How Do I Choose A Lawyer?

Choosing a lawyer can be difficult. Each lawyer has different and unique experience, perspective, and approach. There are multitudes of ways to handle cases, and each lawyer will have differing opinions and approaches to individual cases. Lawyers, like doctors, have different "bedside manners." Some lawyers are calculating, decisive, and goal oriented. Others focus on gut instincts, environment, and hand-holding. And many blend approaches to fit the case. When looking for a lawyer, there are some key elements to keep in mind.

First, does the lawyer listen and understand your goals? Lawyers have to take facts and situations as presented and quickly determine how the law will impact the goals the prospective client has. If the lawyer does not seem to be listening, or seems to be pre-judging your case, you may need to seek other counsel. Additionally, if the lawyer does not seem to be communicating effectively with you, or seems to be saying things like "Oh, yes, definitely - we can definitely accomplish that - no problem," then you may need to seek other counsel. There are very few "definites" in the practice of law. I can also tell you, having tried many cases to jury verdict, that juries are unpredictable and no case that goes to a jury has a certain or definite outcome. The uncertainty of juries ensures that no party can go to trial confident in a victory. So, be wary of any lawyer that promises a particular outcome to you. Lawyers can work to accomplish your goals and posture the case such that achievement of your goals is likely, but no one can promise an outcome from any trial or arbitration.

Next, the fee. Lawyers fees vary as much as the clouds in the sky. Don't hesitate to ask the lawyer what the fee will be. My firm charges an initial consult fee. This fee pays for the lawyer's time in meeting with the client, briefly reviewing materials the client may bring, and discussing the client's goals and options. It also assures the client that an attorney-client relationship has been established for the meeting. Even if the client chooses not to retain the lawyer, everything discussed in the meeting is confidential and privileged. Some lawyers don't charge for an initial consult, some do. If a retainer is required, the amount of the retainer also varies from lawyer to lawyer. I typically wait to discuss and set the amount of any retainer until the end of the initial meeting. Typically, the amount of the retainer is determined by the nature of the case, the work anticipated to be done, the complexity and size of the case, and other factors. Don't be afraid to ask a lawyer how the amount of the retainer is arrived at.

Also, ask a lawyer if he/she accepts credit cards, allows monthly payment plans, or has some alternative billing practices. Some lawyers, in certain types of cases, may accept the case on a contingent fee - which means the lawyer's fee is a percentage of the recovery in the case. And, in some cases, the lawyer may accept a modified fee - such as a lower contingency percentage fee with a small retainer and reduced hourly fee. Many lawyers are willing to negotiate the fee, or work to come up with a fee structure that makes the case affordable to the client. Discuss this with any lawyer you meet with.

Lastly, trust your instincts about the lawyer. The attorney-client relationship is very intimate. You have to trust your lawyer. You will tell your lawyer aspects of your life that are private and often difficult to say. Trusting a lawyer with your story, your information, and significant aspects of your life is a very difficult thing to do. You have to trust your secrets will be kept, and you have to feel safe to discuss these very sensitive matters with him/her. If you are not comfortable, you feel you are not being listened to, you feel your case is being pre-judged, or you feel the lawyer is just not connecting with you, then that may not be the lawyer for you. Lawyers should not be afraid to try your case and advocate for you. While the reality is that most cases settle, there is never any assurance or promise any particular case will settle. If the lawyer is not prepared to take your case to trial, arbitration, or final hearing, that may not be the lawyer for you. I do not take any case I'm not willing and able to try, whether to a jury, a judge, an arbitration panel or arbiter, or other forum. To be an effective advocate, the lawyer must know every aspect and detail of your case. He/she must listen to you, and you must trust your lawyer with all facts and issues of your case. If you are not comfortable or your instincts tell you this lawyer is not for you, you may need to seek other counsel.

No two lawyers are alike. If you do not connect with a lawyer, you do not seem able to trust a lawyer, or you feel uncomfortable or pre-judged, then you may need to seek other lawyers' opinions/assessments of your case. Each lawyer will have different perspectives, experience, and opinions of your case. Do not be afraid to consult with more than one lawyer in seeking the advocate you want sitting next to you at counsel table. A lawyer must tell the trier about you and your business and persuade the trier to find in your favor. Ensure you have the right person standing to tell your story and working to attain your goals. It's your business, make it your lawyer.

The Importance of Psychology in Family and Collaborative Law

Many of my clients tell me that some family lawyers advise that emotions and feelings have to be set aside, or disregarded, in order to properly handle family law matters. My law firm respectfully disagrees. Family law cases are inherently emotionally charged. Even in cases where the spouses want to reach agreements and make a divorce "uncontested" or "collaborative," there are still emotional/psychological issues that have to be addressed and resolved. Skillful lawyers can assist parties in accomplishing their goals. In order to successfully navigate a case, a lawyer must understand the environment each side is experiencing and each side's perceived reality. It requires tact, patience, and careful attention to detail.

Setting these aspects of a case aside does the client and family a disservice, because opportunities to resolve issues amicably with compromise and discussion are lost if the other spouses's reality, motivations, and goals are ignored. Additionally, acknowledging and accepting a spouse's feelings and perception gives dignity and respect to that spouse. This fosters an environment of cooperation. Contested issues can then become the subject of productive discussion, instead of subjects for deposition. For example, each spouse has concerns about the division of particular pieces of property, especially the homestead and real estate. Rather than divide spouses and fight for property, acknowledging and understanding each spouse's reality, motivations, and goals can allow a lawyer to propose solutions so that each party can work toward a liveable resolution.

