Have You Met Your Lawyer?

Have you met your lawyer? Your lawyer has been given the task of speaking and advocating on your behalf.  There is no higher honor or burden to bestow on someone else.  Why then, would you let a perfect stranger be your representative on your personal or business dispute?  There is no reason.  Yet daily, clients let the firm rainmaker or managing partner sell the firm to the client then assign the matter to an attorney whom the client knows nothing about.  This has to stop.

In this day and age of video conferencing methods (voice IP, Skype for free video conferencing and a host of other online video meeting sites and software), there is no excuse for not meeting your lawyer early in the engagement.

A judge, a jury, opposing counsel, company representatives, witnesses, court personnel and many others will meet and interact with your lawyer.  Their impression and interaction will determine their future cooperation, behavior and receptiveness to interacting with the attorney and the legal team.  It behooves every client to take the time to meet counsel.

What do you want to know besides what she looks like and how she dresses? It depends on the engagement but here are at least a few key questions to raise in a matter involving negotiations or a dispute of any type.  One reason to ask the questions is for the content of the answers.  The other equally important reason is to determine if the attorney has the personality qualities that you want in the person assigned to represent you/your company in the legal matter.

1. How many times have you been lead counsel in a similar matter?  What was the value of the matter that was at risk?
2. Did the matter result in a good result for your client or a better result for the opposition?  Get details.
3. Do you provide budgets on your files?  How close to budget have your cases come in over the past year?
4. How many lawyers work with you on a matter?  What is the maximum and minimum?  What are the levels of experience of those lawyers and their purpose on the team (Training? Cost-effective work? Leading a team of younger attorneys?)?
5. Who assigns the work for your cases, a junior person or you personally?
6. Who most often has the contact with opposing counsel and the court on your matters?
7. Are you required to report to anyone on this file while it is pending?
8. How technologically savvy are you?  Do you write most of your own work or rely extensively on staff?

The answers matter.  The more involved in doing the work or at least assigning the tasks, the smaller the team, the closer to budget, the greater the experience in similar matters, and the more personal contact with the court and opposing counsel, the better chance you have of knowing who is doing your work.  And just as importantly, knowing that the professional you retained and are comfortable with, is actually representing your best interests.  It doesn’t cost extra to ask the questions, so just do it.

Do You Have Your Case Budget Yet?

Clients, can we speak frankly?  Do you have your budget for your most recent piece of legal work yet?  Did you ask for one?  Now is the time to insist on a detailed litigation budget.

The case budget is an essential tool for litigation management.  It forces your lawyer and you to carefully examine what is in dispute, what is required to prove or disprove the allegations and the costs associated with this process.  The best example I’ve heard to analogize to the need for a budget is to compare a house rehab project with a budget and plan and one without.  Under each situation, the rehab job will eventually get done.   But with the budget and plan in hand at the outset, all parties know what it will cost to a reasonable degree of certainty, the right parts are installed at the right time and the outcome usually matches the plan.  The rehab project that is done on an “as you go” basis usually finds that steps were missed, costs are surprisingly high and some essential component is missing or incorrectly installed.

Requiring a budget from a lawyer is not asking for rocket science.  The lawyer will resist the effort, will delay or ignore the request and fill the budget with assumptions and disclaimers.  But think of it this way, if a doctor can create an annual budget for his research to cure cancer, or a scientist can prepare a budget for the cost to launch the shuttle on its next trip, then a lawyer should be able to calculate the costs to bring the litigated matter to a conclusion.  A lawyer familiar enough with the litigation process, and the billing process should be able to estimate the costs in a matter.

Plus, no one says a budget is set in stone.  Of course, a case changes course due to other parties, court rulings, the court calendar, and the behavior of one’s opponent.  But these events occur in all cases and should be taken into account in a budget.

Creating the budget should not be the end of the process though.  It is essential on at least a quarterly basis to compare the actual bills to the budget to determine if the case is following its predetermined course or is off-track.  This short review should tell the client if the case is progressing as anticipated and at the cost projected.

Clients, you have a right to know what the litigation is going to cost.  Lawyers have the knowledge and ability to complete this task.  You should insist on a detailed budget that itemizes the activities expected to be undertaken, the attorneys (by name and rate) who are expected to perform the activities, and allow for a category on the budget that covers case reporting and correspondence.  Whether you use a form your company designed or use the ABA Billing Codes, or allow the lawyer to explain the activities and cost in his own form, it behooves the client to insist on a budget before proceeding with any activity.

 

Is Your Lawyer Ready For Trial? Why Don’t You Know?

I spoke with a colleague last week who was readying his case for a bench trial to be held outside of his customary jurisdiction.  He commented that the lead lawyer for the plaintiff did not know his file.  Always a fun piece of information to know heading into trial.  He also commented that his team (the defense) had been working until 9 pm every night for several weeks and through the weekends without breaks.  Query:  was either lawyer ready for trial?  Did the client know the state of readiness of the case it was about to submit to a stranger (the judge who knew nothing about the case or subject matter) to decide the outcome at a cost of thousands of dollars?  I don’t think so.  And the danger of not knowing could mean the difference between winning and losing.

