Once you have selected a lawyer, there are several steps you can follow to help your lawyer work for you and to keep the cost of legal services at a minimum.
advantages and disadvantages of a proposed action. For example, would court costs and legal fees be more
than the amount of money you would likely recover? Ask the lawyer about ways to resolve your case without
going to court.
When considering HOW to find a good lawyer, first of all, it has
to be clear in your mind what makes a lawyer be a GOOD lawyer.
People are almost obsessed with the concept of "money-back
guarantee" which obviously is an arrangement attracting many
clients to a lawyer, however, it is neither a complete nor a necessary
condition for a lawyer to be good. I emphasize this: the guarantee
is definitely very nice and good for you, but it is far from the
whole story.
I believe that what you really want is the success rather than a promise to be reimbursed if the application is unsuccessful. Even if you get the money back in the case of failure, you may still get hurt and lose a lot, at least
you can not get the Governmental Processing Fees back, and your
chances of admission to Canada in the future may be prejudiced.
Obviously, it is not in your favor to have a record of rejection
by Immigration Officials, and you may have lost a good opportunity.
If you want to reach your goal successfully, you must consider
the reasons why some lawyers can provide you with better services
which translate into a greater likelihood of success in your application
while others can not under the same circumstances? What makes
the difference?
I am not a lawyer, but I have been dealing with some lawyers and
I have also researched this area quite carefully. I believe that
the following three factors are crucial ingredients which make-up
a good lawyer:
It is crucial to choose a lawyer who has an excellent reputation at processing posts abroad. A recommendation at a processing post by a reputable lawyer will make an extra-ordinary difference to an application for permanent
residence in Canada. By contrast, applications filed by unqualified groups and individuals who have a terrible reputation at processing posts are probably treated even worse than an application which you could file on
your own!
Second, experience and practical understanding of Canadian immigration policies and process are also important aspects of a good lawyer. Just as you have your own field of specialty lawyers have the special field of their own.
A good lawyer understands that there are different immigration categories: family, refugee, independent and business, in which applications will go through different process under different criteria. There are, as my lawyer
told me, not only a plethora of unqualified groups and individuals
who are through different process under different criteria. There
are, as my lawyer told me, not only a plethora of unqualified
groups and individuals who are there trying to "assist"
independent PR applicants, but also many immigration lawyers are
actually refugee lawyers who have decided to "dabble"
in the field of independent and business immigration applications.
They are, however, amateurs and do not possess the experience
which will truly facilitate your immigration to Canada.
With respect to my third point, a lawyer's services are made up of various factors. Some of the factors will affect your success, such as how carefully your case will be prepared, the tactics used to protect you, the lawyer's
communication skills and relationships with the immigration officials, etc.; other factors do not influence to your success, but will affect your feelings and will therefore impact your relationship with the lawyer, such as how high the retainer fee is, money-back guarantee or not, how amiable and friendly
the lawyer is, etc.
The next matter I would like to address is HOW to find a good lawyer. I know that someone wouldn't be happy with what I am telling you here, but I believe that it would be good for you as a PR applicant who is looking for a good lawyer. A simple way to distinguish between lawyers and consultants is the following: If a lawyer, you will see the lawyer's firm name plus "associates" or "barristers and solicitors". If a consultant, you will see
at the end of the name the word "company" or "immigration
service" or some other kind of name. Lawyers will always
have "barrister and solicitor" under their names or
the law firm's name. There are however some lawyers that operate
as consultants for the purpose of immigration processing. These
individuals set up a company and perform all immigration work
through the company. There are many reasons why lawyers do this
... . Sometimes, because they do not want to abide by the rules
of professional conduct and sometimes because they have been disbarred.
However, there are some lawyers who operate as consultants exclusively
for business reasons.
Generally speaking, a good lawyer should never promise you what he/she can not do. If you are told (directly) by a lawyer that he will guarantee that your PR application will be successful, he is definitely NOT a good lawyer, since the final decision is not make by the lawyer. In the early stage of your PR application, there are some factors which are uncertain, such as the medical examination results, the results of your security/background check, and how well you would behave yourself in the interview, etc. It is not logical for a lawyer to give you the (100%) success guarantee. A good lawyer more likely promise you by a certain distance from what he/she has in mind that he/she could do for you and approach your case more strategically and realistically since he/she is more concerned about the reputation. By contrast, a less effective lawyer likely promise you more than he can do since he will probably be more interested in making a profit from you.
A good lawyer spends more energy in dealing with immigration officials in order to insure that immigration officials appreciate the unique circumstances surrounding your application. I am just generally speaking
here and it is hard to be more specified.
Since the "Immigration #1" was posted weeks ago through the network, I received many messages to ask the name of my lawyer. On my understanding, the friends believe that I must have chosen a good lawyer for myself.
Yes, it is true. Why not! I think, however, there is difference
between choosing a lawyer for myself and introduce the same to
the public, since something I can accept based on my understanding,
but the same you may not.
From the lawyer I am dealing with, I can get every good point mentioned above except one, no money-back guarantee. That was one reason why I once "shopped around" for a quite while (so that I may tell you now something maybe you don't know). I didn't retain the lawyer until I understood more about what
the guarantee really mean, and what are crucial for a good lawyer.
Even though I have every confidence that my lawyer and the lawyer's
firm are excellent on all my understanding, I still fell not comfortable
to introduce my lawyer to our public before I can give you more
and give you better than I got. I am currently negotiating with
my lawyer and suggesting the firm to provide services more favor
to my follow Chinese graduate students. The suggestions include
giving the money-back guarantee, I know that it would be good
for you although it is not crucial, and some other benefits and
convenience (I wish that I am not requesting too much for trying
to have my colleagues and friends appreciate in their applications).
If the guarantee can not be arranged, I am certain that there
must be a good reason why it cannot be done given the fact that
I trust the lawyer's goodness and integrity.
I will therefore keep you informed of the progress and see what
we will have.
A list of specialized immigration consultants: There are many consultation services available through out the world. However, I am careful about this matter. I tend to ask to permission before I put any name & address into this page, unless they have put advertisement on a public news channel previously. I owe my gratitude to Mr. Richard Curled for his detailed review and constructive suggestions during the establishment of
this series of WWW pages.
----------------------------------------------------------------------
Richard Kurland, Lexbase@interlink.net Fax: (514) 847-1370
Vice-Chair, Canadian Bar Association, Quebec Region, Immigration Sec.
Vice-President, Quebec Immigration Lawyers Association
---------------------------------------------------------------------
csinger@cam.org | 4999 Ste Catherine West; Suite 301
COLIN R. SINGER & Associates | Montreal, QC, Canada H3Z 3T1
Barristers & Solicitors | Tel: (514) 487-2011
Canadian and Quebec Immigration Law | Fax: (514) 487-2385
---------------------------------------------------------------------
Sanwar Ali Managing Partner
BCL Immigration Services
E-mail: sanwar@bclimser.demon.co.uk
Tel: 0181 680 9621
----------------------------------------------------------------------
Dale M. Schwartz Past President: American Immigration Lawyers Assn.
