire production process, fly under the proverbial radar without entertainment attorney accompaniment. They will seemingly avoid pitfalls and liabilities like flying bats are reputed to avoid people’s hair. By way of analogy, one of my best friends hasn’t had any health insurance for years, and he is still in good shape and economically afloat – this week, anyway. Taken in the aggregate, some people will always be luckier than others, and some people will always be more inclined than others to roll the dice.

But it is all too simplistic and pedestrian to tell oneself that “I’ll avoid the need for film lawyers if I simply stay out of trouble and be careful”. An entertainment lawyer, especially in the realm of film (or other) production, can be a real constructive asset to a motion picture producer, as well as the film producer’s personally-selected inoculation against potential liabilities. If the producer’s entertainment attorney has been through the process of film production previously, then that entertainment lawyer has already learned many of the harsh lessons regularly dished out by the commercial world and the film business.

The film and entertainment lawyer can therefore spare the producer many of those pitfalls. How? By clear thinking, careful planning, and – this is the absolute key – skilled, thoughtful and complete documentation of all film production and related activity. The film lawyer should not be thought of as simply the cowboy or cowgirl wearing the proverbial “black hat”. Sure, the entertainment lawyer may sometimes be the one who says “no”. But the entertainment attorney can be a positive force in the production as well.

The film lawyer can, in the course of legal representation, assist the producer as an effective business consultant, too. If that entertainment lawyer has been involved with scores of film productions, then the motion picture producer who hires that film lawyer entertainment attorney benefits from that very cache of experience. Yes, it sometimes may be difficult to stretch the film budget to allow for counsel, but professional filmmakers tend to view the legal cost expenditure to be a fixed, predictable, and necessary one – akin to the fixed obligation of rent for the production office, or the cost of film for the cameras. While some film and entertainment lawyers may price themselves out of the price range of the average independent film producer, other entertainment attorneys do not.

Enough generalities. For what specific tasks must a producer typically retain a film lawyer and entertainment attorney?:

1. INCORPORATION, OR FORMATION OF AN “LLC”: To paraphrase Michael Douglas’s Gordon Gekko character in the motion picture “Wall Street” when speaking to Bud Fox while on the morning beach on the oversized mobile phone, this entity-formation issue usually constitutes the entertainment attorney’s “wake-up call” to the film producer, telling the film producer that it is time. If the producer doesn’t properly create, file, and maintain a corporate or other appropriate entity through which to conduct business, and if the film producer doesn’t thereafter make every effort to keep that entity bullet-proof, says the entertainment lawyer, then the film producer is potentially shooting himself or herself in the foot. Without the shield against liability that an entity can provide, the entertainment attorney opines, the motion picture producer’s personal assets (like house, car, bank account) are at risk and, in a worst-case scenario, could ultimately be seized to satisfy the debts and liabilities of the film producer’s business. In other words:

Patient: “Doctor, it hurts my head when I do that”.

Doctor: “So? Don’t do that”.

Like it or not, the film lawyer entertainment attorney continues, “Film is a speculative business, and the statistical majority of motion pictures can fail economically – even at the San Fernando Valley film studio level. It is insane to run a film business or any other form of business out of one’s own personal bank account”. Besides, it looks unprofessional, a real concern if the producer wants to attract talent, bankers, and distributors at any point in the future.

The choices of where and how to file an entity are often prompted by entertainment lawyers but then driven by situation-specific variables, including tax concerns relating to the film or motion picture company sometimes. The film producer should let an entertainment attorney do it and do it correctly. Entity-creation is affordable. Good lawyers don’t look at incorporating a client as a profit-center anyway, because of the obvious potential for new business that an entity-creation brings. While the film producer should be aware that under U.S. law a client can fire his/her lawyer at any time at all, many entertainment lawyers who do the entity-creation work get asked to do further work for that same client – especially if the entertainment attorney bills the first job reasonably.

I wouldn’t recommend self-incorporation by a non-lawyer – any more than I would tell a film producer-client what actors to hire in a motion picture – or any more than I would tell a D.P.-client what lens to use on a specific film shot. As will be true on a film production set, everybody has their own job to do. And I believe that as soon as the producer lets a competent entertainment lawyer do his or her job, things will start to gel for the film production in ways that couldn’t even be originally foreseen by the motion picture producer.

2. SOLICITING INVESTMENT: This issue also often constitutes a wake-up call of sorts. Let’s say that the film producer wants to make a motion picture with other people’s money. (No, not an unusual scenario). The film producer will likely start soliciting funds for the movie from so-called “passive” investors in any number of possible ways, and may actually start collecting some monies as a result. Sometimes this occurs prior to the entertainment lawyer hearing about it post facto from his or her client.

If the film producer is not a lawyer, then the producer should not even think of “trying this at home”. Like it or not, the entertainment lawyer opines, the film producer will thereby be selling securities to people. If the producer promises investors some pie-in-the-sky results in the context of this inherently speculative business called film, and then collects money on the basis of that representation, believe me, the film producer will have even more grave problems than conscience to deal with. Securities compliance work is among the most difficult of matters faced by an entertainment attorney.