Where resolution can't be reached amicably or collaboratively and litigation is necessary, understanding these issues allows a skillful lawyer to hone and refine the discovery process to make effective use of a client's budget and time. Family law litigation that is not properly evaluated or managed frequently deterioriates into a war of attrition - the spouse that can fund and endure the fight the longest "wins". However, there are no winners in these situations. This approach has devastating long term consequences, particularly on children and the spouses' ability to communicate and co-parent.

Acknowledgement that each family law matter has its own psychology is critical for the effective evaluation, handling, and management of the case. No two cases are the same, as each case has its own psychology, facts, and personality. Seeking to set these important aspects aside results in lost opportunities to empower the spouses/parties to communicate and agree. When agreement is simply impossible, understanding these issues allows the lawyer to make effective and judicious use of the litigation process. Psychology is a critical aspect to any family law case.

Bailment - A Clarification

If property is repaired or stored, a basic understanding of bailment law is essential. As always, bailment law is complex and involves analysis of facts and issues specific to your case. I strongly recommend you seek advice of a competent attorney regarding specifics of your case/issues. This is not legal advice, but only a general, broad discussion of some bailment issues.

Generally speaking, a “bailment” exists where there is (1) a contract, express or implied, (2) delivery of property to the bailee, and (3) acceptance of the property by the bailee. For example, where a customer delivers a vehicle for repairs to a repair shop and contracts with the shop for repairs to the vehicle, a bailment exits once the repair shop accepts the vehicle in conjunction with the contract for repairs. “Bailor” is the party who delivers personal property to another in a contract of bailment. “Bailee” is the party to whom personal property is delivered under a contract of bailment. There are several different kinds of bailment, and each has its own duties and obligations.

There is a misconception that once a bailment is established, there is an absolute duty on the Bailee to return the property to the Bailor. If, using this example, after repairs are completed and the Bailor is told to retrieve its property and before it can, unknown thieves break into the Bailee's premises and steal the Bailor's property, some would argue that the Bailee is liable to the Bailor for this theft and property loss. Such argument relies upon the notion that the Bailee warranted he/she would return the Bailor's property, and failure to return the property, regardless of cause of loss, is a breach of warranty and contract. This is not necessarily the law in Texas. In the example above, once a bailment is created, it continues until the property is redelivered to the bailor or the bailor is notified to pick up its property. Berlow v. Sheraton Dallas Corp., 629 S.W.2d 818, 821 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). As such, in the foregoing example, there may be an argument that the Bailee acted reasonably in performing under the repair contract, timely notified the Bailor of the completion of repairs and need to retrieve its property, and took reasonable steps to secure the Bailor's property. Thus, there may be no liability at all to Bailee for the loss of property, in the foregoing example.

Bailment issues, like all legal issues/cases, require examination and analysis by a qualified attorney. There are few issues where liability is established as a matter of law, and a qualified attorney should be consulted in all cases.

Venue 101 - Why is this lawsuit filed there?

Many of my clients ask me how lawyers decide where to file a lawsuit. If often seems that lawsuits are filed in inconvenient places far away from where the actual dispute occurs. Or it seems like a lawsuit is filed in a place more convenient to one party than others. Where a lawsuit gets filed is called "venue". Venue is subject to significant legal and factual analysis; much of it voluminous, case specific, and confusing. The following discussion is obviously not to be construed as legal advice or an exhaustive discussion of venue law. This is only a very broad, brief, and general discussion, and analysis of where a suit is filed should be handled by competent legal counsel.

That having been said, generally speaking, where a suit gets filed is often determined by what kind of suit it is. Federal lawsuits, state court lawsuits, and arbitrations are all subject to their own venue laws and rules. Venue also depends upon the issues giving rise to the suit, and some cases are subject to mandatory venue rules; i.e. statutes or laws state they must be filed in a particular venue. Additionally, parties can decide where suit is to be filed by agreement or contract. I will generally discuss Texas state court venue in cases common to my practice: contract cases, real estate cases, and tort cases.

Many contracts have one or more provisions establishing venue (called forum selection clauses). Such provisions are often accompanied by provisions establishing which state's law governs the contract and whether the contract is subject to arbitration. These provisions are written to benefit the party that drafts the contract. Anyone signing a contract should be wary of these clauses. For instance, I have seen many contracts that involve local business, but mandate another state's law governs the contract or require litigation/arbitration be filed in another city, county, or state. These clauses are often enforceable and can be very difficult to overcome. If there are no such provisions in the contract, suit typically can be filed in any county where the breach occurred, where the contract was to be performed, or where the property/premises at issue are located.

Cases involving disputes over real property (purchase and lease) typically are filed in the county where the land/premises is located. Leases sometimes contain forum selection clauses that mandate suit be filed in a particular county. Again, it is important to be aware of such a clause when signing any contract or lease.

If the dispute involves a tort (such as negligence), suit may be filed either where the incident occurred or where the defendant in the suit resides. If more than one event gives rise to the suit (such as a case involving numerous vehicle collisions over more than one county during a lengthy police chase), then suit can be filed in any county where one of the accidents occurs. Likewise, if there are numerous defendants that reside in multiple counties, then suit may be filed in any county where one of the defendants resides. Once venue is established as to one defendant, it is usually valid for all defendants.

Where a suit is filed is often a complex decision for a lawyer to make. Sometimes it is mandated by contract, statute, or law. Other times several places are venue options, and lawyers have to analyze the benefits of competing counties for suit. As is often the case, there may be no simple answer to a simple question like "Why is this suit filed there?"