CREATIVE LAWYERING
CREATIVE LAWYERING
Doing It Yourself
No law requires that you, as an individual, be represented
by a lawyer if you choose to represent yourself, in court or
out. (For a corporation, the situation is different, and in
general it is illegal for a non-lawyer to carry out the
functions of an attorney for another person.) Neither does any
law prohibit your cutting out your own appendix. But in both
law and surgery you will often find that you achieve a better
result if you rely on a person trained in the area.
Of course you would soon go broke if you consulted a
doctor about every minor ache, or a lawyer about the legal
aspects of everything you do. Become your own expert as well as
you can through reading about matters in which you are going to
become involved-- starting a business, getting a divorce, buying
a piece of real estate. Innumerable entities, governmental and
private, issue information on innumerable subjects. Public
libraries, governmental agencies of all levels, and the yellow
pages are good places to start. The fact that you are holding
this book in your hand shows that you are on exactly the right
track.
The forms and information included between these covers,
and the discussions on the tapes, provide you with the means of
carrying out, on your own, many of the procedures normally
conducted by lawyers. If you gather all the facts necessary to
your transaction, follow the checklists, use the proper
documents in the correct way, and get help from experts when
required (especially about local law and practices), you should
be able to successfully do a great many of the things which in
the past you would have paid a professional to do.
Obviously there are advantages in serving as your own
lawyer if you can do so competently. You save money, you feel
the satisfaction of doing the job yourself, and you are likely
to fare better in your dealings because you are a better
informed person than those who let others do their thinking.
Once informed of the complexities of various situations,
you will be less likely to leap before you look. At the very
least you should read carefully any paper you are asked to sign.
Be sure you understand everything in it. If something is not
there, in writing, signed by everyone involved, assume that it
is not promised by the agreement; no matter what anyone tells
you.
Don't be embarrassed to ask questions or to seek help.
Remember that there is nothing sacred about a printed form, and
that short of violating laws, the parties to an agreement (that
is, the persons participating in the agreement) can generally
put anything they want into their contract.
While in many situations oral (unwritten) agreements are
as binding as written agreements, and even a course of behavior
may be construed by a court as a binding agreement, there are
some situations in which agreements in writing are mandatory.
The latter vary from state to state, usually including
contracts involving larger sums of money and longer lengths of
time. (This is discussed under "CONTRACTS" in the section on
business law.) And once you put any contract (agreement) in
writing, anything left out of that writing which is on the
subject covered in the writing may not be enforceable even if
orally promised.
Your own judgment must be your guide in determining how
far you should go in handling your legal dealings with your
employer or your employees, with persons buying or selling
things or services, even with an angry spouse.
When you decide to sue someone, or are sued, things get
even more complicated. Of course there are courts such as Small
Claims Courts in which it is assumed that individuals will
normally represent themselves. In more complicated litigation
(lawsuits), the system works on the assumption that lawyers will
represent the parties involved, and it is very difficult for a
person to represent himself "pro se" without making about as
good a showing as an NFL tackle thrust on stage during the last
act of the Swan Lake ballet.
See the section, COURTS AND LAWSUITS.
Lawyers Have Limitations Too
Even though THE DESKTOP LAWYER will guide you through many
kinds of transactions, you will almost certainly need to turn to
a lawyer from time to time if you are actively involved in
business and investments. It is good to realize at the outset
that a degree in jurisprudence does not automatically bestow on
a human being the knowledge necessary to answer questions and
solve problems in all the vast mountain ranges of law.
No attorney knows even a major fraction of all the
statutes and rules placed on the books by federal, state and
local bodies--much less all the "case law" by which judges,
under the common law tradition, go beyond interpreting statutes
and get into the area of lawmaking themselves.
An attorney who has specialized in tax law might be lost
in a divorce court, while a trial lawyer might have to call on a
fellow attorney to write his will.
Nevertheless, all attorneys have gone through a very
thorough education in many different aspects of law. Even if
they don't know something, they know how to find it. More
importantly, the lawyer's training and experience enable him to
see a legal problem in the context of the innumerable factors
which may influence its solution...to see a multitude of
relations and consequences which might not occur to the layman
until brought to his attention by a sharp blow to the bank
account.
So:
1. Don't expect a lawyer to know everything. Do expect
him in many situations to need time for extensive
thought and research before coming up with answers to
your questions and solutions to your problems.
2. If your legal needs are varied, prefer a suitable law
firm to an individual who practices alone, or else
anticipate going to more than one law office in order
to satisfy your different needs.
Turn To a Lawyer In Time
Businessmen complain that if they consult a lawyer before
taking action, the lawyer will tell them all the things they
can't do. Lawyers, on the other hand, complain that clients all
too often come to them only after making costly mistakes that
could have been prevented by some expert planning, or even by a
little basic knowledge of the principles of law...the kind of
knowledge which you are gaining by studying this book.
The lesson is that you should not expect or allow a lawyer
to make personal or business decisions for you, but that you
should ask a lawyer to help you find the legally correct and
advantageous ways of carrying out your decisions, and that you
should ask before taking any action on your decision. Of course
the better informed you are about legal basics, the better you
can judge when you need to see your lawyer.
