How to select a good lawyer

By Katie Martens

Abstract: when looking for a lawyer, keep in mind what your legal need is, how urgent your matter is, how much you can budget for legal services, and how available and well-versed the attorney is when discussing your legal need.

I am a lawyer. My husband is a lawyer. My father, sister, and uncle are lawyers. You’d think, with the volume of lawyers in my family, that I would have only positive experiences in hiring and using an attorney for my legal needs. Unfortunately, I learned that even attorneys that come highly recommended by other attorneys may not be the best fit for your situation, financial or emotional or otherwise.

In my case, my family sought a “good” probate attorney for helping us with a sticky issue with my grandmother’s IRA (she had put her trust as a beneficiary, which is generally accepted as being a big no-no). We hired an attorney near the town that my grandmother had lived, as he came very highly recommended from several probate attorneys we personally knew. Alas, the attorney we hired made no progress and was just as flummoxed as we were in our position with the IRA company. By the end of his representation, we had spent over $16,000, and while the IRA issue had been resolved, it was not from the efforts by our attorney.

A few months later, I was at a holiday gathering with members of my brother-in-law’s wife’s family (so we’re not related, but we see them often), and one of the men is an estate planning and real estate attorney. I told him the story about my grandmother’s IRA, to both commiserate and laugh with a fellow attorney. He listened thoughtfully, and after I finished, gave me his thoughts on what he would have done. I was so impressed that he had thought of things that our attorney hadn’t, that I have since referred him cases that come my way.

My story is meant to illustrate that sometimes websites and rankings aren’t always the best litmus test to tell whether an attorney will be the right fit for you. Not even word-of-mouth will be a slam dunk. This article is meant to give you an idea of how to find the right attorney for your needs, and to equip you with questions you can ask an attorney to give you a better idea if this attorney will be the best advocate for you.

Key takeaways:

1. Determine what your legal need is

2. Be clear on how quickly you need this legal matter addressed

3. Figure out your legal budget

4. Ask questions of your potential lawyer - it’s a two-way street, and you have just as much say in who represents you as the lawyer does in agreeing to represent you

What is your legal need?

I occasionally am asked for a referral for a real estate attorney, or for a family law attorney. Whenever this question comes up, I always have a clarification question: what do you need done? Often, the term people think they’re using correctly doesn’t specifically address their need in the legal world. For example, real estate. Do you need an attorney because you’re closing on a house and your state requires one? Or do you have a property that’s fallen behind on taxes and is subject to a tax sale? Or do you need to accommodate your growing business and need more commercial space? Are you a developer, in need of an attorney who can assist with all the paperwork you need in order to qualify for TIF money?

I could go on, but I think you get the point - you need to be hyper-specific about what you need an attorney to do for you. That helps attorneys help you better.

How urgent is your matter?

There are statutes of limitations for many legal matters that make a huge difference in the viability of your case. For example, in Nebraska, you have four years to sue for an injury you sustained in a car accident. If you’re in a hit-an- run in 2017, and you start to treat headaches that your doctor thinks can be traced back to that car accident, you’d be out of time to sue in 2022 in Nebraska.

Obviously, other legal matters have only the urgency you place on them, like estate planning. The general rule of thumb is that if it involves litigation (suing another party and appearing before a judge), it’s a time-sensitive matter, and you should consult an attorney as soon as possible.

How much legal service can you afford?

Many smaller firms and solo practicing attorneys are trying out different forms of billing, such as subscription models or flat fees, but the primary method of payment to attorneys remains the hourly rate. This means that an attorney has an hourly rate that they charge, and they’ll either invoice you for their time or bill out of the retainer they require at the start of representation. Let’s break it down with an example:

Attorney Arthur charges an hourly rate → you hired Attorney Arthur because your former business partner sued you, and you needed an attorney to appear for you in court to defend you. After signing an engagement agreement, Attorney Arthur requires you to pay a $2,000 retainer that he bills out of each month. You write him that check, and he deposits it into his trust bank account. Attorney Arthur goes to court for you, drafts pleadings, consults with opposing counsel, and communicates with you about everything going on in the case. Once a month, Attorney Arthur adds up all the time he’s worked on your case and then “bills out” from your retainer. If he did work amounting to $652 for the month, he’ll take $652 out of the $2,000 and put the $652 in his operating bank account. You’d have $1,348 remaining in the trust bank account to pay for Attorney Arthur’s future legal fees.

Attorney Bea charges a flat fee → you hired Attorney Bea because of the same business partner issue, and after Attorney Bea had you sign an engagement agreement, she charges you a flat fee. This flat fee might look like a one time payment, or it could be a quarterly payment. In any event, you and Attorney Bea have agreed to a flat fee because Attorney Bea has likely done the hourly calculation to guess how much time your case will take you, and you can afford the one-time payment.

The important thing to remember in this situation is that you are clear on what Attorney Bea is to do for you as part of her representation of you. Flat fees often don’t include additional work that might otherwise be included in an attorney’s hourly rate. For example, Attorney Bea and you can agree that she’ll do the trial if the case goes to trial, but she won’t be doing any appeals for the case.

