Choosing a lawyer is one of the most important decisions you may ever be forced to make. No really, I’m serious. It’s probably not something you’ve spent a lot of time thinking about, but the minute that you realize that you need a lawyer, chances are very good that something dramatically bad has happened and you are in dire need of help. Who you pick will have big impact on how your life goes from that point forward. I once had a very organized client send me a list of questions that I thought was very thorough and insightful. So, here the questions are, along with my answers to them.

1. How many years have you been practicing law?

I received my law degree in 1997, so as of this writing, almost 13 years.

2. What types of cases do you usually take on and what types of cases do you feel most passionate about?

I am primarily a litigator. That means I go to court and argue on people’s behalf, write briefs and motions, take depositions, interview witnesses, and put together cases to try to a jury. Litigation can take many forms, from criminal litigation to divorce and family law to bankruptcy. Litigation can happen in Federal Court and State Court and Municipal Court. I am comfortable in all of these venues. As for what I feel most passionate about, that’s a tougher question. What I really enjoy is helping people, so whether it’s a run of the mill case that I’ve handled a hundred times before, or an intricate, complex civil suit that presents a host of new issues, if I feel like I’m really able to help a person, that’s what makes me smile.

3. What percentage of your cases have settled out of court and what percentage have gone to trial?

Most cases settle out of court. That’s just a fact of life. If every case went to trial, we’d need a thousand times more courts than we have now. I would, however, characterize myself as an active litigator, meaning I’m not afraid of the court room and in fact feel some kind of exhilaration in going to court and making my case. I enjoy the courtroom the way I think some people enjoy bungee jumping. To me, it’s a huge rush. So, if I have a client that wants to go to trial, I am more than happy to accommodate. That being said, I will always advise my client on the options available to them, through settlement or trial. Sometimes a person wants to go to trial, but the better course is a favorable settlement. Ultimately I leave it up to my client, but I’ll make sure my client is informed.

4. Do you prefer to negotiate and settle or fight it out in court?

In a word, yes. In every case I do all of these things. I always negotiate the best possible settlement that I can get the other side to offer, and if it isn’t good enough I fight the case in court. I don’t look at negotiating and fighting as opposites. I see negotiation as the first step for fighting it out in court. The two proceed together, and if you can’t reach the settlement you want, you simply go to court.

5. Will you represent me if I deicide to appeal the trial court’s ruling?

Absolutely, unless you decide to hire someone else. I am as comfortable and skilled in the appellate courts as I am in the trial court. I’ve handled several appellate cases and won some fairly major ones. I feel that my clients get a cost savings when they appeal through me because I’m already familiar with the case and the issues involved. There are reasons why you might need to switch lawyers for an appeal, and I always provide that information before they decide to appeal with me.

6. What expertise can you bring to my case?

I’ve spent my entire legal career focusing on the art of litigation. I’ve spent years as a criminal defense attorney. I’ve worked in a giant civil litigation law firm. I spent a few years specializing in only complex and unusual litigation cases. My expertise is in the elaborate chess game that is a court case. Starting from the initial and strategizing, all the way through negotiation, argument, motions, and eventually trial, I’ve spent my career learning to be adept at posturing a court case for maximum benefit to my client.

7. Will you personally handling my case?

As of right now, yes I will. If you hire me, you’ll get me. I do have assistants and paralegals who also may work on your case, but I supervise everything that goes on in my office. Our office is in a growth period right now, and it is possible that other lawyers may come to have primary responsibility for some cases, but it is my ongoing commitment to my clients to personally supervise everything that goes on.

8. Do you truly have the time to take on my case and give it your full attention?

I don’t take on a case unless I have the time to devote to it. This would be a good time to point out that there’s another question lurking within this one. The only thing a lawyer has to sell is his time, so it is also true that how much time a lawyer has to spend on a case may depend somewhat on how much money a client wishes to spend on the lawyer. In an ideal world – think O.J.’s $14 million defense – a single client can keep an entire law firm busy for 3 years without needing a single other client. O.J. absolutely got the undivided attention of his lawyers. Most people, though, have to share their lawyers with others. I always try to ask my clients what their budget is and then I try to explain to them how much legal work they can get with that budget. I work out with my clients a plan of action that fits within their budget and maximizes their goals.

