Employee Tip: Important Questions to Ask When Hiring an Attorney

Below is an article I wrote about important questions a client should ask when hiring an attorney. I submitted the draft article to a business magazine, so the examples are written for the perspective of an employer-client who is seeking an attorney, rather than that of an employee-client. However, the questions and recommendations apply equally well to an employee-client, or to any client seeking legal representation for any legal matter (employment law, tax law, real estate, etc. etc.).
Important Questions to Ask When Hiring an Attorney

In my work as an attorney, I have met with hundreds of new clients (who are, in my job, employees with legal issues concerning their employers). I have been surprised that many clients don’t ask very important questions.

If you retain a new attorney, you should consider asking the questions below. I describe these questions in the context of employment law, the legal area I know best. However, these questions could be asked of any attorney who you retain for any legal matter.

(1) “What experience do you have with my type of legal matter?”

Often, clients don’t ask their new attorney what experience he or she has with the client’s type of matter. This can be a big mistake. An attorney who is inexperienced with a client’s given matter may end up learning the law on the client’s dime, and raise the likelihood of inefficiencies or a bad result.

With that said, if an attorney acknowledges inexperience with your matter, that does not necessarily mean you should not retain him or her. The legal matter at issue may be unusual, or there may be no attorneys nearby who are experts. Also, the attorney may have many several positive attributes that counterbalance his or her inexperience (e.g. have excellent academic and work history, have supervising attorneys with extensive experience who oversee the work, have value-based billing where you only pay for good results, etc.).

So, if your new attorney’s answer to this question is not positive, that does not in and of itself mean the attorney is not a good match.

How the attorney answers tough questions like this is just as important as the content of the answer. Is the attorney forthcoming, and not defensive, about his or her limitations? Does the attorney offer options to address areas of concern (e.g. offer to have another attorney join to assist in areas of inexperience)? The more candid the attorney is with information, the better. The purpose of all these questions is for you to gather important information, good and bad, and make a well-informed decision.

(2) “How long does this type of matter typically take to resolve?”

This question should also be asked more, because new clients often have no idea how long their legal matters may take.

For example, consider an employer who fires an employee, and the employee files a discrimination complaint with the Equal Rights Division (ERD) of the State of Wisconsin. (This is a common type of legal claim in my employment law practice).

Say you are a representative of the employer, and visit your new employer defense attorney. You ask, “How long does an ERD complaint typically take to resolve?”

In my view, a good answer would be as follows: “At the short end, about two (2) months, if both parties are highly motivated to settle early. If the parties wait for a legal decision at ERD, the complaint could continue one and one-half (1.5) years or more. On the long end, it is possible that the employee will remove the complaint to federal court, in which case the total time, from ERD complaint filing to federal jury trial, could be 3-5 years or more.”

The length and variability of these timelines may surprise someone who is not familiar with ERD and discrimination law proceedings.

It is important to ask your new attorney how long your legal matter may take, because your assumptions may be way off the mark.

(3) “What would be the best-case result for my situation?”

You should ask your new attorney what the best-case result for your legal matter would be. It is important the attorney can quantify a best-case goal, and quantify strategies and means to get you there.

In answering this question about best-case results, your new attorney should address: (1) the lowest value of approximate legal fees and costs you could hope to spend; (2) the lowest financial liabilities/exposure, or the highest financial gains, you could hope for; (3) the extent to which you can reduce other negative factors, such as reducing the amount of time and emotion spent on the matter.

Consider the example above, where an employer hires an attorney to defend an ERD discrimination complaint.

If asked, the new attorney may tell the employer that its best-case scenario for defending a discrimination claim (depending on several circumstances) could be the following: (1) payment of $2,000.00 or less in attorneys fees over the course of 2 months, in attempts to settle/resolve the case early; (2) payment of a modest settlement of $2,000 to $7,500 to the opposing party/employee; and (3) avoiding months to years of emotionally-trying litigation, and avoiding the risk of paying six-figure legal fees and potential liabilities over that time.  (Please note that all of numbers and estimates in this article are completely hypothetical, and that actual costs and liabilities vary substantially among different employment situations, and different law firms’ billing rates).

Say the suing employee is unrealistic in his or her settlement demands, and the attorney advises you are very likely to win a legal decision at ERD. In that event, the attorney may advise that, rather than paying the employee’s high-demand settlement amount (e.g. employee insists on $50,000 settlement when he has only suffered $8,000 in damages), it makes more sense to invest $5,000 in legal fees and have the attorney try to get the ERD to dismiss the case at an early stage. Or, if that fails, it may make more sense (as compared to paying a $50,000 settlement) to invest an additional $10,000 to $15,000 in legal fees it would take to win the ERD hearing.

If you ask your new attorney to define best-case results from the onset of your matter, this will require both the attorney and yourself to discuss goals, and means of efficiently reaching them. In doing this, you will also better understand the risks involved with the legal matter at issue, what matters are and are not in your control, and how timing and legal decisions along the way play a role in what decisions may be best.

(4) “What would be the worst-case results for my situation?”

You should also ask your new attorney (however difficult the answer may be to hear) what the worst-case result for your legal matter would be.

Consider again the example above, where an employer hires an attorney to defend a discrimination complaint. The employer representative then asks the attorney what the worst-case results might be.