Immigration Attorney Adjunct Professor of Immigration Law: Emory University School of Law
Atlanta, GA voice: (404) 885-3214 fax: (404) 885-3947
----------------------------------------------------------------------
Visa Seminars International/Hoppe Jackman Immigration law Group
196 Adelaide Street West, Suite 100
Toronto, Ontario M5H 1W7
Toll Free ( North America): 1-800-263-8472 Outside North America: 416-599-8500
Facsimile: 416-599-7318 e-mail: jryan@inforamp.net
----------------------------------------------------------------------
________________________________________
CAMPBELL COHEN SEIDMAN LEVEILLE
Attorneys, Barristers, and Solicitors
2 Pl. Alexis Nihon, Suite 1802
3500 de Maisonneuve West
Montreal, Quebec, Canada, H3Z 3C1
Tel.: (514) 937-9445; Fax: (514) 937-2618
E-Mail: dcohen@cam.org
----------------------------------------------------------------------
My name is Randi Emmott(Mrs.). I am a professional real estate
sales representative based in Toronto, Ontario Canada. I specialize
in helping people relocating/immigrating to Ontario. I have set
up a team of professionals to assist in all aspects of relocation.
This team includes the following disciplines:
* Immigration Consultant
* International Tax Consultant
* International Mover of Household Goods
* Reduced Rate Financing & Banking Services
* House Purchase Consultation/Services
My personal credentials include:
* 12 years in real estate sales
* Associate of Re/Max Real Estate (largest real estate organization
in Canada)
* Network of agents throughout Canada & USA who can provide information
& assistance for any major center in North America
* Registered Relocation Specialist (RRS)
* Certified International Property Specialist (CIPS) candidate
(1 of only 3 in Canada!)
* Member of FIABCI (International Real Estate Federation)
* Member of Canadian & US Employee Relocation Councils
I have access to extensive information on housing prices &
trends, moving/closing costs, legal/inspection fees etc. I would
be happy to assist anyone requiring any of this information, simply
send me an e-mail at 72062.2546@compuserve.com
Sincerely....Randi Emmott
----------------------------------------------------------------------
MOORES & REYNOLDS
2 - 2021 Plains Road East
BURLINGTON ONTARIO L7R 4M3
Our full service law firm of three lawyers practices extensively
in all fields of Canadian immigration law. More detailed information
regarding the firm and the services we provide can be accessed
through our Web site at http://www.io.org/~lawyers or if you have
a specific inquiry, send it to us at lawyers@io.org
Notice
There used to be a list of helpful people. However unfortunately these kind people usually ended up being e-mail bombed. This is certainly not, I think, a fair way to reward them. I have received a mixed response from those victims of being helpful. I have temporarily removed the list. I will open a new question board on
which those questions serving general interest will be posted. If any one would kindly care to provide answer(s) to the question can e-mail me. I hope this will give every one happiness and peace ... well
except me.
What is a Lawyer?
The word 'lawyer' is a generic description of people who practice
the law.
In South Australia, a Legal Practitioner is entitled to practice having been admitted to
practice by the Supreme Court of South Australia. In order to practice in the Family
Court, it is also necessary for a legal practitioner to be enrolled on the Roll of Practitioners
of the High Court of Australia.
Virtually all lawyers in South Australia are admitted to practice both as a Barrister and
Solicitor.
The solicitor performs the traditional roles of seeing clients, advising and generally handling
all manner of legal matters.
Barristers are persons who choose to specialize by appearing exclusively in Court. They
make an election to practice in that way, and thereafter do not have clients of their own.
Rather they accept "briefs" from solicitors.
However there are some solicitors who practice both as a Solicitor and as a Barrister, and
accordingly will appear in Court on your behalf.
What to Look For?
The choice of a Divorce Lawyer is naturally a very personal one. For many it will be your
first encounter with a Lawyer, and comes at a time when you may be in a very emotional
state and may be under a high degree of stress. For that reason it is important to make the
right choice, bearing in mind that the relationship with your Lawyer can be one of some
duration, and often under trying circumstances.
In my experience, a great majority of my clients come to me by way of personal referral.
You may wish to discuss with friends and others who they used. You might also seek
advice from an Accountant, Doctor or Counselor.
Lawyers are now able to advertise themselves and their services and you may be able to
gain some assistance in this way.
The Law Society of South Australia maintains a list of practitioners who accept referrals
in the area of Family Law, and the Law Society will provide you with three or four choices
from that list.
Most lawyers will readily discuss costs with you. Do not be afraid to inquire about the
charges even in your first phone call to the lawyer's office. Many lawyers will quote you an
"hourly rate" which would give you some guide.
Many divorce lawyers are members of the "Family Law Section" of the Law Council of
Australia, which indicates that they have some interest in that
area.
As yet there is no national accreditation for Family Law Specialists, although this is a matter
being looked into at the present time.
The Lawyers' Job
The primary function of a Lawyer is to provide advice to a client and to do so
efficiently and in a timely fashion.
I often say to clients that I believe that my major function when dealing with a matter on
behalf of a client is to give the client the "options" at any given point. As the client, you
wish to know the consequences of any given course of action and what the likely outcomes
for you will be. Therefore when conferring with your Divorce lawyer, bear in mind this
matter. It is often useful to ask yourself whether you are being given all of the options when
being advised by your Lawyer.
Ten Things to Do as the Client
As the relationship with your Lawyer develops, you should expect to see, in an experienced
Family Lawyer at least, a level of maturity and confidence which will (hopefully) impress
you. To help you along the way, the following points should be
borne in mind.
1. Ask your lawyer what is possible and what is not. Ask the Lawyer "What are
my options?"
2. Listen to what your lawyer says to you, and do so in a critical way. If necessary
get the advice in writing . Even asking the Lawyer to scribble down on a piece of
paper a particular point, may help you when you return home and are thinking over
the advice. Some Lawyers have pro forma sheets and brochures available. It is
worthwhile asking.
3. As part of considering tactics and strategies, be sure to mention your own
ideas, even if you are dubious about doing so. It may be that you will alert your
Lawyer to some matter which had not been previously considered. Your Lawyer
should be open to your own ideas and to possible other approaches.
4. Your Lawyer should explain things to you in language you can understand. If
you are hearing a lot of jargon, ask for an explanation. Have a notepad ready. Jot
things down. When the Lawyer has finished, go back over your notes and ask for an
explanation. Better still, bring to your interview with your Lawyer, a series of
questions that you want answered. In that way you will not return home with only half
the answers. Ask the Lawyer, "What are my options?"
5. Remember you are paying the bill. You are entitled to expect "service". This
includes having things explained to you where necessary.
6. Ask your Lawyer to send you copies of all correspondence and documents as
they arrive or are sent out. If you feel matters are dragging
on, say so.
7. If you cannot get a response from your Lawyer, it could indicate that he or she
is very busy at that time, or too busy to attend to your matter. Make an appointment
and express your concerns. No Lawyer likes to lose a client, but if pressed, might
admit that they have been too busy to attend to your matter
properly.
8. Try to be less subjective. (This is really hard). If you have chosen well with your
Lawyer, you will be able to take advice confidently from him or her, and in
appropriate circumstances, your Lawyer may tell you something about your degree
of subjectivity.
This is not meant to be offensive, but is drawn from experience. Your own actions,
whilst they may seem reasonable to you in every instance, may in fact be seen by
others (especially the Court), as being selfish and self-centered. If you Lawyer tells
you to "behave", then at least listen to that advice
before rejecting it.
