Attorney's Considerations
Although it may be a simple matter to hire an attorney, especially in cases of divorce, bankruptcy and even criminal law, there are many times lawyers may be reluctant to take on your case. Lawyers accept cases and clients based on several considerations.
- Specialty involved. Some legal matters are extremely specialized. Patent law, for example, should never be handled by any attorney that is not highly experienced in the process. If you live in a city where there are no patent attorneys, it will be very difficult to hire a general practice attorney to handle this situation. Additionally, although most lawyers are capable of drafting wills, probate litigation can be complex. Thus, the same attorney who drafted your father's will may not want to continue on as the family lawyer if the will is contested.
- Claim or issue. Some problems that a client brings to an attorney do not rise to a legal claim. Your neighbor's purple fence may bother you, but the law may not give you any particular legal options.
- Client's attitude. Lawyers do not want to represent clients who are unreasonable, unwilling to negotiate or consider settlement offers. Of course, the client can turn down a settlement offer, but attorneys want to represent individuals who will consider all of their options. Lawyers also want likeable clients, especially in a civil matter that is going to trial. A client with an unsavory past, spotty employment or a criminal record may have a difficult time finding representation in noncriminal matters.
- The adversary. Taking on a neighbor is different than pursuing a claim against the local rabbi. Believable adversaries with good reputations in the community usually make a case more difficult because a jury is ultimately affected by the adversary's well-known character. Attorneys always consider the individual or company that will be on the other side before taking a case. Some adversaries, particularly corporations who can afford substantial legal fees, will drown the lawyer in paperwork, motions and depositions making it unattractive for the attorney to go up against such an adversary. Clients that have claims against such companies will have to find a lawyer with the resources, office staff and experience to take on adversaries that wear down the lawyer and the client.
- Cost of case. Although most people think of lawyers' fees as the primary cost of representation (and they are), other expenses can be quite steep. For instance, ordering and copying records (personnel, medical); travel expenses; and court reporter and videographer fees (for depositions) quickly add up. The attorney typically fronts the payment for these services and if expenses will run into thousands of dollars just to explore the client's claims, a lawyer may be unwilling to take on the case.
SIDEBAR: In contingency cases, the lawyer pays the expenses, then deducts those costs from the settlement or jury award.
- Potential amount of recovery. A client may have a good claim; however, the damages she can obtain under the law may not be worth the cost of representation. This is especially true in personal injury cases where attorneys typically take the case on a contingency basis. The 30- to 40-percent contingency fee may not make up for the attorney's time in pursuing a case where only a small amount of damages are recoverable.
- Likelihood of recovery. In all cases, lawyers consider the probability of success. Your attorney should be frank with you and never make guarantees. If the chances are slim that the client will prevail, a lawyer is usually unwilling to take on the matter since the client is ultimately disappointed and dissatisfied.
SIDEBAR: A criminal case is unique because a person's freedom is at stake and the defendant does not have to prove her innocence. The client may look guilty but the defense lawyer still advocates for her client-a plea bargain or hung jury is always a possibility.
Courts and judges. Depending on the nature of the claim, a lawsuit must be filed in a specific type of court. Bankruptcies are filed in federal bankruptcy courts; will contests are handled in probate court; and constitutional claims must be filed in federal court. Lawsuits in federal courts usually mean higher fees for the client. Federal courts have complex rules, short time schedules and the judges are typically extremely strict with attorneys and their clients. For instance, postponing a hearing in state court may be easy to obtain but not permitted by a federal judge.
TIP: Some federal judges have such fierce reputations that lawyers have fee agreements specifically increasing their fees if the case should land in that judge's court.