Minnesota and other states have lots of attorneys. At first glance, they all seem the same. Their advertising has similar “catch phrases”, they all wear dark suits, and they all claim to be your “go-to” attorney if you are in a bind. By looking at the right factors, you may be able to narrow your search for a civil litigation attorney.
1. What Knowledge and Abilities Should a Litigation Attorney Have?
The attorney must have the knowledge and abilities to competently handle your case. Competence is a requirement in the ethical rules. Your litigation attorney should have knowledge of the subject matter for your case. But you also want the attorney to be able to research the law for difficult questions, and to use his resources to lead your case.
Base knowledge allows your attorney to get up to speed quickly. This is a potential cost savings for you. It takes time and repetition to understand laws, exceptions, exceptions-to-exceptions, and how laws interact. A base level of knowledge if generally fine so long as the attorney has proper research skills.
Your attorney must be able to properly research legal issues. This seems obvious, but some litigators may do little or no research, and it may hurt you. Civil disputes and lawsuits are won and lost over small details in statutes, cases, and contracts. Expect your attorney to be able to show you the law and interpret it. Litigation attorneys that worked as a “judicial law clerk” after law school for judges often have exceptional research skills that can be crucial in close cases. Ask your attorney at an initial consultation if they can efficiently perform legal research. If they will not or cannot perform legal research, consider another litigation attorney.
A litigator is like a quarterback and must lead your case. A good litigator must:
- “Read the defense” to identify the strategies your opponent is using and how a judge may react to competing case theories. Sometimes this means digging for the right evidence, pushing witnesses for an honest answer, resolving inconsistent evidence, assessing the credibility of a source of evidence, and digesting large amounts of documents.
- “Know the playbook” to use all legal remedies and tools to further your case, including the proper time to deploy them.
- “Call the right play” to maximize the impact of positive evidence you developed, a good ruling from a judge, or strategy mistakes by the opposing party.
- “Call an audible” when your options are limited. The attorney might research a new theory, check for new evidence, or raise a new negotiation issue. This will enable you to lead with your best arguments and minimize damage from weaker arguments.
- “Run the two-minute drill” by thinking on his or her feet. There are tight deadlines in litigation and judges are very strict about moving things along in a courtroom. A litigation attorney needs to make quick decisions and react instantly to changing circumstances. Trials may involve surprises in witness testimony or an unexpected ruling by the judge. Your attorney must think on his or her feet.
- “Keep his head in the game” by staying focused on your goals. You are the client and the boss. An attorney determines methods and strategies, but you define the goals for the case.
- “Recruit” an expert to review your case and give you a supporting opinion.
- “Make a play” under pressure by using creativity to weave a new strategy into your case.
- “Be the field general” by keeping you engaged in the case, managing the ups and downs of the dispute, meeting deadlines, keeping channels of communication open, being a leader in the courtroom, being tough when your case has weaknesses, and giving you the confidence to tell your story.
The bottom line: a good litigator can make a difference. When a team drafts or signs a quarterback, they do their homework. You should do the same. Make sure the litigation attorney has the knowledge and ability to handle your case.
2. What are Some Ways to Differentiate Attorneys?
Here is a list of general considerations to help you tell the difference between attorneys:
- Smaller firms often have better service and lower fees. They are often involved in the community and enjoy better work-life balance. At a small firm, you will probably get to know the receptionist, paralegal, and attorney very well.
- Bigger firms often charge higher fees but may have narrow practice areas and work for bigger clients. They have big teams of lawyers which can involve redundancy and high cost for clients. If you have a big antitrust case with millions of documents and a lot on the line, look for a big firm with big resources. Otherwise a small firm may be a better fit for you.
- Big firm lawyers work extremely long hours. Your work may be handled at 6 a.m. or midnight depending on how overloaded the attorney is at a big firm.
- Big cities have more competition among law firms, so clients may have more opportunity to shop around.
- Rural areas tend to be underserved for legal services, and there may be fewer attorneys from which to choose.
- Big advertisements don't always mean better lawyers. It simply means they have a higher budget and higher need to get clients. There are very good lawyers that do not advertise. They rely on the quality of their work and word of mouth to get clients. These can be harder to find, but may serve you well.
- Lowest-price lawyers might not be your best option. They might be low for a reason – they are inexperienced, desperate for clients, or have a poor reputation. On the other hand, their fees may be lower because they have lower overhead, might not know what other lawyers are charging, or may simply be satisfied with helping people. There are some very talented, experienced lawyers that may charge low rates or even take cases pro bono, so don't read too much into the rate. Check for a free consultation and get a sense of their costs and offerings.
- Beware of promises or guarantees about a case outcome. Litigation is uncertain and requires critical thinking. A lawyer that guarantees an outcome has probably not thought critically about your case. Cases are won and lost on small details in the facts or law. An attorney with strong analytical skills can be an asset. It's ok for the attorney to tell you if your chances are good or bad, but guarantees are a red flag. Avoid hard-selling attorneys that make guarantees.