As both entertainment lawyers and securities lawyers will opine, botching a solicitation for film (or any other) investment can have severe and federally-mandated consequences. No matter how great the film script is, it’s never worth monetary fines and jail time – not to mention the veritable unspooling of the unfinished motion picture if and when the producer gets nailed. All the while, it is shocking to see how many ersatz film producers in the real world try to float their own “investment prospectus”, complete with boastful anticipated multipliers of the box office figures of the famed motion pictures “E.T.” and “Jurassic Park” combined. They draft these monstrosities with their own sheer creativity and imagination, but usually with no entertainment or film lawyer or other legal counsel. I’m sure that some of these producers think of themselves as “visionaries” while writing the prospectus. Entertainment attorneys and the rest of the bar, and bench, may tend to think of them, instead, as prospective ‘Defendants’.

Enough said.

3. DEALING WITH THE GUILDS: Let’s assume that the film producer has decided, even without entertainment attorney guidance yet, that the production entity will need to be a signatory to collective bargaining agreements of unions such as Screen Actors Guild (SAG), the Directors Guild (DGA), and/or the Writers Guild (WGA). This is a subject matter area that some film producers can handle themselves, particularly producers with experience. But if the film producer can afford it, the producer should consult with a film lawyer or entertainment lawyer prior to making even any initial contact with the guilds. The producer should certainly consult with an entertainment attorney or film lawyer prior to issuing any writings to the guilds, or signing any of their documents. Failure to plan out these guild issues with film or entertainment attorney counsel ahead of time, could lead to problems and expenses that sometimes make it cost-prohibitive to thereafter continue with the picture’s further production.

4. CONTRACTUAL AFFAIRS GENERALLY: A film production’s agreements should all be in writing, and not saved until the last minute, as any entertainment attorney will observe. It will be more expensive to bring film counsel in, late in the day – sort of like booking an airline flight a few days before the planned travel. A film producer should remember that a plaintiff suing for breach of a bungled contract might not only seek money for damages, but could also seek the equitable relief of an injunction (translation: “Judge, stop this production… stop this motion picture… stop this film… Cut!”).

A film producer does not want to suffer a back claim for talent compensation, or a disgruntled location-landlord, or state child labor authorities – threatening to enjoin or shut the motion picture production down for reasons that could have been easily avoided by careful planning, drafting, research, and communication with one’s film lawyer or entertainment lawyer. The movie production’s agreements should be drafted with care by the entertainment attorney, and should be customized to encompass the special characteristics of the production.

As an entertainment lawyer, I have seen non-lawyer film producers try to do their own legal drafting for their own pictures. As mentioned above, some few are lucky, and remain under the proverbial radar. But consider this: if the film producer sells or options the project, one of the first things that the film distributor or film buyer (or its own film and entertainment attorney counsel) will want to see, is the “chain of title” and development and production file, complete with all signed agreements. The production’s insurance carrier may also want to see these same documents. So might the guilds, too. And their entertainment lawyers. The documents must be written so as to survive the audience.

Therefore, for a film producer to try to “fake it” oneself is simply to put many problems off for another day, as well as create an air of non-attorney amateurism to the production file. It will be less expensive for the film producer to attack all of these issues earlier as opposed to later, through use of a film lawyer or entertainment attorney. And the likelihood is that any self-respecting film attorney and entertainment lawyer is going to have to re-draft substantial parts (if not all) of the producer’s self-drafted production file, once he or she sees what the non-lawyer film producer has done to it on his or her own – and that translates into unfortunate and wasted expense. I would no sooner want my chiropractor to draft and negotiate his own filmed motion picture contracts, than I would put myself on his table and try to crunch through my own backbone adjustments. Furthermore, I wouldn’t do half of the chiropractic adjustment myself, and then call the chiropractor into the examining room to finish what I had started. (I use the chiropractic motif only to spare you the cliché old saw of “performing surgery on oneself”).

There are many other reasons for retaining a film lawyer and entertainment attorney for motion picture work, and space won’t allow all of them. But the above-listed ones are the big ones.

What Does a DUI Lawyer Cost in Washington, DC

Most lawyers do not put their legal fees online. The reason they don’t is because generally each case is different and there may be a fluctuation in prices between clients. However, you should have a starting point for DUI lawyers cost in Washington, DC. DUI lawyer cost is primarily driven by experience of the lawyer and the amount of training the lawyer has had in DUI law. The are some other reasons cost may fluctuate between lawyers such as the overhead of the lawyer.

Training/Associations

When I speak of training I am not referring to law school. All lawyers have to pass the bar and so I am not talking about the bar. DUI law is an area of law that requires additional training beyond law school and taking the bar. Continuing legal education of the lawyer is important because the laws change and the DUI lawyer needs to be aware of the changes. For example, DUI lawyers should be trained or “qualified” by National Highway Safety Administration Standardized Field Sobriety Course. This course is usually 25-40 hours of in class instruction. It’s the same class police officers need to take to give citizens the Standardized field sobriety test on the streets. Another example, DUI lawyers may take to advance their knowledge is going to the annual National training in Las Vegas once a year put on by the National Association Criminal Defense Lawyers and National College for DUI Defense. Here some of the best DUI lawyers in the country share their knowledge with other DUI lawyers. Generally, the more training your lawyer has the more you will pay.

