Wes Schlenker General Counsel, Law Office of Wes Schlenker
SPRING 2019 ISSUE CIVIL REMEDIES AND TORTS
Wes Schlenker has served as in-house General Counsel for much of his legal career. The scramble to find a lawyer who can respond to a distant lawsuit is not pleasant, but it is something every business should expect. Wes has hired hundreds of outside attorneys in numerous states and several nations. This article provides some practical ideas for hiring an outside attorney to address a business or personal legal need, from the unique perspective of an experienced practitioner.
1) Don’t hire a lawyer if a non-lawyer will do. Lawyers are expensive. They can also be unnecessarily meticulous, compounding legal costs when billing by the hour. An example is tax advice: consider hiring a tax accountant for simple tax planning.
2) Don’t hire the best lawyer. Hire the lawyer you trust. If you hire a lawyer who is always right, but you don’t follow his or her advice, it will reflect badly on both of you. Hire a lawyer that you trust, seek out their advice, and follow it.
3) Avoid the expense of a brand-name national law firm unless you need the brand. For example, you need the brand name of a big law firm if you are involved in a large securities offering, working through a large merger transaction (measured in billions, not just a few million), or making decisions that are important to your private-equity owners who have implicit trust in a particular law firm. Brand name firms attract the smartest talent, but very few legal matters justify the staggering cost of a large national law firm.
4) If you are sued, ask your insurance company if they have a “panel counsel” list of qualified lawyers located near the lawsuit with pre-negotiated rates. Even though insurance companies can be terrible when it comes to paying claims, they are fantastic when it comes to negotiating low rates with lawyers—so capitalize on their strengths. Ask for a panel counsel list, even if the claim is not covered by your insurance or if you are negotiating coverage. Note that many lawyers advise the opposite and encourage clients to find an independent lawyer, who has no incentive to shape the lawsuit in ways that will make it easier for the insurance company to deny coverage. But in my experience, the insurance company is more likely to pay for a borderline claim if you are represented by an attorney they trust to be efficient and frugal.
5) If your matter has a strong local connection, hire a lawyer who physically works in the county where the matter is located. If your company home office is located in a big city, your favorite big-city law firm will ask to handle the matter (and possibly even hire local counsel themselves). But it is more efficient to hire a local attorney directly, unless the matter requires rare and specialized expertise. The following matters have a local connection and should usually be handled by a local lawyer: any dispute filed in a courthouse (lawsuits, divorces, etc.); city zoning matters or real estate disputes; condemnation issues; criminal defense; and probating a will. A local attorney will not charge you for travel costs and will possess invaluable personal knowledge in dealing with the local legal infrastructure and personalities.
6) Sometimes, asking opposing counsel for several attorney recommendations can be surprisingly helpful. Many lawyers would disagree with this advice, out of a fundamental distrust for the lawyer who sued your company. I rarely do this, but there are circumstances, especially when seeking an early resolution to a dispute, where it can be very effective. I have been surprised by the high quality of local defense attorneys recommended to me by local plaintiff’s attorneys.
7) Search for information on the internet. Because local is better, begin with an online map search to find the name of the county seat where the lawsuit is filed along with any adjacent towns. Then search an online attorney directory, such as martindale.com, using local city names and your desired area of legal expertise (e.g. Midlothian, Texas, Real Estate Litigation). A top-rated attorney on the Martindale site (noted with “AV”) working for a smaller law firm is usually a bargain, because it suggests big-firm quality at small-firm rates. Other lists such as “SuperLawyers” can be helpful, but they tend to be clustered in large cities and omit local attorneys. After you have narrowed your list to a small number, visit each attorney’s website, read their bio, search for publications, and perform a general internet search to find activities that demonstrate their connection to the local community. Sometimes attorneys list a particular expertise or office location on Martindale, but these other sources may show that their real experience or physical office lies elsewhere. Check Google Street View to confirm their actual location.
8) Call to discuss rates and estimates with at least three attorneys. Ask each attorney what they know about the other attorneys you are considering. Multiple calls are important for negotiation purposes, even if you have already decided on one attorney. Ask about hourly rates, discounts, and estimated costs. If you have already shopped “insurance panel counsel” attorneys, ask non-panel attorneys if they can match panel counsel rates. If they will not discount their rates, ask if they have other methods for controlling costs, such as blended rates (one hourly rate for both associates and partners) or fixed prices for certain phases of work. Attorneys will usually be hesitant to provide a quick estimate of total cost, so ask them to give you the actual cost of a recent similar matter, broken down into logical steps (filing an answer, completing depositions, completing all discovery, trial, etc.). This actual cost tabulation will also demonstrate their experience and will provide a jaw-dropping incentive to resolve the matter early.
9) To control costs, consider non-traditional legal practices for non-litigation matters. Intense litigation requires the infrastructure and stability of a traditional law office. Other areas, such as contract review, legal entity formation, trademark filing and infringement letters, real estate and zoning, etc. can be done effectively by an attorney who practices law out of a home office. Often, this type of attorney has years of relevant experience. If you encourage an experienced attorney to begin a practice from home, they can provide services at a small fraction of established law firm rates, creating a highly efficient win-win relationship.
When you receive service of a lawsuit, the initial shock may tempt you to skip the “shopping” steps described above. For routine cases, attorney shopping can be completed quickly with an internet search and several phone calls. Most lawsuits provide you with at least three weeks before an answer must be filed, and many plaintiff’s lawyers will give you an extension if you ask for it. Take the time to be diligent and find the right lawyer for the job.