How To Select a Litigator
There are many litigators out there. I am hardly alone in this profession! And yet when people want to start a lawsuit or find themselves the defendant in a case, it may not be obvious who can help. Even when multiple options present themselves, it may not be clear which is the right one to retain. Obviously, I think hiring me is usually a great idea, but different cases do call for different lawyers. Since no blog post can tell you who is the right lawyer to hire, I thought I could share my thoughts on the things that I would consider when selecting a litigator.
Why should you read this post about selecting a litigator?
You are getting sued and don’t know who should represent you .
You want to know what lawyer credentials mean something and which mean less.
Your idea of a good lawyer is James Spader from Boston Legal, whom I think would be a terrible lawyer to have.
Image credit: https://en.wikipedia.org/wiki/Choice#/media/File:Headresser.jpg
Where Do Clients Even Find a Litigator?
Many people hire a lawyer because they already know the lawyer. Maybe the lawyer is your friend or family member. Or maybe the lawyer helped you on an unrelated matter in the past. This is not a bad way to find a lawyer because a major thing that a client needs from a lawyer is someone that they trust. And if you already know and have a relationship with a lawyer, it makes it easier to trust that person. This trust is important for two reasons. First, a client needs to trust that the lawyer is going to do act appropriately on the client’s behalf and give good advice. And second, the client needs to trust that the lawyer is not going to bill excessively or otherwise mismanage the client’s money. Although a lawyer you already know is not the only person you can trust and may not be the right person for every case, working with someone you know is a good start.
But people may not already know a litigator. In those situations, many people ask for recommendations. Recommendations and referrals are often a good idea, too. You can get a sense from other clients how well a lawyer handled their cases, how reasonable their fees were, and how comfortable the client felt with the representation.
Referrals from other lawyers may be especially helpful because lawyers are often sophisticated to know what type of lawyer may be best suited to handle a matter, even if it is not their specialty, and already know other lawyers because of their own connections in the legal world. Many people come to me and ask me for referrals to lawyers in other jurisdictions, for non-litigation matters, or for types of litigation I do not handle. Even though I do not practice in France, handle immigration matters, or litigate patents, I have met lawyers that I know and trust that do.
But many people do not find a lawyer from their own personal networks. Instead, many respond to advertisements, look to lawyers from big firms with established brand names, or look at credentials to find someone who looks like they would do a good job. People do this with medicine; doctors and hospitals advertise, people trust big brand names in medicine, and they trust doctors who went to fancy schools or worked at fancy medical centers. And they do this with universities, responding to marketing, prestige, and rankings. In litigation, it has been my experience that these factors may help find someone who can do the job, and often do connect people with lawyers that do a great job, but these factors may not always help find the best match.
Factors That I Do Not Find Helpful
To explain which factors may not help determine the best lawyer for a particular case, it helps to remember what a litigator really does. A client should not expect a great litigator to be a miracle worker who can take a losing case and deliver a million dollar verdict. Instead, a litigator is someone who can present the client’s case well to adversaries and judges with the hope that, through a mix of hard work, strategy, and polish, the adversary or judge will make a favorable decision. A litigator is also someone who either knows the law well or can research the law well and explain it to the client and work with the client to ensure compliance with the law. With that in mind, what common factors people use to choose a litigator are not related to these tasks?
The first, which I have written about before, is a belligerent or tough persona. Some people may think that someone rude or loud may be the fighter who can deliver the best results. But in practice, I have rarely seen this be the case. In my experience, people who are difficult to work with usually are not taken seriously by judges or adversaries and are less capable of closing deals.
The second are rankings or awards. In the world of litigation, there are a bunch of so-called honors like Super Lawyers and LawDragon and Benchmark. And some lawyers prominently display these honors in their marketing materials, on their website, or on social media. But these honors are usually granted arbitrarily; often a lawyer submits herself for inclusion and has her friends second their nomination. No objective judge scrutinizes a lawyer’s work and determines who is worthy and who is not. They remind me of the Who’s Who books that flatter participants as part of a business, but do not really have any meaningful information about merit. Honestly, I generally think it is embarrassing when I see lawyers boast about these honors since they really mean nothing.