9. How will we meet from time to time?

I’m willing to meet with clients in almost any fashion that they are comfortable with. I’m happy to have client’s sit with me in my office. But I’m equally willing to consult over the phone or e-mail. I even have a Facebook account for my clients and we can send private e-mails there.

10. When can I next expect to hear from you and how will you update me about my case? What is your preferred method of communication?

Court cases don’t happen along a set schedule. Sometimes things happen very quickly, and other times a couple of months can go by where nothing happens. As a general rule, anytime something even marginally significant happens, I will let you know. This is particularly true if you have an e-mail account so that I can jot off a quick note to you. I will also copy you on all but the most insignificant documents in your case, particularly if you’re able to accept them as a scanned e-mail. One of the important lessons that I learned in law school was that the chief complaint people have about their lawyers is lack of communication. I’ve always made it my policy to avoid that trap.

11. How can I contact you when I have questions or concerns or emergencies?

I’m happy to receive your phone call or your e-mail or your Facebook message. I give my clients my cell phone. The only limit I set on communication is that I don’t answer the phone when I’m sleeping. I will however return your call promptly, usually within 24 hours, although sometimes I am exceptionally busy and it takes longer.

12. May I request copies of all correspondence you send or receive on my behalf? Will you automatically send correspondence to me? Electronically or through traditional mail?

The answer is yes, if you request all copies of correspondence sent and received you will get them. Obviously, however, the more you ask of a lawyer, the more expense you will incur. As a general rule (and usually at no charge) I will send along any correspondence I feel is significant or important to my clients. If my clients are willing to accept those electronically, I prefer to send it that way because it’s instantaneous.

13. What do you expect of me as your client?

This is maybe the best question anyone’s ever asked. How you interact with your lawyer can have a big impact on how your case turns out. I prefer my clients to be honest with me about their goals and about the facts of their case. It’s helpful if the client is realistic about what’s possible and also self-aware about their own foibles. Patience is a virtue and I always appreciate clients that understand that legal action takes time. Trust is also important, although I don’t expect it to be given without being earned. A lot of times things happen quickly in a legal case and there isn’t time to full, consult with one’s client before action has to be taken. I need my clients to trust in my skill and judgment and to believe that I understand what they need, so that if I have to do something quickly for them they can feel okay with that.

14. What can I expect from you as my attorney?

I care a whole lot about doing a good job. I can’t promise perfect results, nor can I guarantee you’ll get exactly what you’re hoping for. But you can expect me to get the very best that I can give. It is my personal philosophy to listen closely to what my client’s goals are and to try to accomplish those goals. I like to do legal research, so I work pretty hard to uncover any possible avenues of success that might be available in any case. I treat each case as unique and I will custom design the strategy for each and every one. You can expect me to be available to answer your questions, particularly if you use e-mail. You can expect me to be on your side, because that’s my job.

15. Do you work on retainer? Is there an hourly rate? What happens when my retainer runs out?

There are a number of different ways that lawyers accept fees. For some services lawyers will charge flat fees. For others they bill by the hour. I am open to structuring a fee agreement to meet my client’s needs. I will usually inquire of my client what their budget is and try to come up with a litigation plan that fits within their budget. In some of my cases, I work on an hourly basis. In others I work on a single fee basis. Every case is different, and some cases I can’t do on a flat fee basis, and some cases aren’t appropriate for an hourly billing. But I’m willing to talk to my clients about what their needs are and what their budget is and try to work out an arrangement if there’s any way at all to do it.

16. What hourly rate will you charge when I call or e-mail with your staff? Are there any hidden costs I should be aware of such as filing fees or additional costs related to photo copies or travel?

You can speak to my staff for free. The only exception would be if you were working on something with a paralegal. You might incur paralegal billing for that. I don’t charge for photo copies unless I have to send the document out to Kinko’s, and then I just bill you what Kinko’s bills me. Some cases do have filing fees and I would pass those along.

