7. "I charge as much as you'll let me."
Most lawyers can charge for their services in a variety of ways: a flat fee, an hourly rate of typically $100 to $300 an hour, or a percentage of the award, usually billed at 30 or 40%.
Which is best for you? If your case is simple, a flat fee is best. It gives the lawyer an incentive to solve the problem efficiently. When you're filing suit for, say, personal injury, employment discrimination or malpractice, you're generally better off paying a percentage. The incentive in these cases should be to get as much money as possible, fast, and if your attorney fails, you aren't stuck with a big bill. Have him take his fee after expenses, to keep his administrative costs down. Don't ever pay a percentage to settle an estate or for a divorce or a real estate deal. A $1 million closing or divorce is no more difficult than a $500,000 one, so why pay more?
If you have a strong civil suit, your best bet may be a hybrid fee: an hourly rate if the lawyer can solve the problem in a few hours, switching to a percentage if it takes longer or he has to sue. A Fortune 500 company executive hired Kansas City's Braud to handle a sex discrimination case in 2001, and the lawyer was able to wrest a six-figure settlement out of the employer in about 15 hours. His fee was $2,000 instead of the more than $33,000 she would have paid had he charged a percentage. If a lawyer resists such a deal, tell him you need to interview a few more attorneys before you decide whom to hire. He'll likely come around.
8. "You may be better off without me."
Many of the things lawyers do you can do for yourself, provided you have the time and inclination to learn how. You can write your own will, for instance, if you have a relatively uncomplicated estate. A good place to get help is legal software publisher Nolo (
www.nolo.com), whose Quicken Lawyer 2003 Wills sells for $30.
For issues that are too complicated to be handled without some legal assistance, an interim step between going it alone and a lawyer is the paralegal. Depending on the state, these professionals can handle living trusts, bankruptcy petitions, house closings and uncontested divorces — and often for just a few hundred dollars. The only things paralegals can't do are give legal advice and represent you in court.
Before you sign on, look for experience and expertise in a particular field. It's also nice — but not essential — for the paralegal to hold a degree or certificate from one of the 800-plus training programs in the U.S. (247 of them approved by the ABA) or be deemed a registered paralegal by the National Federation of Paralegal Associations or a certified legal assistant by the National Association of Legal Assistants.
9. "Wanna sue me? Oops — you signed that away."
Most lawyers are competent and ethical. But what if yours screws up? Can you sue him? Not if you agreed to submit disputes to arbitration, where the rules of law and evidence don't always apply, and you'll have neither the right to a jury nor perhaps even the right to appeal.
Many lawyers insert compulsory arbitration provisions in their retainer agreements, which isn't necessarily unethical, according to the ABA, providing that the agreement doesn't insulate the lawyer from liability and the client understands what it means. Such a clause should be a warning for you to take your business elsewhere.
Inventor Walter R. Fields says he didn't realize he was giving up his right to sue when he hired Maslon Edelman Borman & Brand, a large Minneapolis law firm, to sue the builder of his mold-infested $1.2 million house. Disappointed when he lost his case, Fields tried to sue Maslon Edelman for malpractice, claiming, among other things, that the firm had failed to submit evidence of the mold in time. But in 2001 a Minneapolis court refused to hear the case because of an arbitration clause in Fields's retainer agreement. Fields also came up empty after arbitrators rejected his claim and two courts upheld the arbitration. He has declined to discuss the case further until he has exhausted all possible legal remedies. Maslon Edelman denies malpractice, claiming the mold was a side issue, and defends the arbitration clause, saying that Fields had weeks to review the agreement with a lawyer before signing.
10. "And even if you can sue, you can't win."
It's mighty tough to nail a lawyer for malpractice. Some 68% of malpractice claims from 1996 through 1999 closed without the client receiving payment from the lawyer's insurance company, and only 6.7% netted more than $50,000, according to a 2001 ABA survey.
Why is it so hard? For one thing, only an estimated 30 to 50% of lawyers even carry insurance, so collecting is a long shot. Plus, to win your case, you have to prove not only that the lawyer failed to perform but also that your case would have turned out differently had he done a better job. Hard to do, since a legal issue is seldom a slam-dunk, even if the lawyer does everything right.
Malpractice insurance doesn't cover everything anyway, as Leslie Cerrato learned in 2002, after she won a $250,000 settlement from her lawyer, Milo J. Altschuler. The prominent attorney pleaded no contest to the charge that in 1991 he put Cerrato over his lap in a Connecticut courthouse and spanked her to discourage nervous fidgeting in front of the judge. Altschuler authorized Cerrato to make her claim with his insurance carrier, American Home Assurance, but the company balked, insisting that malpractice insurance does not cover spanking. "[F]ondling the bare bottoms of female clients is not part of the practice of law," argued American Home. A federal judge agreed, dashing any hopes Cerrato had.
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