Tailor. Carpenter. Architect. Cook. Would you engage any of these professionals to do anything for you without knowing what the finished product looks like? I don’t think so. Should you treat a lawyer any differently? Why should you engage a lawyer, and leave her to control what you know and what you don’t about your own matter? Surely nobody’s a better expert than you on the facts and what you want. This post suggests 5 things you should control from the beginning to the end, when you engage a lawyer.
1. The Information You Need to Know
You expect your lawyer to have the nous and resourcefulness to smash your problems into cinders. You want to dump your deadweight on her, so that you can sleep like a baby at night. A lawyer isn’t a priest or a genie, and shouldn’t crave your blind faith in her expertise. If she acts like a demigoddess, resist it. Avoid letting her determine what information to give to you, and what to cache. You know the facts of the matter. More than anyone else. More that your lawyer. Those are the ingredients, and you know what outcome you want to taste at the end.
Ask questions. Grasp the basis of the proposed fee. Discuss the terms of engagement – it is business, and terms can be changed. Talk about strategy and procedure. Often, there are options. Delve into risk and consequences. Chip in, in selecting the best route to take. Always insist that your lawyer speaks and writes in language that humans speak – plain English. Insist on receiving regular updates – make it a term of engagement. You don’t want to wait until the end to realise your lawyer got it all wrong. Ask often, “What’s happens next?” Discover the next 3 steps. You want to know if anything is going badly, if the strategy must change or if your lawyer calculated wrongly on something. No surprises. Your lawyer will get you better results if you insist on getting total information.
2. The Forum for the Fray
No, I’m not asking you to play amateur lawyer. Some things (such as venue of a dispute) are technical. That’s why you engage a lawyer. You can still help to determine which forum to take a dispute to, in many cases. Let’s take employment dispute. You may take your grievance to a court or an employment tribunal. Each option has pros and cons. Always ask your lawyer if there are different options available. The difference may lie in how much compensation you may get, or whether you can appeal against a decision you don’t like, or if an order can easily be enforced. That’s one way of controlling the choice of forum.
In many cases, when entering into a business relationship, you can decide that future disputes should not be taken to court. Conciliation, Mediation, Expert Adjudication and Arbitration are alternative ways to resolve disputes. Again, each option has pros and cons. If there is a choice between forums or methods, don’t leave it solely to your lawyer to decide. The first step is to ask the question whether such a choice exists.
3. Whether the Judge likes You
Judges are just like you and I. They go to church and the gym with you. Your kids attend the same schools with theirs. You stew together in thick traffic, and curse the city authorities in your heads. They cut. They hurt. They bleed. They have natural likes and pet peeves. I nearly forgot to say they poo. They may try to remain professionally neutral in all matters, but their subconscious will make some choices for them. That choice shouldn’t shatter your case because of your lawyer’s behaviour. Don’t permit a situation where her demeanour irritates your opposite party or their lawyer. On no score should your lawyer’s ill-received conduct cause you to lose the case or the deal. Let your lawyer know what conduct you expect of her when you engage her. Do it respectfully, but do it. If there are any yummy brownie points on offer, make sure your lawyer doesn’t lose them for you.
4. If & When to Settle
A saying goes “it’s better to resolve conflicts in the board room than in the courtroom”. Disputes are expensive. Outcomes are often uncertain. Only the victor gets the spoils. Relationships get damaged beyond repair. Settlement is good. A compromise here, a back-down there, and the problem is solved. Settlements keep relationship intact. A good lawyer will always look for the chance of a settlement. Not all lawyers do though. If the opening arrives at an advanced stage, where your lawyer is emotionally invested in the matter or feels the chips are falling in place beautifully, she may miss the opening. Maybe settlement means a smaller fee for her. That’s why it’s in your interest to watch over her. All I’m saying is don’t leave the decision entirely to your lawyer.
5. Who Keeps the Costs
Courts award costs to winning parties…usually. Costs consist in compensation for inconvenience. Inconvenience includes: the lawyer’s fee you paid; filing fees; telephone bills; and commuting expenses. Costs are for you, not your lawyer. In all circumstances where you’ve already paid your lawyer’s fee and expenses, there isn’t one reason she should keep the costs. The one scenario I can think of where your lawyer can rightfully keep all or some of the costs is an arrangement where the lawyer gets paid only on success (e.g. in a debt recovery). Also, in any case, if your lawyer incurs expenses in the case which you don’t reimburse her for, then she may recover those expenses from the costs.
Can you think of any other areas of the lawyer-client relationship which you believe shouldn’t be controlled solely by the lawyer?