As for travel, as I mentioned before, all a lawyer has to sell is his time, and time spent traveling on one person’s case is often time that can’t be spent on other cases. That being said, I do have a personal philosophy of trying to take other work with me when I’m traveling. For example, if I have to drive an hour to a court hearing, I will take my Dictaphone and attempt to dictate letters and memos while I’m driving so that I don’t have to bill the entire travel time to one client but can use the time productively. Also, it is my general practice not to bill people for short e-mails or phone calls, for example if someone is asking a simple question about when their next court date is or if a document is done yet. If a phone call or e-mail becomes substantive and I have to think about the response then I would bill for that.

17. Can I have a payment plan?

Yes and no. I like to work with people as much as possible to help them afford the work I do, but it’s important to understand that very often a legal case will wrap up quickly, with significant effort, before even a few payments are made. I hate to have to say this, but a lot of people will default on payments under those circumstances. It’s not like buying a car where the car company can repossess the vehicle. Once the work is done, it’s done, and if the client then doesn’t pay, there’s very little a lawyer can do about it. So, I try to balance the situation. What I typically ask for is a significant amount of retainer up front, although I do not necessarily require a deposit sufficient to cover the entire case. Once the deposit is made, I will then allow the person to make payments. I try to structure the payment plan so that it coincides with the anticipated work in the case. In other words, so the fee is paid by the time the case is done. In other situations, where the legal work is not urgent, I may ask a person to make payments until a sufficient retainer is posted, and then proceed with the work. The most important thing to take away is that I will try to work with people, as long as people try to work with me.

If you have any additional questions, please post them on this blog and I will try to answer them.

Chris

BadgerLawyer is starting a radio ad campaign on 95.7, The Rock. Yeah, that’s the music I listened to back when I was doing pipeline construction down in Georgia in the ’80′s. Have a listen!

“Statute of Limitations” is a fancy word for deadline. It is the time limit on when you have to file a lawsuit following being harmed by another person’s conduct.  Here are some of Wisconsin’s more common statutes of limitations. There are more — I have a 600 page book of them!

contracts

6 years

defamation

2 years

fraud

6 years

injury to personal property

6 years

intentional torts

2 years

libel

2 years

medical malpractice actions

3 years from date of injury

medical malpractice action based on insertion of foreign object

1 year after discovery of object

minors

2 years after date of 18th birthday

negligence causing personal injury

3 years from date of discovery

open account for debt collection

6 years

oral agreements

6 years

personal injury

3 years

product liability

3 years

promissory notes

10 years

slander

2 years

written contract

6 years

wrongful death

3 years from date of death

August 25, 2009 – La Crosse County. Today Badger Lawyer defended a client charged with felony substantial battery and disorderly conduct arising out of a domestic situation. The significant facts were that both the defendant and the alleged victim had been drinking, and the alleged victim drank until she blacked out. There were a number of evidentiary issues including hotly contested hearsay issues, issues with chemical testing, and how to judge the credibility of the witnesses. A SANE nurse testified and was cross examined by Attorney Doerfler. The jury deliberated about 15 minutes and returned not guilty verdicts on both counts.

A common misconception about the law is that it’s pretty simple. People think that when they have disputes, courts are there to hand down the fair and right answer. Unfortunately, that is far from the truth. Achieving a fair resolution in a legal battle is a lot more complicated than that. The reason brings me to the difference between procedure and substance.

All lawyers learn in law school the difference between procedural law and substantive law. Put simply, substantive law is about the substance of your case: the facts, the dispute, the “why” you believe you deserve to win. When most non-lawyers think about a legal case, they only think about the substance.

Procedural law, on the other hand, is what non-lawyers often call “technicalities”. Procedural law is the millions of rules that govern how a case can be presented to a court. Some of these rules are very important and make a lot of sense, others not so much. For example, one very important procedural rule is based on the 4th Amendment of the United States Constitution. That rule says that if evidence against you was gathered illegally by the police, then that evidence cannot be used at trial to prove your guilt. When you hear in the newspaper that a “criminal” got off on a “technicality”, very often that technicality is the most important legal document in the United States.

