John B. Quinn is the founder of Quinn Emanuel Urquhart & Sullivan LLP, the world’s largest law firm dealing exclusively with business disputes.
No one wants to be pulled into a lawsuit, but a case can be easier to find than you can imagine. When that happens, the most important decision under your control is who to hire to represent you. Sure, some cases can be won or lost regardless of the quality of the lawyer, but those are rare.
Whether you are a business or an individual, the considerations are largely the same. The attorney you choose will almost always make all the difference in what facts are developed, how effectively your case is presented, and the signals you send your opponent, their attorney and the judge.
Selecting the right attorney requires asking the right questions and having direct conversations about both the case and your expectations. While the most important consideration should be how much that attorney will help you win or negotiate a more favorable settlement, many clients focus too much on cost. While legal costs are important, the cost of losing a single important case will often outweigh the incremental savings made from hiring lower-cost attorneys.
Assessing a lawyer’s skill
How do you rate a lawyer’s skill? Much can be learned by listening to the prospective attorney share his initial thoughts on the case. During that conversation, you should obtain as much information as possible about the attorney’s experience and results, especially whether the subject matter of your case fits their expertise.
There is also a major difference between trial attorneys and trial attorneys. All trial attorneys are trial attorneys, but not all trial attorneys are trial attorneys. Testing is a skill in itself. The experience of many trial attorneys is often limited to the pre-trial stages, which include attacking the legal grounds of the case and collecting facts and testimony. They rarely stand up in front of a jury. Litigation attorneys have the skills to handle the case from start to finish and are not afraid to try a case. Some trial attorneys are so proficient in the courtroom that their experience in the substantive area is less important.
Especially when your business is at stake, having a skilled trial attorney is important for establishing credibility. A case can be resolved because the opponent decides that he does not want to see you for the trial. Clients should ask each attorney they consider how many cases they’ve tried, how many jury trials they’ve had, when they tried them, and in which jurisdictions with what results. Ask for references.
In addition to your own needs and the specialty of an attorney, you should also ask how much experience the attorney has in the jurisdiction where the case is pending and how much experience he has before the assigned judge. The attorney’s familiarity with the judge may foreshadow how the judge will rule on pre-trial claims and evidence issues. If the attorney is credible in the courtroom, the path of your case to court will likely be smoother.
Also ask about their experience with the opposing counsel. If a lawyer has successfully litigated with your opponent’s lawyer, the lawyer can discuss the opponent’s strengths and weaknesses and is more likely to anticipate your opponent’s moves. A lawyer who respects your counterparty’s lawyer has a better chance of reaching a good settlement.
When it comes to the terms of an assignment, you should assume that the attorney’s fee is negotiable. Most schemes require clients to pay by the hour, but other terms are possible, including flat fees, fees by stage of the case, caps, success fees for reaching certain milestones or, usually on the plaintiff’s side, contingent fees or hybrid compensation possibly with reduced hourly rates plus part of the recuperation. Contingencies on the defense side are possible, but rare. Depending on the circumstances, attorneys may agree to lower their hourly rates.
You and your lawyer need to be clear about billing and advances procedures in detail. You should agree on how often bills are issued, how detailed they should be, and when payment is due. You should discuss when the attorney takes the commission and when it needs to be topped up.
If you have questions about a bill, such as if you think the bill is too high or if you don’t understand the work done, it’s best to raise these issues as soon as you discover them. These problems don’t get easier to solve with the passage of time.
The most important thing for a successful relationship with a lawyer is communication. You should discuss with the attorney what details you would like, how often you expect to hear from the attorney, and whether you would like to see drafts of documents before filing. In business cases, it is not uncommon to have a regular meeting every week to review the case. The biggest problems I’ve seen between client relationships and attorneys stem from a lack of communication.
It is also important to agree on who will work on the case. This means confirming that the attorney you discussed the case with agrees to take the lead. This must be reflected in the assignment agreement. If that attorney is supported by other attorneys, you should ask who they are and learn about their background. It is important to make it clear that no other lawyers will be added to the case without your consent.
Finally, investigate how to resolve this matter without trial. Most cases are resolved through mediation. The longer a case lasts, the more expensive it becomes. Discover the attorney’s experience in speeding up resolutions.
When lawsuits arise, most significant events are already in the past – you can’t change them. But you can start to take control by asking the right questions to help you hire the right lawyer.