- Choose a lawyer that’s right for you
- Know what you want, and be clear about it
- Be realistic
- Be straight with your lawyer
- Be organized
- Make good decisions during your case
- Don’t start a fight you’re not willing to finish
#1 Choose a lawyer that’s right for you
Lawyers, like clients, come in all types. Apart from the bad eggs, there are many good lawyers who differ from each other in various ways. Do you want a lawyer who wears a suit to the office, or who only wears his or her suit for court and depositions? Who is deferential to your feelings or who is (sometimes brutally) blunt with you? Who communicates with you more by email or prefers meeting in his or her office? Who is an all-business professional or who uses a sense of humor to help put you at ease?
Don’t be afraid to tell your attorney what you expect. If it’s important to you that your phone calls usually be returned promptly, why not say so? If you want an ultra-aggressive attorney who will “take no prisoners,” better to say it. If your case is urgent and you want it filed within a week, make that clear. If the attorney is uncomfortable with what you’re asking for, that should be a red flag.
Likewise, if you’ve had a bad experience with a lawyer before, better to get it out in the open so as to avoid a similar situation. Clients have confided to me, for example, that their former attorney a) didn’t have a coherent strategy for the case; b) was impossible to reach; c) didn’t seem to have a handle on the facts of the case, even when in court. I tell clients that while I can’t promise that they will love our firm, I do want to know what problems they have had before with prior counsel, so that we can do our best to avoid such problems in the future.
Let’s face it. Few clients go see a litigation attorney when they are having a great day. As stressful as your case may be, you should be comfortable with your lawyer. Even if something just doesn’t feel right to you and you’re not sure why, do yourself a favor and keep looking. There is no perfect lawyer for everybody just like there is no perfect food or art or clothing for everybody. Ideally, you should keep looking until you find an attorney who a) you are comfortable with personally, b) whose integrity you trust, and c) whose professional expertise you have confidence in. Ask tough questions. Make no apologies. Choose wisely.
#2 Know what you want, and be clear about it
Sounds simple, doesn’t it? But many clients are so angry, overwhelmed and/or confused by their case, that they are not clear about what they actually want. Being upset at someone’s behavior, for example, is not the same thing as knowing what you want your lawyer to do about it.
Do you want to split residential time 50/50 after your divorce, or just have reasonable visitation with your kids? Force your neighbor remove a fence that encroaches on your property, or just be paid fairly for the square footage you lose? Pay nothing to someone who is suing you over a business deal gone sour, or negotiate a reasonable settlement so that you can move on with your life? Evict a bad tenant as quickly as possible, or just make the tenant follow a regular payment plan?
There is usually not a right or wrong answer; only you can decide what is most important to you. After all, it’s your life, your risk, and your money that you pay to a lawyer. Knowing what you want helps you and your lawyer focus on essentials, to get better results more efficiently. It’s important in litigation that you and your attorney start on the same page and stay on the same page.
#3 Be realistic
Part of deciding what you want is figuring out what a realistic outcome might be. Your lawyer will help you with this, after talking to you, asking the right questions, and thoroughly reviewing your file. Don’t expect your lawyer to give you any guarantees; almost no case is a slam dunk. Do expect your lawyer to help you understand the strengths and weaknesses of your case, explain how similar cases have been decided, and advise you of the range of probable outcomes.
To give an example : If you work 60 hours a week and as a result your spouse has historically been the one to pick up the kids from school, take the kids to the doctor, cook for the kids, and help with homework, it may be unrealistic to expect a court to give you 65% of all residential time with the kids. If, however, your spouse has recently struggled with a substance abuse problem and/or is spending lots of time with an unknown new boy or girlfriend, and you’ve taken a new, less demanding job, this could of course effect how the court views the case.
#4 Be straight with your lawyer
The more your lawyer knows the strengths and weaknesses of your case, the better the lawyer can advise you and fight for what you want. Many clients, however, don’t confide relevant information to their lawyer, sometimes because they are hopeful that it will never come out, sometimes because they wrongly believe that their lawyer won’t fight for them if he or she knows a particular fact, and sometimes because they are simply embarrassed.
Whatever the reason, hiding important information from your attorney is usually a critical error. First, despite all your best hopes, often the opposing party already knows this information. It is dangerous to your case for your lawyer to find out damaging information from the opposing attorney – and hence for the opposing attorney to learn that you have chosen not to share crucial information with your attorney. Second, getting it all out in the open with your attorney allows you and your lawyer to strategize together about how to characterize potentially damaging information. For example, let’s say a few months from your divorce and custody trial your new live-in boyfriend is arrested for a barroom fight. Your attorney may advise you that while the opposing party may or may not learn of this new development, it may be prudent not to put your boyfriend on the witness list for trial. The bottom line is that it’s never a good thing for your attorney to be surprised when dealing with the court or the opposing attorney.