9. Remember that your Lawyer is not a miracle worker. Despite all of the faith
that you have invested in your Lawyer, and no matter how much you may trust him or
her, and no matter how highly recommended he or she may be, not everything is
possible.
He or she will have other clients who are making similar demands upon his or her
time. Divorce Lawyers in particular are expected by their client to give individual
attention to the problems of all their clients and most will attempt to do this, within
reason.
10. Remember that the Family Court is human too. It is made up of the same
stuff as the rest of us. There can be ups and downs as your matter progresses
through the Court system. If you have an experienced and competent Lawyer, you
will be warned in advance of the pitfalls and of the possible outcomes which could
await you.
How to Choose and Use a Lawyer
The legal system can be intimidating--but it doesn't have to be. For all its formalities and
intricacies, our system of laws is there to protect every American citizen. Our system was
revolutionary when it began--now we take it for granted. But it's still about freedom,
protecting the individual, turning to a better way of settling disputes. We'd like to help you
better use the system. This article, produced by the Colorado Bar Association, will tell you:
When you need a lawyer, how to choose a lawyer, and details about fee arrangements,
alternatives to court and how to complain.
When do I need a lawyer?
If you answer "yes" to any of the following questions,
you should consult a lawyer.
Have I tried to resolve this matter by speaking directly with "the other side" and
failed?
Am I being threatened with legal action by some individual or situation?
Do I need someone to champion my cause or speak for me?
Have I been served with papers (summons, warrant, subpoena)?
Does my opponent have a lawyer?
Is the outcome worth the cost of hiring a lawyer?
Am I involved in a transaction of importance to me (buying or selling a home, signing
a contract, starting a business, writing a will, etc.)?
How can I find a lawyer?
Keep in mind that it is important to find the right lawyer and it is in your best interest to shop
around.
Ask friends or relatives who have used a lawyer, someone in a field connected with
your case or co-workers for their recommendations.
Use a Lawyer Referral Service listed in the telephone book--they will try to give you
a referral to a lawyer in your community who does the kind of work you need.
Consult the Yellow Pages or go to the local library and consult a legal directory.
If you cannot afford a lawyer, call the Legal Services Office nearest you (listed in the
phone book). If you can't find the number, call the Colorado Bar Association at
(303) 860-1115 or (800) 332-6736.
Here is a list of things you should consider or ask in your first call or meeting with the
attorney.
Experience
How long have you been in practice?
Specialization
How many cases like this have you handled?
Have you been successful in them?
Fees
Do you charge for the initial consultation?
How much is your hourly rate?
What is this likely to cost me?
How do you charge?
Community Activities
How are you involved in the community?
Reputation
Have you had complaints about your past performance?
Communication Skills
Will you respond to my questions promptly and clearly?
Will you keep me informed about the progress in my case?
Will you consult with me about what I want done?
How long do you expect this to take?
What's your policy on returning phone calls? How soon?
What are my alternatives?
Prevention of legal problems is the best alternative and can save you time, money and
needless worry--and often, a lawyer can help you with this. If you do have problems that
appear to need legal solutions, there are alternatives to hiring an attorney and going to
court--you probably should examine these carefully.
Representing yourself and using self-help materials. It's legal for you to represent
yourself in court and handle your own legal matters, but judges and court personnel
aren't allowed to give you any legal advice as your case proceeds. It is important to
be aware of all court procedures, filing requirements and deadlines--you will be held
to the same standards as an attorney. You can ask procedural questions of the court
clerk. Libraries have copies of state and local laws. You can buy self-help packets
(for instance, on divorce) at many bookstores. Also: You can go to small claims
court for a civil matter that's under $5,000; your library may have a video on using
small claims court and getting your own divorce (these are available in Denver).
Using mediation services. Mediation is a process which helps people in conflict work
out a mutually acceptable agreement to disputed issues, with the aid of a trained
professional mediator. Find them through the Yellow Pages or ask a lawyer for a
referral.
Arbitration services. In arbitration, the parties agree to let an impartial arbitrator or
panel of arbitrators hear the evidence and decide the outcome of these disputes.
Look in the phone book or ask an attorney for names.
Neighborhood Justice Center. This is a program available in Denver and Colorado
Springs for resolving disputes among neighbors outside the
court system.
How do lawyers set their fees?
Legal fees depend on several factors which include the amount of time spent on your
problem; the lawyer's ability, experience and reputation; novelty and difficulty of the case;
the results obtained; and costs involved. Other factors involved in legal fees include what the
lawyer pays in rent, utilities, for secretarial and paralegal help, office equipment, computers,
etc. The primary types of fee arrangements are:
Hourly Rates - The fee is based on the amount of time the lawyer spends.
Fixed Fee - This is a flat fee charged for a routine service such as an uncontested
divorce, a simple bankruptcy or a will.
Contingent Fee - The lawyer receives a percentage of any amount recovered on
behalf of the client, plus expenses.
Retainer - A client makes a "down payment" and future costs are billed against that
amount.
Costs in addition to the lawyer's time can include:
Filing Fees
Photocopying
Phone Calls
Paralegal's Time
Messengers
Serving Papers
Witness Fees
Computer-Related Costs
What should I expect when I hire a lawyer?
Vigorous and competent representation of your case.
Copies of all important documents.
A written fee agreement and detailed billing statements.
The whole truth, even it if hurts.
To be kept fully informed.
To be treated with respect.
A negotiated settlement if both sides can reach a fair agreement.
Agreement with your goals and an understanding of your objective.
No conflict of interest with the opposing side.
Timely return of phone calls.
What should my lawyer expect from me?
What should my lawyer expect from me?
To be completely honest about all facts in your case, whether or not they are
favorable to you.
To follow agreed-upon advice.
To ask questions when you don't understand; to speak up when you disagree.
That you be on time for appointments.
That you accept some responsibility, such as informing your attorney about new
developments, etc.
To be paid a reasonable fee promptly for the work performed.
Can I change attorneys?
Yes--you can do this simply by telling the attorney of your wishes. Giving notice is a matter
of courtesy and may be necessary so that if a lawsuit has been filed, the attorney may ask
the Court for permission to withdraw. You may still be obligated to pay for any services
which have been already performed on your behalf, and costs which have been incurred.
You are entitled to the return of your files, provided your attorney does not have a valid
attorney's lien.
What if I have a complaint against my lawyer?
Maybe your lawyer isn't returning your calls. Or perhaps you feel there are problems with
your case that your attorney isn't addressing. Sometimes a disagreement stems from a
simple misunderstanding--and the best way to handle this is to talk directly with your
attorney. If this approach fails, and you believe your attorney as acted improperly or
unethically, you do have recourse.
In Colorado, discipline of lawyers is handled by the Supreme Court Grievance Committee.
You can call them at (303) 893-8121 or write them at 600-17th Street, Suite 510S,
Denver, Colorado 80202-5435 and complete a form that they will send you, asking that
your complaint be investigated. This can lead to admonishment, private or public censure,
suspension, or even disbarment from the practice of law. If you file a request for
investigation, this would put you in an adversary position with your attorney and you would
want to hire another attorney.
If you disagree with your attorney about fees, you can write or call the Colorado Bar
Association and ask for help from the Legal Fee Arbitration Committee. If you and your
attorney both agree to do this, you can go before a committee who will hear your case and
make a binding judgment. The committee is composed of lawyers and non-lawyers.
