When Should I Hire an Attorney?
by Matthew D. Rasmussen, Esq., a New Jersey Trial Attorney
There’s really only two ways you find yourself in litigation: you sue or are sued. So, you find yourself in a lawsuit. You think to yourself “Ugh, now I have to get an attorney.” But when?
Traditionally, one would reach out to an attorney either before filing the lawsuit or as soon as one received the summons and notice of the lawsuit. Recently however, I’ve noticed that clients are waiting until later in the litigation to reach out to an attorney–sometimes potential clients are waiting until very shortly before trial to hire an attorney. This can be extremely harmful to a client’s rights and most people are unaware how harmful it can be. So, let’s discuss the issue in more depth.
Reasons Potential Clients Postpone Hiring an Attorney
You’ve heard that lawyers are expensive, they complicate issues, they are unpleasant people (although not all of us are!). Maybe you have had a bad experience with your own attorney in the past and decided it was better to “risk it” on your own during this litigation. There are any number of reasons you might consider not hiring or postponing bringing on an attorney. In my experience the number one reason people do not go to an attorney sooner is the perceived cost of hiring an attorney.
Better Ways to Address the Cost of Litigation
Believe it or not, most attorneys are willing to discuss their fees. At Rasmussen Law, we actually have built in a discussion of fees into our consultation meeting prior to the potential client signing any retainer. We do this because most people are bashful when talking about money–especially with their attorney. By bringing up the topic ourselves, we hope to avoid the anxiety and make sure everyone is on the same page. If you are going to a different attorney, you must have this conversation at the start of the representation. While attorneys are willing to discuss their fees prior to doing any work, you will find the opposite is true after the work has been done. This makes sense. Imagine that you were delivering a product. You sit down with a customer and agree on a price. After you deliver the product, the customer then says that they aren’t going to pay the agreed price, but a lesser amount. You’d probably be pretty upset. By having that conversation at the beginning, however, both parties get on the same page. So what can you talk about?
The number one way that we control the cost of litigation is through “Flat Fee billing,” which is our preferred method of billing. Most attorneys will bill through an “hourly retainer.” This means that the you typically give the attorney a certain amount of money and then at the end of the month, the attorney will notify you how many hours they worked, what their hourly fee is, and subtract their fee from the “retainer.” In a flat fee agreement, the attorney will charge either one price for the entire litigation or, in the case of more complex matters, charge one fee for each stage of the litigation (milestone payments). This lets you know exactly how much the complete litigation will cost (or each segment). This avoids the “surprise month” in hourly retainers where the attorney works very hard on the case and you spend more than you were anticipating.
Although not available in all cases, you can discuss the possibility of a “contingency fee.” This means that the attorney will not accept any fees (or a much reduced fee) for his services, but if you win will get a portion of the award. The benefits of this are obvious: you don’t pay unless you win. The downfall of this is that usually the fee when there is a victory is higher than it would have been under a flat fee or hourly retainer agreement. This is because the attorney doesn’t get paid unless you win (and so is given a premium for accepting the risk of the lawsuit).
Make sure your attorneys are taking full advantage of technology. This can be difficult to know, so I’ll give you two warning signs. The legal profession is notorious for its late adoption of technology, so if your attorney is capable of doing the following items, it is likely that they are at least somewhat tech-savvy. 1) Is there an option to have all documents/correspondence sent to you through email? This is important because most attorneys charge for postage and the time for physically sending regular mail. Also, it indicates that they are capable of scanning PDF style documents, which leads to further time/cost savings for you. 2) Can you meet virtually with the attorney? This saves both you and the attorney time by not taking time to travel to a physical location. You aren’t talking about a phone consultation either; we are talking about Skype or similar application that will allow you to share documents on screen at a computer. Additionally, it demonstrates a certain level of technology awareness. These aren’t necessarily ground-breaking in any other industry, but you will be surprised how many firms don’t have those capabilities.
Finally, the simplest way: tell your attorney you are fee conscious. This won’t necessarily lead to a lower hourly fee, lower flat fee, or lower contingency percent, but if you couple it with telling the attorney you are OK with doing a lot of the “leg work,” the attorney can structure the relationship in such a way that it will end up saving you money. A lot of fees are incurred when clients show up with a file and walk away until much later. As an aside, I don’t think that most clients want this “set it and forget it” attitude, but feel that being too involved simply isn’t done. Nonsense. There are things that it is more efficient for the attorney to do, but there are many things that it is more efficient for the client to do. By making yourself available to do these tasks yourself, the attorney can price the representation accordingly. Note, however, that if you don’t follow-through with this by actually doing the work, you will be billed accordingly!
Pitfalls of Waiting
Imagine a litigation as a long hallway with numerous exit doors. At the beginning, you have many options, many “outs.” As each event in the litigation occurs, more and more of these doors close. File the complaint or response? There’s dozens of doors closing. Did you file your discovery? More doors closing. Did you not get answers to discovery requests? Even more doors. Was a motion filed? You get the idea. The longer you wait, the less options your attorney will have.
I’ve been approached several times with clients who are about to go to trial. At this point, the legal options are severely limited. There may be one or two theories (think doors) that are viable at this point, whereas if I was brought on earlier I could have had half a dozen doors (or more) open.
There is a reason why it takes years for a person to become an attorney. The court system is for the most part similar to an arcane maze. Procedures need to be followed and when they are not, you can lose the case. When you wait to hire an attorney, they can still help you get out but your options will be limited based on what you did previously and, in some cases, it may actually be more costly because the attorney will have to re-open some of the doors you shut.
I accept clients at all stages of litigation. However, the clients that get the best results are the ones that I represent from start-to-finish. When you bring on an attorney half way through a litigation, they are stuck with what happened before they came on. Bringing on an attorney as early as possible is extremely important (after all, this matter was important enough for a lawsuit to be filed).
People hesitate because of the perceived cost of hiring an attorney. As we discussed, there are ways to control the cost of litigation so don’t let that stop you from consulting with–and hopefully hiring–an attorney.