Talk to a lawyer before making an agreement or an offer
(written or spoken), before firing off an angry letter or
announcing an ultimatum, before undertaking anything which may
force you to do something in the future or land you in court.
The problem is that most people will not foresee all the
legal significance of what they do or don't do, especially since
law does not always conform with common sense. Which is why you
should talk to a lawyer while the skies are still sunny rather
than after the storm clouds gather and the rain starts to fall.
Dealing With a Lawyer
See the section, HOW TO SELECT A LAWYER, then read on.
When first speaking with an attorney, be sure that he
professes to be qualified in the area of your interest. A
lawyer cannot ethically represent a client unless he is
competent in the required area or can make himself competent
within a reasonable time without billing you for his education.
Of course the lawyer may collaborate with other lawyers in order
to serve you properly (this happens more or less automatically
in multi-lawyer firms), but you should be informed of this and
of any effects on fees.
Be sure at the beginning that you are clear about what you
will be asked to pay, and when. In many cases lawyers require
that clients pay something "up front." This is often called a
"retainer," and it serves as a fund from which the lawyer's fees
are drawn until the fund is exhausted, after which you may be
billed on an hourly basis. For some relatively predictable
services, a lawyer may quote you a fixed total fee.
In addition to the fee paid for the lawyer's time (usually
hourly, and including everything from research to court
appearances to writing letters to talking with you on the
phone), you may also be expected to pay for such things as
travel expenses, hotel bills, paralegal services (at a lower
rate than the lawyer's) and photocopying.
You definitely will be required to reimburse "costs" such
as court filing fees and the charges of reporting services
should such services be required.
An attorney may in rare circumstances be willing to
represent you on a contingent fee basis, which means that you
agree for him to keep a certain percentage of the money you
receive IF the attorney succeeds in getting the money for you.
If the attorney doesn't get the money for you, you don't pay him
for at least some of the costs. Here again, you and the lawyer
can agree, in advance, to whatever suits both of you. Just be
sure that you understand exactly what you are getting into. It
is the attorney's duty to explain fully. Where there is any
doubt, ask questions before agreeing and shop around if you
aren't satisfied with the answers.
Once a lawyer starts to work on a project for you, you
have a right to be kept informed of his progress, but remember
that he has other equally demanding clients...and also that he
charges for time spent on the telephone (usually by quarter of
an hour segments, so that a five minute call may be billed as
fifteen minutes). Keep in mind, too, that as a professional the
lawyer will use his own judgment, without consulting you, in
making certain decisions about how to achieve the goals you have
set for him.
On this same subject: While your ideas may be extremely
valuable to your lawyer, your primary job is to give him all the
facts and then let him go about his business. Clients who
repeatedly demand that their lawyers use this or that witness or
document, or who insist that their lawyers ask this or that
question of a witness, are all too often simply wasting time,
embarrassing their representative, and hurting their own cause.
Your suggestions should be welcome, but remember that the lawyer
is an independent professional.
Occasionally clients who lose lawsuits complain that their
lawyer has sold them out by conspiring with the judge and/or
opposing attorneys. This false impression comes from a lack of
understanding of the complex rules which govern legal
proceedings and the behavior of attorneys...and perhaps from the
cinematic notion that lawyers are to be seen attacking the
opposition with unbridled savagery. If you become truly
concerned about the way your legal matter is being mishandled,
ask for an explanation; you may learn that your lawyer has no
choice.
Above all else, be sure that you fully and accurately tell
your attorney about everything and everyone that may have any
relevance to your case or transaction. Be particularly open
about those embarrassing points you would rather conceal, or
those details which you fear might interfere with your aims if
known. Your lawyer is the one person who must know all the bad
as well as the good...and at the beginning, not when it's too
late to solve the problem.
Let your lawyer pretty up that skeleton from your closet;
don't try to pretty it up for him. If you fear that the lawyer
won't pursue your goals if he knows the truth, you just may be
right: He's doing you a favor by preventing your taking what he
knows to be a dead end street, or worse. If it is simply that
you fear revealing the information to anyone, remember, first,
that the lawyer has probably heard worse things, and, second,
that with very, very narrow exceptions a lawyer is prohibited by
the attorney-client privilege from repeating to anyone
confidential information which you give him.
What Lawyers Do
The lawyer is primarily a technician with expert knowledge
of the complex rules which govern the way our society operates.
It is not his job to tell you when or where to buy a home,
or whether you are wise to order a dozen new trucks for your
company at the top of an economic cycle, or whether Joe is a
better plumbing contractor than Bill.
The lawyer's job is to help you achieve your goals in a
lawful and appropriate way (or to tell you if they cannot be
achieved), to see that you go through proper procedures, and to
foresee the legal consequences of what you propose to do.
Where some transaction is involved, the main functions of a
lawyer are:
1. To model the transaction.
This means that the attorney devises the best means by
which you can get the results you want. For example,
should you incorporate or not? Should your contract
require a deposit in escrow? What provisions should
be made to protect your interests should you and your
partner have a falling out? What part should family
members play in your business in order to gain the
best overall tax benefits?
