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Selecting a litigation attorney for your business dispute

Business Law

Posted: March 28, 2008 6:20 p.m.
Updated: May 29, 2008 5:03 a.m.
 
This is the second part in a series of columns by David Poole, a partner in the law firm of Poole & Shaffery, LLP.

In Part 1 of this article, we discussed the need for the prudent purchaser of legal services to represent them in a business dispute to have a thoughtful and thorough approach to the attorney hiring process.

We pointed out that before you sign any retainer agreement with a lawyer or law firm there are at least three important areas you should inquire into:
1. Does the attorney have experience in this area?
2. Has the attorney been effective or successful in past representations? and
3. Will you be able to trust this attorney to deal with you honestly and communicate with you
effectively?

Last time we discussed the experience factor. The second factor, the history of success, focuses on the quality of a representation not just the fact that the attorney has performed in this area before.

The question is: Have they done it well?

In the area of representing clients with business disputes, determining that an attorney has been successful involves several considerations. For example, the prudent businessman always needs to weigh the advantages and disadvantages of "playing hardball" versus trying to achieve early resolutions of the problems. S

Such a businessman will, therefore, be looking for an attorney who can be tough when necessary - including the capability to back up taking a hard line with the ability to perform successfully in
the courtroom - but also one who is wise enough to smell out an opportunity for an early favorable resolution by settlement.

The hard reality is that in many instances taking a business dispute to trial is always beneficial for the attorneys and only rarely do all the financial costs and time dedicated to the process by management result in a net benefit for the litigants.

Therefore, evaluating whether the attorney has a track record of success can be a more difficult assignment than simply finding out what the court room record is. If they never go to court, perhaps they are too afraid of a fight. On the other hand, if every matter they touch seems to end up in trial or at the very edge of it, perhaps they have a tendency to want to extract the most fees they can.

In evaluating the court room prowess of an attorney, as with any competitive endeavor, having a "perfect" record is not always possible. Attorneys are sometimes dealt bad cards in the form of difficult facts or awful witnesses and a great result in some cases may be keeping the damages down or negotiating a settlement at a certain level as opposed to a complete defense verdict in a trial.

Although courtroom won/loss records can tell you something, the best information about the quality of an attorney comes from prior clients, especially those who are able to competently evaluate the quality of legal services performed. We'll discuss more about how to get that information below.

The third factor to be concerned with is the trust factor. By "trust" in this context, I mean: Will the attorney be reliable? Will he or she communicate with you in a timely fashion? Will they put your best interests
ahead of an opportunity to simply bill you? Will they give honest assessments of risk so you can make meaningful decisions about settlement opportunities early in the process or will you find that they engage in a scorched earth litigation approach only to come to you on the eve of trial telling you that you need to fold your tent and now settle it for an amount you could have done so months or years before?

How do you get information sufficient to determine the experience, competency and trustworthiness of an attorney? First of all, there are certain resources as close as your computer. The State Bar of California Web site (http://members.calbar.ca.gov/search/member.aspx) provides current information regarding every licensed California attorney, including the date they were admitted to practice law, the identity of their undergraduate college or university and law school, current contact information and, significantly, whether they have ever been disciplined by the State Bar for any reason.

A private sector company, Martindale-Hubbell, found at www.martindale.com, can also be searched by attorney name and contains additional information on many California attorneys, including ratings of many of those attorneys by their peers for competence and ethics.

Of course, any commercial rating system has its flaws and the consumer should not put too much reliance on such ratings, however, it can help you narrow your choices.

Clearly, the best information to have to evaluate a hiring decision is that which is obtained from persons who have personal experience with that attorney. If the case is going to litigation, you should ascertain from
prior clients of the attorney who actually had the matter go to trial, not only the result but also what the observations of the individual were with regard to the attorney's preparation, effectiveness in examining witnesses (both direct and cross-examination), oral argument and quality of written
materials.

In some instances, you may want to get copies of briefs they have written and have them reviewed by another attorney. Additionally, you should inquire as to whether the client heard the judge or jury make any comments about the attorney in terms of the quality of their representation.

In evaluating performance outside the courtroom, other questions that should be asked of prior clients could include: Did they perform the services competently? Did they perform the services in a timely fashion? Have you had other lawyers in the past to be able to compare them to? How did they compare with those other attorneys you've retained? Do you know of others who have retained this attorney? Did they return your phone calls timely? Were they organized and prepared for meetings? Did their office support staff seem adequate for the kind of case?

In summary, do your homework and you will minimize the likelihood that you'll be sharing your own "how I got burned by an attorney" story. Attorney jokes are, however, always in good form.

David Poole is a partner in the law firm of Poole & Shaffery, LLP, which is a full business law and business litigation firm located in Valencia. His column represents his own views, and not necessarily those of The Signal. "Business Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. Visit www.SCVBar.org.

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