How to pick a lawyer...
You're a growing company.
You never needed a lawyer before.
Now you do, and you don't know how to pick
one.
Here are some things to consider.
Fees
Explain your problem, and ask for an estimate.
Good lawyers won't hesitate to give you one.
Bad ones will mumble something like, "It's
impossible to say." Insist on a number, or
move on. Many lawyers will not charge for this
initial consultation. But, don't expect it. Fees
are a big source of conflict between lawyers
and clients. Ask the tough questions up front,
and avoid problems later.
Ask the lawyer to consider a "fixed" or "contingent" fee arrangement. A fixed fee is a
sum certain that gets paid no matter how much work is involved. A contingent fee is a
percentage of recovery, usually 33% (though that is negotiable), which only gets paid
if you win. Either way is a good way to fix your legal budget.
Never go with an hourly rate. If you do, make sure you "cap" the fee. In other words,
set a ceiling.
Watch out for "associates." Law firms use clients' money to train younger lawyers.
There is very little reason for using younger lawyers. Many clients refuse to pay
anything for lawyers other than the ones they hire. Sometimes, extra help is needed.
Just make sure there is a good explanation.
You're going to have to reimburse the lawyer for "costs." They used to be eaten as
overhead, but no more. Watch out for copy charges. Most lawyers make a profit on
copy charges. Do the copying yourself, at Kinkos, or some
place of the like.
Experience
Ask if the lawyer has handled your problem before. Don't worry if
the answer is, "no." An honest answer is a good sign. It may mean
paying for the lawyer's education, though the good ones will write off
the training as a "loss leader." Get a list of the matters the lawyer has
handled.
Don't assume that a lawyer's experience is set by the time out of law
school. Real experience begins when a lawyer handles matters
without supervision. Some will tell you they handled a matter, only
when they assisted. Ask how many of those matters they handled on
their own.
Beware of lawyers who promise you a certain result. It's O.K. to ask
the lawyer for an opinion as to the probable outcome of the case,
though it may be reasonable not to get one until the lawyer knows more. Some
lawyers will tell you anything to get the case.
References
Always, always. Ask for references. Every lawyer should have a ready list of
references. If not, why would you want that lawyer? Check
more than one.
Alternative Dispute Resolution
Sometimes, there are better ways to resolve a dispute than fighting about it.
However, you must recognize that "settling" a matter is not in the lawyer's best
financial interest. Discuss the lawyer's perspective on negotiation, mediation,
arbitration and settlement. If you can get a good deal without having to pay your
lawyer, Why not!
The legal market is changing.
And it's changing in your favor.
See if I practice what I preach.
If you have any questions, feel free to mail me:
dldalton@xmission.com
=========================================================================
You Can Do It: Handling Your Own Claim
by Joseph Matthews
Copyright © 1992 Nolo Press
This article originally appeared in the Winter 1992 issue of Nolo News and is adapted from
How To Win Your Personal Injury Claim by Joseph Matthews.
You may copy this article so long as you include this copyright notice.
Click here to learn about Related Nolo Products.
When you might need a lawyer
Long-Term or Permanently Disabling Injuries
Severe Injuries
Medical Malpractice
Toxic Exposure
When an Insurance Company Refuses to Pay
Side Bar -- What Kinds of Claims Can You Handle Yourself?
Despite what the insurance industry and lawyers would like you to think, settling an injury
claim with an insurance company is usually quite simple. Most claims involve no more than a
few short letters and phone calls with an insurance adjuster who has no legal training. You
don't need to know technical language or complex legal rules. Your right to be compensated
usually depends on nothing more than common sense ideas of who was careful and who
wasn't.
You can often best handle a claim yourself. You know better than anyone else -- insurance
adjuster or attorney -- how an accident happened. You were there, they weren't. And you
know what injuries you suffered and what your physical condition and other circumstances
have been since.
The amount of fair compensation in any given case does not come out of a crystal ball that
only lawyers and insurance companies know how to read. Rather, a number of simple
factors -- type of accident, injuries, medical costs--go into figuring how much any claim is
"worth." The amount an insurance company will be willing to pay usually falls into a fairly
narrow range, whether or not a lawyer handles your claim for you.
Except in serious or complicated cases, a lawyer can usually gain for you only an extra 10%
to 25%, if anything, above what you can obtain for yourself once you understand the
process. But the lawyer will also take 33% to 40% of your recovery as a fee -- and in
addition charge you for "costs" that seem to appear out of thin air and can quickly run into
hundreds of dollars. Subtract the lawyer's fees and costs from the extra amount of the
settlement a lawyer might get, and you'll see how you can actually
do better on your own.
When you might need a lawyer
Sometimes, the skills of an experienced personal injury lawyer -- or at least the threat to an
insurance company that such a lawyer may present -- are worth the money you must pay
that lawyer to represent you. You may need a lawyer because of complex legal rules
involved in your claim, or because your injuries are quite serious and so the potential amount
of your compensation might vary greatly, or simply because an insurance company refuses
to settle the matter with you in good faith.
There are no hard and fast rules about whether or not you need to hire a lawyer. Much of
the decision has to do with how you feel things are going as you attempt to settle your claim
on your own. At some point, you may feel overwhelmed -- too much work, some obscure
legal rule the insurance company throws at you. Or you may be stonewalled by an insurance
adjuster who blusters that the company does not have to honor your claim at all or who
offers you only a piddling amount to settle it. In these situations, you may at least want to
consult an attorney for advice, and perhaps have him or her take
over handling the claim.
A few types of injuries and accidents almost certainly require
that you consult a lawyer.
Long-Term or Permanently Disabling Injuries
Some accidents result in injuries that significantly affect your physical capabilities or
appearance for a long time -- over six months -- or even permanently. Figuring out how
much such a serious injury is worth sometimes can be a difficult business and may require
some assistance from an experienced lawyer to get the most out
of the claim.
Severe Injuries
The amount of your accident compensation is mostly determined by how severe your
injuries were. And the severity of your injuries is measured by the amount of your medical
bills, the type of your injury, and the length of time it takes for you to recover. Once the
amount of your potential compensation gets high, it may be worth the expense to have a
lawyer handle your claim and make sure you receive compensation at the highest end of the
range.
Medical Malpractice
If you have suffered an injury or illness due to careless, unprofessional, or incompetent
treatment at the hands of a doctor, nurse, hospital, clinic, laboratory, or other medical
provider, both the medical questions and the legal rules involved are complex. They almost
certainly require that you hire a lawyer experienced in medical
malpractice cases.
Toxic Exposure
In the increasingly chemical world, we sometimes become ill because of exposure to
chemicals in the air, soil or water, in products, or in food. Claims based on such exposure
are difficult to prove, however, and often require complex scientific data. And because the
chemical and other industries have erected a huge wall to protect themselves from legal
exposure while they continue to expose us to potentially harmful chemicals, the required
evidence is very hard to come by. Get expert help.
When an Insurance Company Refuses to Pay
In some instances, regardless of the nature of your injury or the amount of your medical bills
and lost income, you will want to hire a lawyer because an insurance company or
government agency simply refuses to make any fair settlement offer at all. In these cases,
something -- what the lawyer can get minus the fee charged to get it -- is better than
nothing.