What is Readiness For Trial?

At its most basic level, Readiness means the lead lawyer knows the parties, the issues, what issue must be won and what issues cannot be lost.  He knows what evidence is marked and ready for presentation to the court and he has supervised the preparation of exhibits to enhance their presentation to drive home a point.  Most importantly, he personally has met the witnesses, knows who he will call in his case in chief and why, and who he will likely cross-examine and why.

It Can’t Be Done On The Way To The Courthouse?

Some lawyers are so busy and so in demand that they think they can pick up the basics of the case from an associate on the way to court and they rely on the associates to do all of the work expected from the lead lawyer.  This is not Readiness for trial.

A very successful trial lawyer, Louis Nizer, observed about the trial process that, “[p]reparation is the be-all of good trial work.  Everything else-felicity of expression, improvisational brilliance-is a satellite around the sun.  Thorough preparation is that sun.”  There is simply no substitute for knowing  the strenths, the weaknesses and the nuances of the case.  The prepared lawyer knows if his opponent was sloppy in his expert’s preparation, knows the case law on the case critical issues, knows the jury instructions the jury (in a jury trial) will likely see and the law the judge must follow in a bench trial, and has his witnesses lined up and prepared to stand and deliver.  Anything short of this is a disservice to the client who has put his trust in the lawyer.  Non-disclosure of the unpreparedness of the file to the client is a disservice of the greatest magnitude if not an ethical violation in itself.  Yet everyday, trial lawyers don’t know their case and start a trial as if they do.

This is not a malady limited to plaintiff or defense lawyers; both fall victim to other demands and deadlines and short-change the trial preparation.  Sometimes the unprepared lawyer is playing the odds that the case will settle at the eleventh hour because that is what statistically 95% of the cases do.  But sometimes, the client insists on a trial, unwittingly walking into battle with a lawyer who is neither mentally or physically prepared.

What Other Type of Readiness For Trial is There?

The second type of lack-of-readiness is more insidious than the first.  This second type is exemplified by the defense lawyer mentioned in the first paragraph above.  The lawyer has devoted his life to the case and so has his team of partners and associates.  They have worked long hours and arrived home exhausted only to return the next day to the office for more labor- and mentally-intensive work.  This team will show up to the courtroom with the briefs, witnesses, exhibits and notes ready to begin the battle.  However, they will show up physically exhausted; they will have drained their brain of creativity, strength, mental acuity, reaction time and all the mental functions that go with a well-fed, well-rested, clearly thinking brain.   And it will show in their presentation.

The unrested, unfed, exhausted trial lawyer does as much a disservice to the client as the unprepared.  This lack of physical and mental preparation will emerge when quick thinking and creative responses are required.

What is the Client to Do?

First and foremost, the client must ask the lead trial lawyer specific questions about the level of preparation of the case at least 60 days in advance of trial.  The client should not accept a written report penned by an associate and signed by the partner.  A conversation should take place on the critical aspects of the case, those parts that led the client to decide to take the case to trial, and confirm that the case is well in hand.  The client should know who is on the team, the amount of work those lawyers are doing on the team, and what they are doing.  When red flags arise during this conversation, sailors take warning that rocky seas are ahead for that case.  You will see a breakdown in the trial team and how they interact in the courtroom, with witnesses and with each other.  Trials these days are as brutal on the body as marathons and it behooves the client to take the time to find out if its trial team is keeping its eye on the big picture.

Second, the client should be assured, again through dialogue not a form report or a photocopy of lunch menus, that the intense preparation for trial is not coming at the expense of the lead trial lawyers health or welfare.  Any client or law firm working its lawyers to 9 pm and beyond each night for weeks at a time should have arranged adequate break time, i.e. portions of days off to get personal matters taken care of, or weekends off, and most importantly, insured through supervision and oversight that the trial team is being well-fed.

Aha, you say, I had to read this far to find out my trial lawyer wants a free lunch!  Not true.  The trial team needs to be well-rested, well-nourished and have time to stop and reflect on what is being done, by whom and when, all of which can be accomplished during a lunch or dinner break brought into the law firm.  The cost?  Less than one associate billable hour.  The benefit?  A team that is not so drained or so rushed that it cannot think straight as it heads into and through the trial.

Law firms work for clients.  Clients don’t send in files for a law firm to have its way with the case then rollover and settle the claim.  It behooves the law firms to think about the client’s needs at all times and in all aspects.  The client has put an enormous amount of trust and resources into the law firm to get to the eve of trial.  The ABA Model Rules of Professional Conduct Rule 5.1 place a burden on supervising lawyers to make reasonable efforts to oversee the work of other lawyers and personnel in the firm.  It is time to make sure the trial lawyers are ready for trial and the clients know exactly who is walking into the courtroom and with what degree of stamina in order to prevail.  Law firms, it is time to oversee your trial teams readiness at both levels.  Clients, it is time to ask the questions.