Miscellaneous Questions: Some Common, and Some Not So Much
Why do you practice in these particular areas of law?
We do pursue a somewhat eclectic practice. We have come upon these areas by experience or by personal preference. For instance, Gary has a technical background, so intellectual property is a natural fit. Steve has extensive experience in dealing with insurance companies, and he continues to leverage his particular competence in this area.
Your firm has two main partners; so, which one will I be working with, and will I ever see the other one?
We – Steve and Gary – practice together in a true sense; we are not just individual practitioners sharing office space and each with his own cases. We are both involved, more or less, in every one of our cases. Importantly, this does not lead to higher billing or lower efficiency; we have found, interestingly enough, that our sharing method has had just the opposite effect, by increasing the number of eyes on any legal point and the coverage of cases beyond a single person’s ability. So, you will likely see both of us to varying degrees.
If I have a problem outside Arizona, can you still help me?
Very likely we can. First of all, Gary is licensed to practice in California, and so our firm can assist quite effectively in many matters there. Beyond that, we can guide you in non-litigation matters that touch on other states and even internationally, and even in litigation cases we can go into the courts of other states and represent you there as “guest litigators” under an arrangement known as pro hac vice.
I have heard about lawyers having insurance against, well, screwing up. Is that a real thing?
Yes, this is known as malpractice insurance, also called “errors and omissions” or “E&O” coverage, and it can be used in certain circumstances to compensate a client that has been harmed by a lawyer’s mistake.
Are all lawyers required to carry this sort of malpractice insurance?
No, not in Arizona.
Does your firm carry it?
What do you mean when you speak about “reasonable fees?” I mean, it all seems very expensive to me. What do you do to assure that your fees are reasonable?
We are ethically required to ensure that the amounts we charge are not excessive for the type of work we perform, the efforts expended, and the results obtained. We also set our hourly and contingent fee rates with an eye to seeing that they lead to reasonable amounts being charged, and our rates reflect our level of experience and the type of work that we do.
We are further sensitive to approaching each case appropriately for the size and type of case it is. We are thorough and even punctilious about the quality of our work, but we try not to “over lawyer” a case beyond the optimum level of care and attention. Colloquially speaking, we “turn over those stones that need turning over,” and we endeavor to do so directly and efficiently. We do not engage in “scorched earth” tactics, not only because it is unethical, unseemly, and unprofessional, but also because it is inefficient and expensive. We also maintain close ties with our clients, working with them to make sure we continually move forward toward a client’s important, reasonable goals, not wasting time on detours or misguided trivia born of client impatience or misunderstandings.
We consider the reasonableness of our fees whenever we issue an invoice, and again when the case finishes we perform another review of the overall fee for the case as compared to the results achieved and the time expended. We will discount or “write down” time or reduce fees if we feel the billing for a particular effort is less than optimally in line. However, you should understand that legal cases are intrinsically about winning and losing; good efforts do not always succeed, and so we do not discount our fees just because something was unsuccessful, or because a case or a ruling goes against you.
Our discounting policy goes more to the pertinence and quality of the services we render to you. For instance, if at the end of a case consultation telephone call we find ourselves shooting the breeze with you for a few minutes, we normally wouldn’t charge you for that time. However, you should not count on discounts or write-downs from our standard fees—we are pretty efficient at what we do, and we do not discount very much in time or fees. If we find ourselves haggling excessively or repeatedly with a client over fees, we take that as an indicator of deeper problems in the attorney-client relationship. We strive to provide, and we believe we succeed at providing, quite cost-effective legal representation.
You talk a lot about “cost-effective legal representation,” but I’ve seen the billboards; couldn’t I find a discount lawyer who charges less than you do?
So should I go with that discount lawyer who charges less?
If you feel you should, and if you find a good fit between you and that lawyer.
Would you have anything to say before I go over to that cheaper lawyer?
Perhaps just, “You get what you pay for.” (See “Nothing Is More Expensive than a Cheap Lawyer” at the Forbes website.)
How safe are the things I tell you in confidence?
In order to encourage you to speak with us fully and frankly, the law provides us with a privacy cloak called “attorney-client privilege” that protects the substance of the conversations you have with us. We cannot be forced to reveal what we have discussed, nor are we permitted to reveal it even if we wanted to. This protection extends even to your telling us about undetected wrongdoing or crimes you have committed in the past.
