How to Talk to a Lawyer

This is a little different from most of the things PG posts about, but he hopes it will be helpful for authors and others.

Doctors and Lawyers both receive specialized training which costs a lot of money, pass an exam and have to spend more money during their professional careers to to keep their knowledge regarding their fields of endeavor current.

Almost everybody goes to see a doctor once in awhile. That’s one reason why many people have health insurance via their government, employer or a private insurer. Some people do receive very large medical bills but, at least in first-world countries, this isn’t the norm.

On the other hand, a person can live a long, satisfying and fulfilling life without visiting a lawyer on a routine basis or even once. (And most “legal insurance” plans sold to individuals that PG has reviewed border on scam territory.)

So, it’s not unusual for PG or any other lawyer who doesn’t represent large organizations or rich people on an exclusive basis to have someone contact them who has never talked to a lawyer or been inside a law office before.

Here are a few tips if you don’t have much experience or any experience working with lawyers. As with everything else PG authors on TPV, these tips will include both generally-accepted ways of doing things in law offices and PG’s opinions based on his experiences over thousands of years of working as a lawyer.

No, this is not legal advice, just some information that may address some of the questions, doubts and concerns that some people feel if they haven’t worked with an attorney before and want or need to hire one.

  • What’s the first step?
    • You can ask around for suggestions for who you should call for legal advice, but, depending on who you ask, you may or may not receive a good suggestion.
    • Call the attorney’s office and ask whoever answers if the attorney handles problems or questions like the one you have. In some cases, a short call will confirm that a particular attorney will be able to help you or not.
    • If you talk to an attorney who doesn’t handle your type of problem, feel free to ask the attorney if she/he can recommend another attorney who may be able to help you. In some cases, the attorney will be able to point you in the right direction. In other cases, the attorney will genuinely not know anyone who does the sort of work you’re asking for.
  • How Much?
    • It’s not impolite to ask how much something is going to cost if you hire the lawyer with whom you are speaking.
      • Each state has its own laws and regulations regarding lawyers and their fees, but, as a general proposition, unless a lawyer tells you that you will need to pay her/him for something and lets you know what the fee is or what hourly rate will be involved and you agree to it, you shouldn’t have to pay a fee.
      • Ask the question anyway – “How much will this cost” or “Will it cost me anything to tell you about my problem?”
      • In some cases, an attorney will be able to tell you exactly how much something will cost. In other cases, an attorney will be able to give you a high/low range within which a client’s final cost will fall.
      • On some matters which, because of their unusual, one-of-a-kind nature, PG has offered to make certain his legal fees won’t exceed an agreed-upon amount unless he talks with the client about those fees first. This gives the client the opportunity to change course or, in some cases, drop the matter altogether because it will end up costing more money than it’s worth.
    • While this will not substitute for asking how much something will cost, many attorneys do not charge a new client for a first visit.
      • What happens during most first visits is that the client tells the attorney what the problem is, the attorney asks some questions to make certain he/she has a good idea of what the problem is and what it will require to address the problem.
      • Some attorneys can help address a wide range of legal problems and others specialize in a particular field. It’s not the client’s job to know exactly what sort of attorney she/he needs. If the lawyer doesn’t handle the type of thing the client is asking about, it’s the lawyer’s job to say so. Most lawyers are very quick to share this sort of information and won’t think you’re an idiot for asking them for help. Smart lawyers treat everyone who comes to their office or calls them on the phone well. The lawyer may not be able to handle a visitor’s divorce but would be very happy to handle a visitor’s future medical malpractice claim.
  • Confidence and Comfort
    • You should feel comfortable with an attorney who you would like to help you.
    • This doesn’t mean you have to be best friends, but you shouldn’t feel hesitant to ask him/her any questions you have about your legal situation or the work necessary to address your concerns or problems.
      • If you feel an attorney is evasive or trying to hide something or entirely too slick, or not really listening to what you have to say, pay attention to that feeling. It’s important that you feel comfortable with your attorney. At a minimum, if she/he is always making you feel uncertain or worried, you’re more likely to fail to give the attorney information that is important for him/her to know.
    • Don’t assume your attorney will think your questions are dumb. Just ask. If they’re easy questions to answer, it will only take a moment for your attorney to answer them. PG has had more than one client ask him a question about something he had never considered before.
    • On more than one occasion, a question a client asked PG has lead him to look into legal issues he would not have expected to be involved in the matter the client was asking about to the client’s ultimate benefit.
  • Don’t do business with Jerks
    • This advice doesn’t just apply to choosing a lawyer, but PG will assure one and all that, just like some storekeepers and some doctors and some plumbers are jerks, some lawyers are jerks as well.
    • Some people think that an attorney who acts like a rabid Doberman is the best choice for handling a difficult problem. In PG’s experience, this is not the case.