2. Provide for the mechanics of the transaction.
Having determined the best way in which to carry out
your wishes, the attorney looks into the details
necessary to accomplish the transaction. He has, of
course, researched the applicable laws and
regulations. He will do such things as consult
records in order to check title (legal ownership) to
property involved, determine what appears to be filed
with government, see that notice is given where
required, and arrange to have documents recorded.
3. Prepare the necessary documents.
It is a rare event in a lawyer's work which does not
require the creation of a document of some kind. At
the very least, putting things in writing reduces the
possibility of misunderstanding. In many cases, a
writing is required by law.
In any case, the lawyer spends a lot of time preparing
documents--ranging anywhere from just filling in a form to
composing a forty page contract. He will write or otherwise
prepare the documents needed to carry out your transaction, and
frequently you and others will be asked to read and sign such
documents.
Whether witnesses are required, or notarization, is
another thing the lawyer needs to know. The law is one area in
which attention to such details, and to refinements of working,
is absolutely necessary, and the success or failure or a great
enterprise may somehow hang on a small phrase fashioned by an
attorney late one afternoon in the quietness of his office.
So, in looking at the functions of a lawyer, do not be
impatient with what you may consider unnecessary research,
wordiness of documents, or "technicalities." These are involved
not because lawyers love them or have a masochistic desire to
endure tedious work, but instead because they are demanded by
the precise and complicated nature of law. Without such
precision and thoroughness in regulating and recording people's
dealings and promises, our civilization would collapse in a
maelstrom of quarrels and bloodshed. And speaking of bloodshed,
we should go on to those parts of lawyers' work which deal with
the righting of wrongs rather than with the structuring and
accomplishment of transactions. Criminal law deals with those
situations in which a government seeks to prosecute a person for
violating statutes which impose a criminal penalty. It is the
United States or the state ("the people") versus the Accused.
On one side are lawyers who work as prosecutors for the
government, while on the other side are defense attorneys who
represent the alleged criminal.
A discussion of the work of criminal lawyers is outside
the scope of this book. We will simply remark that there will
be no doubt in your mind if you ever need such a lawyer, and if
you do (which hopefully you never will), all those nasty cracks
you've heard about lawyers getting crooks off the hook will
sound a little less appealing than formerly. The primary goal
of everybody involved in the criminal justice system is to
guarantee that only the guilty are punished, but even the guilty
have a constitutional right to defend themselves, and it is the
criminal lawyer's job to see that his client's rights are not
violated, that all the legal requirements of prosecution are
satisfied, that the government (which is more or less immune
from punishment should it commit what amount to crimes against
citizens) does not overstep its bounds, and that any punishment
is not excessive.
(Incidentally, there are such things as "civil fines"
levied by government against violators of various statutes.
These are not criminal penalties. The money is the same, but
the name is nicer.)
Where people take legal action against one another to
correct wrongs, and the government is involved only as referee
in the person of a judge, we enter the field of civil
litigation.
Lawsuits are considered a socially desirable alternative
to fist fights and pistols. Even so, it is the nation's policy
to discourage excessive litigation, and one of a lawyer's first
jobs when informed of a dispute is to try to settle it without
resort to the courts. Your case must have true merit before it
results in litigation: There are harsh punishments for those
who bring groundless or frivolous lawsuits.
So, if you go to a lawyer and say that a van bashed your
fender, or that the builder put in the wrong kind of tile, or
that your customer won't pay his bill, the counselor's first
reaction after getting all the facts and studying the law may be
to suggest an effort at settlement -- by which he means that the
parties (you and the other side) voluntarily come to a
satisfactory agreement rather than having a court order the
results.
Sometimes the lawyer will feel that it is more effective
to file a suit before seeking settlement, sometimes not.
If settlement fails, and a lawsuit is filed, then your
lawyer will take your case through the court system and do his
best to see that the wrong done to you is remedied...usually by
the payment to you of money by the other party. See the section
of this book called COURTS AND LAWSUITS for procedures and
details on this subject, as well as such post-trial matters as
collection of judgments and appeals.
If you are sued (that is, if you are the defendant in a
civil suit rather than the plaintiff), you will receive a copy
of a summons and a complaint. These may be handed to you
directly or indirectly, or they may arrive in the mail. They
tell you that you are being sued, describe the claims the
plaintiff is making against you, and give you a certain amount
of time to respond with an answer. Unless you realistically feel
qualified to take the daring step of representing yourself and
writing and filing an answer to the complaint, you should go to
a lawyer IMMEDIATELY. There is no cause for panic, but the
worst course of action is to ignore such a summons or take it to
a lawyer a few days before the answer is due. The attorney
will need all the time allowed (and probably more) to gather
information and prepare a proper response.
In litigation as in carrying out transactions, the lawyer
must know all facts in any way related to the problem. Tell him
everything: Often what seems unimportant or even completely
irrelevant to you will turn out to be a crucial factor in your
case. It is one of the arts of the lawyer to recognize the
significance of facts in relation to the matter at hand, but he
is limited by the information you give him.
The lawyer in litigation must do research and must design
strategies in much the same way he does when modeling a
transaction.
He looks up and studies any relevant laws and commentaries
on those laws, finds and reads cases (decisions of appellate
courts) which discuss facts and legal principles pertinent to
your case, and refers to the lengthy rules of civil procedure
which strictly govern the confines of lawsuits.