On the other end of the scale, there are procedural rules that seem patently unfair and counterintuitive. For example, if you are injured by the action of a government entity, in most cases, you must file a document called a Notice of Claim with that entity within 120 days of the date of your injury. If you don’t make that deadline, and if your Notice of Claim document itself doesn’t comply with the myriad of additional rules governing those claims, you lose your right to sue entirely. All too often, people are injured by the negligence of a government agency, but don’t realize that they have a very short amount of time in which to file their claim. Imagine if you were seriously injured due to government negligence and were hospitalized. You could easily spend weeks and months recuperating, healing, dealing with work loss, figuring out how to manage your life while incapacitated, and so on. Thinking about suing the government is not the top priority on your list. By the time you do think about it, you have probably missed your chance. That’s an example of a procedural rule that seems to serve no real purpose other than to cheat you, a citizen, out of your right to sue the people who make the rules.

Unfortunately, there are a lot of procedural rules which can result in your case being thrown out, no matter how good the substance of your case actually is. Successfully winning a court case is kind of like trying to walk across a balance beam with American Gladiators swinging at you to knock you off. It really doesn’t matter how good your case is if you get slapped down by a procedural rule. Dealing with procedure is an important reason why a lot of people decide to hire a lawyer. So if you do decide to go it alone, be very careful about making sure you understand all of the rules that you have to follow to get your case to a successful conclusion.

Chris

Okay, so that’s a common question, and a tough one to answer. If you ask a lawyer at the beginning of a case how much it will cost, he will hem and haw and talk and theorize, but usually he won’t answer the question directly. People sometimes think lawyers are being evasive, but the truth is they just don’t know the answer. Trying to put a price tag on a legal case is like trying to predict the weather. You can guesstimate, but you just can’t predict everything the other side in a case is going to do, and when the other side fights more, it costs more.

Putting a price tag on a legal case is like asking “How much does a car cost?” Well, it depends. What kind of car? New or Used? Basic transportation or status symbol? Environmentally friendly or sporty? Utility or family? And on and on.

The reality is you can spend $500 on a car, and you can spend $500,000 on a car. How much car you get depends on what you want and what you need and what you can afford. You know that you get what you pay for, so you spend more even though that $500 clunker turns over. And, you’re financially responsible, so you don’t go out and buy a Beemer when a Ford or a Honda will do just fine.

It is the same with legal services. How much it costs depends on the case, depends on what you want to accomplish, and depends on how extravagantly you want it done. You don’t want to hire a bargain basement lawyer anymore than you want to buy a too-cheap car. It’s just gonna let you down. And you don’t need to hire a high end lawyer who will spend a ton of your money to accomplish the same thing as a good, reasonably priced lawyer can. What you have to do is first find a good lawyer who you feel will get the job done for you, and then work out a price. It may be that you accidentally walked into a BMW dealership when you were looking for a Toyota, or stumbled onto a used car lot when you really want new. You may not find the right lawyer at the right price on the first try. And you may find that you still can’t get a straight answer on what the case will cost. Lawyers don’t like guesswork, and some of them just refuse to try.

At BadgerLawyer, we believe in giving a customer a price tag up front. Once we evaluate your case and your goals, we will be glad to give you a quote on a one time, discounted up front payment that will carry you through the whole case. That gives you the peace of mind knowing that the business end of the arrangement is taken care of, so all you have to do is sit back and let us take care of the law for you.

Chris

And no, trial skills isn’t number one.

Let’s start with what a trial lawyer is. A trial lawyer is an attorney whose bread and butter it is to walk into a courtroom and effectively argue for the results his client seeks. It sounds simple, but there are a lot of skills that go into being a good courtroom lawyer, and what might surprise you is that most of those skills are more useful outside the courtroom. Here are what I consider to be the five most important skill areas for a good trial lawyer.

Issue spotting. The mark of a good trial lawyer is a person who can take the facts of a case and dissect them, identify every strength and reveal every weakness. Issue spotting is a creative process where a lawyer looks at the case from a number of different angles and discovers all the possible ways that he could put up a fight. When you are interviewing a lawyer about taking your case, watch his or her reaction to the story you tell. Does he start immediately throwing off ideas about how the case could be fought? Or does he immediately jump to why you are going to have to settle for a result you don’t like? The lawyer with ideas is the better issue spotter, and that lawyer will probably make a better trial lawyer.