In the end, most things come out in the wash anyway. Clients and unsavory lawyers often stretch the truth out of fear and laziness. But there is usually another way to get you where you want to go. Within the boundaries of professional ethics, your lawyer will advise you on whether to disclose potentially damaging information, and if so, how to spin information to best advantage. Sometimes a fact that you think will lose your case will probably not be a big deal to the court – but it will be huge if the court discovers that you’ve lied. For example, as Washington is a no-fault divorce state, when deciding a financial settlement, courts simply don’t care if you had an extra-marital affair. Other times a fact that you may think hurts your case actually helps it. Much like reporting symptoms to your doctor, it is often unclear what facts will help or hurt a particular case.
#5 Be organized
Part of getting relevant information to your lawyer is getting him or her the documents necessary to run your case.
In a divorce, for example, your lawyer will need to see copious bank, real estate, and employment records and more. In a real estate boundary dispute, your lawyer will need to see property and survey records as well as correspondence and unrecorded easements. Neatly organizing these documents by type and in chronological order will help your lawyer understand the chronology of events more thoroughly and more efficiently.
Remember that most law firms bill for time spent working on a case, including organizing documents and putting them in chronological order. So giving your attorney a well-organized set of documents will also save you money.
Part of being organized is regularly forwarding new documents to your lawyer as they come in, where appropriate (bank statements, real estate appraisals, etc.), so that your lawyer can stay on top of any new developments that may influence your case.
During litigation, it is natural for you to have many questions for your lawyer. Email is generally an efficient way to communicate with your attorney, particularly if you bundle your questions together. By asking 5 or 10 questions at once rather one at a time, it will allow your attorney to focus on how several aspects of your case may inter-relate, and is likely to be more efficient (and thus less expensive).
#6 Make good decisions during your case
In much civil litigation, the client’s actions during the case has significant impact on the final result of the case. For example, if you argue that a breach of contract damaged your future business profits, you will need to show that you made all reasonable efforts to minimize your damages before trial. If you are asking your spouse to pay you significant maintenance (alimony) to go back to school to increase your marketability, you will need to show that you have a solid educational plan, have applied to relevant programs, etc. before trial. In a personal injury car accident case, you will need to show that you have attended your medical appointments in a timely manner, and that you have followed through on the exercises recommended by your physical therapist.
It is also critical to follow your lawyer’s advice about relevant issues: not harassing your neighbor in a boundary dispute, not missing visitation in a custody dispute, not sending incendiary letters or email to your spouse in a divorce case.
Finally, it is important that you do not to attempt to negotiate resolution yourself with the opposing party – unless you and your attorney agree on this ahead of time. That’s why you hired an attorney in the first place. Such informal negotiations often undercut your lawyer’s ability to settle your case favorably. Several years ago I told a defendant I represented that I was optimistic that we had the leverage to settle his case for no more than $20,000. My client was willing pay as much as $30,000 but seemed happy about the prospect of settling for much less money. I told the opposing attorney that I thought his client’s case was weak (which was true) and that I saw no reason to advise my client to pay any more than $18,000 (also true). To my surprise, I learned from the opposing attorney that my client had personally offered his client $30,000 to settle the case. At the point, my authority was undercut and the deal was essentially done. The case settled at $30,000, and there is a good chance that my client lost $10,000 because of his attempts to settle the case on his own.
Litigation is, in many ways, a simple game of chicken. If your opponent believes that you are fully committed to going to – even if that means you may spend more money on litigation than you hope to gain at trial – your opponent may decide it simply better to settle than to incur the substantial risk and certain cost of trial. The less lines of communication there are, the easier it is for your lawyer to control what impression is given to the opponent. In short, having gone to the considerable expense of hiring a lawyer, you should let your lawyer do his or her job.
Litigation is risky, expensive, and highly stressful. Unfortunately, sometimes it is also the best alternative to a bad situation. When you decide to sue (or are sued yourself), your attorney will recommend a specific game plan for the litigation. Once you and your attorney agree on strategy, and set realistic goals for the case, it is important to stick to that strategy unless a good reason arises to change plans in mid-stream.
#7 Don’t start a fight you’re not willing to finish
Part of not changing strategy in the middle of a fight is to understand the dynamics of the fight early on. It’s critical to spend time with your attorney going over a best case scenario, a worst case scenario, and a likely scenario. Discuss how long the lawsuit will take, how much it might cost. Be advised, however, that no litigation attorney worth his or her salt will give you anything resembling a guarantee about how much a case will cost. This is not because the attorney is greedy or lacks confidence; it is because it usually impossible to know. When asked this question by potential clients, I sometimes suggest a range of possible costs. But I also tell the person that asking this question is like asking how long two people will keep fighting. The real answer to this question, unfortunately, is that if you hire a lawyer to protect your rights, that lawyer will do exactly that. And if your opponent in the lawsuit wants to piss away money on needless letters, motions, or discovery, the brute fact is that you have two choices: 1) protect yourself; or 2) give up.
Understanding the potential pitfalls in your case will not only help you decide whether to file a lawsuit or not; it will also help you and your attorney to craft a strategy that reflects your goals, your resources, and your aversion to risk.
We make no promises or representations about the accuracy of this information, or how it applies to your particular case. These articles are designed to give you ideas to consider and discuss with an attorney, but are no substitute for legal advice, and must not be used as such.