This article is from a webinar that was presented by SunRay Construction Solutions and Alex Barthet. Alex is a board-certified construction lawyer serving clients in Florida. In this article we will discuss how to deal with material price escalation – a real problem that is affecting the construction industry.
How Do I Find the Best Lawyer?
One way to do this is by asking people you trust for any recommendations they have for a lawyer. This is usually the best way to do it.
a. Use Google and AVVO
Even if you get a name, the next thing you should do is put their name into Google just to make sure that there is nothing you are unaware of that may be easily and publicly available.
So first, Google their name and then use other services like AVVO. They have lots of information on lawyers including lawyer ratings. Understanding the lawyer who is rated at 10 may be better than the lawyer that is rated an 8. But at least it gives you some guidelines on how to gauge the effectiveness of the lawyer you are hiring.
b. Martindale (AV, BV, CV)
Another server out there and one of the oldest is a service called Martindale. They have different ratings, and it is probably the most comprehensive rating out there. They rate lawyers by AV, BV, and CV. One of the other designations they give is called “preeminent.” You have to practice for at least 10 years to be rated. Then they send a series of surveys to other lawyers and judges in the community, compile all that information, and give a rating.
That is another way to find out a little bit more about your lawyer.
c. State bar
You should always go to the state bar where your lawyer is licensed and see if there is any disciplinary history. Make sure that they are in fact licensed.
For example, let us say you do not feel very comfortable with your lawyer. You do a quick search and find out that this lawyer has previously been suspended for three years, starting in 2007. That would have been a nice fact for you to know in advance of hiring this prior lawyer.
d. Board certification
Check to see if your lawyer has any board certifications in the area of practice that you need a lawyer in. So, if you need an immigration lawyer, there is an immigration board certification. If you need a construction lawyer, there is a construction lawyer certification in Florida.
Florida has about 42 certifications. Again, it should not be the only factor, but it should be an additional factor you consider because you know that someone who is certified has the necessary experience, has been vetted by the Florida bar, or any bar, and they passed the test on issues specific to the area of practice that your case involves.
What Questions Do I Ask A Prospective Lawyer?
Below are a couple of questions to consider asking a prospective lawyer:
1. Do you specialize in this area of law?
In Florida specifically, as well as in major cities across the country generally, lawyers find themselves able to specialize. You would like a lawyer who specializes in the area of law that your case is about. Because this means you will not have to pay them to learn things that are important to your case.
So, a board-certified construction lawyer who specializes in construction understands lots of the issues that are relevant to your construction case. If a lawyer can’t do a good job in the construction cases, you will have to pay them for them to get up to speed on those issues, versus getting someone who specializes in that area.
2. How much of your practice is devoted to this area of law?
Another way to begin to ask this is to ask them how much of their practice is devoted to that area of the law.
3. How many cases like mine have you personally handled?
You can also ask them how many cases like yours they have personally handled. So, you can get a sense of how many times over the past few years they have handled cases similar to yours. The end result may not be the same, but at least they have experience in handling similar cases.
4. Who else will be working with you?
Another question is who they will be working with. Typically, you will meet a partner at their law firm. That partner will try to build trust with you, and you need to understand that that partner may or may not be doing work on some or all of the case. If that is so, you need to know who else is going to be working on the case with that partner.
This is so that you do not engage the lawyer thinking that it is going to be him or her doing all the work only to find out that you have been unceremoniously shuffled off to a junior associate who is doing most of the work in the case. That is not a bad thing. The important thing for you to understand is if that is going to happen, you need to know who that person is, and you will need to meet them. Because they are going to be dealing with you on a regular basis.
5. How do you communicate with clients?
Many lawyers typically handle communication via email. But there are still many good lawyers who are pretty old-school, and they send letters. Or they write letters via dictation that get typed up by an assistant, then scan and email them to you. You need to understand how that communication is going to take place. You need to know if they are regularly available, like if they are a 9-5 person, and you call them at 5:30pm, they are gone and will not get back to you until 9 in the morning the next day.
6. How often do you bill?
You need to ask about how they bill and how often they will bill.
7. What are the estimated fees and costs for this matter?
You can ask a lawyer what the estimated attorney fees and costs for the case. They should be able to give you some rough estimates. Those estimates are of course based on assumptions but at least it will give you a frame of reference. So you will know whether you are going to spend $5,000 in fees or $100,000 in fees. You would of course like to know these things in advance.
8. What are the strengths and weaknesses in my case?
You should be concerned about any lawyer who tells you definitively that you are going to win. You can ask what the strengths and weaknesses in your case. That will give you, from the lawyer’s perspective, a gist of the things that help your case and those things you should be aware of that may sink it.
Some unreasonable or unfair questions to ask are “how many questions have you won or how many have you lost? These questions are not determinative of the outcome of the case. a win-loss record by itself is a dangerous litmus test to use when picking a lawyer.
What Are the Different Ways to Pay A Lawyer?
There are many different ways to pay a lawyer.
1. Hourly rates
Obviously the time they spend on your case, the more money they will make. some lawyers perceive that if they charge more, that people will perceive they are better. So, just be aware that there are many good lawyers who charge reasonable or lower rates, and there are many not-so-great lawyers who charge more per hour. So the hourly rate by itself is not a barometer for the effectiveness of the lawyer.
2. Full contingent
Full contingency means the lawyer gets paid only based on the actual recovery in the case. That ranges from 15-50 percent. But on a commercial case like a construction case or collection case, it is completely negotiable. But in personal injury cases, there is a rule that a personal injury lawyer can take only a certain amount.
