By William V. Strauss
You may have noticed that, unlike major appliances, lawyers don’t come with warnings or instructions. Whether you need a lawyer regularly for your business or only for specific tasks, the principles of this article should be helpful to you.
The first meeting is that uncomfortable time when the lawyer is thinking, “Thank goodness I got this deal,” and the client is thinking, “I hope I’m not going to be paying for that Oriental rug!” It is important to get a clear understanding of the likely cost of the representation; if practical, ask for monthly statements to avoid surprises.
Please recognize that a fee estimate is just that and often depends on unforeseeable events; however, you can ask to be told about such events when they happen and their likely effect on the bottom line. And, if you have a problem with a bill, you should feel free to call your lawyer to work it out. Finally, avoid contingent fee arrangements in business deals, because somebody is going to “lose,” and that somebody will be unhappy.
In general, it is best to stay within one firm and maintain a relationship with one lawyer who can develop an understanding of your overall situation. Your lawyer can involve someone else from within the firm when specific needs arise.
The client usually has certain unarticulated assumptions about the lawyer, most of which are incorrect:
- The lawyer already knows what you want. (No, you have to speak up.)
- The lawyer learned everything necessary for your case while in law school. (No.)
- The lawyer is purely a technician. (Usually, the client is involved in a dynamic situation with complex human interactions which require more than just an intellectual exercise.)
Many clients have a misconception that there must be a particular law out there that addresses their exact situation. There are two kinds of laws in our judicial system: statutory law and common law. Statutory law is passed by the legislature, and is sometimes referred to as laws that are “on the books.” Statutory law can be envisioned as a kind of grid, consisting of rules that govern issues contemplated by the legislature.
On the other hand, the common law is created by judges in numerous specific cases; it is supposed to fill in the spaces on the grid. But life is often too complex and varied, even for the common law. For example, the lawyer may receive a research memorandum with language like this: “Ohio courts have not yet spoken on this issue.” The lawyer then has to give the client a clear answer to the straightforward question, “Can we do it or not?” The lawyer’s best answer might be “I think so, but here are the risks and some other options.” That’s an honest answer, but not necessarily what the client expects to hear.
Your lawyer should work with you in an alliance, which is about:
- Identifying goals and objectives;
- Understanding available options and probable legal and business consequences of choices;
- Creating a process to get the job done.
One advantage of the alliance model is that your engagement with the attorney becomes relationship-based rather than transaction-based.
The most common mistakes that clients make are to try to save money by drafting documents themselves, or by starting with the other side’s draft. Usually, it will cost more in the long run for your lawyer to re-draft something that someone else has created. If the entire document is slanted against you, your lawyer will have to chip away at numerous provisions just to level the field.
Also, a surprising number of clients will sign a document and then call the lawyer. For example, a document may look like a non-binding letter of intent, but if it contains the elements of a contract it can lock the client into a deal and leave the lawyer without leverage to make significant changes for the client’s benefit.
Finally, watch out for a lawyer who tries to take shortcuts or advises you to do something risky or even improper; when this happens, head for the door and get another lawyer. Don’t try to repair the situation; this lawyer is broken, and there is no authorized service representative.
Strauss Troy is a full-service law firm that delivers solution-oriented legal services to clients through expertise, communication, and collaboration. With offices in Ohio and Kentucky, Strauss Troy serves clients in practice areas including corporate and business law, criminal and white collar defense, domestic relations and family law, labor and employment law, local government, real estate law, tax planning and compliance, and trust and estate planning.