    • There are all sorts of personalities to be found in the legal profession, but one thing that a great many types of law require is the ability of an attorney to be persuasive. Jerks tend not to be very good at persuasion.
      • One of PG’s college friends, an electrical engineering major, became a patent attorney. In order to become a patent attorney, one needs to have graduated from college with a technical degree prior to attending law school. It’s a part of the legal profession that includes more than a few tech geeks and not the first specialty a lot of people think of when they’re looking for a bunch of persuasive lawyers.
        • Over his years of practice, PG’s college friend built up one of the largest patent firms in a major midwestern city and serves as the firm’s managing partner. He was always a very nice guy. Persuasion is one of the talents he has always had. He’s smart, but not flashy or arrogant.
        • PG’s friend has persuaded a lot of smart patent attorneys to join his firm. He has persuaded many more than one patent examiner to approve a patent claim that the examiner first questioned. He has persuaded lots of judges that his client didn’t infringe a patent or that someone else did infringe a patent owned by one of his clients.
    • The majority of all contested cases and virtually all contract negotiations are resolved via a negotiated compromise.
      • Such a compromise or settlement may not satisfy each and every desire of the litigants, but it provides each one with a certain resolution and may be more than a judge would have ordered had there been a trial. A settlement also avoids the emotional toll which a hotly-contested trial will take on both sides of a disagreement.
      • Without the agreement of both parties followed by their signature on a contract that accurately represents that agreement, there would be no contract. Negotiating power may differ, but, ultimately the parties need to agree.
      • There’s an old lawyers’ saying that a good settlement is better than a good lawsuit.
      • The process of coming to an agreement about contract terms or reaching a settlement of a dispute is a negotiation between the attorneys representing people or organizations whose interests and objectives are not exactly the same. It inevitably involves give and take, sharing information and more than a little persuasion of opposing counsel to move toward a mutually-acceptable middle ground. On some occasions, it can involve an attorney persuading her/his client that a settlement proposal is a better and safer idea than a court battle or a compromise on contract terms is better than no contract at all.
      • That said, there are some occasions when no contract is better than a bad contract.
      • PG has seen way more than one lawsuit that was an excellent candidate for a mutually-acceptable settlement that went to trial because one of the attorneys was a jerk. On way more than one occasion, the jerk-attorney’s client received a less satisfactory result from a judge and/or jury than the client was offered during settlement discussions.
      • A jerk attorney can scuttle a business negotiation just as effectively and thoroughly as he/she can scuttle a settlement negotiation.
  • Legal Ethics
    • No, the heading is not a contradiction in terms.
    • Attorneys are bound not only by the laws that apply to everyone, but also by a code of legal ethics. That code may vary a bit from state to state, but the same general principles apply.
    • If an attorney violates the rules of legal ethics, one or more of the bar associations to which she/he belongs may institute an ethics investigation. One of the outcomes that can result from a finding that an attorney has violated the rules or code of legal ethics is that the attorney is disbarred and cannot practice law within the jurisdiction. If an attorney is a member of the bar in more than one state, disbarment information is distributed to the other states where the attorney is licensed to practice and disbarment in those states is quite likely.
    • The bottom line on Legal Ethics is that, in addition to obeying the laws of the state and nation, the attorney must abide by the rules of legal ethics if he/she wishes to continue to practice law.
    • If you meet with an attorney who indicates she/he is willing to violate the rules of legal ethics, PG always advises running out of the office as quickly as possible.
    • You can find a set of Model Rules of Professional Content created by The American Bar Association by clicking on the link.
  • Some Legal Ethics Rules that may interest Clients or Prospective Clients Despite not being Intuitively Obvious to Non-Lawyers
    • The attorney is required to be competent with respect to the services provided to a client, to have the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
    • With a handful of limited exceptions, an attorney is required not to disclose confidential information disclosed to the attorney by a client without the client’s consent.
      • Note – This relates to confidential information. If a client gives her/his attorney information such as a home address, absent very unusual circumstances, this isn’t confidential information because other people know the address, it is listed on government records, etc. If a client gives an attorney confidential information, then gives the same information to a group of friends who promise to keep the secret, absent very unusual circumstances, this isn’t confidential information because other people know of the information.
      • Note – This obligation to not disclose confidential information continues after the attorney finishes his/her services to the client.
    • An attorney is not permitted to represent a client if such representation would represent a conflict of interest with the attorney’s representation of another client.
      • If an attorney is representing Party 1 in a contract negotiation for an agreement with Party 2, the attorney cannot also represent Party 2 in that contract negotiation.