A hybrid is a lower hourly rate with a percentage bonus at the end depending on the recovery.
4. Complete flat fee
A flat fee is very hard to do. There are not many lawyers who charge a flat fee because litigation is unpredictable. But there are many lawyers who will do certain things on a flat fee. So, you may have a contract that needs to be negotiated or drafted. See if you can get that at a flat fee so that you can cap your costs.
5. Flat fee by task
A flat fee by task is when there are certain segments of the case like a demand letter, filing a complaint, or serving discovery. All of those items maybe already have a flat fee each so that you do not have to worry about how time is going to be spent and how much you are going to get billed.
Many lawyers require a retainer in advance. This is money that is given to the lawyer in advance of the case. Know that most retainers have a month to two months' worth of work that they expect to do. So, if you go to a lawyer with a really big case and lots of work that has to be done, you should expect the retainer to be higher than a smaller case.
You may go to a lawyer and say that you have a $5,000 retainer, and it takes you three hours of work to get back the unused portion of the retainer. So be aware that that as well is negotiable.
How Do I Reduce My Fees and Costs?
Now we will talk about how to reduce your fees and losses in the case.
1. Case estimates/Budgets
One way is to have an entire case estimate which is very difficult to do. It is very difficult to do and does not accurately predict the final cost of the case. So, while you can ask for it, your lawyer should be able to prepare one for you. Just know that there are many assumptions and exclusions that may happen in the case.
2. Task estimates/Budgets
One of the things that you can do is as you communicate with your lawyer, try to get mini budgets or mini estimates based on the task. So, if you talk to your lawyer and the lawyer says that the next thing you should do is take the deposition of the defendant. That would be a good opportunity to ask what the expected cost will be. Then the lawyer will run some simple calculations, tell you they need to gather records, take the deposition which would maybe take half a day, and they will tell you that the cost is $x.
It will give you two things. One is that it will give you a sense of some upcoming costs, and number two is it makes the lawyer aware that you are watching the cost in the case. And the lawyer is then more likely to make sure that they do not exceed the budget that they gave you because they would have, by then, given you a specific number that you are expecting to see.
So, one of the ways to reduce your fees is to ask occasionally about how much is expected to be spent for certain upcoming tasks as the work is being done and as you communicate.
3. Case strategies
Your case strategy has a lot to do with how much your attorney fees can be reduced. If your case strategy is that you need to settle early, the budget for that case is going to be very different than if your case strategy is to go trial and for a judge to tell you that you are right or wrong. You should have an understanding of the strategy you wish to employ early on.
Because that strategy is going to dictate the work that gets done and once your lawyer knows that strategy, they can perform the task that best tries to achieve the goal that you have. Switching strategies in a case is very expensive. So, try to identify a strategy and stick with it to the extent you can.
4. Organize in advance
Anything you can organize in advance is a good thing. If you give your lawyer five boxes of documents that do not make any sense, they are going to have to go through it and that is going to cost you money. So, if you can put together information in an organized manner, that will save you a lot of money.
5. Respond quickly
When your lawyer has to set depositions, set hearing dates, respond to discovery, set up mediation, or set up trials, all of these things that they have to do, you should be able to respond to the lawyer promptly with answers that he or she is looking for. Because that will also save you money.
If not, what you will end up doing is you will have the lawyer call you, send you an email, and that continual follow-up you will see on the bills as they try to get you to do the things that they need to, to keep your case moving quickly.
6. Ask to be copied on everything
Sometimes clients want updates on their case. This is not an unreasonable thing but if you ask your lawyer to give you an update, they will likely bill you for that update. One way to minimize that is if you ask to be copied on everything including the correspondence to the court and the opposing counsel. Then as things happen in your case, you will see them and be less likely to need an update. Because you will be updated as the work gets done.
What Should Be on the Legal Bills?
Now we will talk about what should on your legal bills. Of course, assuming that you are being billed hourly for the time of your lawyer, for every time entry, there should be a time entry that is rendered.
Ideally, the person who rendered that time entry, the hours that were spent should be in tenths of an hour, like .1, .5, .9 or 2.4. That is the minimum increment and should be the maximum increment that your bills at versus in quarter or half hours.
So, if your lawyer receives an email that is four lines and responds in three lines, if the minimum increment that you have agreed to in the engagement is quarter hours, well what took 5 minutes, is getting you billed for a quarter hour. It is suggested that you have your lawyers bill you by the tenth of an hour.
And then they should also include a description of the work that was performed for that time and that person. At the end, there should be a total.
One of the other things that you can ask for, because some billing systems are very sophisticated, are totals by attorney performing work on the case, you can see that on all the bills if that is something you want.
How Do I change Lawyers in Mid-Stream?
Now we will talk about how to change lawyers in mid-stream. The easiest way to do that, once you make up your mind that the attorney you have is not the one that you want to continue with, is to understand if you have everything you need in order to move your case to another lawyer. The easiest ways to do this, are if you have the following things in place:
1. Keep copies of everything
Keep copies of everything. If there are original documents that you have when you see a lawyer, you should give the lawyer copies.
2. Don’t give originals
Or if you have the originals, ask them to make copies and give you back the originals.
3. Retaining lien
The reason this is important is because lawyers have the right if they are not paid, to file what is called a retaining lien. A retaining lien is a lien that a lawyer can assert and gain interest in any of your property.
4. Charging lien
The other lien is what is called a charging lien. This is an attorney’s right to a portion of the judgment that was won for you. It covers only the lawyer’s claim on money obtained in a particular action.