- What should I look for in a lawyer
- I want to protect my business and personal assets from liability. What can I do
- In a lawsuit, who pays the attorney fees
- What about other costs in a lawsuit
Q. What should I look for in a lawyer?
A. Every attorney will say they are competent, experienced, and ethical. Most actually are, but does that automatically mean they are right for you, your business, or your case? Not necessarily. While there is no one magic formula that makes a particular attorney best for your situation, here are a few questions you should ask in the initial interview / consultation:
- When I call your office, can I speak with my attorney or do I have to talk to a secretary?
(in our firm, you can speak directly with an attorney) - If I need to reach you after hours, do you give out your cell phone number to clients?
(we do) - Will you let me review your attorney-client fee agreement at my leisure before I sign it?
(we do) - How much experience do you have in this particular field of law? For example, a lawyer who has predominantly practiced family law for 20 years might not be qualified to handle a business buy-sell.
- What are your minimum billing increments? Is it longer for telephone calls than other work? Is any part of my deposit into the client trust account “non-refundable”?
- Does the attorney guarantee the outcome of your case? If so, run out their door as fast as you can before they have a chance to get their hooks into you. No competent or ethical attorney ever promises a client what the outcome of their case will be, no matter how solid it may appear. Your attorney should outline the pros and cons of your case, play “devil’s advocate” with the client, and allow the client to make an informed decision as to how to pursue the matter. Never hire a lawyer who merely tells you what they think you want to hear. Hire an attorney who tells it to you straight.
Q. I want to protect my business and personal assets from liability. What can I do?
A. Asset protection (also known as risk management) is a two-step process:
- Get properly insured. Most businesses have required insurance (workers’ compensation, etc.) but often overlook basic coverage such as general liability insurance. Also, be sure to carry sufficient personal liability insurance in the event your business entity is pierced. We suggest that every business owner carry a personal “umbrella” policy for this reason. It’s usually easy to obtain through your homeowner’s or renter’s insurance carrier.
- Realize that insurance will not cover certain claims. A common claim is employee related, such as sexual harassment. Unless you purchase a very expensive Employment Practices Liability for these specific claims, you’re on your own. Even if you do, some claims, such as wage and hour violations, are not covered by EPL insurance. Therefore, every business should have a strongly worded Employee Policy Handbook, coupled with proper training of supervisors, to minimize the risk of a legitimate claim.
Q. In a lawsuit, who pays the attorney fees?
A. As a general rule, in litigation each party pays their own attorney fees (win or lose). There are three basic exceptions:
- By Agreement. For example, if two businesses enter into a contract, that agreement may call for the prevailing party to pay the other’s attorney fees.
- By Statute. There are some state and federal statues that allow the prevailing party to collect attorney fees in a lawsuit. An example is the Equal Access to Justice Act, under which pilots can recover legal fees if they successfully defend a certificate action.
- By the Court. Some types of lawsuits (e.g., class actions) give the Court equitable power to award attorney fees to the prevailing party.
Q. What about other costs in a lawsuit?
A. Unlike attorney fees, a prevailing party is often entitled to recover their “costs” of suit. This can be expenses like expert witness fees and deposition fees. The best way to ensure this (if your case is solid), is to make a formal settlement offer under Code of Civil Procedure section 998. If your offer is rejected, and you become the prevailing party, you are usually entitled to recover all costs incurred from the time of rejection.
Please visit any of our drop-down menu pages to the right for more specific information on your topic of interest.