He collects and reviews possible evidence in the form of
documents and other records, physical evidence if any (the
smashed fender), and pretrial testimony of people who can
provide useful facts.
He tries to be sure that the mechanics of the lawsuit are
carried out properly, wherever possible in ways advantageous to
you.
He writes documents: the complaint, or the answer to the
complaint; motions; interrogatories; proposed orders; letters to
opposing counsel.
He appears in court before trial to report to the judge on
the progress of the case or to argue in support of or in
opposition to motions. He meets with opposing counsel,
sometimes in the judge's chambers, to work out the guidelines
for efficient conduct of trial as required by the court.
And if there is no settlement of the matter, he will be
your spokesman at a trial in which both sides will present
facts, and a jury (sometimes just a judge) will decide what
remedy, if any, should be applied in order to do justice.
Again, if you feel that your attorney is being a little
too cooperative with judge and adversaries in the course of a
lawsuit, bear in mind that he is bound by many, many rules as
well as by certain traditions that have almost the force of law.
The client who thinks that his lawyer will score points by
sabotaging the rules of civil procedures or otherwise making
life miserable for judge and opposing counsel is terribly (and
usually expensively) mistaken. The entire proof of a legitimate
lawsuit is in the final outcome and not in colorful scenes and
histrionics along the way...no matter how angry the parties may
be at one another.
Following trial, an unsuccessful party may appeal to a
"higher" court to review and overturn or modify the judgment.
The attorney handling an appeal (he may be the same person who
represented you in the lawsuit, or he may be a different
attorney who specializes in such things) will collect and review
all the records of the litigation, do extensive further research
into relevant case law, and write a usually lengthy "brief" in
which he tells the appellate judges why they should decide that
the trial had a legally correct or incorrect outcome.
The appeal court may agree with what was done "below" or
it may, among other possibilities, order a whole new trial of
the matter, in which case your lawyer must take you through much
of the same process all over again, culminating in a trial
before a different jury but most likely the same judge as the
first time around.
We have looked at many of the things that lawyers do. Of
course lawyers variously dealing with the planning of an estate,
or a child custody matter, or a dispute over the sale of an
automobile are facing quite different challenges, but there are
many common elements in their tasks.
Legal Language
The language used in legal writing, and sometimes by
lawyers in their research, has been the butt of many jokes and
the source of a good deal of mystification, not to mention
aggravation.
Often convoluted and repetitious, sometimes containing
words that only lawyers readily recognize, sometimes using
common words in an uncommon sense, this legal language was not
deliberately designed (as some suspect) to intimidate the
layman. Like the multitude of intimidating terms used to name
the parts of a sailboat, the specialized language of law just
happened to develop that way, bringing along a cargo of terms
from ancient and foreign languages as well as from centuries of
British usage.
Actually, legal terminology and linguistic style is much
simpler than it used to be, and there is an effort to make legal
writing more easily understandable and to dispense with fancy
jargon when an ordinary word will do.
Still, in many cases legalese provides the only word
available. You will find a great many such terms when you deal
with property ownership and inheritance.
Lawyers also find it necessary to use a wider range of
terminology than is used in everyday life because lawyers must
have words to describe finer graduations of meaning and of
distinctions between things than is necessary in everyday life.
This book includes a GLOSSARY OF LEGAL TERMS. Black's LAW
DICTIONARY is the best known compendium of definitions. When
talking to your lawyer, ask for explanations. Don't tolerate
obscurantism, and if representing yourself don't cultivate
legalisms for the sake of show, but realize that a fair amount
of specialized language is unavoidable...and would be born again
in a different form even if you reinvented the whole system
tomorrow.
Summary
Some of your lawyer's obligations to you:
1. To reveal his level of competence in the areas in
which you require legal services.
2. To inform you about fees and costs at the outset.
3. To refuse any representation which may create a
conflict of interest on the lawyer's part.
4. To become fully informed about the relevant facts and
legal principles.
5. To comply with laws and rules.
6. To act with proper speed and to meet deadlines.
7. To keep you reasonably informed of the progress of your
matter.
8. To observe attorney-client confidentiality.
9. To act in your own best interests, within the bounds of
law, at all times.
Some of your obligations to your attorney:
1. To keep records in any situation which may result in
your needing a lawyer, and take those records to the
lawyer.
2. To tell the lawyer everything about the situation and
then some. Let his questions guide you even into areas
you think unimportant. Give him names, addresses, and
phone numbers of everyone who knows anything about the
matter.
3. To reveal to the lawyer what you consider your weak
points as well as your strong points as regards the
matter at hand.
4. To question the lawyer, before he starts work, about
fees and costs and methods of payment.
5. To follow the lawyer's advice about how to conduct
yourself in all aspects of the matter.
6. To let your lawyer be your spokesman: In litigation,
do not communicate independently with opposing
lawyers, parties, or witnesses. In transactions, do
not get into discussions, or make offers, or agree to
anything without your lawyer's knowledge and approval.
Refer all questioners to your lawyer.
7. To let the attorney do his work for you in accordance
with his own professional judgment.
8. To avoid prodding your lawyer unnecessarily.
9. To inform him of any changed circumstances which may
have an effect on the matter he is handling.