Attorney Charlie charges a contingency fee → you hired Attorney Charlie because of the same business partner issue, and after signing an engagement agreement, you and Attorney Charlie agree to a contingent fee. This means that anything you are awarded by the court, such as damages, Attorney Charlie gets a percentage of that award. If you’re thinking that sounds like a silly decision by Attorney Charlie to agree to a contingency fee to represent someone being sued, you’d be right. Contingency fees are usually used for personal injury cases, and are forbidden for cases like divorce and criminal cases.

The thinking is that contingency fees motivate the attorney to advocate for you as strongly as they can because the better your award, the more money for the attorney. However, the contingency fee can have bad consequences if the attorney is only motivated by increasing their gain, instead of advocating for the best outcome for the client.

Those are the basic fee structures when hiring an attorney, but keep in mind what you can afford. In an era when over 25% of Americans can’t afford a $400 setback and the average attorney hourly rate is $300/hour, many Americans can’t afford two hours of legal services.

If you are one of these Americans, I’d suggest the following to find reduced-cost legal services:

1. Your state’s Legal Aid office - there should be a Legal Aid in every state, as it is a nonprofit established by Congress to address civil legal needs of low income Americans. Usually Legal Aid assists with housing issues, family law issues, and some disability or unemployment law issues.

2. If you are employed, check to see if your employer provides legal plans as part of their benefits to employees. This means that the company pays for a service in which attorneys sign up to be contacted, and agree to be paid a set rate for specific services the company agrees to pay for, such as estate planning. You won’t pay the attorney anything out of pocket, because your company is paying for the legal plan. The rates are usually below market rate for attorneys, so younger and less experienced attorneys usually are found on the legal plans.

3. Call your state’s Bar Association. Many state bar associations keep a list of attorneys available to reduced rate cases, or even pro bono (free), depending on the type of case it is.

4. If you find yourself as a defendant in a criminal case, you have the right to counsel in the form of public defenders. Having done criminal defense law for the first 7 years of my practice, I highly recommend public defenders. While they may be overburdened with too many cases, they are extremely knowledgeable on the law as well as the court and its staff.

If you do feel that you can afford an attorney, let’s talk about the questions you can ask prospective attorneys to find the one for you:

1. Is this the type of work you do every day? How often does this kind of work come through your door?

I like this question because it allows you to ask about their experience without an air of hostility or confrontation. It also gives you an idea of how familiar the attorney is with the intricacies of a case like yours - sometimes the less experienced attorney will charge a lower hourly rate because they’re keen to get their hands on a case like yours. Larger law firms often have no wiggle room with their fees and are less interested in getting experience than they are retaining their larger, paying clients.

You’ll also get a sense for how passionate the attorney is for the type of case you have - many family law attorneys will refer adoption cases to other attorneys because there are so many specific rules you have to follow to complete a proper adoption and attorneys, like every human, only have so much brain bandwidth to remember it all.

2. How do you prefer to communicate, and how frequently?

I think setting responsiveness expectations is crucial for successful attorney-client communications. Even though your legal issue may feel urgent and scary to you, your attorney likely has 30-40 more cases like yours that all feel urgent and scary to each person at the heart of each of those cases. I often joke that attorneys are paid to take on the anxiety for others, but in some ways, it’s very true. So keep in mind that while you’re freaking out about a deposition a month away and want to discuss it with your attorney, your attorney is likely putting out a few legal fires each day.

Read the engagement agreement carefully and note whether the attorney includes a provision about communication - do they promise to return calls or emails within 24 hours? 48 hours? Make sure you’re up front with the attorney about your communication expectations and see if your expectations line up with theirs.

3. What is your fee structure?

Like we discussed earlier in the article, make sure you understand how your attorney expects to be paid. One of the biggest red flags to me, when it comes to hiring an attorney, is if they don’t require you to sign an engagement agreement when you hire them. An engagement agreement outlines the terms of the attorney’s representation of you, and is what any court refers back to if you end up with an attorney who dodges your phone calls and doesn’t return your retainer money.

If you have nothing in writing, you have no way to support your claims, and no way to hold the attorney accountable if something goes sideways.

4. Who else will be helping you with my case?

Attorneys can work on their own (solo practitioners), they can work in partnership with another attorney, they can work in small firms, or very large firms. The larger the firm, the more likely your attorney will have a small army of staff to help with the case - so you hire the attorney, which means you also get any associate attorneys who work under that attorney as well as any of the paralegals that partner with the attorneys assigned to the case.

That sounds awesome, until you get the bill. You’ll be charged for each person’s time - the hired attorney, the associate attorney, and the paralegal. Sometimes even the law clerks, who are still law students. On the other end, solo practitioners can also have receptionists and paralegals, but many do all the work themselves. Note whether they have good systems in place for client intake, client onboarding, and client communications. If any of it doesn’t feel like a good fit for you, continue on to the next attorney recommended to you.

At the end of the day, don’t feel as if you have to hire the first attorney recommended to you. And if an attorney doesn’t return your call or email, take that as the sign they’re too busy to handle your case and move on to the next available attorney. You want someone who makes you feel comfortable and that you can trust them.