Most litigants have never employed a litigation attorney before. They have little or no idea what civil law attorneys do, how they do it, and what rules they’re suppose to follow. Consequently most litigants don’t know what to expect from their attorney or managing their attorney and controlling fees. So here are some points which might help you out:
1. When you hire a litigation attorney for a civil law case, he must give you a written attorney fee agreement if the expected attorney fees will be $1,000 or more. This requirement is in the Business & Professions Code. Among other things, the agreement must describe in general terms what the attorney is supposed to do for you, and what his hourly rate is if he’s working by the hour instead of working for a contingent fee or a flat fee. Contingent attorney fees are standard for personal injury litigation. For other civil law litigation hourly attorney fees are standard, and flat attorney fees are unusual. You’re supposed to get written statements on a regular basis, and there’s supposed to be a description of the work done for each charge.
2. Don’t expect your civil law attorney to know off the top of his head all the law that may apply to your case. It may be hard to believe, but each case is different somehow or another from ever other case because of varying facts. Moreover, there’s a ton of law out there. It’s impossible to carry more than a small portion of it around in your head. Your attorney is supposed to confirm rules he may think he knows to make certain he isn’t mistaken and that they haven’t changed. He’s also supposed to think creatively about all the possible angles of your case. If you don’t get charged for any legal research, something’s usually wrong. On the other hand, controlling attorney fees by questioning the need for legal research for hours on end is a good idea.
3. It’s impossible for your litigation attorney to provide more than an educated guess about what litigation might cost. There are always surprises, and your attorney can’t control what the opposing attorney does. Small cases in terms of the dollars at stake can cost big bucks if one or both attorneys send interrogatories by the dozens, demand production of every conceivable document bearing on the issues, take interminable depositions, and so forth. On the other hand, if your attorney seems to be overdoing it, ask him to justify what he’s doing. It’s another way at controlling fees, but don’t blame your attorney for the time he has to spend responding when the other attorney is overdoing it.
4. If your attorney is always unavailable when you call, doesn’t return your calls within a day, or declines to explain why he’s doing something or telling you to do something, you’ve probably got the wrong attorney. You can fire your attorney any time you want. He can also fire you if you don’t cooperate with him or instruct him to act unprofessionally or unethically. Neither helps in controlling fees. Firing your attorney means that some new attorney will have to spend considerable time learning what your previous attorney learned, so it’s expensive, like starting all over again. Don’t fire your attorney or get fired yourself unless you’re sure it’s necessary.
5. Don’t waste your attorney’s time. In most civil law cases you’re paying him by the hour, so calling him and chewing his ear off about things of little or no consequence is a bad idea. On the other hand, don’t hesitate to tell your litigation attorney that his letters or emails to you are unnecessarily long, frequent, or detailed. You won’t have this problem with arrogant attorneys who would just as soon never communicate with you at all, but you may have it with conscientious attorneys who want to be sure you understand what they’re doing and why they’re doing it. If you feel you’re getting Too Much Information, just say so. You don’t have to argue about it.
6. Don’t expect to get everything you want. Most civil law cases settle, and by definition any settlement involves a compromise. Cases settle for three important reasons. First, because litigation is amazingly time consuming, getting to and through a trial is amazingly expensive. Second, most of the time, it turns out there are two sides to every story. You have to prove that your story is more convincing than theirs. There is always some risk you won’t succeed. Third, you may win, but your judgment may be smaller than you hoped, and it may be difficult to collect it. As your case progresses, you and your attorney should regularly talk about the right balance among expense, risk, and reward. The ultimate way of controlling fees is to accept a reasonable settlement of your case.7. Remember that if you are the plaintiff in litigation you are trying to get the state to give you the right and the means to take someone else’s stuff away from them (usually money). This is a big deal. It shouldn’t be easy, quick, or cheap. If it were everyone would be suing everyone else all the time, and today’s winners would be tomorrow’s losers - a complete mess. Sometimes it seems like we’re there already, but we’re not. As bad as our legal system sometimes looks, it still beats the heck out of what’s second best.
Stanley D. Prowse is a Civil Litigation Attorney and trial lawyer specializing in civil litigation cases in the greater San Diego area.