10. To pay your bills on time.
Doing It Yourself
No law requires that you, as an individual, be represented
by a lawyer if you choose to represent yourself, in court or
out. (For a corporation, the situation is different, and in
general it is illegal for a non-lawyer to carry out the
functions of an attorney for another person.) Neither does any
law prohibit your cutting out your own appendix. But in both
law and surgery you will often find that you achieve a better
result if you rely on a person trained in the area.
Of course you would soon go broke if you consulted a
doctor about every minor ache, or a lawyer about the legal
aspects of everything you do. Become your own expert as well as
you can through reading about matters in which you are going to
become involved-- starting a business, getting a divorce, buying
a piece of real estate. Innumerable entities, governmental and
private, issue information on innumerable subjects. Public
libraries, governmental agencies of all levels, and the yellow
pages are good places to start. The fact that you are holding
this book in your hand shows that you are on exactly the right
track.
The forms and information included between these covers,
and the discussions on the tapes, provide you with the means of
carrying out, on your own, many of the procedures normally
conducted by lawyers. If you gather all the facts necessary to
your transaction, follow the checklists, use the proper
documents in the correct way, and get help from experts when
required (especially about local law and practices), you should
be able to successfully do a great many of the things which in
the past you would have paid a professional to do.
Obviously there are advantages in serving as your own
lawyer if you can do so competently. You save money, you feel
the satisfaction of doing the job yourself, and you are likely
to fare better in your dealings because you are a better
informed person than those who let others do their thinking.
Once informed of the complexities of various situations,
you will be less likely to leap before you look. At the very
least you should read carefully any paper you are asked to sign.
Be sure you understand everything in it. If something is not
there, in writing, signed by everyone involved, assume that it
is not promised by the agreement; no matter what anyone tells
you.
Don't be embarrassed to ask questions or to seek help.
Remember that there is nothing sacred about a printed form, and
that short of violating laws, the parties to an agreement (that
is, the persons participating in the agreement) can generally
put anything they want into their contract.
While in many situations oral (unwritten) agreements are
as binding as written agreements, and even a course of behavior
may be construed by a court as a binding agreement, there are
some situations in which agreements in writing are mandatory.
The latter vary from state to state, usually including
contracts involving larger sums of money and longer lengths of
time. (This is discussed under "CONTRACTS" in the section on
business law.) And once you put any contract (agreement) in
writing, anything left out of that writing which is on the
subject covered in the writing may not be enforceable even if
orally promised.
Your own judgment must be your guide in determining how
far you should go in handling your legal dealings with your
employer or your employees, with persons buying or selling
things or services, even with an angry spouse.
When you decide to sue someone, or are sued, things get
even more complicated. Of course there are courts such as Small
Claims Courts in which it is assumed that individuals will
normally represent themselves. In more complicated litigation
(lawsuits), the system works on the assumption that lawyers will
represent the parties involved, and it is very difficult for a
person to represent himself "pro se" without making about as
good a showing as an NFL tackle thrust on stage during the last
act of the Swan Lake ballet.
See the section, COURTS AND LAWSUITS.
Lawyers Have Limitations Too
Even though THE DESKTOP LAWYER will guide you through many
kinds of transactions, you will almost certainly need to turn to
a lawyer from time to time if you are actively involved in
business and investments. It is good to realize at the outset
that a degree in jurisprudence does not automatically bestow on
a human being the knowledge necessary to answer questions and
solve problems in all the vast mountain ranges of law.
No attorney knows even a major fraction of all the
statutes and rules placed on the books by federal, state and
local bodies--much less all the "case law" by which judges,
under the common law tradition, go beyond interpreting statutes
and get into the area of lawmaking themselves.
An attorney who has specialized in tax law might be lost
in a divorce court, while a trial lawyer might have to call on a
fellow attorney to write his will.
Nevertheless, all attorneys have gone through a very
thorough education in many different aspects of law. Even if
they don't know something, they know how to find it. More
importantly, the lawyer's training and experience enable him to
see a legal problem in the context of the innumerable factors
which may influence its solution...to see a multitude of
relations and consequences which might not occur to the layman
until brought to his attention by a sharp blow to the bank
account.
So:
1. Don't expect a lawyer to know everything. Do expect
him in many situations to need time for extensive
thought and research before coming up with answers to
your questions and solutions to your problems.
2. If your legal needs are varied, prefer a suitable law
firm to an individual who practices alone, or else
anticipate going to more than one law office in order
to satisfy your different needs.
Turn To a Lawyer In Time
Businessmen complain that if they consult a lawyer before
taking action, the lawyer will tell them all the things they
can't do. Lawyers, on the other hand, complain that clients all
too often come to them only after making costly mistakes that
could have been prevented by some expert planning, or even by a
little basic knowledge of the principles of law...the kind of
knowledge which you are gaining by studying this book.
The lesson is that you should not expect or allow a lawyer
to make personal or business decisions for you, but that you
should ask a lawyer to help you find the legally correct and
advantageous ways of carrying out your decisions, and that you
should ask before taking any action on your decision. Of course
the better informed you are about legal basics, the better you
can judge when you need to see your lawyer.
