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Attracting an Attorney

Last edited 143 days ago by Ted Broomfield

SUMMARY

This is a blog aimed at the audience of non-attorneys who are seeking an attorney to represent them in a lawsuit, based on sharing money recovered. This blog explains that it can be helpful to understand what the attorney is looking for when discussing your case with a potential attorney.

Generally, attorneys who share a percentage of the recovery are businesspeople. So, contingency attorneys who interview prospective clients are evaluating your case from the perspective of how likely it is to prove liability, what are the potential damages, meaning money that can practically be obtained from the case, are attorney fees available, and how good a plaintiff are you.

Knowing what an attorney is looking for and orienting your initial communication to what the attorney is looking for will help you attract the right attorney.

DETAILS

Context - most types of cases are driven by insurance companies, whose primary goal in defense is to waste an attorney’s time

Most telephone calls that I receive from prospective clients are challenging, to say the least. I do a lot of work in landlord tenant, often seeking money from a landlord who has failed to make required repairs. These cases are contentious to say the least.

As a practical matter, a lot of what I have to do is dictated by opposing counsel, not because it has any pertinence or value to the case, but, because if I don’t do what the defense attorney is demanding that defense attorney will waste even more my time with procedures to delay the case.

In order to orient prospective clients to the practicalities of litigation, I often ask prospective clients, how do insurance companies make money? Many cannot answer. However, a good percentage are well-aware that part of the equation is insurance companies make money by charging premiums.

But, charging premiums is only part of the equation of how insurance companies make money. The other part is counter-intuitive. Many prospective clients then say, insurance companies make money by collecting premiums and not paying benefits of the insurance. But, that is actually wrong. Let’s answer the question, why?

The counterintuitive answer to why do insurance companies actually make money by paying out benefits is that if insurance companies did not pay benefits the insured, then nobody would buy insurance.

The point is that insurance companies “call the tune,” of these cases, meaning dictate how much money will be offered on settlement, what defense tactics a plaintiff must defeat. Their goal is not necessarily to not pay, but, the goal is to squeeze as much profit out of being a plaintiff’s attorney as possible, while still leaving some incentive to represent contingency clients, lest there be no lawsuits, and no reason to buy liability insurance.

The point is

Result of the Context - So, attract an attorney by being to the point and expedient on the introductory call

The result of the context of this situation, is that many litigation practices and contentious, and time consuming, with a lot of time spent on non-substantive matters.

The result of this context matters to you, in that, if you understand the context, and what a contingency attorney is looking for, you will be better able to communicate with the attorney, and attract an attorney to your case.

Types of cases - Know what your type is and tell the prospective attorney the type of case, first thing

Most contingency attorneys only handle a specific type of case. A type of case means how the case can be described in words. Types of cases that you may be familiar with include car crash with personal injury, landowner liability with personal injury, employment litigation with discrimination and hostile work environment, landlord-tenant case based on habitability defects.

Moreover, each type of case has sub-types. I work in landlord tenant. There are habitability defect cases, illegal unit cases, and wrongful eviction cases. Sometimes they mix.

It may be worth figuring out how attorneys refer to your case and if you are confident that you know how other attorneys refer to your type of case, one of the first things that you should say to your prospective attorney is

This is a.....type of case.

Per Se Claims are desirable - when an independent third party regulator or insurer says defendant did something wrong

A contingency attorney is seeking claims that are Per Se. The general rule is that the plaintiff must prove his or her case on the preponderance of the evidence. But, that is challenging and time-consuming, not to mention risky.

Per se means that some third party, genuine document that you already possess meets the plaintiff’s initial burden of proof and shifts the burden to the defendant to disprove liability.

What type of document makes a claim Per Se depends on the case.

In landlord tenant, a Notice of Violation noting a dangerous condition usually creates a Per Se claim.

In auto collisions, a Traffic Collision Report that asserts one or more driver’s failure to follow the motor vehicle code usually creates a Per Se claim.

In worker’s compensation, there is strict liability, meaning the simple fact that a worker was injured in the course and scope of performance of duties means the worker is entitled to the single remedy of worker’s compensation benefits.