Legal writing ability. Legal writing is an art form. Not one that many people find too enjoyable to read, but nonetheless, it requires skill, clarity, and a gift for being persuasive in writing. While any lawyer can throw facts on a page and cite cases they believe to be important, that’s a far cry from the ability to craft a persuasive document that is convincing to a judge who has probably heard it all before.

Negotiating. Most court cases that are ever filed end up in some kind of settlement. Civil cases end up with cash settlements. Criminal cases end up with plea bargains. Only a fraction of cases actually go to trial. That means it is extraordinarily important for your lawyer to have good negotiating skills. How much money you get, or how much time you serve, is going to depend more than anything on how persuasive your lawyer is at negotiating with the opposing attorney. A good negotiator is not just a lawyer who can see what is good about your case, he’s the guy who can see the weaknesses in the other side’s case and won’t hesitate to point those out to the opposing lawyer. This is often a very subtle process. “Trash talking” is only going to get the other side’s ego involved. Negotiation is like seduction. You have to learn to make the other side want to give you what you haven’t asked for.

Trial skills. Just like a police officer carries a gun that he doesn’t often have to use, a good trial lawyer has to have skill and confidence to take a case all the way through trial if you don’t get what you want through negotiation. A trial is a kind of theater, a sort of ritualized improv. Your lawyer needs to be able to act, think on his feet, speak well, assert dominance, and maintain focus. He has to know all the rules of the game, all the rules of evidence, all the facts of the case, all the rules of law, but never lose sight of the one single theme of his case. He has to keep track of a thousand things, while seeming calm and relaxed. Trial is not easy, and a lot of lawyers who do it for a living are not very good at it. Choose carefully. A lawyer with a big ego and a lot of charisma is probably your best bet.

Interpersonal skills. A good trial lawyer has to have good people skills, and I mean something more than just being a “people person”. A good trial lawyer needs to be able to effectively read the emotional tone of any situation and respond appropriately. In every day life, most people try to be “nice”. While a good trial lawyer should be a congenial person most of the time as well, there are times in legal matters that call for a tougher, harsher, aggressive, or confrontational approach. A good trial lawyer knows when to be tough and when to be kind, and is effective at both.

No doubt other lawyers would want to include other items on the above list. Good legal research skills, an ability to organize large amounts of information, strong investigative instincts, computer literacy, and so forth. While I would agree that the above list isn’t all of the skills necessary for a good trial lawyer, I believe that they are the most important. If you find a lawyer who is confident, friendly, and good at spotting issues, persuasive in speech and writing, and expresses an enthusiasm for fighting cases all the way through to trial, chances are you found a pretty decent lawyer for your case. If the lawyer you are talking to seems to be lacking in any of these major areas, it might not be a bad idea to consider looking somewhere else.

Let me know what you think. What skills do you think a good trial lawyer needs to have?

Badger Lawyer made a brief appearance in the June, 2009 issue of Wisconsin Lawyer Magazine. Check it out here.

Here is a reprint from my recent article in La Crosse Magazine.

One thing I’ve noticed in recent years is that the law has undergone an enormous, but unnoticed, change. When I was a kid, a lawyer was somebody you hoped you’d never need, and you probably wouldn’t. Lawyers lived in high rise offices and “handled” “situations” for rich clients. The only time we common folk might need to visit a lawyer would be to see the local guy about a will.
My how that has changed. The skyrocketing rise in divorce rates has driven more than half of everyone who gets married into a long-term, expensive relationship with a litigation attorney. Decades of “toughness” on crime has lead to the criminalization of conduct that used to be legal, and now hardly a family hasn’t had a brush with the law. The growth in home-based and small businesses has led to literally millions of Mom & Pop LLCs that have a need for legal counsel, whether it’s just to make sure the papers are in order, or to defend the lawsuit if they aren’t.

Being a lawyer nowadays is a lot more like being a doctor or a dentist. Pretty much everybody is going to need a lawyer in a significant and ongoing way some time, probably several times, in his or her life. Given this fundamental shift in who needs legal services, you might think that law firms have drastically switched their approaches to how legal services are provided.

You’d be wrong.

