Do I really need to hire a lawyer for this?
Is hiring a lawyer worth all that money?
My default answer to the question "do I need a lawyer" is "yes" - if you're asking the question you probably do. Just because you can navigate yourself through a legal situation doesn't mean you should. Although perhaps an overly simplistic analogy, the fact that you can perform your own surgery does not mean it's a good idea.
In the real world, I know it's not that simple. People have limited resources, limited time, anxiety, and sometimes distrust, that make it difficult to find a lawyer they can trust with a sensitive personal problem. So the more realistic answer to this question, like the answer you will receive from a lawyer to most questions, is "it depends".
The answer for your particular situation will depend on the forum or opposing party you are dealing with, the legal complexity of the problem, what is at stake, and your own ability and confidence to deal with the problem yourself. These considerations have to be weighed against your ability to pay a lawyer for the particular level and kind of legal assistance you need. Let's look at how attorneys are paid for various types of legal services, and examine the pros and cons of trying to represent yourself. We'll also look at other possible options to obtain legal help for your particular situation.
How do attorneys charge for their services?
The reason I hear most often for not hiring an attorney is, predictably, the expense. So let's look at how attorneys are paid as a starting point for discussing whether you should hire an attorney or try to go it on your own.
Attorneys are not all paid in the same way. Some attorneys are employed full-time as a salaried employee, usually by a business or government agency. Unless you are very wealthy or run a business that needs and can afford a full-time attorney as a cost of doing business, that is probably not applicable to your situation so I won't discuss that option further.
Attorneys in private practice may be paid a retainer fee in return for a commitment to represent the client when needed, with the actual work done for the client billed separately by one of the following fee arrangements. This is more customary for business clients who need to have an attorney readily available and committed to serve as the "corporate attorney" to handle internal business organization issues, collections, transactional issues, etc., yet don't have the level of need to warrant an attorney on full-time staff.
The three basic attorney billing methods I will discuss are contingency fee, hourly rate, and fixed rate. The actual billing method an attorney employs depends in large part upon the type of case being handled.
How do attorney contingent fees work?
An attorney may work on a contingency fee basis in which the attorney is paid a percentage of what he "wins" for you, such as a personal injury lawsuit or collection of accounts. If nothing is recovered, there is either no fee or an agreed upon minimal flat fee. Similarly, although there is no "winning" involved, fees for some matters may be based upon a percentage of the value of the matter handled, such as an estate or trust fund.
When you are the injured party in an accident with another party at fault for the accident, you are likely to find an attorney who will represent you on a contingent fee basis. In fact, you may even find yourself in the position of having attorneys solicit you to take your case! (Hence the pejorative "ambulance chaser"). You have no doubt seen the broadcast and print media advertising for attorneys seeking personal injury cases, sometimes with specialized types of cases (serious auto accident, asbestos, a particular medical treatment, etc.), in which an attorney or law firm openly advertises for clients to represent in this fashion.
Contingent fee agreements can be of great benefit to both attorney and client. The client may not otherwise have the means to afford the legal expense of a personal injury under the best of circumstances, made all the worse by the loss of earning capacity inflicted by a serious injury. For the attorney, contingent fee cases provide an opportunity to employ legal skills on behalf of a client with a prospect of financial recovery for both attorney and client.
Is there a way to pay a set fee for the whole case?
Yes! Some attorneys will charge a flat rate based on the service provided (per document or case). An attorney charging a fixed rate quotes a flat rate for handling the client's entire legal matter. For example, an attorney may charge a client $ 1500 to handle a driving under the influence charge or an uncontested divorce. The advantage to the client is having a firm expectation of the cost rather than dealing with uncertain additional cost based upon a not-yet-known number of attorney hours that may be spent on the case. The advantage to the attorney is receiving up front a fee that has been set to cover the attorney's time normally spent on the type of cases the attorney routinely handles. The disadvantage may be that there is a certain "gamble" involved for both. If the case is resolved more easily than the customary case, the client may pay more than he or she may have paid on an hourly basis, while the case that takes more attorney effort to resolve than the customary case puts the attorney at a disadvantage.