Talk to a lawyer before making an agreement or an offer
(written or spoken), before firing off an angry letter or
announcing an ultimatum, before undertaking anything which may
force you to do something in the future or land you in court.
The problem is that most people will not foresee all the
legal significance of what they do or don't do, especially since
law does not always conform with common sense. Which is why you
should talk to a lawyer while the skies are still sunny rather
than after the storm clouds gather and the rain starts to fall.
Dealing With a Lawyer
See the section, HOW TO SELECT A LAWYER, then read on.
When first speaking with an attorney, be sure that he
professes to be qualified in the area of your interest. A
lawyer cannot ethically represent a client unless he is
competent in the required area or can make himself competent
within a reasonable time without billing you for his education.
Of course the lawyer may collaborate with other lawyers in order
to serve you properly (this happens more or less automatically
in multi-lawyer firms), but you should be informed of this and
of any effects on fees.
Be sure at the beginning that you are clear about what you
will be asked to pay, and when. In many cases lawyers require
that clients pay something "up front." This is often called a
"retainer," and it serves as a fund from which the lawyer's fees
are drawn until the fund is exhausted, after which you may be
billed on an hourly basis. For some relatively predictable
services, a lawyer may quote you a fixed total fee.
In addition to the fee paid for the lawyer's time (usually
hourly, and including everything from research to court
appearances to writing letters to talking with you on the
phone), you may also be expected to pay for such things as
travel expenses, hotel bills, paralegal services (at a lower
rate than the lawyer's) and photocopying.
You definitely will be required to reimburse "costs" such
as court filing fees and the charges of reporting services
should such services be required.
An attorney may in rare circumstances be willing to
represent you on a contingent fee basis, which means that you
agree for him to keep a certain percentage of the money you
receive IF the attorney succeeds in getting the money for you.
If the attorney doesn't get the money for you, you don't pay him
for at least some of the costs. Here again, you and the lawyer
can agree, in advance, to whatever suits both of you. Just be
sure that you understand exactly what you are getting into. It
is the attorney's duty to explain fully. Where there is any
doubt, ask questions before agreeing and shop around if you
aren't satisfied with the answers.
Once a lawyer starts to work on a project for you, you
have a right to be kept informed of his progress, but remember
that he has other equally demanding clients...and also that he
charges for time spent on the telephone (usually by quarter of
an hour segments, so that a five minute call may be billed as
fifteen minutes). Keep in mind, too, that as a professional the
lawyer will use his own judgment, without consulting you, in
making certain decisions about how to achieve the goals you have
set for him.
On this same subject: While your ideas may be extremely
valuable to your lawyer, your primary job is to give him all the
facts and then let him go about his business. Clients who
repeatedly demand that their lawyers use this or that witness or
document, or who insist that their lawyers ask this or that
question of a witness, are all too often simply wasting time,
embarrassing their representative, and hurting their own cause.
Your suggestions should be welcome, but remember that the lawyer
is an independent professional.
Occasionally clients who lose lawsuits complain that their
lawyer has sold them out by conspiring with the judge and/or
opposing attorneys. This false impression comes from a lack of
understanding of the complex rules which govern legal
proceedings and the behavior of attorneys...and perhaps from the
cinematic notion that lawyers are to be seen attacking the
opposition with unbridled savagery. If you become truly
concerned about the way your legal matter is being mishandled,
ask for an explanation; you may learn that your lawyer has no
choice.
Above all else, be sure that you fully and accurately tell
your attorney about everything and everyone that may have any
relevance to your case or transaction. Be particularly open
about those embarrassing points you would rather conceal, or
those details which you fear might interfere with your aims if
known. Your lawyer is the one person who must know all the bad
as well as the good...and at the beginning, not when it's too
late to solve the problem.
Let your lawyer pretty up that skeleton from your closet;
don't try to pretty it up for him. If you fear that the lawyer
won't pursue your goals if he knows the truth, you just may be
right: He's doing you a favor by preventing your taking what he
knows to be a dead end street, or worse. If it is simply that
you fear revealing the information to anyone, remember, first,
that the lawyer has probably heard worse things, and, second,
that with very, very narrow exceptions a lawyer is prohibited by
the attorney-client privilege from repeating to anyone
confidential information which you give him.
What Lawyers Do
The lawyer is primarily a technician with expert knowledge
of the complex rules which govern the way our society operates.
It is not his job to tell you when or where to buy a home,
or whether you are wise to order a dozen new trucks for your
company at the top of an economic cycle, or whether Joe is a
better plumbing contractor than Bill.
The lawyer's job is to help you achieve your goals in a
lawful and appropriate way (or to tell you if they cannot be
achieved), to see that you go through proper procedures, and to
foresee the legal consequences of what you propose to do.
Where some transaction is involved, the main functions of a
lawyer are:
1. To model the transaction.
This means that the attorney devises the best means by
which you can get the results you want. For example,
should you incorporate or not? Should your contract
require a deposit in escrow? What provisions should
be made to protect your interests should you and your
partner have a falling out? What part should family
members play in your business in order to gain the
best overall tax benefits?
2. Provide for the mechanics of the transaction.
Having determined the best way in which to carry out
your wishes, the attorney looks into the details
necessary to accomplish the transaction. He has, of
course, researched the applicable laws and
regulations. He will do such things as consult
records in order to check title (legal ownership) to
property involved, determine what appears to be filed
with government, see that notice is given where
required, and arrange to have documents recorded.