3. How Do I Figure Out the Practice Area for my Case?
Ask around, search the internet, and talk to attorneys that offer a free consultation. It might be obvious, but don't be so sure.
For example, say you have water leaking through your roof. You might have a real estate claim against the seller of your home for non-disclosure. But it could also be a construction defect or warranty claim. If you've been having unexplained allergies, you could have a mold problem and a personal injury claim. If you've missed work, there could be an employment issue. If similar problems with the roof have affected many other people, there might be a consumer class action. The point is that a simple issue may involve many areas of law. A free consultation with a litigation attorney can be very useful.
Here are some general areas of litigation:
- Real Estate
- Banking & Lending
- Farm & Agriculture
- Trust & Estates
- Personal Injury
- Workers' Compensation
- Consumer Class Action
- Environmental Law
- Intellectual Property
If an attorney says he or she is great at all these areas, be skeptical. These areas are very different, the laws are complex, and you don't want to pay the attorney to learn a totally new area of law. It is better to have an attorney that has a few areas of focus. Basic litigation skills (persuasive communication, strong writing skills, courtroom presence, analytical skills) will translate between types of cases.
The bottom line is that searching for an attorney by case types can be useful and save you time. If the attorney offers a free consultation, take advantage of it.
4. Where Should my Attorney's Office be Located?
Probably near you or the courthouse for your case. This can be an important factor in hiring an attorney.
One issue is convenience. It will be more convenient to have your lawyer nearby if you need to meet on short notice. Modern technology makes it much easier to communicate and exchange documents. But sometimes people feel more comfortable and secure when they have a face-to-face meeting with their attorney in a private office setting without distractions.
Another issue is the potential travel time for hourly-rate attorneys to attend court, mediation, or other out-of-office meetings. Most attorneys with hourly rates bill for some amount of travel time and mileage. Attorneys view their time as valuable and view travel as a necessary part of a case. For example, if the attorney's office is one hour from the courthouse and she charges $200 per hour, then she may charge $400 for travel time, a mileage cost, and the time in court. The client should be aware of this when choosing the attorney.
At our firm, we know that not all “windshield time” is of benefit to our clients, so we don't charge mileage costs and limit what we charge for travel. We have two offices near respective courthouses, so it cuts down on client expense. Other attorneys are also flexible, so ask about it during your initial meeting. The attorney may also know whether your judge allows appearances by phone, which would save you money because your attorney could appear from his or her office.
Having a civil litigation attorney near the courthouse may save you some unnecessary travel costs. Factor it into your attorney search.
5. How Much Experience Should a Litigation Attorney Have?
At least a few years of experience is helpful, but a younger lawyer could get by with supervision from a more experienced attorney.
There is a wide variation in experience levels, and it can make a difference. First-year lawyers may be enthusiastic and charge lower fees, but they might not have the experience to handle a complicated civil case in court. On the other hand, some older lawyers may have a lot of experience but charge very high rates and may not have seen the courtroom for years.
There are frequent changes in laws, court rules, court procedures, and judges. Having an experienced lawyer that has consistently been in court can be an asset. Usually, the attorney's website or advertising will list the amount of experience. If not, you can do an internet search for the Minnesota Lawyer Registration Office to find when the attorney was first admitted to practice in Minnesota.
6. How Do I Gauge an Attorney's Capability?
This can be hard to determine. The hallmark of a good litigation attorney is being able to “play their hand” well under all circumstances. They should be able to win cases where they have an advantage, but should also be competitive in cases where their client has a weak case. Good litigation attorneys can effectively “handicap” their client's cases in order to determine the best strategy.
A good litigation attorney might have received peer recognition as a Super Lawyer or Rising Star, or through another metric. An attorney's advertising may be helpful, but be careful to consider whether your case is similar enough to the advertised outcome to justify the same result. Word of mouth is helpful. And a referral from an attorney is often a good indicator, since attorneys are often in better position to know whether another lawyer has a good reputation.
7. What Makes an Attorney Trustworthy?
The ability to follow ethical rules, court rules, manage their trust accounts, and treat people with respect. Make sure you can trust the litigation attorney you hire. You may be working with the attorney frequently or over an extended period on your case.
If the attorney has been publicly disciplined by the state bar association, steer clear. If the attorney has poor reviews online or you hear other questionable things about the attorney, steer clear. If you meet with the attorney and he is not transparent about billing, trust accounts, confidentiality, or other ethics-type issues, find another attorney.
This is the person you will be protecting your confidential information, and who will be your advocate in court and otherwise. The attorney's reputation carries with him or her, and your case will in part be tracking with your attorney's reputation. Do your research and use your intuition.
8. How Useful are Attorney Ads?
Sometimes they are helpful but often don't give you the full picture. Ethical rules require lawyer advertising to be accurate and not misleading, so the attorney must be careful.
Advertising might tell you basic information about the attorney, such as the area of practice, experience level, and geographic reach. Billboards might not be very helpful because they have limited information. Billboards are more of an indication of the attorney's advertising budget.