The End

Sometimes, PG is an overflowing fount of tips, but he’s run out of gas on the topic of how to talk to a lawyer, at least for the moment.

There are several attorneys who visit TPV on a regular basis, in addition to those visitors to TPV who had the good sense not to go to law school, PG invites any attorney visitors to add their own tips about dealing with lawyers in the comments.

9 thoughts on “How to Talk to a Lawyer”

  1. Excellent post which certainly applies equally to Australian jurisdictions and likely most jurisdictions worldwide. The only thing I can think of to add is that if you are involved in litigation or seeking advice and are paying your lawyer on a time costed basis you should never forget this. One of my early forays into litigation (now in the dim, distant past) involved me preparing quite a complex affidavit for a plaintiff client. This gentleman loved to tell stories about his real (or perhaps imaginary) role in the Greek civil war, which he insisted on even when being interviewed for the affidavit. Such stories were, of course, totally irrelevant. I pointed out to him that I enjoyed hearing his stories but it was not worth him paying hundreds of dollars an hour for the privilege of me listening to them. Despite reminding him of this at regular intervals an interview which should have lasted perhaps 3 hours with breaks ended up taking the whole day. I’m not suggesting that clients should be brutally short with their lawyers to the point of discourtesy, or neglect normal courtesies. But what I would suggest is that you never forget that you are paying a significant fee. It is a great idea to prepare for any meetings. If you can make a list of the questions you want answered and what you wish to discuss, etc. and check them off. Minimise small talk and unnecessary digressions. Remember each email and telephone call comes at a cost. Many lawyers time cost on the basis of a minimum interval of 6 minutes (1/10th of an hour). One longer call, email or letter covering multiple issues is often preferable to many short ones covering each issue. A little thought on your part can save significant costs and make your matter run much more efficiently.

    • Sounds like the talkative elderly are a world-wide part of the lives of retail lawyers, D.

      An attorney friend once commented that his work day would be much more efficient without client visits, calls and email.

      For me, some (not all) of my talkative clients did have an interesting story or two to tell, but I never had one discuss the Greek civil war. More often it was how they almost got caught tending an plot of marijuana back in a wooded valley that they thought everybody had forgotten about.

  2. Some random comments:

    (1) Remember that the correct answer to any legal question is some variation on “it depends.” There are no guarantees in the law except that somebody is going to regret it.

    (2) The worst possible way to find an attorney is using any search on the internet. Including the paid “services.” The second worst possible way to find an attorney is to look for one-stop shopping — an attorney or firm that does everything you might need except perhaps family law. I can guarantee that nobody reading this fine blog could afford one that actually meets R. Prof. Cond. 1.1 (the competence requirement).

    (3) What you can do to find an attorney is contact your county or state bar association within the US and use the attorney-referral service. This is not a guarantee of getting Perry Mason; it is a guarantee of avoiding Hamilton Burger. Different bar associations have slightly different rules, but the program will cost from (as of 2020) $35 to $50 for a 30-60 minute interview with a lawyer… and if there’s a mismatch, you can usually do it up to two more times for the same issue. (Sometimes those mismatches are obvious — once you disclose that your problem is with X, it turns out that the attorney to whom you were referred has a partner or relative who represents X; sometimes, it’s just a mismatch with the sparkling personalities so prevalent in the law.)

    (4) Remember that — notwithstanding the prohibition on using the word “specialist” that appears in R. Prof. Cond. 7.2(c) — all lawyers are specialists. There are no lawyers who are competent to handle every type of legal matter, issue, dispute, or anything else. That’s why you need to pay attention to items 1-3 above.

