John B. Quinn is the founder of Quinn Emanuel Urquhart & Sullivan LLP, the world’s largest law firm dedicated solely to business litigation.
No one wants to be pulled into a lawsuit, but a case can find you easier than you imagine. When that happens, the most important decision under your control is who to hire to represent you. To be sure, some cases can be won or lost regardless of the lawyer’s quality, but those are rare.
Whether you are a business or an individual, the considerations are largely the same. The lawyer you pick will almost always make the difference in what facts are developed, how effectively your case will be presented and the signals you send your adversary, their attorney and the judge.
Selecting the right lawyer requires asking the right questions and having direct conversations about both the case and your expectations. Although the most important consideration should be the extent to which that lawyer will help you win or bring about a more favorable settlement, many clients focus too much on the costs. While legal fees are important, the cost of losing a single significant case will often more than erase the incremental savings gained by having hired lower-cost lawyers.
Assessing a Lawyer’s Skill
How do you assess a lawyer’s skill? Much can be learned from listening to the potential lawyer share their initial thoughts about the case. During that conversation, you should obtain as much information as possible about the lawyer’s experience and results—particularly whether your case’s subject matter fits their expertise.
There is also a big difference between litigators and trial lawyers. All trial lawyers are litigators, but not all litigators are trial lawyers. Trial work is a skill unto itself. The experience of many litigators is often limited to pretrial phases of litigation, which includes attacking the legal grounds of the case and gathering facts and testimony. They rarely stand up in front of a jury. Trial lawyers have the skills to handle the case from start to finish and don’t shy away from trying a case. Some trial lawyers are so skilled in the courtroom that their level of experience in the substantive area is less important.
Especially when your business is on the line, having a skilled trial lawyer is important to establish credibility. A case can be settled because the adversary decides they don’t want to face you at trial. Clients should ask any lawyer they are considering how many cases they have tried, how many were jury trials, when they tried them and in what jurisdictions with what results. Ask for references.
Beyond considering your own needs and a given lawyer’s specialty, you should also ask how much experience the lawyer has in the jurisdiction where the case is pending and how much experience they have before the assigned judge. The lawyer’s familiarity with the judge may provide a preview as to how the judge will rule on pretrial motions and evidentiary issues. If the lawyer has credibility in the courtroom, your case’s path to trial will likely be smoother.
Ask also about their experience with opposing counsel. If a lawyer has successfully litigated with your adversary’s lawyer, the lawyer can discuss the opposing counsel‘s strengths and weaknesses and will be more likely to anticipate your opponent’s moves. A lawyer whom your adversary’s lawyer respects is more likely to achieve a good settlement.
When it comes to the terms of an engagement, you should assume that the lawyer’s fee is negotiable. Most arrangements call for clients to pay by the hour, but other terms are possible, including flat fees, fees by phase of the case, caps, success fees for achieving certain milestones or, most commonly on the plaintiff’s side, contingent fees or hybrid fees possibly involving discounted hourly rates plus a share of the recovery. Defense side contingent fees are possible but rare. Depending on the circumstances, lawyers may agree to discount their hourly rates.
Down to every detail, you and your lawyer need to be clear about the procedures for billing and retainers. You will need to agree on how often bills will be issued, how detailed they need to be and when payment is due. You should discuss when the lawyer will draw down on the retainer and when it must be replenished.
If you have questions about a bill—for example, if you think that the bill is too high, or you don’t understand work that has been done—it is best to raise those issues as soon as you become aware of them. These issues do not become easier to resolve with the passage of time.
The most important thing to a successful relationship with a lawyer is communication. You should discuss with the lawyer what details you want, how frequently you expect to hear from the lawyer and whether you want to see drafts of documents before they are filed. In business cases, it’s not uncommon to have a standing call each week to review the case. The biggest problems I’ve witnessed between client and lawyer relationships arise from a failure to communicate.
It’s also important to agree on who will work on the case. This includes confirming that the lawyer with whom you have been discussing the case agrees to take the lead role. That should be reflected in the engagement agreement. If that lawyer is going to be supported by other lawyers, you should ask who they are and learn about their backgrounds. It is important to make clear that no other lawyers will be added to the case without your approval.
Finally, explore how this matter might be resolved short of trial. Most cases are resolved through mediation. The longer a case lasts, the more expensive it will be. Explore the lawyer’s experience in speeding up resolutions.
When litigation arises, most of the key events are already in the past—you cannot change them. But you can begin to take control by asking the right questions to help you hire the right lawyer.
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