If the attorney publishes legal articles or writes a blog, you may get a good sense about his passion for the job, ability to communicate, knowledge of the subject matter, and writing ability. If the lawyer offers free consultations to prospective clients, this is a great way to find out more about the attorney and it may tell you if the attorney is someone you can trust. A law firm with a good website should tell you most of what you need to know.
9. Will I Have to Pay a Retainer?
Yes, it is customary in hourly-rate litigation cases. It is not typically used in contingency cases (personal injury), flat fee cases (small and limited-scope projects), or transactional cases (writing wills, deeds, or business contracts).
A retainer is a financial commitment that ensures an attorney will take the case and get paid on the initial work. Retainer amounts and structures vary greatly on the type of case, its complexity, the amount of work required, and the resources of the client. A retainer is not a flat fee and is not an estimate of the overall cost of the case. The attorney will likely want the retainer before beginning work. If you have a dispute brewing, set aside some money for a retainer payment.
The ethical rules generally require attorneys to have a signed agreement with a client for a retainer. The retainer money has to go into the attorney's trust account, called an IOLTA account (interest on lawyer's trust account). The attorney pays himself or herself out of the trust account as he or she performs work. Typically, the attorney is paid monthly when invoices are sent to you. This is how things work when the client still has funds in retainer. The lawyer might require the client to “replenish” the retainer during the case, especially if there is an upcoming trial or project that will require a lot of work. Otherwise, if there is no money in trust, the attorney will likely send you an invoice and you will need to pay it within 30 days or as provided in the retainer agreement. If there is money left over after the representation, you should get it back within a reasonable period of time.
Because retainers are generally pooled with funds from other clients, the IOLTA rules are strict and the attorney must manage it carefully. This is a protection for you. The most common reason for attorney discipline is failure to properly manage the trust account.
Retainers vary greatly between attorneys and practice areas. In Minnesota, is it common to see a $2,000-$5,000 retainer for general litigation matters. A more involved case might involve a retainer of $10,000 or more. Bigger firms with higher rates might require $20,000-$50,000+ for big cases. You should talk about the retainer issue with your lawyer and read your attorney-client contract carefully. This could be a source of tension later in the case if your expectations are not the same as your attorney.
10. Will I Have to Sign an Attorney-Client Contract?
Probably. They aren't required in all cases, but can provide protections for the client as well as the attorney. It is best practices.
These are often called Legal Services Agreements. They may also be called Retainer Agreements, Retainers, Professional Services Agreements, Client Contracts, or a similar names.
A Legal Services Agreement will ensure that the attorney has formal responsibilities for your matter, but it will also help ensure that the attorney will get paid for his or her work. From a practical standpoint, this document will set expectations for the case.
The agreement may be a single page or may be 10 pages. It should define basic things such as:
- Scope of the representation
- Attorney's fees and billing
- Court-related costs
- Attorney obligations
- Client expectations
- Termination and Withdrawal
- File closing
- The client and any guarantors of payment
- Conflict of Interest issues
Your attorney should explain this agreement to you at the first meeting. This is your chance to ask questions and to tailor it to your situation. It's not required in every case, but it is good to have.
11. What is a "Free Consultation" With an Attorney?
It means that the attorney will have an introductory conversation with you about the basics of your case, but will not charge you for it. Not all law firms offer it. Look for firms where you can speak directly with an attorney.
A Free Consultation with an attorney is important for several reasons. It shows you that the attorney is approachable and reachable during the case. You will get a sense of the attorney's personality and passion for helping people. While attorneys must be careful about giving legal advice during these calls, they will ask questions and you can see what issues they are focused on. This can be valuable for you, so listen closely. You can also find out what the attorney charges, what other things he or she may offer, and his or her qualifications.
The attorney should do a basic conflict of interest check during the call to see what other parties and attorneys are involved. This is a benefit to you, since you don't want your attorney to be representing you and your opponent.
The Free Consultation may be by phone, in person, or perhaps with an exchange of emails. Sometimes it's a combination, with the client sending documents for the attorney to briefly look at before a call or meeting. We find that potential clients like the phone consults, since they save the time of driving to the office. But we also do in-office consults. Other litigation attorneys may do the same, so look for it.
If the attorney advertises a Free Consultation, it should be free. There should be no charge. The consultation may result in a file being opened and a Legal Services Agreement signed. Then the attorney-client relationship should be clear. But if there is no advertisement for a “Free Consultation”, clarify with the attorney if there is a charge. It is reasonable for an attorney to charge if he or she is giving legal advice and spending time with the client. However, the attorney needs to explain this to the person, and shouldn't charge if she advertises a Free Consultation.
Some attorneys think Free Consultations are a waste of time. They might not speak with the person personally, but instead have a paralegal or administrative staff get the person's information. This might save the attorney some time, but it's not always efficient or helpful for the prospective client. Our firm prioritizes these calls and you will speak with an attorney directly. Other smaller firms are also dedicated to having an attorney speak directly to you. Bigger firms may be less likely to do so.
As a prospective client, look for attorneys that offer a Free Consultation. It is a valuable opportunity for you to get to know the person that will handle your case. If the attorney doesn't seem right for you, then you are no worse off. If it works out, great.