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Choosing A Good
Lawyer
I defy historians, heroes, lawyers, priests, to put a fact
without some leaven of a lie.
Lord Byron.
(T)hey consider (lawyers) as a sort of people whose profession
it is to disguise matters.
Sir Thomas More.
The first thing we do, let's kill all the lawyers.
William Shakespeare.
Why may not that be the skull of a lawyer? Where be his
quiddities now, his quillets, his cases, his tenures, and his
tricks?
William Shakespeare.
We lawyers are not, as a class, dearly beloved and never have
been. But with all due respect to Will Shakespeare and his colleagues,
it's a bum rap. On the whole, we are as morally upright as most
other people. And there is absolutely no truth to the rumor
that lawyers eat their young. On the other hand, lawyers have
yet to corner the market on virtue. As in all other lines of
work, there are good lawyers and there are bad lawyers. What
follows may help you distinguish between them. I direct my comments
mostly to divorce and real estate law because that is primarily
what I do. But the points here are equally applicable to any
other area of the law.
A Square Peg in a Round Hole
Most lawyers are competent at what they do. The trick is to
find one who is well versed in that area of the law that's important
to you. The attorney who did a whiz-bang job on your brother's
speeding ticket may not have a clue about divorce law. Yellow
pages ads often include a lawyer's areas of specialization.
The yellow pages also list attorneys by areas of practice. Each
county has a lawyer referral service in the county seat. They
can lead you to attorneys who handle the type of case that interests
you. Word of mouth is important, but only if the recommendation
comes from someone who was involved in a matter similar to your
own. Keep in mind that there are specialties and there are specialties.
I can do a will for most of the people I know, but if Bill Gates
came to me (I should live so long), I would refer him to someone
with a background in wills and estates for the disgustingly
wealthy. At that rarefied level, a lawyer needs a good knowledge
of estate tax laws and trusts that is beyond my expertise. When
you find a lawyer who may suit your needs, ask questions about
your particular matter. Does he or she have experience in cases
similar to your own?
Chemistry
You can have the most accomplished lawyer on the planet, but
if you can't stand the sight of him, you'll regret the day you
walked into his office. In most cases, and particularly if your
business involves matters of a personal nature, insist on meeting
with your attorney before you actually retain him. If he talks
down to you, seems indifferent…if you don't like the
color of his tie, you're probably in the wrong place.
Understanding the Lawyer's Job …and Your Own.
The most important thing a lawyer does is to give advice. We
can tell you what the law is. We can project how your case will
end up if it goes to a judge or a jury. If there's a settlement
offer on the table, we can tell you if it's good, bad or somewhere
in between. If the person buying your home wants you to fix
the leaky faucet in the bathtub, we can give you a pretty good
idea if that's a deal breaker. If you have questions, we can
answer them. What we cannot do…or should not do…is
make decisions for you. The certainty that comes with the settlement
of a case has a price and the price is unique to each individual.
Is it worth accepting low-end alimony to avoid the grief of
a weeklong trial? Do you fix that leaky faucet on the off chance
that the buyer will kill the deal if you refuse? I couldn't
possibly substitute my judgment for the client's on such matters.
We all have different thresholds of comfort. I can give you
a good idea of the odds. Only you can decide whether or not
you will place a wager.
Any attorney who guarantees results is (1) lying or (2) bribing
the judge. Whenever you leave a decision to a judge, you're
rolling the dice. This is one of the advantages of settling
a case (See Settlement, infra.). In the meantime, ask your lawyer
to describe the downside of your case. Insist that they play
the devil's advocate. You can choose your course of action intelligently
only if you know the risks involved. If your lawyer doesn't
always tell you what you want to hear, he's doing you a service.
Having done this work for more than thirty years, I think I
have a pretty good idea of what my clients want to know. But
I'm not a mind reader. If you have a question, for God's sake,
spit it out. The only stupid questions are the ones that are
never asked. A lawyer's job is to answer your questions and,
by so doing, to set your mind at ease. Indeed, many would say
that that is a lawyer's most important job. I've been told many
times that the worst part about legal affairs is not knowing
what's ahead of you. If your lawyer can make the unknown known,
your money's been well spent.
A client must be focused and they must be realistic in their
expectations. One of the worst condemnations of the legal profession
is that we lawyers tend to drag out the proceedings either for
the sake of the almighty dollar or just to be nasty. I won't
deny that there are lawyers who do just that. Fortunately, they
are a rare breed. Far more commonplace are the clients who would
use their lawyer to inflict pain on the other litigant. Obviously,
this occurs more often in divorce cases. Once, I succeeded in
having my client's husband removed from the marital home under
New Jersey's domestic violence statute. Immediately after the
trial, I was told that my services would not be required for
the divorce. I was being fired because I didn't make the bastard
bleed enough. If you want to use divorce litigation to wage
a vendetta, (1) you will surely regret it and (2) please switch
off this web site and find another attorney. Anger feeds on
itself. If you see the infliction of pain as a desired goal,
it won't be long before your spouse hops on board. When bitterness
becomes the driving engine in a divorce, only the lawyers gain.