Experience

Experience can only come through time. Yes aging sucks, but through age comes wisdom. Just like it takes a young doctor years before he can be polished and experienced in his field – the same applies to lawyers. It is hard for a lawyer to come out of law school and start trying DUI cases because there is a level of complexity to them. As you may know there are a lot of lawyers in the Country. Just because the lawyer has a license to practice in the Courts does not mean he or she has the experience to handle every type of case. Generally, the more experience your lawyer has the more you will pay.

Office and Overhead

This is the area you will never hear the lawyer talk about with the client. However, the truth is the client pays the overhead cost of the DUI lawyer. The lawyer can do work cheaper and faster if he or she is using technology to shift cost. For example, a lawyer should provide documents to his or her client; however, sending through the mail is slow and cost more. Using the internet and a closed portal system the lawyer can communicate with the client, provide dates, share documents, and communicate with the client more effectively and save money. If your lawyer is still using paper and mailing documents he is costing you more money. Times have changed and DUI lawyers need to be more efficient with their productivity. The other part of the lawyer’s overhead is office space. This is where the cost of the 2 equally lawyers differentiate. If the lawyer has to pay for marble floors and expensive staff then he shifts the cost to you. We understand some clients feel as though if he has beautiful marble floors and beautiful paintings on the wall then he must be good. This is not necessary true. Remember, this is your dollars at work. Without question, the more your lawyer pays for his overhead, the more you will pay for his service.

So what should you pay for a good DUI lawyer in DC

Like most urban court houses, the dockets are crowded and so a lawyer spends more time waiting for cases to be called which is why the cost of a DUI in DC cost more than say in a rural courthouse. In the District of Columbia there is a bare minimum of 2 court appearances for DUI cases. Below are estimates for typical cost of a DUI lawyer in DC.

1st Offenses

The cost for a DUI lawyer for a non-jury trial first offense cost is usually between $2000.00 to $3000.00 dollars. If you pay a DUI lawyer less than $1000.00 you are probably getting what is referred to as a “dump truck” lawyer. He just pleads you out at the first opportunity. Remember, a lawyer has a duty to investigate, consult and prepare the case regardless of whether the case goes to trial. Trials generally take a day or less but can be spread out based on the Court’s schedule.

2nd Offenses, 3rd offense cost

Jury Trial for a DUI in the District of Columbia is minimum of $4000.00 -$6000.00 dollars, depending on the facts. Jury trials usually take one or 2 days, not including waiting for verdict.

Be wary of any lawyer who gives guarantees. In fact, there are no guarantees. The only guarantee a lawyer should give you if you are charged with a DUI – is that he zealously advocates within the bounds of the law.

Remember if an expert is used at trial, the cost could be higher because the client is usually responsible for all expert fees. This also does not include representation before DMV. Representation before DMV is usually a “stay of the proceeding” until the outcome of DC Superior Court proceedings. The typical cost for DMV representation is $300.00 to $500.00 dollars.

How to Avoid the 12 Biggest Mistakes People Make in Hiring a Lawyer

I hate to see people taken advantage of and I hate to see people suffer after choosing the wrong lawyer. Maybe those are two of the reasons that I became a lawyer, so that I could do something about those situations. I have seen clients who had lawyers neglect their cases for not just weeks but years. I have heard complaints about lawyers who would not tell the client what was going on with their cases, but would bill the client when the client called to ask what was happening. I have heard complaints about lawyers who took money from clients without a clear understanding of the expectations on either side.

I also hate to have to clean up a mess made by another lawyer. It is much easier to assist a client and avoid potential problems than it is to repair damage from choosing the wrong lawyer. I have seen poorly drafted prenuptial agreements and separation agreements. I have had to step in to repair and finish a botched annulment. I have had to step in to repair and finish a botched divorce.

One woman’s tale of woe especially comes to mind. Around the office, we call her story “The Tale of the Nine Year Divorce.” She had hired an attorney to defend a divorce action here in Virginia and to counter sue for divorce. She was living out of state at the time and paid the attorney a significant retainer. There was no written contract. The lawyer she had chosen seemed to be afraid of the opposing counsel and did nothing to move the case forward. In fact, the lawyer allowed the case to be dismissed from the court docket for inaction.

Cases are not dismissed on this basis without prior notice to counsel of record. The lawyer did not notify his client of the potential dismissal. It was not until the court notified her of the dismissal that she found out what had happened. The client was in an automobile accident, as a result of which she was hospitalized and undergoing multiple surgeries. She trusted her lawyer to look out for her interests; she did not know or understand what should have been taking place and had no idea until she received notification from the court that the case had been dismissed.