If you have one of these documents, don’t tell the attorney the case is Per Se - many attorneys may not understand. Tell the attorney, I have a document produced by a third party that proves the defendant is liable. Then tell the attorney the title of the document. The title of the document should appear right at the top of the document.

Documents - identify them, don’t send them until asked

Different clients have a different amount of documents.

Some clients have a massive stack of documents. Others have nothing. Still others have nothing when asked, but too late realize that they had documents, but lost the opportunity to provide them.

For purposes of attracting an attorney, it is good to identify certain specific documents, especially those that show Per Se liability, meaning documents that prove on the face that defendant is liable. Examples of those are a Traffic Collision Report that states the other driver caused the accident for violating a motor vehicle code or a Notice of Violation identifying a dangerous condition.

Other documents are better to identify by category, such as text messages or emails. Sometimes, the text messages or emails will contain “smoking gun,” evidence, meaning something that is really bad for the defendant.

More often than not, the text messages and emails contain circumstantial evidence that merely helps build a larger case.

As for documents, you can say you have certain categories of documents like emails, photos, text messages, and the like. If you understand the concept of Per Se, you may be well served to identify what small document you consider to prove liability. If there is one or two “smoking gun” type email or text messages, you may want to mention those.

Conversely, prospective clients can spend a lot of time talking about very minute details that do not serve to attract the client.

Keep it brief and to the point.

Also, don’t send a large quantity of unsolicited documents to the attorney if that attorney does not ask for those documents. It does not help get you representation.

Damages - Answer questions with specifics, identify but don’t send documents

Understanding a little legal jargon may help you.

Harm is what you suffer.

Damages is the amount of money necessary to compensate you for the harm that you have suffered.

A good attorney should know how to quantify the damages, based on information that you can reasonably provide. In landlord tenant, the damages are a function of rent. That means, when I know the rent paid, and some basic facts, I can estimate the range of damages and a mathematical formula for rent.

In landlord tenant, emotional distress damages may bot be very valuable, in my experience.

However, in other cases emotional distress can be very valuable. If you are in a case seeking emotional distress, evidence of that emotional distress is helpful. For example, going on a regular periodic basis to formal counselling of some sort, including that of a religious counsellor is helpful. Watch out, though, if you went to counselling or therapy before the incident that gave rise to the lawsuit, that could help support that the incident did not cause you emotional distress.

In any case, be ready to provide specifics as to how much money you paid on what dates caused by the incident.

Its great if you have documents. You might even tell the attorney that you have documents. I suggest that you do not offer to provide documents, unless asked. Attorneys are busy, if they aren’t interested in your case, they don’t want to deal with your documents.

Attorney Fees - not necessarily what you pay, the value of attorney’s time to successfully seek the damages

Attorney’s fees are among the most misunderstood concept in the law.

Most non-attorneys reasonably think that attorney’s fees refer to what the plaintiff must pay the attorney for the services.

That’s not quite accurate.

Most contingency cases are stated in terms of a percentage of the total remedy that the attorney achieves for the client.

However, by mutual agreement or by statute, sometimes a plaintiff is entitled to the value of the attorney’s time in getting the damages in addition to the damages that the attorney gets.

These laws can help a plaintiff, because those attorney fees are not what the client owes, but, what the court will award if the attorney prevails at trial.

Note, if these attorney fees are split, and how the attorney fees are split depend mostly on the private agreement between the attorney, and the client.

My client agreements state that those attorney fees are split in the same proportion as the other remedy. However, other agreements, and typically class action agreements give the attorney fees entirely to the attorney.

Be easy to get along with

Many plaintiffs are traumatized by their experience. Often with good cause.

However, a good attorney probably has dozens of clients with similarly harrowing experience. This is not to downplay the harm that you have suffered. The point is, the attorney needs facts, documents, dates, information.

In my experience, most questions that I ask of prospective clients get responses that amount to the prospective client expressing how traumatized they are by the harm. This does not help develop the facts, or frankly, attract me to represent that client,

Recap - Understand that contingency attorneys are seeking Per Se cases with high damages, and clients communicate accurately and concisely