donner-law-llc

#1 Considerations in Choosing the Right Attorney for You

Fri, 16 Jul 2021 18:50:29 GMT

You don’t have to be a defendant in a criminal matter charged with serious crimes and facing the potentially over-powering might of the government to want Justice.

Rather, Justice is a value that we all desire each day in our lives long before we are confronted by an event or

proceeding in which we seek the assistance of a lawyer.

When I am asked to define the term “Justice,” the first thought that comes to my mind is “Order,” the feeling that something is the way it should be. We all know that feeling because it flows from our innate sense of what is right and what is wrong. We may not be able to define or even describe what constitutes Justice or Order in a given circumstance, but we all know what it is when we see it.

Whatever the trigger may be that leads to the conclusion that legal representation is required, whether one is thrust into litigation by the need to sue or the fact of being sued, or by a business transaction, a project that requires government approvals, the purchase or sale of real estate, or the on-going needs of a business that routinely faces complex issues for which legal guidance and documentation is a must, we all seek to be treated fairly and to have our interests safeguarded.

This is where the attorney enters the equation, but the search for the right attorney that meets your needs often raises as many questions as the matter for which you need legal guidance. What should you look for in an attorney? Certainly, you will want an attorney with a firm knowledge of the law and, ideally, experience in the type of matter for which you seek representation. You will also want an attorney with the speaking and writing skills that enable your position, your case, your project or the terms on which your agreement rests to be expressed clearly, accurately and thoroughly within a presentation appropriate to the circumstances.

Once these requirements are met, you will rapidly turn to the question of what is this going to cost? At this point, you will be looking for fair and reasonable pricing commensurate with the scope of the task and the skills and experience the attorney brings to the matter. You

will be looking for honesty and transparency in discussing this topic. In that regard, my standard hourly billing rate is $400 per hour, and in appropriate matters, I also offer flat rate billing, contingent fee billing and/or hybrid arrangements involving a combination of a reduced hourly rate and a contingent fee.

While perhaps the most prevalent form of billing may be an hourly rate applied to the number of hours of legal services rendered, we can explore alternate pricing structures such as a flat rate to perform the task or defined portions of that task, a contingent fee arrangement that enables the attorney to share in a percentage of the recovery while bearing the risk of a lesser recovery or even no recovery at all, or perhaps a hybrid mixture of a lesser hourly rate with a lower contingent fee percentage. While not all of these compensation methods may be appropriate to every matter, the attorney must be candid with each potential client, willing to explain why a given compensation method should or should not be adapted to the matter at hand while being flexible and reasonable. Furthermore, the attorney must commit to issuing periodic billing statements, usually monthly but in appropriate matters more or less frequently, that set forth and reasonably identify the individual services rendered, the date when rendered, the amount of time devoted to that specific service, the hourly rate or other mode of compensation applied, and the amount billed for the period covered. This form of periodic billing enables both the client and the attorney to monitor the progress of the matter with the goal of keeping the overall fees and expenses proportionate to the value to the client and issues at stake.

Where the answers to the foregoing questions are forthcoming and acceptable, there is an additional quality that I deem to be equally essential: Does the attorney truly care about the outcome of your matter as displayed by an expressed determination and tenacity revealing an intent on achieving your goals? In short, is the attorney willing to fight to achieve Justice within the context for which you seek representation? It needs to be recognized that no attorney can legitimately guarantee a given outcome, but each attorney can and should commit to give their all within the bounds of ethical and truthful behavior.

Moreover, when agreement is reached on the scope and terms of the representation to be provided by the attorney, the terms of that agreement and the underlying facts of the matter should be clearly and comprehensively set forth in an engagement letter on which you the client can rely and avoid surprises down the road.

In my experience, these characteristics comprise the most important goal to be reached in each attorney-client relationship: TRUST. As the client, you are placing your faith, your hopes, your dreams as well as your livelihood and quite possibly your freedom in the hands of the

attorney that you select. This is identified as a fiduciary relationship requiring the highest standards of fidelity from the attorney. The attorney must recognize the sacred nature of this relationship thereby never taking it for granted and always being mindful of the client’s needs and reasonable expectations. Efforts to keep the client updated on what is occurring within the matter must be routinely exercised by the attorney and, where pertinent and helpful, direct discussion with the client should be conducted to explain the significance of particular occurrences and strategies so that the client maintains a realistic understanding of what can actually be achieved.

Nevertheless, a file should never be “churned” with unnecessary communications that result in increased cost without commensurate benefit to the client. Some clients initiate frequent and, at times, possibly excessive, communication with the attorney resulting in increased demands of the attorney’s time. In these instances, the client should be informed of the impact such excess communications may have on the amount billed. By the same token, no client should ever be discouraged from reaching out to the attorney to answer or discuss legitimate questions and issues on their mind. As many things in life require, the attorney-client relationship must be

balanced with the participants recognizing the cost components and needs that arise. As the relationship progresses, this task becomes easier as the client, having benefitted from the attorney’s input, gains greater awareness of what is needed to best achieve the goals.

