Guy Kornblum & Associates

HOW TO FIND THE LAWYER YOU NEED FOR YOUR CASE!

By: Guy 0. Kornblum Certified Civil Advocate, National Board of Trial Advocace Member, Million Dollar Advocates Forum

An Introduction

For most people finding a lawyer is a new experience. They have no idea where to go or what the consider in making a selection. Since lawyers are permitted to advertise, and certainly do, there are plenty of "ads" out there soliciting you as a potential client. All they do is provide names and phone numbers. These ads do not provide much more in the way of information you can use in selecting the lawyer.

Sure, you can call your local Bar Association, and while that may provide you some names and some self-advertised specialties, a Bar Association is not going to tell you who is qualified and who is not. It is up to you to make the decision.

You can rely on instinct and even personal references from friends, family members or business colleagues, but that still does not provide the basis for selecting a lawyer to represent you, your business or your family in a lawsuit which you are considering bringing or which has been brought against you.

You still need criteria for the selection, and you need to know what questions to ask so you can get the information you need to apply that criteria. You need to find a lawyer who has experience and standing with a reputation that can help you. One of the most powerful advantages you have is a lawyer known to have skill and experience, and who is respected by his or her colleagues. You have a better chance of your case resolving before trial with someone with a strong reputation for getting good results both in and out of court.

Sources of Names in the Trial Field

But first let's discuss where to go to get the names from sources other than personal references. You can search the Yellow Pages, and this will give you many names usually by categories of specialty practice (i.e. personal injury, insurance, etc.). You can go to the Internet and search for lawyers, also by specialties. The Internet is a convenience, but it still provides you only with names of lawyers and their specialties, and possibly some background information regarding education, publications, and associations. You still need to know how to get other information about a lawyer you are considering.

We have a number of people contact us through our Internet placements on various browsers, and we try to provide the information they need about us and their case. And, if we cannot help them, we try to get them in the hands of someone who can.

You can also search the rolls of various trial lawyer groups, some of which are available on the Internet. For example, membership in professional trial groups such as the Consumer Attorneys of California or the Association of Trial Lawyers of America, both of which are organizations of trial lawyers who represent individuals and claimants as plaintiffs (the party who brings the case) in civil lawsuits, may be important as these groups provide seminars and publications to keep their members informed on new developments and emerging legal issues, as well as provide resources for finding experts in technical and medical areas to assist in evaluating and presenting your case.

One of the best places to go to locate lawyers to represent you in lawsuits is the National Board of Dial Advocacy - the NBTA - which "was created in the public interest to identify lawyers who demonstrate that they are skilled, capable, ethical trial lawyers."' If you go to the NBTA Website at www.nbtanet.org and click on "Find Qualified Counsel," you can find a list of certified counsel in your geographical area. The NBTA certification process is similar to that for certifying doctors in their specialty. It is based on documentation of substantial experience before judges and juries in the trial courts, references from judges and lawyers who have seen the lawyers in court, a review of written legal work, a day long written examination, and compliance with continuing education requirements.

Consider using a jury verdict service, which can provide you with the names of lawyers who have tried certain types of cases, and the results in trials and important settlements in those cases.

The Six Criteria for Selection of a Trial Lawyer to Represent You

Still, the public needs some criteria in order to make a judgment about whether a lawyer is the right one -- competent, ethical, respectful, and able. Here are my Six Criteria, which I believe should be used in finding the lawyer to represent you in your case:

1. Knowledge and Experience in the Type of Case. Make sure the lawyer you select is experienced and knowledgeable in the type of case you have. Do not be hesitant to inquire of any lawyer as to the experience he or she has with the type of case you have. In personal injury, some lawyers handle more routine cases (e.g. soft tissue injuries), while other lawyers are experienced in cases involving more complex injuries involving permanent injuries to the spine or head. In health and disability insurance matters, if it is insurance provided by an employer, it might be under the Employment Retirement Income Security Act (ERISA), a federal statute. If it is a private policy, you need a lawyer experienced with insurance coverage and bad faith which is brought under state common law not a federal statute. In some fields, such as workers' compensation or Social Security claims you need someone who specializes only in that field.

2. Reputation Among Lawyers and Judges. Inquire about a lawyer's general reputation for fairness in dealing with clients, other lawyers and the courts. This requires information from any source, former clients, colleagues in the bar, judges or others who know the person or general sources such as Martindale-Hubbell. Some of these sources provide an assessment of a lawyer's abilities. For example, an "a.v." rating in Martindale is of some value, and is based on questionnaires sent to determine how a lawyer is viewed by his or her peers.