3. Prepare the necessary documents.
It is a rare event in a lawyer's work which does not
require the creation of a document of some kind. At
the very least, putting things in writing reduces the
possibility of misunderstanding. In many cases, a
writing is required by law.
In any case, the lawyer spends a lot of time preparing
documents--ranging anywhere from just filling in a form to
composing a forty page contract. He will write or otherwise
prepare the documents needed to carry out your transaction, and
frequently you and others will be asked to read and sign such
documents.
Whether witnesses are required, or notarization, is
another thing the lawyer needs to know. The law is one area in
which attention to such details, and to refinements of working,
is absolutely necessary, and the success or failure or a great
enterprise may somehow hang on a small phrase fashioned by an
attorney late one afternoon in the quietness of his office.
So, in looking at the functions of a lawyer, do not be
impatient with what you may consider unnecessary research,
wordiness of documents, or "technicalities." These are involved
not because lawyers love them or have a masochistic desire to
endure tedious work, but instead because they are demanded by
the precise and complicated nature of law. Without such
precision and thoroughness in regulating and recording people's
dealings and promises, our civilization would collapse in a
maelstrom of quarrels and bloodshed. And speaking of bloodshed,
we should go on to those parts of lawyers' work which deal with
the righting of wrongs rather than with the structuring and
accomplishment of transactions. Criminal law deals with those
situations in which a government seeks to prosecute a person for
violating statutes which impose a criminal penalty. It is the
United States or the state ("the people") versus the Accused.
On one side are lawyers who work as prosecutors for the
government, while on the other side are defense attorneys who
represent the alleged criminal.
A discussion of the work of criminal lawyers is outside
the scope of this book. We will simply remark that there will
be no doubt in your mind if you ever need such a lawyer, and if
you do (which hopefully you never will), all those nasty cracks
you've heard about lawyers getting crooks off the hook will
sound a little less appealing than formerly. The primary goal
of everybody involved in the criminal justice system is to
guarantee that only the guilty are punished, but even the guilty
have a constitutional right to defend themselves, and it is the
criminal lawyer's job to see that his client's rights are not
violated, that all the legal requirements of prosecution are
satisfied, that the government (which is more or less immune
from punishment should it commit what amount to crimes against
citizens) does not overstep its bounds, and that any punishment
is not excessive.
(Incidentally, there are such things as "civil fines"
levied by government against violators of various statutes.
These are not criminal penalties. The money is the same, but
the name is nicer.)
Where people take legal action against one another to
correct wrongs, and the government is involved only as referee
in the person of a judge, we enter the field of civil
litigation.
Lawsuits are considered a socially desirable alternative
to fist fights and pistols. Even so, it is the nation's policy
to discourage excessive litigation, and one of a lawyer's first
jobs when informed of a dispute is to try to settle it without
resort to the courts. Your case must have true merit before it
results in litigation: There are harsh punishments for those
who bring groundless or frivolous lawsuits.
So, if you go to a lawyer and say that a van bashed your
fender, or that the builder put in the wrong kind of tile, or
that your customer won't pay his bill, the counselor's first
reaction after getting all the facts and studying the law may be
to suggest an effort at settlement -- by which he means that the
parties (you and the other side) voluntarily come to a
satisfactory agreement rather than having a court order the
results.
Sometimes the lawyer will feel that it is more effective
to file a suit before seeking settlement, sometimes not.
If settlement fails, and a lawsuit is filed, then your
lawyer will take your case through the court system and do his
best to see that the wrong done to you is remedied...usually by
the payment to you of money by the other party. See the section
of this book called COURTS AND LAWSUITS for procedures and
details on this subject, as well as such post-trial matters as
collection of judgments and appeals.
If you are sued (that is, if you are the defendant in a
civil suit rather than the plaintiff), you will receive a copy
of a summons and a complaint. These may be handed to you
directly or indirectly, or they may arrive in the mail. They
tell you that you are being sued, describe the claims the
plaintiff is making against you, and give you a certain amount
of time to respond with an answer. Unless you realistically feel
qualified to take the daring step of representing yourself and
writing and filing an answer to the complaint, you should go to
a lawyer IMMEDIATELY. There is no cause for panic, but the
worst course of action is to ignore such a summons or take it to
a lawyer a few days before the answer is due. The attorney
will need all the time allowed (and probably more) to gather
information and prepare a proper response.
In litigation as in carrying out transactions, the lawyer
must know all facts in any way related to the problem. Tell him
everything: Often what seems unimportant or even completely
irrelevant to you will turn out to be a crucial factor in your
case. It is one of the arts of the lawyer to recognize the
significance of facts in relation to the matter at hand, but he
is limited by the information you give him.
The lawyer in litigation must do research and must design
strategies in much the same way he does when modeling a
transaction.
He looks up and studies any relevant laws and commentaries
on those laws, finds and reads cases (decisions of appellate
courts) which discuss facts and legal principles pertinent to
your case, and refers to the lengthy rules of civil procedure
which strictly govern the confines of lawsuits.
