Peter C. Bronson: Choosing a litigator
Even if you have led an exemplary business life, the time may come when you need to hire litigation counsel – either to pursue a claim or to defend against one.
When such a situation arises, you can ask friends and associates for referrals, or use a lawyer referral service such as the excellent one located here in Nevada County. Perhaps you have a relative who practices law, and either has litigation expertise or can refer you to an acquaintance who does. But the question still will arise: How do you know you are retaining the right person to represent you?
Here are a few tips that may help you make the decision.
Find out how much experience the attorney has, not only in litigation but also in the specific type of dispute in which you are involved (for example, breach of contract, real estate, sales, copyright or patent infringement, unfair competition, tax, defamation, personal injury). We live in an age of specialization: Even the finest neurosurgeon may not be competent to perform a knee replacement. Similarly, a lawyer who handles mostly environmental clean-up litigation may not be the best choice to defend you in a copyright infringement lawsuit.
Find out how long the attorney has been practicing law. Even if he or she specializes in litigating the type of dispute in which you are involved, you may not want to be one of the lawyer’s very first clients. I know, someone has to be the guinea pig in every young lawyer’s career; but you probably don’t want to volunteer for that role, any more than you would want to be the first person on whom your heart surgeon has ever performed an operation.
Check your lawyer’s record on the State Bar’s Web site (www.calbar.ca.gov). You can find out if your lawyer is eligible to practice law; where he or she attended college and law school; and, significantly, whether he or she has ever been disciplined for ethical violations.
Make sure you have a clear understanding of how the attorney will charge for services. If you are seeking damages, your lawyer may charge you on the traditional hourly basis, or he or she may be willing to proceed on a “contingent fee” basis where, typically, you would pay out-of-pocket costs as the case proceeds but would only owe a fee in the event of a successful result. Many lawyers are increasingly willing to perform services based on non-traditional formulas, so this is an area that is usually open for discussion.
Talk with the prospective lawyer about litigation alternatives, such as settlement, mediation or arbitration. Just because you need a lawyer to help you resolve a dispute does not necessarily mean that the only way to resolve it is through litigation.
Determine, in your interview with the lawyer, whether he or she understands your goals and concerns, as well as your business. A good lawyer will try to help you accomplish your desired result if it is legally feasible, rather than emphasizing what you cannot do. You may be spending quite a bit of time with, and money on, your counsel; so it is important to hire an attorney with whom you can effectively communicate.
Talk with the lawyer about his or her preliminary thoughts on a strategy for resolving the dispute as promptly and favorably as possible. You would not want to have your elbow evaluated by an orthopedist whose recommendation, in each and every case, is surgery. Similarly, you do not want to hire a lawyer whose only game plan for prosecuting or defending a lawsuit is to start bombarding the other parties with deposition notices, document demands and written interrogatories.
If you are the potential plaintiff, do not wait too long before seeking legal counsel. Statutes of limitations may expire; defendants may hide or sell assets; and in many business disputes, preliminary relief (such as an attachment, writ of possession, injunction, or appointment of a receiver) may be available on an expedited basis.
If you have been served with a lawsuit, do not wait too long either before you seek counsel. Deadlines can run quickly; and you want your lawyer to have as much time as possible to evaluate and respond to a claim.
Take advantage of the Internet, and use “Google” or another search engine to look for information about your prospective lawyer. There can be surprises Ð both good and bad Ð that prove relevant to your decision whether to retain someone.
Make sure your lawyer is willing to commit himself or herself to regular communications and to be available when needed. Good lawyers agree to, and do, keep you informed concerning the progress of the case; promptly return phone calls and respond to e-mails; and keep you updated on how much the case is costing you as it proceeds toward resolution.
If a friend has recommended an attorney to you, ask that person some of the questions outlined above. It is not enough that your friend describes the lawyer as “really nice” (and maybe you’re not even looking for “really nice”!); gather as much information as you can about the attorney’s experience, style, areas of specialty, and of course, the result that the lawyer obtained for your friend.
Peter C. Bronson, of Nevada County, practices in the areas of creditors’ rights, insolvency, business litigation and mediation. Write him at firstname.lastname@example.org. This column is not intended as legal advice in any specific business situation or dispute; specific strategic decisions always depend upon the specific facts.
Support Local Journalism
Support Local Journalism
Your donation will help us continue to cover COVID-19 and our other vital local news.
If you don't follow the rules, your comment may be deleted.
User Legend: Moderator Trusted User