When the client contacted the lawyer, he had the case reinstated. However, it was not until the opposing attorney withdrew from the case, that the lawyer acted to put forward the interests of his client. Meanwhile, the lawyer allowed the woman’s husband to abscond, fleeing the jurisdiction of the court, with the bulk of the marital assets. The lawyer did get an order of spousal support, but did nothing effective to collect or enforce the spousal support order against the defendant who was not paying.

In fact, the lawyer allowed tens of thousands of dollars of arrears to accumulate. Meanwhile, the lawyer asked for and got a court award of $10,000 of attorney’s fees from the absconded husband. When the lawyer realized that the husband had spent the money and the attorney fee award would not be easily collected, he began to demand money from the client. Being disabled and not having received a penny of the support award, she was unable to pay the lawyer and he withdrew from her case at the final hearing. Needless to say all of this left the woman with a bad taste in her mouth when it comes to lawyers.

The woman heard about me and came to me despite having had a bad experience, because she was in need of help. We were able to finish up the divorce and property division, which had been started 9-10 years prior and we began enforcement of the support award by attaching social security and retirement income due her husband.

Through our efforts collection began and an income stream began to flow to the client. We were also able to successfully defend the woman from an attempt by her husband to stop support payments and at the same time recover some of the items of personal property which had been awarded to her by the court. The woman still had to defend herself from a law suit brought by the lawyer who was demanding over $10,000 and had not credited the retainer which the woman paid at the beginning of the representation.

I have written this article in hopes that it may help you avoid the costly mistakes of the Nine Year Divorce.
There are two areas where people make mistakes. The first area is in selecting the lawyer and the second area is mistakes made after selecting the lawyer.

HYPE IN LAWYER ADVERTISING

COMBINED EXPERIENCE HYPE. Law firms that tout “*** years of combined experience” are probably trying to magnify or enhance their credentials. If you are looking for a lawyer with experience, this hype does little to inform you of the actual experience of the individual lawyers. My question is if the lawyers each have significant years of experience, why don’t they say how much experience each lawyer has? Why? Because it sounds grander to use the combined figure. Even an ant looks like a mighty monster under a magnifying glass.

LAUNDRY LIST HYPE. Law firms that have a laundry list of services may not be the best choice for your situation. Remember the proverb “Jack of all trades, master of none”? You can certainly be a jack of all trades, but can you be a master at all trades? How much of the practice of the firm is devoted to your type of case? For example, does the law firm (and the particular lawyer) you are considering devote a significant portion of the practice to the type of case for which you are seeking representation?

Perhaps you are looking at one stop shopping and it is important to you to find a lawyer or law firm that can handle multiple matters for you. Then you may want to ask if the lawyer handles each of those areas, but you should also ask how much of the practice is devoted to each area and how much experience the lawyer has in each area. Are there client testimonials available for each area? Think carefully and decide if it may be worthwhile to seek out a more specialized practice for each of your problems.

BIGGER IS BETTER HYPE When it comes to law firms, bigger is not necessarily better, much less the best. If you want personal attention, you may find that a medium sized or smaller firm will be more attentive. Law firms that have group photographs with all of the clerks and secretaries are trying to look bigger to compete with mega firms with dozens or hundreds of lawyers. But in the final analysis size does not matter; bigger is not better than smaller, nor is smaller better than bigger. What does matter is personal care and attention. This is something that you will have to ask about and be sensitive to as you call on various lawyers and law firms in your search for the right lawyer and law firm for you and for your case.

IF IT SOUNDS TOO GOOD TO BE TRUE… [CHOOSING A LAWYER BASED ON COST] Cheapest is seldom the best. On the other hand, just because something costs a lot does not make it better than something that costs less. Would you choose a doctor or dentist based on how cheap his services are? No, not if you can help it. You want the best doctor, the most attentive doctor, the smartest doctor, the most knowledgeable doctor at the best price. Cost may be a legitimate factor in choosing a lawyer but it should be the last and least significant factor. Cost certainly should not override other factors such as ability, experience, reputation within the legal community and client testimonials. Can you afford cheap legal advice that may be bad or wrong?

ASSUMING AND NOT CHECKING Related to falling for hype in lawyer advertising is assuming and not checking. Don’t believe the yellow page ads. All lawyers are not equal. You should investigate any lawyer or law firm before engaging them. Inquire about his/her reputation in the legal community. Check out what clients have to say about the lawyer and the law firm. ASSUMING PRE-PAID LEGAL IS THE WAY TO GO. Don’t assume that pre-paid legal is the way to go. Just because you have pre-paid legal available for use does not mean that you should use them. The best lawyers are seldom members of a pre-paid legal service panel. You certainly should not allow the pre-paid attorney to represent you without first investigating him/her.

Of course, you may not need the best lawyer, but you should at least want to insure that the lawyer you choose is a good lawyer for the matter at hand. You should also realize that a lawyer may be a good lawyer for some matters and not for others. This is where knowledge, experience and ability must be weighed and examined. Does the firm or attorney you are considering take a “no holds barred” approach to family law? If so, be prepared for lengthy and expensive proceedings.