He collects and reviews possible evidence in the form of
documents and other records, physical evidence if any (the
smashed fender), and pretrial testimony of people who can
provide useful facts.
He tries to be sure that the mechanics of the lawsuit are
carried out properly, wherever possible in ways advantageous to
you.
He writes documents: the complaint, or the answer to the
complaint; motions; interrogatories; proposed orders; letters to
opposing counsel.
He appears in court before trial to report to the judge on
the progress of the case or to argue in support of or in
opposition to motions. He meets with opposing counsel,
sometimes in the judge's chambers, to work out the guidelines
for efficient conduct of trial as required by the court.
And if there is no settlement of the matter, he will be
your spokesman at a trial in which both sides will present
facts, and a jury (sometimes just a judge) will decide what
remedy, if any, should be applied in order to do justice.
Again, if you feel that your attorney is being a little
too cooperative with judge and adversaries in the course of a
lawsuit, bear in mind that he is bound by many, many rules as
well as by certain traditions that have almost the force of law.
The client who thinks that his lawyer will score points by
sabotaging the rules of civil procedures or otherwise making
life miserable for judge and opposing counsel is terribly (and
usually expensively) mistaken. The entire proof of a legitimate
lawsuit is in the final outcome and not in colorful scenes and
histrionics along the way...no matter how angry the parties may
be at one another.
Following trial, an unsuccessful party may appeal to a
"higher" court to review and overturn or modify the judgment.
The attorney handling an appeal (he may be the same person who
represented you in the lawsuit, or he may be a different
attorney who specializes in such things) will collect and review
all the records of the litigation, do extensive further research
into relevant case law, and write a usually lengthy "brief" in
which he tells the appellate judges why they should decide that
the trial had a legally correct or incorrect outcome.
The appeal court may agree with what was done "below" or
it may, among other possibilities, order a whole new trial of
the matter, in which case your lawyer must take you through much
of the same process all over again, culminating in a trial
before a different jury but most likely the same judge as the
first time around.
We have looked at many of the things that lawyers do. Of
course lawyers variously dealing with the planning of an estate,
or a child custody matter, or a dispute over the sale of an
automobile are facing quite different challenges, but there are
many common elements in their tasks.
Legal Language
The language used in legal writing, and sometimes by
lawyers in their research, has been the butt of many jokes and
the source of a good deal of mystification, not to mention
aggravation.
Often convoluted and repetitious, sometimes containing
words that only lawyers readily recognize, sometimes using
common words in an uncommon sense, this legal language was not
deliberately designed (as some suspect) to intimidate the
layman. Like the multitude of intimidating terms used to name
the parts of a sailboat, the specialized language of law just
happened to develop that way, bringing along a cargo of terms
from ancient and foreign languages as well as from centuries of
British usage.
Actually, legal terminology and linguistic style is much
simpler than it used to be, and there is an effort to make legal
writing more easily understandable and to dispense with fancy
jargon when an ordinary word will do.
Still, in many cases legalese provides the only word
available. You will find a great many such terms when you deal
with property ownership and inheritance.
Lawyers also find it necessary to use a wider range of
terminology than is used in everyday life because lawyers must
have words to describe finer graduations of meaning and of
distinctions between things than is necessary in everyday life.
This book includes a GLOSSARY OF LEGAL TERMS. Black's LAW
DICTIONARY is the best known compendium of definitions. When
talking to your lawyer, ask for explanations. Don't tolerate
obscurantism, and if representing yourself don't cultivate
legalisms for the sake of show, but realize that a fair amount
of specialized language is unavoidable...and would be born again
in a different form even if you reinvented the whole system
tomorrow.
Summary
Some of your lawyer's obligations to you:
1. To reveal his level of competence in the areas in
which you require legal services.
2. To inform you about fees and costs at the outset.
3. To refuse any representation which may create a
conflict of interest on the lawyer's part.
4. To become fully informed about the relevant facts and
legal principles.
5. To comply with laws and rules.
6. To act with proper speed and to meet deadlines.
7. To keep you reasonably informed of the progress of your
matter.
8. To observe attorney-client confidentiality.
9. To act in your own best interests, within the bounds of
law, at all times.
Some of your obligations to your attorney:
1. To keep records in any situation which may result in
your needing a lawyer, and take those records to the
lawyer.
2. To tell the lawyer everything about the situation and
then some. Let his questions guide you even into areas
you think unimportant. Give him names, addresses, and
phone numbers of everyone who knows anything about the
matter.
3. To reveal to the lawyer what you consider your weak
points as well as your strong points as regards the
matter at hand.
4. To question the lawyer, before he starts work, about
fees and costs and methods of payment.
5. To follow the lawyer's advice about how to conduct
yourself in all aspects of the matter.
6. To let your lawyer be your spokesman: In litigation,
do not communicate independently with opposing
lawyers, parties, or witnesses. In transactions, do
not get into discussions, or make offers, or agree to
anything without your lawyer's knowledge and approval.
Refer all questioners to your lawyer.
7. To let the attorney do his work for you in accordance
with his own professional judgment.
8. To avoid prodding your lawyer unnecessarily.
9. To inform him of any changed circumstances which may
have an effect on the matter he is handling.
10. To pay your bills on time.
Comments
Post a Comment