An old riddle poses the question—What do you call the person who graduates from medical school last, in a class of 150? The answer is a doctor. A similar analogy applies to lawyers; a law degree does not necessarily equip one with common sense. A lawyer once described himself to me as a hired gun and readily admitted that self interest often blocks quick settlement.
Whenever a dispute arises over a ducked obligation, an unpaid contract, or someone backing out of an agreement, you will be advised to sue. Aside from the legal costs of taking the dispute to court, there is the distraction. Forget about getting even. Consider only the money. Become as detached as your lawyer.
The oft heard question is, “How do you go about choosing a lawyer?” The answer is, the same way you would pick a doctor. Seek out the specialist. Talk to business friends involved in similar situations and get the names of lawyers. Four or five names from reputable sources are okay for a start. Call the lawyers on your list and briefly outline your case. You might get a bit of free advice, write it down, thank them and say that you will be in touch. Do not make an appointment until you have spoken to every lawyer on your list. If you do not feel comfortable with any of the lawyers, get more names from other sources. You will gain confidence as you go through the exercise. When you have made a decision, call the lawyer and get a ballpark figure of the cost of handling your case as well as the cost of an initial consultation.
You now have your lawyer. If he has handled similar cases in the past, it won’t be necessary to do research. Your costs should be lower. Hourly rates for straight research are not acceptable. You should also suggest to the lawyer not to rack up hours by calling your accountant, doctor, father, spouse, or bartender about your case. He should speak only to you. If your case is relatively uncomplicated you may be able to establish a fixed fee. You must restrain yourself from calling your lawyer every time you itch. This kind of hand-holding can cost a lot of money.
The lawyer you have chosen will in all likelihood ask for a retainer. This is okay providing it is somewhere around half of the ball park figure quoted. Down the road, as more money is demanded, ask for a progress report. The best number of court appearances is zero, as this is where your money flies out the window. Choose a lawyer who knows his stuff. A $100 per hour lawyer is not necessarily cheaper than one for double, or triple, that amount.
At some point, your lawyer will discuss with you the ever present option of making a deal. Here, you must be firm in setting the parameters within which the deal would be acceptable to you. I recommend that you sleep on it—then, give your lawyer specific instructions. Lawyers who never lose a case are usually the ones who make outrageous monetary demands of their clients just before going to trial (with an iffy case). The disenchanted client moves on to another firm and the original lawyer keeps his record of no losses, intact.
A settlement is often reached before the case goes to trial. Make sure the deal includes a total release of all outstanding issues. I recall being involved in a nuisance case where my lawyer failed to obtain a final release. The other party took my money, then turned around and sued again. Eventually, he dropped the case. But, it cost me money to enter a defense, then discovery, and so on.
What about a settlement where neither party to the dispute walks away happy? There is nothing wrong with that. A lawyer who promises complete happiness is not the one you want. Conversely, a lawyer who goes for the quick deal (to your disadvantage) isn’t for you either. Refrain from talking to the other party’s lawyer without your lawyer being present. If nothing else, it will undermine your confidence.
Manny Drukier has been in business, from manufacturing to publishing, retail to real estate, stocks to stockpots for the past 60 years. He is the author of two books and resides in Toronto, Canada.