What about hourly attorney fee rates?
An attorney charging an hourly rate keeps track of time spent on the client's case to bill against the client's account. The hourly rate will be based on the market (geographic and specialty, if any), the attorney's experience, and the attorney's business structure. It may range from a hundred or two hundred dollars per hour to thousands. The attorney may charge a retainer in advance as a down payment to cover a minimum or average number of hours expected to be spent on the case.
Have a fool for a client . . ?
Certain matters are more naturally suited than others for self-representation. Depending on your own level of education, ability and confidence, many administrative legal matters are stated in fairly non-legal terms such that you can read the correspondence, respond within the time and manner prescribed, and even state your case at an informal hearing in a very effective manner - in some cases every bit as effectively as a hired spokesman. Such matters might include simple unemployment compensation, workers compensation, child support establishment, etc.
When it comes to court proceedings, small claims courts are established specifically to afford an unrepresented party an opportunity to be heard without more rigorous rules of practice that generally apply to court proceedings. As a matter of simple economy, it may not make sense to pay an attorney $ 1,000.00 to represent you to recover your $ 500.00 rental deposit. Many family courts also have pro se programs providing parties with standard forms and in some cases facilitators to assist in obtaining simple family court relief including dissolution of marriage, custody and visitation agreements, etc.
When you are the victim of an auto accident that is the fault of the other driver, the responsible party's insurance adjuster may be quite willing, and in fact prefer, to discuss and negotiate a settlement with you directly as soon as possible. Conversely, when you are alleged to be at fault in an auto accident, you should notify your insurance company immediately since defense of any claims against you is included in your liability insurance, at least up to your policy limits. (If the amount of damages claimed against you is higher than your policy limits, it may be advisable to retain an attorney of your own to advise you, but that is a topic for another day).
In every one of these situations, you may very well be able to get through the legal or administrative process fairly comfortably and even be satisfied with the outcome. But, you may have done better with far less anxiety with the assistance of an attorney. It's sort of like deciding whether to go to the doctor when you can't shake a cold or flu. You may get better either way, but it may be impossible to say which would have provided you the best results in the best time.
One option that you may want to explore if you feel you cannot afford to retain an attorney to represent you but require some help in representing yourself is to inquire as to whether an attorney will agree to provide you with "a la carte" billing for legal services. As I indicated earlier, attorney billing is traditionally based on a flat fee or hourly fee charged against a retainer fee. The "a la carte" method would permit a client representing him or herself to consult an attorney for specific services desired or required rather than assume full responsibility for the legal matter. For example, a divorcing couple may work out their own agreement, either between themselves or with the assistance of a mediator, then one of them retain an attorney for the sole purpose of assisting in preparation of the documents necessary to obtain a divorce pursuant to those terms. Or a tenant choosing to represent herself in small claims court may retain the services of an attorney to provide advice and assistance in filing the claim or preparing for the trial, but not to assume responsibility for the handling of the case in court. While it may not make sense to pay $ 1,000.00 to an attorney to recover a $ 500 rental deposit, paying the attorney for a half hour's worth of advice may be worthwhile and even critical to your success. If these types of creative arrangements are pursued, it is highly advisable that a fee agreement be used to specify what specific services are and are not to be provided. (See my separate hub on the subject of fee agreements). You may also find this kind of consultation offered on a no-fee or low-fee basis by legal clinics sponsored by courts, bar associations, law schools or legal services agencies.
You may have heard the saying, the attorney who represents himself has a fool for a client and an idiot for a lawyer . . . there is something to that as well. Representing yourself in litigation is seldom a good idea even for lawyers who have the legal skills necessary to do so. I've seen very capable attorneys represent themselves in their own legal matters with very disappointing results. The objectivity and judgment that an attorney brings to your case can be every bit as valuable as his or her expertise.
Are there any alternatives to hiring an attorney?
I'll repeat the refrain again, in my opinion you are almost always better off retaining the services of an attorney with an ethical obligation to advise and represent you to meet your goals of representation. But when that is not feasible, here are some alternatives that may help in certain situations. This list is by no means exhaustive, and I would love to see comments suggesting others for discussion. I'm fairly certain I will think of more to add in the future as well. But here are a few that readily come to mind.