You should investigate a pre-paid lawyer as diligently as you would any other lawyer and ask the same questions. If the lawyer does not devote a significant portion of his/her practice to the area of law involved in your matter, you should look elsewhere. If the lawyer does not have a good reputation within the legal community, you should look elsewhere. If the lawyer cannot point to articles written or cases won, if he/she cannot point to client testimonials, you should look elsewhere.

Once you have done your homework and selected the lawyer and law firm you believe will best serve your needs and protect your needs and protect your interests, you could still make costly mistakes in hiring your lawyer.

MISTAKES AFTER YOU HAVE SELECTED A LAWYER

NOT ASKING FOR A WRITTEN FEE AGREEMENT While oral contracts are recognized at law, enforcement can be problematic and requires proof of the essential terms. Without a written fee agreement, how can you be sure that you and your lawyer have truly reached an understanding? Basic contract law requires that there be a “meeting of the minds” to create a contract. It speaks of “an offer” and “an acceptance”. A written fee agreement serves to clarify and solidify the expectations of the client and the attorney. The agreement should spell out the responsibilities of each party and the parameters of the representation. This protects you and your lawyer. Written fee agreements are recommended by the Virginia State Bar and by the American Bar Association. If your lawyer does not bring up the subject of a written fee agreement or representation agreement, you should do so.

NOT ASKING TO READ A DOCUMENT BEFORE YOU SIGN IT. Whether it’s the fee agreement, a lease, an affidavit or a pleading, just because the document is presented to you by your lawyer, does not mean you should not read it carefully and ask questions about anything you do not understand. If the document is not correct or contains errors or omissions, you should bring those to the attention of your lawyer.

FAILURE TO ASK FOR A COPY OF WHAT YOU SIGN. You should always ask for a copy of a document that you are asked to sign. In our office, when we are retained, we give the client a pocket folder with copies of the fee agreement, office policies and, in appropriate cases, the client divorce manual.

FAILURE TO KEEP COPIES. You should have a safe place to keep important documents. If documents are from an attorney, they are important and worth keeping, at least until the case or matter is concluded and in some instances longer than that. The fact of the matter is, if you don’t keep the copies, you may not be able to get duplicates later. Believe it or not, I have had several clients over the years who were victims of unscrupulous lawyers who destroyed documents to avoid having to produce them when a conflict arose with the client. One actually shredded file documents in front of the client. Aside from those issues, most lawyers do not retain client files forever. In our office, we routinely shred aging closed files to make room for new files. We advise clients to retrieve anything they might want or need from their file when it is closed, because it is subject to destruction.

FAILURE TO ASK QUESTIONS. You should ask a lawyer you are considering who he/she would hire for a case such as yours. You should ask the lawyer you are considering questions about his/her experience and credentials. Can they point to satisfied clients who have given testimonials of their experiences with the lawyer and law firm? Who besides the lawyer will be working on your case? How do they handle telephone calls? How do they charge? What does the lawyer expect of you? How will he/she keep you informed of progress on your case? How does he/she plan to present your case/defense? You should ask questions about court procedures or other procedures pertaining to your case or legal matter. If there are terms that you do not understand, ask your lawyer to explain them to you.

FAILURE TO STAY IN TOUCH. If you move or change employment or telephone numbers, your lawyer may not be able to reach you to communicate about your case. It is important to keep your lawyer abreast of changes in your circumstances, employment and residence contact information.

FAILURE TO PROVIDE A CELL PHONE NUMBER. This is related to the failure to keep in touch. Depending on the nature of the representation, your lawyer may need to be able to reach you quickly. It is frustrating to the lawyer not to be able to reach you and it can adversely impact your case. You should take steps to insure that your attorney is able to reach you and speak with you promptly or within an hour or two. For example, suppose your lawyer is engaged in a negotiation in your behalf. If he/she is unable to reach you at a critical point in negotiation, it could result in “blowing” the negotiation or losing the deal.

In today’s world of instant communication, there is no reason not to facilitate communication with your lawyer.

What mistakes could have been avoided in the Tale of the Nine Year Divorce?

INVESTIGATION-The client could have investigated the lawyer before hiring him. She could have googled him. She could have interviewed more than one lawyer. She could have asked another lawyer who was the best divorce lawyer for a contested case with allegations of adultery and property issues. She could have asked the lawyer for client testimonials or client expressions of their experiences with him.

WRITTEN FEE AGREEMENT-She could have asked for a written fee agreement and a receipt for her retainer. Or she could have written the lawyer a letter setting out her understanding of the representation and of the fee charged or to be charged in the matter and the application of the retainer which she had paid, retaining a copy of the letter for her file.

QUESTIONS-She could have asked the lawyer how he charges and how much he would estimate the case would cost. She could have asked if he had experience with opposing counsel and if he was afraid of her or if he felt confident he could handle the case, despite opposing counsel. She could have asked what to expect and she could have asked about the procedure in a contested Virginia divorce.

She could have asked the lawyer what strategy he planned to use to defend her and how he planned to take her case on the offensive. She could have asked the lawyer how he planned to keep her abreast of developments and progress in her case and how long he estimated it would take to get to final hearing in the case. She could have asked him how he planned to enforce the spousal support order and what could be done to collect the money.