It is important to make sure you find a lawyer who does not have frequent fee disputes, has had complaints against him or sanctions imposed by the State Bar in your state (prior suspension or probation), or just bad results. If you have friends who are in the legal field, see if they can provide information on a lawyer you are considering. The State Bar of California maintains a website, www. calhar. org, where you can determine a) if a lawyer is a member in good standing, and b) if there are any disciplinary matters which have been brought or which are pending. That is a start.

3. Advocacy skills and judgment This is the most difficult to assess. How effective will the lawyer be in your matter? Does the lawyer have sound and tested judgment which will give you the best result possible under the circumstances, whether it be in deciding whether, when and where to sue; whether to defend a disputed matter; whether to settle or not; or what risks there are in going to trial, including the prospects on appeal. Again, checking with local bar associations, judges, the State Bar (to make sure the lawyer is in "good standing" with the bar and there are no past or pending disciplinary matters), and even the newspapers (using the Internet) might assist you in locating information.

But here your personal instincts are probably the best. If the lawyer assumes representation, and there are questions in your mind about whether the lawyer is effectively representing you, stop the process and evaluate. Don't be fearful of calling a halt and reevaluating your selection. A lawyer's services are terminable at will, and that may be the best course if the representation is not to your satisfaction.

4. Fees charged Check with other lawyers or the bar on what is a proper price for what is being done. Ask the lawyer to give you a sense of what this will cost, and request that you be advised if the estimate is going to be exceeded. Fee agreements over $1000 must be in writing, so make sure this is done.

In cases of contingency fees, these are negotiable. The usual fee is 1/3 or 40% depending on the complexity of the case. In some cases, lawyers will take a larger share of the result, for example, if punitive damages are recovered and received. Punitive damages are difficult to obtain and keep, so it may be appropriate to charge more. They are taxable as ordinary income to the client, and they are awarded only in rare cases of serious intentional misconduct. While they are a "windfall," they are appropriate in cases of fraud, malice or oppression by the defendant. Thus, they justify a larger fee because more work and more time is involved on the lawyer's part.

If there is a fee sharing among lawyers because it is a contingency case and the case is referred to a lawyer by another lawyer, the client is to be given notice of the fee sharing arrangement. That fee sharing cannot increase the fee agreement with the lawyer.

Overall you should have a sense that the fee is fair. Remember in most contingency situations, the lawyer is risking the costs advanced to maintain your case. That is a big risk, for if there is no recovery, the lawyer is out both time and money in pursuing your cause.

5. Level of Client Communication: You have to get along with your lawyer. He or she should be supportive of your position, and be able to communicate with you about your case. Your lawyer should also keep you informed about its status. As in the case of other professional services, such as the medical field, you may not always talk directly with your lawyer, but you may talk to an associate or staff member. Make sure your lawyer has an office staff that is receptive to reasonable inquiries and has access to the important information you need to satisfy any inquiries.

The biggest problem with lawyers is the failure to keep clients advised of the status of a client's case or matter. A lawyer should not be so busy that clients are left in the dark about their own legal problems for which they sought representation. Paralegals are now so competent and well trained that they frequently talk directly to clients, and should be able to maintain communications in a large number of a busy attorney's matters. There simply is no excuse for not communicating. So, when a client interviews a lawyer, the manner of keeping the client informed should be discussed.

6. Knowing the Difference Between the Need for a Fight and an Amicable Resolution. The biggest criticism I have of lawyers today is that they often feel that confrontation is the essential ingredient to any client matter. Some clients think that the lawyer should huff and puff in dealing with any adversarial matter. Today, that is contrary to the process. Exploring an out of court resolution is not a sign of weakness. If a lawyer is an effective advocate, then advocacy in mediation and settlement negotiations can be just as positive as beating up on an opponent in court. I like to think that I know when to agree and when to disagree. If the latter, a lawyer should take the high road. You can be an effective and strong advocate and still maintain a high level of professionalism. Ask any lawyer you are considering about his or her attitude toward this subject. You should know by the response if you are in the right law firm or lawyer's office.

A Final Comment

Your lawsuit it important. It is "your" lawsuit. Your lawyer should recognize that and perform accordingly. There is intimacy and privacy in the lawyer-client relationship. This allows frank and open discussions. Overall, you should feel comfortable and confident with your lawyer as your advisor, counselor and advocate.