I've mentioned above the situation when you are, or might be, alleged to be at fault in an auto accident - tell your insurance company immediately. Do so even if you are also an injured party, and even if you weren't cited. And don't under any circumstances drive without liability insurance! it's not only illegal to do so, you put yourself at great legal risk as well, including the loss of the insurance company's legal defense of any claims made against you.
For paternity and child support matters, legal services are available through child support enforcement agencies. Every state receives federal money, subject to federal regulations, to provide child support enforcement agencies that assist in establishing, modifying and enforcing child support obligations. Although the nature of each state's program may differ, there is in most cases no cost or nominal cost associated with the services provided. This is a benefit not only to single or separated mothers seeking support from the other parent, but is also available to single or separated fathers who have possession of their children. Not only that, but even in cases when a mother may be content to have the father out of the life of the child, the father is able to receive services such as genetic testing and legal services, often at nominal cost. This can aid the father by establishing his paternity of the child by an administrative or judicial order, the first step toward establishing other parental rights and responsibilities such as visitation or custody.
One caution when dealing with child support agencies is to understand that as structured in most states, the agency and its staff do not "represent" either parent in providing those services. Rather, the agency is viewed as representing the state in its role of "parens patriae", the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf, including children. In addition, if a parent with children in the household receives certain welfare benefits, the parent assigns to the state the right to seek child support against the non-household parent. A parent dealing with the child support agency must understand that the agency has no duty to act in the parent's best interest or as the parent wishes. Since the agency will be acting in its role as protector of the child's financial best interest, the parent is still well-advised to have an attorney to consult concerning both financial and non-financial parenting matters, such as custody and visitation. Likewise, the non-household father seeking the services of the agency to establish his parentage must understand that the likely end of those services will be to establish a child support obligation against him. So he must be prepared to seek separate representation concerning any other parenting issues such as visitation, custody, etc., once his parentage is legally established.
Many law schools, local bar associations, courts and legal advocacy organizations sponsor legal clinics or legal services to provide low-cost or free legal advice and representation to low income populations. Eligibility for these programs may, or may not, be means-driven based on income or assets (often based on household size with some reference to federal poverty guidelines). Special interest groups such as those providing services to veterans, domestic violence, child abuse or sexual assault victims may also assist by providing or referring clients for legal services at no or nominal cost. Military members and military retirees are able to obtain basic personal legal services from active duty legal assistance offices, including advice and referral and preparation of wills, powers of attorney, and advance medical directives.
Finally I don't want to leave out a question I am often asked - how good are those on-line legal drafting services for creating my own will? My answer - I don't know. I haven't used them, and I don't refer people to them. I don't say that with my nose in the air or with any intention of disparaging their quality or good intentions. I just know that I have had occasion to use legal software that provides electronic questionnaires to the client to bring to the appointment. I have also worked in offices over the years that have used hard copy paper fill-in-the-blank questionnaires for the client to provide the attorney. I know from my experience that I have never - not ever- been able to create a document from those questionnaires that I didn't need to change or add to the information supplied by the client once I sat down and discussed the client's intentions face to face. In some cases, those changes were extremely significant. Can you draft a will, trust, or business document from those electronic resources? Of course, I am quite certain you can, many people do. But I can't tell you whether those documents will actually meet your individual and family needs without reviewing them and comparing them to your needs and intentions. For that, we would need to talk.
I have spoken to so many clients, family, friends and acquaintances over the years who have faced this issue of when to hire an attorney or try to go it alone. Option 1, in my opinion, is always to retain an attorney to obtain the legal advice and help you need. My rationale is not the full employment of attorneys, but to provide you with peace of mind and confidence in dealing with whatever difficulty you face. You just don't know what you don't know - hire someone who does when you can. But if you don't feel you can afford to, don't give up on doing whatever you can to take care of yourself and those you love.
Have you ever represented yourself in court?
© 2013 G Laver