When the lawyer got a court order of attorney’s fees from her husband for $10,000, she could have questioned the lawyer about what he was doing and why. She could have asked for an itemization of charges and whether or not she would be responsible if her husband did not pay.

She could have consulted another attorney or the State Bar to ask about what was going on and what rights she had as a client.

COMMUNICATION – She could have made a greater effort to remain in touch with the lawyer and to keep him abreast of changes in her circumstances, such as her accident and being out of work due to disability from the accident. When time passed without hearing from the lawyer, she could have telephoned the lawyer. When the lawyer failed to return her telephone calls, she could have scheduled an appointment to see him or written him documenting his failure to return her telephone call and asking for a status report and what the next step would be.

When the lawyer began to demand money from the woman, she should have responded to the bills and letters in writing with questions about the charges. She could have demanded an itemization of charges and an accounting of the retainer which she had paid.

SECOND OPINION – When she became dissatisfied with the progress of her case, she could have sought a second opinion and considered changing counsel before the lawyer moved to withdraw from the case, or at least before the lawyer filed suit over the fees. In fact, when the case was dismissed by the court for inaction, she should have sought a second opinion and considered changing counsel and asking for the return of her retainer.

So Your Business Has a Legal Problem – 8 Useful Tips on What to Expect From Your Lawyer

As a business owner, you are usually run off your feet with the challenges of operating your business. The last thing you need to worry about is a legal problem. Many business people put off dealing with a legal problem because they don’t know where to turn, don’t have the time, or most often, are afraid of how much it will cost and how much time it will take.

Legal issues come in many forms:

· A customer failed to pay an account despite many promises. · You just received a letter from a government agency. · You just found out that your former manager has set up a competing business and has stolen your best customer and one of your key employees. · You have just been sued for $100,000. · Someone told you that one of your standard form contracts won’t stand up in court and you are worried about it. · You have a dispute with your landlord. · You have a problem with a US or European customer. · Your business has been defamed on the internet. · You just found that your warehouse manager has been sexually harassing a female employee. · An employee is damaging your business but threatens to sue if you fire him. You are not sure how to handle it. · You are involved with a Workplace Safety Insurance claim.

These examples are just the tip of the iceberg of the kinds of legal issues business people run into frequently.

Tip #1 – Seek out legal help at the first sign of a problem

Suppose a competitor has been passing off its business under your name and it’s costing you customers and sales but it’s hard to estimate the amount. Unless you act promptly, it may be too late to seek an injunction from the Court. If you think you have a claim against another party under a contract, a limitation period begins to run from the time the contract is breached and usually expires two years later. It’s not a good idea to leave the claim to the last minute.

If you have an issue with an employee who is working unacceptably, it’s important to develop a legal strategy as early as possible. The longer you wait, the more it may cost your business.

The short point here is that it is important to seek advice as soon you detect a problem and before anything has been done to make it worse. Crisis management is always more expensive and time-consuming than early response.

Tip #2 – Have a team of lawyers to call on when you need them.

Every business should have a team of on-call lawyers. This is less expensive or complicated than it sounds. All you need are the telephone numbers and email addresses of trusted corporate, employment law and litigation lawyers. Depending on the nature of your business, you may also need an intellectual property lawyer, who deals with trademarks, patents and copyright. You may even need a tax lawyer because not all tax issues can be solved by an accountant.

If the amount of your legal dispute is very small, such as a claim or complaint by a customer for $1,000 or less, it will be uneconomic to hire a lawyer. Fortunately, there are other helpful resources. The BBB has a dispute resolution process which permits BBB businesses and their customers to resolve disputes by arbitration or mediation. You don’t need a lawyer and the only cost is a small administration fee. More information about this process is available on the BBB website.

If your case is in the Small Claims Court ($10,000 or less), you might need a paralegal who specializes in these kinds of cases. Paralegals are now regulated by the Law Society but they are not lawyers and they are not a substitute for an experienced lawyer.

Tip #3 – Learn what to expect when a dispute arises.

As a business person, you have learned that success is often the result of building relationships. The relationships you build with your lawyers can be just as important to your business success as the ones you have with your customers, suppliers, banker and insurance broker. A relationship with your lawyer built on mutual trust and respect will save you many sleepless nights over the years and probably make or save you a lot of money.

There are several ways to find good lawyers for your business:

Ask business associates or relatives if they have someone to recommend. If you get a recommendation, find out more about the firm and the lawyer by using some of the research methods below. · The internet is a very useful resource for finding a lawyer but you have to be careful. Any lawyer can list with various online legal directories. Anyone can have a flashy website. You have to move past the flash to find the substance.
When looking for a lawyer on the internet, look for someone who has experience in the field you require. The first name on a Google search may not be the best choice. Some lawyers have written extensively about the law. This is a useful indicator of expertise and standing in the legal community.
Some lawyers list cases they have been involved in on their websites. Broad litigation experience in complex business matters over many years is a good indicator of competence.
The Law Society of Upper Canada (Ontario, Canada) has a lawyers’ referral service. The service provides a name but you have to check the details out yourself. · The Law Society certifies specialists in several areas of practice. Certification as a specialist signals that the lawyer has achieved a higher standard of experience in his/her area but certification isn’t mandatory. Many competent lawyers have long experience in a field without applying for certification. You have to decide if this is important to you.
· If your problem is outside Ontario, find a local lawyer first. Many firms have networks with lawyers globally and are able to refer to lawyers in the USA or other countries. Refers between colleagues are often more effective.