    (5) The single best thing that you can do when you meet with prospective (or even previously retained*) counsel is to have both a single-page written timeline with dates as exact as possible, and a 150- to 250-word description of the dispute that identifies every party and witness. (Believe me, if there are so many parties and witnesses that you can’t fit that in 150-250 words, things are too complex for any general set of guidelines.) Lead with that description, and hand (or, after getting appropriate instructions from counsel, otherwise provide) that timeline to counsel. And if there’s any written agreement, or written demand, or anything else — paper, e-mail, whatever — have that printed out to hand over.

    * * * *

    The most-frustrating aspect of being a plaintiff’s-side lawyer is that a substantial portion of the time, one must turn down the client because there’s little or nothing to be done, yet the potential client really is aggrieved. This is often due to expiration of statutes of limitation or repose, which that timeline will help everyone see before the bills start rolling in. This is also often due to failure to preserve necessary paper, or get promises or interpretations in writing so that they’re admissible evidence.

    And that leads to the last point, and it’s an incredibly difficult one (and also explains why lawyers seem so personally, well, off). Personal knowledge, facts, and evidence are three different things. They hopefully overlap a lot. I can guarantee that in any live dispute, there’s at least some aspect in which they don’t… and that’s before getting into any differences regarding the personal knowledge of the various parties and witnesses. Lawyers are required to focus on evidence first, facts second, and personal knowledge last; that’s the opposite of the way most people are trained to think. (Sadly, it’s also the opposite of the way that some lawyers think, but I hold this profession in minimally high professional regard concerning its blind spots. Remember, Richard Nixon was a lawyer…)

    * Surprisingly, many homeowner policies may provide a defense if you’re sued for libel. And so on.

    • Good points all, C.

      I hadn’t heard about homeowners policies covering libel defense costs before. Is that a California thing or is it your impression that it’s more widespread?

      • It’s actually pretty widespread; I’ve seen Massachusetts, New York, Illinois, and New Jersey residents do so in relation to “libel claims” filed by… umm… miscreants (trying to avoid a claim here!) in the publishing field. And, for that matter, in other contexts and in other states.

    • Also, a clarification on point 4: There are remarkably few “certification authorities” who can/will/do certify a lawyer’s “specialization.” The only one that is nationwide is the United States Patent and Trademark Office — and that, only as to patents. All other “specialties” are ad hoc, at most state by state and usually narrower than that.

      • I would be wary of certifications in any case, C.E. I’ve encountered all too many “certified specialists” in the medical field that couldn’t do as well as an experienced GP. I would ask for client references for anything at all specialized.

        Couple of other points. The post seems more oriented to “finding a lawyer to deal with your problem.” Now, I admit that all too many people don’t, and won’t ever interact with a lawyer during their lifetime – but there are a very large number of situations where they should talk to a lawyer to avoid a problem. IP is only one area; wills, real estate transactions, etc.

        And… Yes, never hire a jerk lawyer for anything – particularly if they are going to be representing you in court. Judges – and all of their supporting cast members – are human beings. All of them are sworn to unbiased performance of their duties, and (almost) all of them do their very best to uphold that standard – but they are flesh, blood, and whatever they ate or drank, or did not eat or drink, that particular day when a jerk attorney appears in front of them.

        • “Preventive law” is another subject entirely. Getting the right kind of lawyer for preventive law is still difficult; it’s just that one wants slightly different characteristics.

          Consider, for the moment, one of the topics you raised: Estate plans. “Preventive law” there includes financial planning, consideration of the “whole client need” (e.g., the spouse’s thriving construction business and the disabled kid), and — for the author-client — IP needs, not to mention explaining that the estate plan cannot dispose of certain rights that are already accounted for by statute*; it probably doesn’t include considering how persuasive a public speaker the lawyer is. Contesting an estate plan later, though…

          Or you could consider The Godfather. “Tom, you’re no longer consilgiere for the Family. You’re not the man for wartime.”

          * A topic that the stiffs-and-gifts bar fumbles at every opportunity and refuses to recognize. In fact, those rights can’t even be asserted in state court, which is where probate takes place…

  3. If someone gets that in email – I just edited from “never hire a lawyer for anything” to “never hire a JERK lawyer for anything.”

    Never hire me for typesetting…

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