The attorney may tell the employer that its worst-case scenario for a discrimination claim (depending on several circumstances) could be the following: (1) payment of six-figure attorneys fees over the course of 5 years or more of litigation, payable whether the case is won or lost; (2) losing a federal jury trail, and having to pay all the fired employee’s lost wages (also possibly six figures), as well as punitive damages and emotional distress damages (also possibly six figures), and having to pay the employee’s legal fees and costs (also possibly six figures); and (3) enduring 5+ years of emotionally-trying litigation, and losing work time due to time and concern spent on the lawsuit.

Of course, the attorney will also likely inform you that such a worst-case result, while theoretically possible, is very rare in the real world.

(5) “What results do you think are most likely for my situation?”

The new attorney should be able to assess how matters like yours are typically resolved. The answer will likely, of course, be somewhere between the best- and worst- case result. The attorney will by no means be able to predict with certainty what will occur, and it may take time (well beyond the initial consultation) for him or her to investigate the facts and law pertaining to your matter, and to give an educated guess as to how things should work out.

With this said, your new attorney should give you some legitimate assessment in response to this question, or give you an explanation as to what further work and time is needed for that assessment to be made. You should stay in consistent communication with your attorney throughout your matter, discussing how the case is progressing, and whether it may be inching closer to the best-case or worst-case end of the spectrum.

(6) “Can I have an itemization of expected costs?”

You’re surely wondering what your new attorney’s fees will cost, so why not ask?! It has been surprising to me how so many clients ask so few questions about legal fees. It is only fair that you ask the most questions possible, and get the most certainty possible, as to how much your new attorney’s fees will cost. It is an important topic.

The majority of law firms charge fees on an hourly basis. Hourly fees are the traditional method (and a perfectly ethical method) of billing. For their advantages, however, hourly fees have the disadvantage of being uncertain. You may know that your new attorney will bill you $250 per hour, but it’s hard for you to guess exactly how many hours (and fees) your legal matter will take to be resolved.

Thus, it is important to get an estimate of fees from your new attorney on day one.

Again, consider the ERD complaint example above. If you were an employer representative retaining a new employment attorney for ERD defense work, you could request (and expect) a fee estimate/itemization similar to the following:

“Estimates of Legal Fees for Work Prior to ERD’s Initial Decision

– Communications/correspondence with opposing party (including settlement discussions): estimated costs 2 hours x $250 per hour = $500.

– Factual investigation [witness interviews, document review, etc.): estimated costs 6 hours x $250 per hour = $1,500

– Legal Research: estimated costs 2 hours x $250/hour = $500

– Review of ERD complaint, draft response letter: estimated costs 8 hours x $250 per hour = $2,000

– More communications with opposing party: estimated costs 2 hours x $250/hour = $500

– Review ERD’s initial legal determination, whether there is a hearing or not: estimated costs .5 hours x $250 per hour = $125

– Communications with client about options: estimated costs .5 hours x $250 per hour = $125.

Total Estimated Fees for Work Prior to ERD’s Initial Decision

$5250.”

The preceding itemization does several things.

First, it defines a period or phase of legal work-that is, all legal work in the time leading up to an initial legal decision by ERD. Once the ERD makes the decision (whether to dismiss the case, or send it on to a hearing), it is a good point for the attorney and client to reevaluate the matter’s status and costs.

If the ERD decision is favorable for the employer and the employee does not appeal the decision, the case will be dismissed, and legal work and costs will end.

If the ERD decision is unfavorable and a hearing is set up, the attorney should be able to provide you (on day one of your matter) another fee estimate/itemization for that scenario.

If the new attorney is experienced with ERD- and discrimination- proceedings, he or she should be able to give you estimates, on day one, of estimated costs for different “phases” of representation. Such fee itemizations not only provide estimates of what fees may cost, but also give a roadmap of the type of legal work involved, and prompt the parties to think of strategies in light of potential costs and legal developments down the road.

Most attorneys probably will not mind discussing fees or plans in detail. However, from an attorney’s perspective (especially a busy attorney’s) it is helpful that the client ask for such details about fees and plans. Otherwise, it is easy for the attorney to overlook a detailed discussion of fees (after all, you both have lots of other issues to talk about), or to assume the client has prior experience with the legal process and knows the types of fees that may be incurred.

When you retain a new attorney, you should establish communications from day one about legal fees, and all other issues and objectives that are important to you.

(7) “What is your policy on returning calls and emails?”

This question addresses another important issue: communication.

Say you ask your new attorney this question, and his or her response is “I have a policy to return calls within 3 business days.” The response gives you a sense of how busy the attorney may be, and how much the attorney values communication.

The most important thing to gauge from the attorney’s response is his or her views of communication, and how important communication is to the attorney. Attorneys sometimes get frustrated because, from their perspective, clients don’t seem to understand that the attorneys are busy, and cannot be available or respond to all issues immediately. Clients sometimes get frustrated because, from their perspective, their attorneys are not returning calls promptly or within a clearly defined period that the client can rely on (e.g. within 3 business days, per the example above).

Asking this question, and all the questions above, will help you and your new attorney define and discuss many important issues on day one. Such questions-and-answers will help you to see: (1) whether this the right attorney and legal fee arrangement for your matter; (2) what the potential risks and rewards are for your matter; and (3) what options/informed decisions may be made down the road, such that you can achieve the best-case (rather than worst-case) result for your matter.