However, if you are planning to do wrong or hurt someone in the future, that is different. We may speak about and even report to the authorities your future plans to do wrong or harm. We must report it, in fact, if you are planning to hurt someone or do significant damage. Also, it is important to note that this protection extends to the conversations themselves between you and us about various things, but not to the knowledge or things themselves. For instance, if you are called upon to testify regarding an item about which you have knowledge, you cannot refuse to testify about it just because you told us about it (although you can refuse to talk about our conversation regarding it).
You probably wouldn’t advise me to represent myself in court or a legal matter.
That’s correct, with only a very few exceptions.
Doesn’t your not wanting me to represent myself just mean that you want to make more money off me and protect your profession?
No, that’s not it. It’s really not. We are genuinely concerned with helping you avoid an unnecessary bad outcome. So often what it seems like is happening in a legal proceeding is not at all what is actually going on. In law it’s easy for a layman to think he is doing well when in fact he is in the middle of crashing and burning.
Think of it this way: In your profession or job, whatever that may be, what happens when some untrained “newbie” tries to do for himself or herself what it is that you do for a living? Our guess is, most times you’ve seen it go laughably wrong. That happens in law too, but when someone winds up unnecessarily with a bad outcome because they did not realize how badly things were actually going and how they were just making it worse, there’s nothing funny about it. Generally the law only gives you one shot to get something right, and you must then “forever hold your peace” about the consequences if you do it wrong. This means that if you screw something up on your own the first time, you usually will not get a chance to bring in a lawyer later to fix it.
I don’t care what you say, I just can’t afford it. Are you telling me I am out of luck?
No, there may be resources you can use if you simply cannot afford a lawyer. Keep in mind that other than when you are charged with a crime, the court will not appoint a free lawyer for you. However, Community Legal Services offers legal services to low-income families and individuals in certain legal areas. Programs are variously sponsored by local bar associations and by the State Bar of Arizona to give limited lawyer consultations for free or at low cost to people of limited income and means.
Also, many courts offer self-help centers or similar resources with printed material giving general guidance on how to “do-it-yourself” in dealing with the law or when in court. You should understand, though, that court personnel are forbidden from giving you any legal advice, and so there is no one to help you interpret this material if you have a question.
About those lawyer shows, why are lawyers always “objecting?”
When trials were first devised, rules were created to take what a jury or other fact finder hears and limit it to information that is reliable and helpful, and does not play upon improper prejudices. Today these guidelines are known as “rules of evidence.” A lawyer will object in a trial or other legal proceeding if he or she thinks the other lawyer is trying to bring out information that is outside these rules of evidence. The judge then makes the call. It is far from an exact science.
Won’t punitive damages bring me big money?
In a word, no. The threat of punitive damages is thrown around a lot, but they are actually fairly rare. They are only awarded where a “bad guy” has acted with such indifference, cruelty or even vileness that the court decides they must be punished for it. Punitive damage awards have never been common, and in recent years everyone from the United States Supreme Court on down has gotten into the act to limit the size of such awards.
I am involved with several types of “agreements,” and no one ever calls them “contracts”; is an “agreement” the same as a “contract?”
Yes. The trend in recent years, maybe to make it sound less formal or scary, has been not to use the word “contract” at all and always use the word “agreement” instead. They are exactly the same thing.
Help! I rent a place from my friend, or, I have been making payments to my friend for something I bought from my friend. Now I get this scary legal notice from people I never even heard of, talking about my friend and calling me a Garnishee, of all things! What did I do wrong? Are my wages being garnished? I don’t know anything about any of this!
Obviously, we haven’t seen the notice you received, so we can’t comment specifically on your situation, but the fact we anticipated your question means we do recognize this scary happening in general. So, we can only say, “chances are.” Chances are, no, your wages are not being garnished, and chances are you’re not really in trouble, just a bystander to the trouble.