I'll be delighted to take your money under most circumstances,
but if you're looking for your lawyer to act as a mugger, you
don't want me.
I think I'm a good attorney, but I can't pull rabbits out of
a hat. I can only work within the confines of the law. The judge
who will decide your case can only render decisions based upon
those same laws. In New Jersey, a child of divorced parents
has a right to expect mom and dad to pay for a four-year college
education. That's something of an oversimplification of the
law. There are many factors that go into each case, one of them
being the child's obligation to defray his or her own expenses.
Still, as a general statement of law, each parent will contribute
to the child's college, to the extent that they are able. It
has been said that this imposes a burden on the parents that
would not exist were they not divorced. If you and your spouse
are still married, who's going to tell you that you must send
your kid to college? That's a perfectly good, common sense argument.
Problem is, it is not the law. Unless you are ready to take
your case up on appeal, possibly up to the New Jersey Supreme
Court, you have to be realistic and accept the fact that judges
and lawyers are bound by the law, as it exists. And that leads
nicely to the next point.
Settlement
Your attorney must be ready to go to trial, if it comes to
that. But good lawyers like good settlements. Existing laws
may hamstring attorneys and judges. The clients are not nearly
so limited. You can agree on a solution that no judge could
order. Recently, I was representing a woman who was clearly
entitled to spousal support. We had conferenced the case before
a panel of lawyers who agreed that she was entitled to permanent
alimony. But my client had serious misgivings about her soon
to be ex-husband honoring his alimony obligations. There was
substantial marital property and she preferred to take more
than her share of it and, in exchange, to give up her claim
to alimony. We discussed the pros and cons of this notion. In
the end, that's what everyone agreed to do. It was a solution
that no judge could have imposed. Because the law is what it
is, a judge would have awarded alimony and given her far less
of the marital property. As the law defines these things, it
would have been a fair and reasonable conclusion, but it would
not have been the solution that my client wanted. Before you
retain an attorney, ask about his or her views on settlement.
How creative have they been in the past sculpting agreements
that could not have been achieved by a judge? Most importantly,
ask yourself what is really important in this case. A settlement
involves a package. What parts of the package are most critical
to you? Would you swap a greater share of your husband's pension
if it meant you and the kids could remain in the family home
until your youngest graduates from high school? Set your priorities.
Pursue settlement. Be creative.
Accessibility
A good lawyer is accessible to clients. Some attorneys will
give out their home telephone number, but that may be too much
to expect in most cases. If a client dials my office number
after hours, the call is forwarded to my cell phone. As a rule,
a lawyer should return a phone call by the end of the next business
day. As with all rules, there are exceptions, particularly if
your attorney does not have access to your home telephone numbers,
as sometimes happens in divorce litigation.
Fees and Costs
Make sure you understand your obligation to pay your lawyer's
fees. In some cases, divorce being one of them, an attorney
is required to give you a contract setting forth his fees and
the projected costs of your case. Even where such contracts
are not required, you may ask for one or, at the very least,
a written statement of the fee arrangement. You should also
understand your obligation to pay for costs, that is, expenses
paid to someone other than your attorney. It may be the cost
of filing divorce papers with the court or the price of an expert
to appraise the value of your pension. If you are selling or
buying a home, be aware of the fact that there are costs beyond
the price of your lawyer, more so for buyers, but for sellers,
as well. In some instances, the costs may be nearly as much
as the attorney's fees. Make inquiries. Often, the wisdom of
pursuing a particular course in litigation may well depend,
at least in part, on the attendant costs. If you're buying a
home, from the beginning you should know how much it will cost
you to be sure that you're not getting in over your head.
Speak Up
Don't be intimidated by your attorney. You're paying good money
for these services. If there is anything, anything at all, that
troubles you in the course of your dealing with your attorney,
speak up. What may, at first, appear to be an insignificant
problem can easily mushroom into a major crisis that will impact
on the attorney-client relationship and, ultimately, on the
outcome of your case. Don't be concerned about insulting your
lawyer. If there's trouble brewing, your attorney will want
to know about it. If there is any class of people who hate surprises,
it's attorneys.
Conclusion
I hope that the insights gained over thirty-plus years of practice
may be of some help to you in selecting and dealing with your
lawyer. If you have any questions either of a general nature
or pertaining to your own case, I would be happy to discuss
them with you. Please feel free to call or to e-mail your inquiries
to me.
Law Office of I. Jacob Weingarten
10 Park Place Butler, NJ 07405
(973) 838-4898
ijwlaw@aol.com
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