Side Bar -- What Kinds of Claims Can You Handle Yourself?
Automobile, cycle, or pedestrian accidents
Slip or trip and fall accidents
Home accidents
Accidents with defective products
About Related Nolo Products:
Get a complete description of How to Win Your Personal Injury
Claim.
How To Resolve Your Consumer Complaint:
Self-Help or Class Action?
By Richard Alexander, Editor
Each year, millions of consumers experience problems with a product or service. There are
several strategies for resolving those complaints.
First contact the seller. If that does not work, contact a consumer complaint agency. If that
does not bring satisfaction, consider other options, such as arbitration
or filing a lawsuit.
CONTACT THE SELLER
Whether your problem is a defective hair dryer or a leak in your newly installed roof, the
first step in resolving your problem is to contact the merchant who sold you the product or
service. Most consumer complaints are settled at this level.
But first be prepared.
Always make a record and document what went wrong with a letter, by taking photos or by
having your neighbor confirm that the ceiling under the new roof was leaking after the rain.
Save boxes, brochures, and other written materials that were provided by the seller or
contractor.
For a detailed list of considerations in cases of defective products, open the article on The
Consumer Law Page entitled Preparing the Defective Product Case.
Gather together all relevant documents, such as receipts, canceled checks, photographs,
credit card bills, warranties, contracts, brochures, package inserts or bills of sale. Think
about what you would accept as a reasonable resolution of your complaint. Do you want
your money back, or would a store credit suffice? Would you accept a replacement item?
Can the product be repaired? Think through your goal.
In approaching the seller, call first, indicate that you have a complaint, and ask to make an
appointment with the appropriate person, typically the store manager or customer service
representative. At that meeting, explain as briefly and accurately as possible both the nature
of the problem and what you want the merchant to do. Be firm, but polite, avoiding displays
of temper. (If it's not possible or practical to meet with the business, you can try calling or
writing.)
If this proves unsuccessful, take your complaint to the person on the next rung up the chain
of command. This may be the supervisor or manager, the store owner if the store is locally
owned, the corporate consumer complaint department, or even the president or CEO of the
company. You may also decide at this point to pursue your complaint through the
manufacturer, rather than through the merchant, particularly if your problem is covered by a
warranty.
At this stage, you should put your complaint in writing. Your one- to two-page letter should
be polite, well organized, and either typed or written legibly
in ink. It should include:
your name, address, home and work phone numbers (and when you can generally be
reached at those numbers), and your account number, if appropriate;
a brief statement of the important facts concerning your purchase, including when and
where you made the purchase, and specific information about the item in question,
including make and model and serial number, if applicable;
if your compliant involves a service, a description of the service and the name of the
person who performed it;
a brief statement describing your problem with that product or service;
a description of what you have already done to try to resolve your complaint and the
response you received; and
what you want the merchant to do and a reasonable time period
for a response.
You should include copies, not originals, of all documents related to your complaint, and
you should keep a copy of your letter for your files. Also, be sure to keep copies of any
correspondence you receive from the company, and keep dated notes on any telephone
conversations you may have regarding the complaint. This documentation could determine
your success or failure if you need to take your complaint further.
CONTACT A COMPLAINT AGENCY
In most cases, contacting the seller or manufacturer will produce a satisfactory resolution to
your complaint. When the merchant and manufacturer are not cooperative, however, you
can seek assistance from a government or non-profit complaint agency. Your phone
director or local library often lists these organizations. It is best to contact them individually,
instead of copying one letter to many agencies.
State, County, and City Consumer Protection Offices
In most states, there are agencies that can assist in resolving consumer complaints. These
agencies may be in independent state, county or city offices, the governor's office, the
county District Attorney's or City Attorney's office, or the Attorney General's office. It is
important to notify these governmental consumer protection offices of any complaints.
Consumer complaints that report abusive practices or indicate an on-going pattern of fraud
are often the basis of investigations and changes in the law.
Contact the agency first by phone, since most will want to mail you a complaint form to use
in filing your complaint. You will also need to provide copies, not originals, of relevant
documents, and you will need to describe what you have already done to resolve your
complaint. If your complaint involves a business in another state, you may be referred to a
consumer office in that state.
Better Business Bureaus
Better Business Bureaus (BBBs) are non-profit organizations, sponsored by local
businesses, that promote good relations between buyers and sellers. While BBBs have no
authority to force even their members to resolve complaints, most will at least contact the
merchant, and some offer more formal binding arbitration.
Most BBBs prefer that you call first, so that they can determine whether your complaint is
within their jurisdiction and, if so, mail you a complaint form. Once it has received your
completed form, the BBB generally will contact the company for its response and try to
negotiate a solution. If this effort does not resolve your problem, some BBBs will also offer
arbitration, in which both you and the merchant agree to let a neutral third party decide on a
fair resolution.
For more information about BBS, open the Resources Section of The Consumer Law
Page.
Consumer Action Hotlines
In some communities a television news program, radio talk show host, or newspaper
columnist will offer a hotline to help resolve consumer complaints. These services use the
leverage of media exposure to encourage stubborn businesses to
respond.
Other Non-Profit Organizations
A variety of other non-profit organizations try to resolve consumer problems. They include
legal clinics associated with law schools and grassroots community
organizations.
Federal Agencies
Most federal agencies do not handle individual consumer complaints. But it is important for
you to bring complaints to their attention so that they can take any appropriate legal or
regulatory actions to prevent future problems. Do not hesitate to report defective products
to the Consumer Product Safety Commission. Report defective automobiles to the
Department of Transportation's National Highway Traffic Safety Administration. For more
information about these agencies open the Resources Section of
The Consumer Law Page.
Industry Trade Associations
Some industry trade associations offer assistance in resolving complaints pertaining to their
members. The assistance offered usually resembles the information mediation provided by
BBBs. Some of the better established services of this type include the Major Appliance
Consumer Action Panel (1-800-621-0477) and the Direct Marketing Association Mail
Order Action Line (written complaints only to Mail Order Action Line, 6 East 43rd Street,
New York, NY 10017).
Certain products and services are under the separate jurisdiction
of specific state agencies.
Banking
Every state has a banking division which regulates state banks. Many will help consumers
resolve complaints involving state-chartered banks.
Insurance
Consumers with complaints involving insurance companies or agents can get assistance from
the state insurance division.
Investments
Every state has a securities division to regulate securities investments. If you have a
complaint about a broker, investment adviser, financial planner, or a specific investment
product, call your securities division for assistance.
Electric, Gas, or Telephone Company
In each state, the Public Utility Commission or Public Service Commission assists
consumers with complaints involving public utilities. In some states, these utility commissions
also regulate and handle consumer complaints against in-state moving, trucking, charter
buses, and airport shuttle vehicles. In addition, some states have Consumer Utility Boards
that will help consumers resolve their utility complaints.
Licensed Trades
Many states license certain trades, particularly building trades, such as general contractors,
carpenters, plumbers, and electricians. In some states, the departments which license these
trades will assist consumers to resolve their complaints about
licenses.
New Car
Every state but South Dakota and Arkansas has a "lemon law" establishing procedures to
resolve complaints involving chronic car problems. These state laws specify the number of
days and repair attempts needed to qualify. Contact your state consumer protection agency
for information on the state's lemon law. Some states also have lemon laws covering used
cars.
