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Selecting a litigation attorney for your business dispute

Business Law

Posted: March 20, 2008 11:33 p.m.
Updated: May 22, 2008 5:02 a.m.
This is the first part in a series of columns by David Poole, a partner in the law firm of Poole & Shaffery, LLP.

It is a sobering moment. After many months of waging war in that most bizarre game that is litigation, the day of reckoning has come - the first day of trial. All of the predictions of success, the confident assurances made to your board from you and your attorney that "all is well," will now be tested in the crucible of the courtroom.

Seated at the counsel table, you watch the drama unfold up close and personal. As the two trial warriors begin to do battle, you grow a little anxious. "Why is my attorney so stiff?" "What was he thinking about with that question?" "It sure seems like he is objecting and being overruled an awful lot." Those irascible qualities that made you decide 18 months ago that this was the guy who would right the wrongs and defend your honor, are suddenly noticeably irritating the judge and don't seem to be scoring any points with the jury. Or, perhaps worse, that confident demeanor that so charmed you in your board room has now been replaced with a passive and bewildered persona. Despite the "big firm" reputation and impressive resume, you suddenly realize that you've never seen this person you have invested a small fortune in on the only stage that matters right now - the one in the theater of the courtroom. The jury will not be impressed, or likely even know, that your advocate graduated at the top of his or her class and is a senior partner in a 500 attorney law firm with offices in New York and Belgium. Right now, you're not impressed either. You have become enlightened, but far too late to do anything about it.

How do businesses get into these situations? Often it is because they spend less time investigating and selecting their attorney than they did deciding what car they should next purchase. Judging a professional of any stripe on the basis of a Yellow Page ad, a Web site, a slick brochure or the fact that he or she is a graduate of an Ivy League law school, may not get you what you need.

The sophisticated purchaser of legal services should have a much more thoughtful and deliberate approach to the attorney hiring process. What are the things you should know before you sign that retainer agreement? There are at least three important areas of inquiry: 1. Does the attorney have experience in this area? 2. Has the attorney been effective or successful in past representations? 3. Will you be able to trust this attorney to deal with you honestly and communicate with you effectively? Although the reasons for getting answers to these questions are probably self-evident, a brief discussion may be helpful. Let's first explore the experience factor.

The old saw about there being "no substitute for experience" is certainly true in the world of practicing law. Law schools do not typically train law students in the same way various trades do through apprenticeships to insure they are ready to perform. Passing the Bar Exam really insures not much more than confirming that the individual has a basic knowledge of certain legal and some ability to reason. If the subject area of your legal need is one requiring special expertise, you should confirm that this attorney has such expertise. There are some areas of the law where there is special certification available through the State Bar such as worker's compensation, probate and tax law. How much experience should your attorney have requires a qualitative judgment on your part. A brand new attorney, practicing on their own, certainly has less experience to draw on and you should inquire extensively on what resources they have to draw on for guidance and assistance.

On the other hand, many years of experience do not, in itself, always reflect competence. If the matter is in litigation, or expected to go that direction, you need to know if the attorney has meaningful trial experience. While the vast majority of lawsuits are resolved prior to trial, you should know when you are hiring an attorney if he or she can handle the matter through to the end, including a trial. If a jury is likely to be involved, you need to know if they have jury trial experience as opposed to trying a case to a judge only.

In the next column, we'll discuss the two other factors: success and ethics and then how to check out these factors.

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.


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