When you call, don’t expect the lawyer to solve your business problem over the telephone. The first discussion is for the lawyer to identify whether s/he can represent you and for you to assess whether the lawyer appears to have the skills to deal with your problem. If you have a legal problem the lawyer believes his/her firm can resolve, an office meeting will be arranged.

In business matters, lawyers customarily charge a consultation fee for the first office meeting. At the meeting, the lawyer will give preliminary or urgent advice and develop a go-forward strategy. The lawyer may be able to give a partial fee estimate and will ask for a retainer to cover some of the work. No lawyer can guarantee the outcome. At this early stage, there are usually a lot of unknown matters. While the lawyer may be able to give you a partial fee estimate in a litigation matter, it’s impossible to say with accuracy how much it will cost. It depends on too many unknown factors.

It will be then up to you to decide whether or not to hire the lawyer to represent you further. The decision you make will depend on your sense of confidence in the lawyer. Has the lawyer listened to you? Have your questions been answered? Does the lawyer appear to understand your problem? Has the lawyer presented the risks and downsides of your case? Every case has risks and costs. Beware of a lawyer who tells you only what you want to hear without assessing the strengths of the opposing party’s case.

Some lawyers will accept a monthly or annual retainer which entitles the client to telephone advice a few times a month. More complicated issues require separate engagements.

Tip #4 – The least expensive lawyer is unlikely to be the best person to handle your legal problem

Consider this scenario: you are looking for a lawyer for a complicated lawsuit. You call Mr. Jones, who answers on the first ring. You tell your story, which has many facts the opposite party disputes. Mr. Jones says, “You have a great case. I’m sure you’re going to win.” When you ask how much it will cost, Mr. Jones says “Don’t worry, you won’t have to pay me anything unless you win. Just come on down to my office and we’ll get started.”

Beware of any lawyer who tells you this. While Ontario lawyers are permitted to charge their fees based on contingency, i.e. a percentage of the result, this type of fee arrangement is only rarely applicable in business cases. It never occurs when facts are in dispute, recovery is uncertain or if the amount is small.

When you retain a lawyer, you need a trustworthy advisor, who will point out the weaknesses of your case as well as the strengths. A litigation lawyer who is waiting by the phone for your call and tells you exactly what you are hoping to hear may be too hungry or too inexperienced to manage your case. He may be in over his head and will bail out as soon as your case takes a negative turn. By then, your legal situation may have worsened. It will be more expensive and perhaps impossible to repair it.

Even worthwhile cases require careful analysis and risk assessment. An experienced litigation lawyer will typically do his by for fees on an hourly basis plus GST and any out-of-pocket expenses necessary for your case.

Good litigation lawyers are often in court, at mediation or other litigation procedures, at meetings or discovery. However, good litigation lawyers always call or respond by email within 24 hours. In case of urgency or vacation, the lawyer will arrange for someone in the office to contact you.

Tip #5 – Prevention is better and much less expensive than litigation.

Legal problems are like computer crashes — they are bound to occur, it’s just a matter of time. Unlike computer crashes, some lawsuits can be avoided. Often, businesses owners deal with legal matters only when a crisis arises. They look for the least expensive lawyer to draft their leases, contracts, corporate and employment agreements without regard to skill, competence and experience.

Sometimes, business owners avoid legal steps like failing to make a shareholder agreement, failing to file a trademark application or failing to prepare a non-competition and non-solicitation agreement with a key employee. When served with a lawsuit, they ignore or tear the papers up in anger. These business owners will be caught short when the inevitable occurs. While litigation or arbitration may still occur when there are written agreements in place, you will be in a far more secure position if you have taken precautionary steps before the dispute occurs. If you respond to correspondence and legal papers promptly, you will be better protected than if you ignore them.

Competent legal advice is available for matters such as corporate organization, leases, the wording contracts and other documents you use in your business, partnership and shareholder agreements, your relationships with your employees, your company’s trade names, logos and website, your regulatory compliance, your risk management and litigation prevention techniques. It’s all important to arrange legal affairs to ensure that your personal liability is limited in the case of a claim against your business.

Ensure that the legal issues affecting your business are in good order. This is likely to save you a lot of money and grief in the future. You might even consider having a legal audit or a “business legal checkup”. We plan to write about this topic in a future article in this newsletter. Preventative legal advice may be expensive but it is just as important as fire insurance.

Tip #6 — Don’t assume that ‘going to court’ means ‘going to trial’

If you haven’t been involved in litigation before, you may not appreciate that more than 90% of cases settle before trial. While a trial (or even an appeal) is not always avoidable, lawyers use techniques to try to resolve cases at earlier stages. Business people are looking for certainty and to limit expense and exposure.