Mail Order
Postal inspectors assist consumers in resolving mail order problems as well as with fraud
cases in which the mails are used in any way to advance the fraud. Contact the postal
inspector (not the Post Master), whom you will find listed under the Postal Service in the
U.S. Government listings or in the white pages of the phone book.
FILE A LAWSUIT
If all else fails, consider pursuing your complaint in court, either through small claims court
or, if the amount of money involved is large, through a civil
lawsuit.
Small Claims Court
Located in nearly every county and city, small claims courts provide a relatively fast,
efficient, and inexpensive way to resolve consumer problems. Most accept claims up to
several thousand dollars and allow consumers to present their own case without the
assistance of an attorney. In fact, in some states lawyers are not permitted in small claims
court. Many of these courts and some consumer agencies make available written material
about the small claims process and how to prepare for it.
When your case is called, you will have a chance to explain your problem to a judge in the
presence of the subjects of your complaint. After hearing both sides of the case, and
reviewing any written evidence provided, the judge will make a decision. Be aware that
collecting small claims court awards may be difficult and include additional costs. Consult
the court or your consumer agency about how best to ensure payment.
Finding the "Right" Lawyer for a Civil Suit
If your claim exceeds the small claims court limit, consider pursuing it through a civil suit.
For such a suit, you will need a lawyer.
To find a lawyer, you can ask friends or any professionals you know for recommendations.
If you have a low income, you may be able to get help from the legal aid or legal services
office. Also, check to see if your employment benefits include
a group legal services plan.
Finding the "right" lawyer for your case will be a significant challenge and it will take time.
Your goal is to find someone who has experience representing consumers in cases involving
commercial fraud or defective products. A lawyer experienced in consumer litigation will
have immediate answers to your questions, will not postpone providing advice, will not
promise to "think about it," and will not have to conduct any research before making
recommendations. In short, the lawyer you want will be an expert.
First, plan to devote 16 to 24 hours finding the right lawyer. This is a difficult task. Stay with
it. Avoid most county bar referral programs which may or may not be manned by the "right"
person. Despite advertising, most lawyers live behind letterheads that tell consumers
absolutely nothing about what they do and their areas of specialty.
The World Wide Web is becoming an excellent sources of information for consumers who
need lawyers with special skills. Check the law lists on the World Wide Web. These lists
are growing daily. You need URL capability through Mosaic or Netscape both of which are
freely available. One of the best is The Seamless Web. Also see, Yahoo at Stanford, Einet,
P-Law and West's Law Directory.
Check out the home page of The Alexander Law Firm.
Look for a lawyer with the same dedication, commitment, experience and record of success
in the types of case that you have that is shown there. Dedicated lawyers who are fiercely
proud of their record of success can be found across the country, but you have to search
them out. Take the time to find the "right" lawyer and you will not regret the effort that it
takes.
In addition, America Online's Court TV provides a database of lawyers and if your local
newspaper is online, a search of that database can provide information about lawyers with
special background and experience.
Be creative. Start with a trip to the local county law library. Find out if the state bar
organization in your state has a section or group of attorneys who deal with your issue.
Local and state bar association have groups or sections of lawyers interested in special
areas of the law. Once you identify a section that meets your needs, call the section chair
directly and ask for referrals. Most states require lawyers to attend Continuing Legal
Education courses. Lawyers in charge of these programs are excellent sources of referrals.
Open Martindale-Hubbell at the county law library to find specialists. This is a national
rating guide and many lawyers provide detailed information about their practices, articles,
and teaching experience.
Local bar presidents and the presiding judges of your general trial court are also good
sources to identify a group of practitioners with a specialty
in your problem.
Skilled trial lawyers are listed by the American Trial Lawyers Association in its membership
list. The section on sustaining members contains prominent trial lawyers who can also be a
good source for referrals to specialists. Skilled lawyers know the "right" lawyers in their
community with special skills. Call your State or local Trial Lawyers organization or
Consumer Attorneys Association for referrals.
The National Board of Trial Advocates in Boston [617.720.2032] can refer you to a
certified civil trial advocate in your location and the National Association of Consumer
Advocates [617.723.1239] is another good referral source.
Once you start developing a list, call and ask for an appointment concerning a "new matter."
Expect to be screen by a member of the attorneys staff. This is common. It is extremely
helpful to prepare a one page typed summary of the relevant information concerning your
case. Offer to fax it to the paralegal assistant screening your call and at the same time ask to
be mailed a copy of the law firm's brochure describing its services and the lawyer's
professional resume.
Important Information to Provide Prospective Lawyers
Provide prospective lawyers with copies of your complaint letters. If you have not done that
type up a brief report of the events involving your case, make it one or two pages long, so
that when you meet with the lawyer there is something for him/her to review. Your one page
summary should provide the following information.
Your First Name
Your Last Name
Number Street
Apt.
City, State Zip Code
day phone
night phone
fax
Many times lawyers are contacted by someone other than the person in need of help, such
as a parent on behalf of a child, or wife on behalf of a husband. Provide the following
information on behalf of person who needs assistance.
The following information is for [describe relationship]
First Name
Last Name
Age
Occupation
For how long?
Current or last employer
City and state where last employed
Highest grade completed
Schools/College attended
Degrees
Year degree granted
Special training or experience in:
Describe in 25 words or less why you need a lawyer. The following are examples from
actual cases.
Consumer fraud examples ABC Company is defrauding consumers who buy its light bulbs;
my contact lens company sells three different lenses which can be worn for different periods
at different prices, but they are all the same product.
Small business examples: I have a franchise with XYZ Corporation and other franchisees
are getting preferential treatment; RST Company took a down payment for a franchise and
never returned my money.
Toxic chemical examples: I worked with strong chemicals for years and was just diagnosed
with leukemia; the EPA just told us that our home is built on
a toxic waste disposal site.
Defective product examples: My mini-van has been recalled three
times and still overheats;
The important point is to provide a brief overview of the type of problem you need
resolved.
State the date you were injured or when you first learned that
you had been damaged?
How did you learn you were injured? Many times actual knowledge of injury does not
occur until well after a wrongful act occurs.
Describe the damage or injury that you have suffered.
Where did it happen?
Who caused the harm?
Full address of wrongdoer
What additional information do you believe the lawyer should have
to help you?
What is your goal? Explain here what you hope to achieve by working with a lawyer on this
issue.
State if you are interested in serving as a representative in
a class action.
Contingency Fee Contracts
Search for a lawyer who will take your case on a "contingent fee" basis, where the lawyer is
paid a percentage of your recovery if you win and no fee if you lose. Also, consumer laws in
some states allow for recovery of "reasonable attorney's
fees."
If you have a claim that makes economic sense and one that will provide a lump sum
recovery, hire a lawyer who will work on a contingency and who will advance costs without
recourse. In many states a lawyer can only promise to advance the costs of prosecuting a
suit. In California, an attorney can lawfully agree that in the event there is no recovery, the
client owes nothing for fees or costs, but that is not true under the Rules of Professional
Conduct in most states.