Your friend may be in a little trouble, though. It sounds like he or she has had a court judgment entered against him or her by the people who are making all the noise with this notice. Chances are, a court is ordering you to make your future payments to the new people instead of to your friend, and it will still count just as though you were making the payments to your friend. Most important for you, though, do not ignore this notice. You will likely have to respond to it promptly in writing. You should definitely consult with a lawyer if you are at all concerned or uncertain, but don’t panic.
Lawyers who lose a court case usually threaten an appeal. Is an appeal like a legal do-over?
No. An appeal is actually very limited. Lawyers who have just lost a court case will naturally beat their chests about fixing everything on appeal, but an appeal is not a free-for-all “second bite at the apple.” The purpose of an appeal is just to serve as a double-check that everything was handled properly in the trial court. The scope of an appeal’s review is limited and appeals courts are very reluctant to overturn what has already happened in the court below unless there is a compelling reason to do so.
One significant limitation of an appeal is that it reviews only the law and legal issues rather than issues of fact, which are the questions of what actually happened to the people involved. In an automobile accident case, for instance, if the jury finds that the traffic light was red, and there was even some small amount of evidence that would permit the jury to logically reach that factual decision, no appeals court will say differently.
Is practicing law like Perry Mason or other legal shows on television?
No, almost never. It is generally a lot more mundane and less dramatic, but it is also a good deal less silly than much of the stuff you see on television or in the movies. The things we encounter in practicing law are sometimes entertaining, but in a subtler, more “inside joke” sort of way.
What do you think of that latest “case of the century” with all those commentators and reporters all over the TV?
Ohh, no comment. None at all. Some of the talking heads on TV should think about saying that, too.
Sometimes when I am reading something involving courts and legal cases I run across these weird numbers and punctuation and characters—what is that about?
Those characters and numbers are known as a legal citation. Reports of most of the important case decisions and opinions are stored in books and on computer databases, as are statutes, rules and regulations passed by legislatures and government agencies. There are lots and lots of these; whole libraries are dedicated to storing these legal materials, and they are being added to constantly.
Judges and lawyers working on new cases will want to look to what has been done in similar cases in the past, and what the pertinent statutes and rules have to say. A legal citation directs legal professionals to where they can find and read the report of a particular case, statute or rule in a law book or database. There are in fact several books dedicated just to writing down a legal citation correctly.
For example, here’s the legal citation to a very famous United States Supreme Court case: Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
A judge or lawyer looking at this legal citation will know just where to go to find a copy of the opinion in this very famous abortion case, and it also tells a little about which court decided it and when.
What is the strangest legal case you ever heard of?
Boy, that’s a tough one, because there’s a fairly large and strange group to choose from. But, we might vote for Mayo v. Satan, 54 F.R.D. 282 (W.D. Pa. 1971), where a gentleman went into federal court in Pennsylvania in the early 1970s as a plaintiff attempting to bring a lawsuit against the Devil for confounding his life, and he led off by asking the court to waive his filing fees. That plaintiff did not get very far.
Why don’t you have a blog?
Is there something specific you would like to know about or discuss? The closest thing we have to a manifesto, you have already been reading it here on this website. We aren’t going to rattle on more than that just so we can say we have a blog. For example, there’s no point to our idly commenting on new legal cases and decisions if our technical comments will not have meaning for our clients or the public, and we presume that other attorneys know about these new developments already. We find there’s already more than enough noise on the Internet. If it’s not useful to the public or to the profession, Steve would rather be out mountain biking and Gary would rather be—just what is it that Gary does, exactly?
Why are lawyers so mean, crooked and shifty?
They aren’t, not usually. Lawyers are actually held to an extensive and stringent body of ethical rules, and the good ones are constantly cognizant of their actions in relation to those rules. But, the situations in which you run into lawyers may tend to make you think they are indeed mean, crooked and shifty. They often get involved when people are trying to do things against your interests. They seem to be leading the fight against you (although in fact their clients are), and naturally you are inclined not to like them. But by contrast, chances are that when you have had a lawyer who was working on your behalf, you liked that lawyer, right? Further, things often happen in the law in ways that appear different from what is really going on underneath. It may look like the lawyer is tricking you, when in fact he or she is just using the law in a proper but unexpected way. This, though, is another good reason to consult a lawyer yourself.
No, that’s a pretty good sampling of what we have to say. Thanks for reading down this far.