The third are big name firms and fancy law schools. I do think there is some loose correlation between a well-known firm or school and the quality of representation. If you had the choice between a lawyer at Cravath who went to Harvard, and a solo practitioner who went to a school you didn’t know, with no more information, I’d probably go with the former (if cost were no issue). But the correlation is very loose. I have seen opposing counsel from Harvard and similar schools at fancy international law firms whose work was really bad (and, I’m sure, very expensive for their clients). And I have seen counsel from modest law schools who do not work at famous firms do outstanding, impressive work.
Similarly, another factor may be a slogan or serious looking photograph. Many lawyers have similar looking websites or promotional materials with stock images of a city and pictures of themselves looking resolute in front of a courthouse or law books. And many advertise with buzz words, as anyone selling a product may. These marketing efforts bear little relation, in my view, to the quality of the legal work.
Another factor is a lawyer’s track record. Unlike an athlete, who can demonstrate talent by winning games or races, a lawyer’s skill does not necessarily correlate to wins or losses. Many cases do not have a clear winner or loser since many cases settle and many judgments could be seen as wins or losses depending on the underlying cases’ facts and other factors.
Lastly, another factor I find less helpful is the work a lawyer supervised, but did not perform herself. Many law firms have lawyers who attract business, but pass the work off to other lawyers. And while some lawyers may pass themselves off as knowledgable and capable and cite the work performed by other lawyers at their firms. But if that lawyer ends up passing the work on to other people, then that first lawyer’s talents become much less relevant to the client’s needs.
Factors I Do Find Helpful
Since I find the factors above unhelpful, what are the things I consider to be useful in selecting a litigator?
The first factor I’d recommend is reading the lawyer’s work. Is it easy to read? Does it sound logical? Does the lawyer even have work product for you to read? These are important questions, since a big part of a litigator’s job is to write clearly and intelligently. Even if you are a lay person, a good lawyer’s writing should be understandable. A bad lawyer’s writing may either be unintelligible or, as is often the case, bizarre, sloppy, or ranting.
The second factor I’d recommend is to find a lawyer who is easy to talk to and responsive to your communications. Some clients want to speak with their lawyer all the time (which can be unreasonable since a lawyer often has other clients and a life of their own) but a principal responsibility of a lawyer is to communicate with the client. A lawyer who communicates with you well serves you better than one you can barely understand or reach or speak to. And a lawyer who is responsive to your needs may also be responsive to deadlines and be more likely to properly schedule their work and not miss important deadlines.
The third factor I’d recommend is to find a lawyer who has experience representing clients like you in cases that resemble your case. Good lawyers can adapt to new legal issues, new types of clients, and new types of cases. But a lawyer with a lot of experience in one area or with a particular type of client starts with a big advantage against a lawyer that lacks that experience.
Fourth, I’d recommend a lawyer who bills efficiently. Some lawyers are less conscious to a client’s budget than others. In my view, a lawyer better serves a client when she considers whether her work is worth the client’s money. It’s hard to evaluate how efficient a lawyer is when you first approach one, but over time, a client should have a good idea about what their attorneys are billing them for and whether those things were good uses of money or actually helped. One rule of thumb, however, is that I have found that lawyers who e-file their own documents are more likely to be able to manage a case efficiently, but lawyers that cannot e-file their own documents tend to have unnecessary meetings between themselves and another lawyer who performs some duplicative amount of work.
And lastly, I’d recommend a lawyer that is willing to think independently and be strategic. Many lawyers do things because “that’s how everyone does it” or “that’s how it’s always done.” But better lawyers, in my view, may consider different methods that may save the client money or help obtain a better result. For example, the decision to file counterclaims, pursue sanctions or mediation, send two lawyers to a meeting that could be handled by one, or to retain an expert witness require individual consideration and not blind policy-following. A client can consider whether a litigator is an independent and strategic thinker by asking the attorney about her plan for the case and asking the lawyer to explain her strategy. Good lawyers can explain the pros and cons of the strategy, while ones that I find less impressive may not have thought out their plans.