How to Hire a Business Litigation Attorney in California
Updated: Dec 7, 2018
Being sued for the first time is a lot visiting the emergency room. It’s unfamiliar and intimidating. The goal is likely to make the problem to go away as quickly as possible. At very least, you want some sense of what the problem is, and how to fix it.
As attorneys who regularly deal in litigation, we often forget how daunting it can feel to see your name on a complaint. A good attorney can put a client at ease by guiding them through this unfamiliar territory. A bad attorney can make things much worse.
One of the most common questions I get from entrepreneurs is about finding and selecting the right counsel. Unfortunately, there is no magic bullet. Selecting the right counsel requires some homework and heavy lifting on the part of the client. Specifically, this involves finding an attorney that is:
A Personality Fit
Below are some tips on how to find and evaluate prospective attorneys.
A Primer On The Practice Of Law
Not all lawyers are created the same. One of the great misconceptions about the law is that any lawyer can help you with any legal problem. It’s actually quite the opposite. Even a “generalist” lawyer is relatively specialized within their field of practice. These broad practice categories include civil litigation, criminal law, bankruptcy, tax, family law, and corporate transactions, to name a few. Asking a criminal defense attorney about your civil case is a lot like asking your podiatrist cousin about a ringing in your ear. Sure, you can pick her brain for free and maybe she remembers a relevant lecture from med school. But at the end of that conversation, any responsible doctor would tell you to see a specialist if the problem could be serious.
If you have been named in a lawsuit, it’s a serious problem. The clock is also ticking. In California, a response to a properly served summons is due in either 21 or 30 days, depending on the jurisdiction. While this is something that every civil litigator knows off the top of their head, it might draw a blank stare from even the most experienced corporate M&A counsel. Finding the right attorney – and quickly - is paramount.
How Do I Find An Attorney?
Ask For Referrals
The best place to start is with layers that you know. Because misery loves company, attorneys tend to know other attorneys. Even if that corporate M&A counsel can’t handle your civil case, there is a good chance they know someone that can.
If you don’t know many lawyers, check with other service professionals. CPAs, financial advisors, and insurance brokers are often a good source since these professionals often network with lawyers.
Investigate Local Bar Associations
The State Bar of California does not provide legal advice or legal referral services. However, it does regulate lawyer referral services and maintains a list of approved providers. Certification by the State Bar is not an endorsement, but only signifies that the service has meet certain minimum requirements as required by state law. Local bar associations are often great resources and provide lawyer referral services for free or for a small fee. The Orange County Bar Association, Los Angeles Bar Association, San Bernardino County Bar Association, Ventura Bas Association, Riverside County Bar Association, and San Diego Bar Association all offer attorney referral services.
If you pay dues to any industry associations, now is a good time to put them to work. Industry associations often have good leads for attorneys in your local area or in your field.
The Wrong Question: “What questions should I ask when hiring a business litigation attorney?”
I often get asked for a list of “good questions” to ask a prospective lawyer. This is the wrong way go about evaluating an attorney. The questions you ask are a lot less important than the answers you receive. Preparing questions in advance is helpful, but clients should not let an interview turn into a perfunctory box-checking exercise. It is in the lawyer’s best interest to give candid, thoughtful, and complete answers to prospective clients. However, some attorneys have a habit of speaking at length while saying nothing. A client might not realize that an answer didn’t actually contain a useful response. The most important questions are those that you should ask yourself.
For example, asking an attorney’s billing rate is helpful, but it doesn’t answer the question of whether you can afford an attorney to handle your case through trial. To answer this more important question, you need to understand: (i) who will bill on the file, (ii) what they charge, (iii) what type of work is billable / non-billable, and (iv) what other costs, like filing, mediation, and transcript fees, might be incurred. Perhaps most importantly, you need to understand the possible outcomes and their likelihood. A case that is resolved on a motion will cost a fraction of what it will cost to take a case to trial.
Accordingly, it is important that you can answer the following questions to your own satisfaction:
Experience: Does this attorney have the right experience?
A good lawyer must have experience relevant to your case. It goes without saying that a lawyer should have experience in the area of law at issue, and experience handling similar matters.
But one thing clients often overlook is the benefit of an attorney’s local knowledge. Jurisdictions and judges vary widely, and clients should ask what experience an attorney has in the jurisdiction and/or with your judge. This can be invaluable. For example, while some judges are known to be decisive when ruling on motions, others have a reputation for being cautious and more inclined to allow issues to go to a jury. Local knowledge can help reduce costs to the client by ensuring that only those motions with the best chance of success are filed. Similarly, the time to have motions heard can vary widely in Southern California. While some courtrooms will have motions heard and ruled on within 30 days, others are so impacted that it can take six months to get a hearing date. It would be helpful to know at the outset whether success on a simple pleading challenge would take 90 days or two years.
Lastly, clients should always ask whether the attorney has any experience with opposing counsel. Insight into the opposing counsel can be valuable and help streamline the litigation.
Within Your Budget: Can I afford this attorney if we try this case?
Clients often focus on hourly rates. While important, it does not give a complete picture of what a litigation will cost in total, or what kinds of costs might be incurred.
For example, a client who hired Attorney Sara might be surprised to receive an invoice for the travel time of her colleague to attend a court hearing. At a minimum, clients should understand: (1) the attorneys and non-attorneys will be billing on the file, (2) the rates of each, (3) what the firm does and doesn’t charge for (such as travel time), and (4) what non-fee costs (such as expert witness fees) are expected.
A civil case has four general phases: (1) setting the pleadings, (2) discovery/summary judgment, (3) preparing for trial, and (4) trial and post-trial motions. Very few cases make it through trial. Nonetheless, a client should never assume that their case will resolve short of a verdict. Clients should understand what it will cost to take a case to verdict (and through routine post-trial motions), as well as to reach these other litigation milestones.
Lawyers hate providing budgets at the outset of a case. In our defense, it is impossible to predict the precise cost of a case when it is first filed. Litigation is a winding road, and simple issues become complex as new facts are discovered. However, attorneys should be able to provide an educated guess of total costs and fees, which is often enlightening to the client.
A Personality Fit: Are we on the same page?
Litigation attorneys come in all shapes and sizes. Some are problem solvers that aim to calm and negotiate the most contentious of cases. Others put the adverse in adversarial by intimidating the other side with a knock-down-drag-out take-no-prisoners litigation philosophy.
Most lawyers are somewhere in between. Clients should be careful to partner with a counsel that fits their personal philosophy and the circumstances of the case. For example, a long-term relationship with a valuable vendor could be damaged by an attorney applying a scorched-early policy on a simple contract dispute. In the same breath, a company could invite copy-cat lawsuits if a timid lawyer does not aggressively litigate and defend against a frivolous lawsuit.
Trustworthy: Do I like and trust this attorney?
A successful attorney-client relationship requires trust. Civil litigation can be stressful and a relationship without trust is doomed for failure. Clients should honestly assess whether they trust – or even like – the attorney. For example, clients should ask themselves the following after an initial meeting:
Did the attorney answer all my questions?
Did the attorney take time to answer my questions? Were the answers straightforward, or were they evasive?
Is the attorney responsive to my calls and emails?
If we have a deposition, mediation, or trial, could I sit in a room with this attorney for 8 hours a day?
Do I trust that this attorney will adequately prepare me to testify under oath in a deposition or cross examination?
Did we disagree on anything? Is that disagreement important?