Keep in mind that lawyers, like other professionals, have office overhead that must be paid
for staff salaries and all the other usual costs of running a business. The percentages charged
by most lawyers are not set by law and are subject to negotiation. There has been much
public discussion about attorneys fees instigated by the insurance industry and major
manufacturers who are working to deny consumers the right to hire lawyers under a
contingency fee or percentage contract. That fact alone should confirm what a valuable right
Americans have under this type of fee arrangement. Nearly no one else in the U.S. agrees to
provide services and pay for the cost of a project only if they are successful and the client
controls whether or not to give approval to the final result. This is a distinguishing aspect of
American law and its support of consumers and individuals.
Historically, under a net fee contract case costs would be repaid to the lawyer off the top,
and then the net recovery would be shared 33/66 or 40/60. Because of recent court
decisions, many lawyers now are offering a fixed percentage to cover both fees and costs,
usually 33% to settle before filing suit and 40% after filing. These agreements provide the
client with a guaranteed percentage in those cases where the expense of preparing a case
are high and encourage lawyers to spend efficiently. Contingency contracts where the
attorney requires a 45% fee off the top and requires the client to reimburse costs out of the
client's portion of the recovery are an indication that the case may have more negatives than
positives.
Whatever you do, always have a written fee agreement and do not sign it unless it is in clear
English that you can understand.
This is all the more important when you are hiring a lawyer on an hourly or fixed fee basis.
Reputable lawyers prepare an agreement that spells out what he/she is to do and what your
obligations are as well. Do not sign it unless you understand it and it contains terms that you
consider fair.
In evaluating lawyers, only hire a lawyer who agrees to "work" with you. Do not expect the
lawyer to initiate contacts with you. Playing telephone tag is for amateurs. Real lawyers are
extremely busy and they do not sit by the telephone to take calls. The type of lawyer you
will want will be spending time in court, in depositions, meetings with other lawyers and
clients, traveling a good deal, and responding to motions set by my opponents. To keep
open communication with your lawyer, set meetings in the office or by telephone with the
attorney's assistant. Understand that most active lawyers do not control their calendar and
your conference may be continued from time to time. Be flexible and ready to reschedule.
The key is to regularly meet, make sure your case has not fallen through the cracks, that you
are confident all the work is getting done, and that you understand
what is developing.
Lastly, if you cannot locate an attorney to take your case on a contingency basis, you might
try paying an attorney for one hour for a consultation to discuss the potential merits of your
case. If your case really has no merit (and many of do not), you are better off not dwelling
on the subject because the focus of your frustration will shift from the wrongdoer to the
attorney who told you did not have a case.
Free Consultations are Available
Many lawyers offer initial consultations, typically for half an hour, either for free or for a
small fee. Such a consultation does not commit you to using the lawyer or taking your case
to court. During that consultation, you should ask the lawyer about his or her experience
bringing similar cases. You should present the facts of your case, and ask for an estimate of
your chances of success. You will also need to find out how the lawyer charges and what
the expected cost for your case would be.
Class Actions are Powerful Tools to Correct Misconduct
Be sure to ask whether your case qualifies as a class action, a powerful legal tool which can
be used by one person to remedy wrongs committed against many consumers. Class
actions provide individuals having claims that are inefficient to prosecute separately to be
joined together providing there are common issues shared with others and the person filing
the action as a class representative is willing to represent the interests of all persons similarly
situated.
If you agree to serve as a class representative you will be representing the interests of all
members of your class in litigation to recover money damages for the class. In short, you
will be representing the rights of everyone who has been similarly injured because you have
claims which are typical of those of the class, and thus involve common issues of law or fact.
You are required by law to consider the interests of the class just as you would consider
your own interests and you will participate actively in the lawsuit, such as by testifying at
deposition and trial, and answering written interrogatories, and by keeping generally aware
of the status and progress of the lawsuit.
A class action gives you effective power to force a defendant to deal with everyone fairly.
Any resolution of the class claims is subject to court approval and must be designed in the
best interests of the class as a whole. Your main obligation is to provide your lawyers and
the court with all relevant facts of which you are aware.
As a class representative you volunteer to represent many other people with similar claims
and damages, because you believe that it is important that everyone benefits from this
lawsuit equally, that a class lawsuit will save time, money, and effort, and thus will benefit all
parties, and the court, and that the class action is an important tool to assure compliance
with the law and honest practices.
FOR MORE INFORMATION
The Consumer's Resource Handbook includes a directory of government, non-profit, and
corporate consumer complaint assistance contacts. Single copies of the Handbook can be
ordered, free of charge, by writing to Handbook, Consumer Information Center, Pueblo,
Colorado 81009. See the Resources Section of The Consumer Law Page to directly
access this service.
The Lemon Book: Auto Rights For New And Used Cars, by Ralph Nader and Clarence
Ditlow, provides a step-by-step guide to pursuing automobile complaints. It can be ordered
for $15.95 from the Center for Auto Safety, 2001 S Street, N.W., Washington, D.C.
20009.
Portions of the information in this brochure were provided by the Consumer Federation of
America (CFA) and the National Association of Consumer Agency Administrators
(NACAA). CFA is a federation of 240 non-profit organizations and represents the
consumer interest through advocacy and education. NACAA's 150 members in city,
county, state and federal consumer protection offices enforce consumer laws and promote
awareness of consumers' rights. Both are excellent sources of advice and information. CFA
can be reached at 202.387.6121 and NACCA at 202.347.7395. Any errors are those of
the author.
For more information on the rights of consumers, consult the Resource Section of The
Consumer Law Page.
About the Editor
San Jose attorney Richard Alexander, a National Honor Scholar at The Law School,
University of Chicago, was first certified as a civil trial advocate by the National Board of
Trial Advocacy in 1980, is specially recognized as a Trial Lawyer by Consumer Attorneys
of California, is a former member of the Board of Governors of The State Bar of California,
currently serves as Vice President of Consumer Attorneys of California and is a founding
member of the National Association of Consumer Advocates. The Alexander Law Firm
specializes in negligence, toxic chemical, defective product, mass accident, environmental
and fraud cases for individuals and small businesses. The firm holds Martindale-Hubbell's
highest rating for legal ability and adherence to ethical values and is recognized in the List of
Preeminent Law Firms in the United States.
"The Consumer Law Page" is a trademark of The Alexander Law Firm. RICHARD ALEXANDER
THE ALEXANDER LAW FIRM
55 S. Market Street, Suite 1080
San Jose, California 95113
1300 Mercantile Library Building, 414 Walnut Street
Cincinnati, OH 45202
(513) 723-1776; Fax 421-1776
Copyright 1995, THE ALEXANDER LAW FIRM
by Michele E. Hagan, Esq. is a practicing trial attorney in San Diego. She is the founder and
president of TRIAL READY, a trial skills consulting firm.
The jury selection, or voir dire process, has changed. Have you adjusted? What do you
know about your jury?
Are jurors answers enough? Are you paying attention to juror cues? Cue into the jury to
help you select a fair and impartial jury.
Since Proposition 115, restrictions on time, content, number of questions, and even the
opportunity to question jurors, has made it difficult for an attorney
to evaluate jurors.
Some rely on jury profiles. Others just wing it. Attorneys are struggling to gain more
information on jurors. All too frequently, the jurors' answers have been of little value. Under
these circumstances, what other skills can you use?