If there’s one thing the law is, it’s traditional. To give you an idea, community property law – the law that divides assets in divorce – was invented by the Visigoths. For those who missed that history lesson, they’re the ones who brought Ancient Rome to its knees. So, change happens slowly.

Why? Lot’s of reasons. Lawyer regulations discourage change – we couldn’t take credit cards for most services two years ago. Lawyers by nature are a conservative lot – we’re afraid you won’t come to us if we don’t have expensive, traditional offices. Lawyers aren’t risk takers – it’s our job to worry about what would happen if everything went wrong, and that gets to you after awhile. Lawyers just don’t do change – our whole system is based on the law of stare decisis, legalese for “if it ain’t broke.”

But, the world is changing, and somebody has to be the first to jump. There ought to be ways to offer legal services with fee structures more friendly to the everyday person. If you, the prospective client, can accept a non-traditional (read: cheaper) office, the savings can be passed along. If lawyers could find a way to do what doctors already do – charge for specific services (e.g., an x-ray, a strep test) – instead of signing on for the whole case or not at all, you could buy only the legal services you needed.

In fairness, law is different from medicine or other professions. The law can ruin lives, like illness, but the law will let you represent yourself – try asking a surgeon to pass the scalpel. The law rarely offers a clear answer – “gray area” is our favorite word. It makes sense to have a lawyer for the whole case, most of the time, but it also makes sense, to me at least, to have a lawyer for just part of your case if that’s all you can afford. Isn’t some better than none? I don’t pretend to have all the answers, but I think we should start the discussion. Please join me and weigh in with your thoughts.

It’s no secret. Lawyers tend to be a little behind the times. The whole legal culture encourages us to look to the past for guidance on how the future should be. Much of the law we rely on was new over a hundred years ago. You might catch a lawyer referring to such law as “current.”

So, it will come as no surprise that these uber-modern inventions of the last century, computers, are the cause of controversy in the legal profession. Lawyers in the 90′s were still debating whether computers even belonged in a law office, and it’s not hard to still find lawyers who refuse to use them. I recently found myself engaged in a debate among lawyers about whether having two monitors was a good thing. Not where to get a good second one cheap, but ‘what’s the point?’ Even though computers have now “caught on” in the legal profession, the level of ignorance and lack of understanding among lawyers of technical matters is far greater than the general population.

Until fairly recently, this trait among lawyers could be written off as cute. A technophobe attorney could stumble through dictation and fumble with case law books, but still turn out a good brief. And his staff could tease him about it.

But computers in the law is no laughing matter anymore, and that is getting truer every day. A few years ago, I had a client facing 150+ years in prison in another state, because of charges of possession of 8 alleged child pornography photos on his computer in a zip file. If I had approached the case as a technologically ignorant lawyer, I could have none nothing more than shrug and help him into the handcuffs. Instead, I defended the case by making the legal argument that one zip file — a contiguous row of 1′s and 0′s — should result in only one charge, not 8. That reduced the mandatory prison to 19 years. Then, I dissected the Windows Temporary data, comparing the date the files were downloaded to the login information. Turns out the user was “Guest” at the time. Sure, my client could have logged in as “Guest” on his own laptop, but that was the first clue my client didn’t do it. Next, I considered the access and modification attributes on the zip file, and used those dates to establish alibis — times when my client was doing something else and couldn’t have been using his computer. That clinched it. A clear case of SODDI -Some Other Dude Did It.

Technology is now a part of everyone’s life in an amazing number of ways. We have ported our lives onto the internet to such an extent that people spend their time tapping into their phones how they are feeling 140 characters at a time. Businesses keep critical financial records online. Business employees send emails to one another that become an uncensored record of exactly what — and exactly when — people were thinking and feeling. If there’s ever a lawsuit, those emails can be demanded by the opposing side. My divorce investigator has software that a suspicious wife can install on the family computer to see who her husband is chatting with, and he can drop a tiny GPS tracker on his car too.

People live online. Computers record a lot of background data that can be very incriminating — or absolving. It is a rare legal matter today that isn’t impacted in some way by technology, and a lawyer who avoids technology, doesn’t speak that language, isn’t going to be able to represent his clients fully. Make sure to ask your lawyer about how your computer activities fit into your case.