It’s never a bad idea to negotiate a settlement with the opposing party but the timing and approach will depend on the case. It is best to negotiate from a position of strength. This may mean holding off negotiations until enough facts and documents have been disclosed to favour your position.

Mediation is another technique lawyers use to achieve settlement before trial. Mediation involves a neutral mediator, who is usually an experienced lawyer, acceptable to all parties. The parties and the lawyers prepare briefs to explain their positions to the mediator. On the mediation date, after an opening session, the parties retire to separate rooms. The mediator will “shuttle” between the parties until an agreement is worked out or an impasse is declared. This process produces a high rate of settlement even in very complicated cases.

Tip #7 – Understand the risks of the litigation process: Why do lawyers emphasize settlement?

Even if you have an airtight case, your lawyer will still recommend settlement. Lawyers assess risk every day. Even the most airtight case could have problems at trial. The judge may prefer the evidence of the opposing party over yours. The other party’s expert witness may be more persuasive than yours. These are just two of many possibilities. A trial is always a last resort.

Another good reason to settle is that even if you win at trial, the case may not be over because

The legal costs awarded by the court to a successful party are only a partial recovery of the legal costs payable to your lawyer. · If you lose at trial or if the opposing party does better in court than their settlement offer, you will have to pay a portion of their legal costs. · There may be an appeal which could delay payment for two years or longer.
Until a final judgment is granted, a defendant is rarely prevented from dealing with his property – unless the property is the subject of the lawsuit (or some other exceptional situations).
The judgment may be unenforceable. The opposing party may be insolvent or go bankrupt. You might not collect anything. · The defendant may conceal his assets or transfer them to family members to make the debt difficult to collect. A separate lawsuit may be necessary to find the defendant’s assets or to declare the fraudulent transfer void.
The defendant may have assets outside Ontario. A lawyer in the jurisdiction where defendant’s assets are located may have to be retained to collect the judgment.

A settlement involves a resolution both parties can live with. If the case involves the payment of money, there won’t be a settlement unless payment is made.

Even with these concerns, some cases can’t be settled. The positions of the parties may be so far apart that a trial is necessary. As the case progresses, you and your lawyer will have to revise and update your strategy and estimate the legal cost and risk of each stage of the case. Keep in mind that the opposing party is dealing with similar risk assessment and cost issues as you are.

Tip #8 — Be a good client.

From a lawyer’s perspective, a good client is a business person who does the following:

Presents all the facts of the case fairly without exaggeration or deception. Tell your lawyer everything; not just the facts that help you. The rest of the story always comes out and usually with adverse consequences. · Considers the lawyer as a trusted advisor and advocate.
Has a well-organized set of relevant documents.
Provides other documents and information promptly when requested.
Accepts that every case has weaknesses and works with the lawyer to develop a strategy to minimize the weaknesses.
Recognizes that the lawyer cannot guarantee the outcome but can only provide effective advocacy to produce the best result, often as a result of negotiation or mediation.
If an examination for discovery or trial is required, takes the time to prepare to testify.
Asks for clarification on all matters that are unclear.
Understands that in litigation matters, it is impossible to predict the fees accurately but that the lawyer will gladly provide estimates of imminent steps in the case.
Pays retainers when asked and settles interim accounts promptly when rendered.
Considers the lawyer’s recommendations carefully and provides reasonable instructions.

One of our firm’s clients is a technology business which started as a family operation and has grown to the point that its brand is now accepted and recognized globally. Our client’s president knows hows to get the most out of his professional advisors. He is always respectful, trusting of professionalism, intelligence, experience and competence. He is prompt in responding to requests for information, appreciative of good advice and excellent service. He works hard but he usually has a happy and cheerful attitude.

Our client expects is professional advisors to have the same enthusiasm for their work as he does for the operations of his business. And another small matter: our client pays every professional account within 48 hours of receipt. He believes that if he had to challenge his lawyer or accountant’s bill, the professional relationship is not a healthy as it should be. Our client expects fair treatment, excellent service, sound advice, creative strategy, experienced advocacy and determined, no-nonsense negotiations. And he gets all of them in spades! A lot of business people who are dissatisfied with their professional advisors could learn a lot from him.

These tips offer no assurance that your legal matter will turn out exactly as you expect. However, by following our suggestions, the resolution of your business dispute is likely to be a less expensive, less time-consuming and less stressful experience and possibly more successful. Keeping your business legal affairs in good order permits you more time to focus on making your business flourish.

Igor Ellyn, QC, CS and Orie Niedzviecki are partners of ELLYN LAW LLP Business Litigation and Arbitration Lawyers, a Toronto law firm, established specializing in dispute resolution for small and medium businesses and their shareholders.

The firm is a member of INBLF ( http://www.inblf.com ) and its designated Toronto firm for shareholder disputes. Igor Ellyn is a Specialist in Civil Litigation and a past president of the Ontario Bar Association. He is a chartered arbitrator and mediator and the author of many legal articles, some of which may be downloaded from the firm’s website.