You may be overlooking a valuable asset: your ability to read people. Watching jurors and
searching for cues is one way you can gather additional information. It is a skill that you use
everyday. Think about your first meeting with a client, a witness or opposing counsel. You
are constantly sizing up people as potential clients or witnesses. You need to be an astute
observer of human behavior. You can train yourself to pay attention to how people are
acting. You can learn from their nonverbal cues. Selecting a jury should not be any
different?
What are the cues? When the jurors first enter the courtroom, look at each juror. What is
your first impression of the juror? Are there any cues in their demeanor, facial expressions
or body language? What are the jurors holding in their hands? Are they holding books,
magazines, calendars, briefcases? Which books or magazines do
they read? Any clues?
If you are allowed to question the jury, pay attention to how the juror responds to you.
What type of rapport do you have with the juror? Do you have eye contact? Do they look
at you when they are talking? Do they answer immediately or hesitate? Does their facial
expressions change or contradict their words? Do they answer the question asked? Do they
talk too much? Do they ask YOU questions? What words do they use? What tone do they
use? Does their tone match their words? When opposing counsel or the judge questions the
jurors, pay attention. Does anything change? tone? body language? posture? facial
expressions?
Be aware of group dynamics. During your questioning, ask the other jurors if they agree or
disagree with what the juror said. How do the jurors get along? Use your peripheral vision
to keep an eye on all potential jurors during questioning. Watch how the other jurors react
to the juror being questioned or to their answers. Are they listening? asleep? day dreaming?
Or reading a book? Does their body language change? Do they look
at the juror?
Pay attention to each juror during the breaks. What is the juror doing? Where did they go?
Sitting alone? Glued to the phone? Consumed with their appointment calendar? Reading a
book down the hall? Talking to other jurors? Which ones? Who is sitting with whom? What
will happen to the pair or group if you bump one of them? Are they late or early returning
from breaks? Who holds the courtroom door? Who gets into the jury box first and last?
Who is talking to the bailiff or clerk? Who smiles at you or says
"good morning"?
Selecting a jury is not easy.
Why not increase your ability to pick the right jury by paying attention to the jurors cues. It
is a skill that can be developed and practiced everyday. Failing to pay attention to these
cues and relying solely on what a juror says is naive and can be fatal. Their answers alone
only give you part of the picture. The type of jury you pick does impact your verdict. CUE
INTO YOUR JURORS!
by G. Edward Arledge, chair of Luce, Forward, Hamilton & Scripps'
Business Practice Group in San Diego. His practice emphasizes
securities law, acquisitions and divestitures, corporate governance,
emerging business and high-tech companies. He can be contacted
at (619) 236-1414.
Unless a small business is very careful (some might even say lucky),
it can expect to face a major lawsuit some time during its first
five years of business. And the more successful the business,
the greater the likelihood of being sued.
Small business should pay particular attention to the following
areas of their business which are "litigation sensitive."
Relationships with Investors
One of the worst things that can happen to a company is to have a minority shareholder
who is unhappy with how the company is being run and have no way to force him to sell his
shares back to the company at a fair price. This situation can foster a devastating lawsuit by
an unhappy investor. A shareholder agreement or a partner buy-out agreement can avoid
this problem and give the company the right to buy-out an investor. Without an investor
buy-out agreement, there is virtually no way to eliminate an unhappy
investor at a fair price.
Raising Money
Observe the securities laws scrupulously when raising money. Failure to do so will invariably
result in an investor obtaining the upper hand if and when the investor sues the company.
The only way to have a good understanding of securities laws that apply to money-raising
efforts is to consult a legal advisor prior to soliciting money from everyone -- including
friends and relatives.
Trade Names
One of the worst shocks a small business can receive is a lawsuit or the threat of a suit
alleging that the company should stop using its name. Do your homework to ensure that you
have the right to use the name of your business.
Simply filing a fictitious name statement or incorporating the business does not give you the
unquestioned right to use a name. A trademark search is the only way to be sure a particular
name is available. These searches and the legal review associated with them generally cost
less than $1,000.
After the search, consult your legal advisor to determine whether or not you should attempt
to register the name with the U.S. Patent and Trademark Office. Loss of name identification
and costs associated with it can ruin a small business.
Employee Relations
Without a doubt, employee-related litigation is the most prevalent type of litigation faced by
small businesses.
Every small business should have a definitive employee handbook that contains all essential
employee issues, such as the employer's right to terminate employees, maternity-leave
rights, confidentiality, sick leave, vacation, sexual harassment, etc. The owner and each
manager should be intimately familiar with the rights of employees
in these areas.
Even when a business has only a few employees, management must understand all
employee rights. If you comply with the handbook and the rules regarding employees' rights,
employees should be discouraged from suing you, or you should have the upper hand if they
do. Consult your legal adviser before terminating any employees.
Selling and Buying Products
Whenever you sell or purchase products, use comprehensive purchase-order forms tailored
to your business. These purchase orders should be carefully reviewed and drafted by your
legal advisor to ensure that they provide the maximum protection in the event of litigation.
Standard purchase and sale contracts should be used only with great caution. The only thing
standard about any "standard" document or agreement is that it is probably designed to take
advantage of you in a very standard manner.
Each business is unique. Few, if any, "standard" forms or agreements ever provide the same
protection s one tailored to fit a particular business.
Purchase orders for buying are as important as those for selling. Many items can be
included in the purchase or sale orders that will substantially improve the chances of success
if a business must pursue a claim in court to collect for products sold or must defend against
such a claim. Simply having a good purchase order can often discourage a lawsuit from
being filed. Typical provisions that would be covered are:
Warranties -- What kind of warranties are you giving? The law implies certain
warranties on the sale of all products unless they are disclaimed in a particular
manner.
Attorneys Fees -- Under California law you generally are not entitled to attorneys
fees when you collect a debt unless they have been agreed
to in writing.
Risk of Loss -- Who suffers the loss if the goods are destroyed or lost during
shipment?
Payment -- What are terms of payments, late charges, etc.?
Be Reasonable About Litigation
Litigation exists primarily for the purpose of collecting money or protecting a business -- not
to prove principles. Small businesses exist solely for the purpose of making a profit, not for
the purpose of defending a principle or setting things straight. Never become involved in
litigation because of the principle of the matter.
Settle a dispute and go on with your business. In addition to the hard dollar cost of litigation,
it's time consuming and likely to have a disruptive effect on your business. The other party
could choose to go over your records with a fine-tooth comb or tie up your employees in
endless hours of depositions. Although these costs are not tangible, they can have a
devastating effect on a small business.
Lawsuits Best Avoided
As a general rule, it is in a business' best interest to avoid litigation or reach a quick
settlement if sued. There are always two sides to every story and, if you file a lawsuit, the
person you sue will probably file a lawsuit against you. Be cautious of anyone who says
your business will be a clear winner in a lawsuit without any risk of loss; have your case
evaluated by a second source.
It is very easy to file a lawsuit. The complaint is fairly inexpensive to prepare, and the filing
fee is only a couple of hundred dollars. However, once the lawsuit is filed, it's virtually
impossible to get rid of without the other side's consent or without exposing yourself to
serious liability.
Should you find yourself faced with the prospect of litigation, carefully explore the
alternatives of arbitration or mediation; these alternatives are often faster and cheaper and
provide less exposure for the business. And, if you do find yourself involved in litigation,
whether it be as the plaintiff or the defendants, good luck -- you're in for the experience of a
lifetime!