I have often seen the swirling emotions of potential clients that are new to the experience of confronting legal challenges or perhaps are dealing with a particularly upsetting circumstance. When the above elements come together, the burdened, oppressed and/or anguished clients are often visibly relieved by laying the problems formerly confronted alone on the attorney’s desk realizing that they have found an ally, who will work diligently and competently to provide them with both a shield and a sword against the unknown. The steady hand of a competent, caring and compassionate attorney is undoubtedly a source of strength and reassurance.

This is the first of what I intend to be additional blogs dedicated to discussing and identifying not only the elements of a healthy and successful attorney-client relationship, but also some of the points you should know as a client about the kinds of matters for which you can obtain representation at Donner Law. In doing so, I am seeking to provide comprehensive answers to the questions that you are likely to have in approaching the need for legal representation and the choice of the right attorney for you. The goals here are candor,

transparency and responsiveness leading to the ultimate goal of Trust as we pursue Justice together.

Jeffrey A. Donner, Esq./Donner Law

#2 What Should Quality Legal Representation Cost?

Thu, 15 Jul 2021 20:25:01 GMT

“Cheap can be expensive.” - Jacob Simon

Following the detailed introduction in my first Blog as to the myriad components that go into the selection of an attorney, you may wonder why, among all the choices for a topic, I have now turned to the issue of attorney compensation? The answer is simple. Research demonstrates that while you as a consumer of legal services certainly care about and want all of the qualities in your attorney that I have enumerated, the first issue on the mind of a potential client engaging with an attorney for the first time is, “What is this going to cost me?”

Moreover, if the attorney is to attain the ultimate goal of achieving Trust with the client, this topic must be addressed early, candidly and honestly. In that discussion, the attorney must explain the acceptable parameters of compensation based upon the nature of the matter and the attorney’s experience and expertise, and the client should make the effort to understand what is actually involved from the standpoint of legal work. The arrangement to be reached must be the product of what is deemed fair and reasonable by both the attorney and the client, and the fee likely to be incurred must be appropriately proportionate to what is at stake for the client in the matter.

In furtherance of the above principles, I have already disclosed that my current standard hourly rate is $400 per hour, but in certain matters, I offer flat fee arrangements, hybrid fee arrangements and even a contingent fee option. This brings me to the above quote from my beloved grandfather, Jack Simon, who believed that when shopping one must buy things of quality since they are most likely to meet your needs, and because, “Cheap is expensive.” Of course, the context of his comment was a discussion with my mother as a young girl when confronted within a limited budget of buying more articles of clothing at a lesser price with lesser quality or only one or two well-made and more expensive garments that would last longer and be more attractive when worn.

Nevertheless, my grandfather’s adage happens to be as equally applicable to legal services today as it was to my mother’s wardrobe so many decades ago. There are no doubt some who believe that lawyers are fungible; that one lawyer is as good as the next. Those that are guided by this principle choose the least expensive representation they can find, and harbor the belief that the work will somehow get done without repercussions thereby fully justifying the short-term savings. This approach, as its adherents inevitably find, is fraught with disaster. To understand why this is so, we must pull the curtain back a bit and examine the practice of law in traditional business terms.

Although a law office is a place where special responsibilities and relationships abound, it is also a business subject to certain universal rules and limitations. In stark terms, free of distracting complications, we can better envision this circumstance when we recognize that every business offers one or more products. Each of those products are composed of the materials from which they are made as well as the labor to produce them. These materials and labor have an acquisition cost. Additionally, there are costs to acquire and maintain the platform where these products are made and offered for sale and consumption. In order for a given business to maintain its operations, it must sell its products for an amount equal to the sum of these costs plus an additional amount which we identify as profit.

The products of every law office consist of legal work. The principal element required for that production is the time of each attorney and paralegal that participates in the production of that work. Granted, there are also office expenses, equipment expenses and commodity expenses such as paper, ink and sources for research, but for purposes of this discussion let’s recognize that the compensation of the personnel producing the work are either the largest or certainly one of the largest expenses the law office incurs.

There is a cost associated with each attorney’s time. That cost is determined by that attorney’s knowledge, experience, and reputation based on prior accomplishments, which, in turn, create the level of demand for that attorney’s involvement in given client matters. The law

of supply and demand is consistently in play. Each attorney has a limit to the amount of work that attorney can produce. The higher the demand for that attorney’s services, the more limited the supply of that attorney’s work becomes. High demand and limited supply cause the price of a given commodity, in this case the attorney’s work, to increase. The converse is also true, less demand for an attorney’s work and an abundant supply of that attorney’s time result in the decrease of the price for that time.

Paralegals are non-attorneys capable of performing some of the work also performed by attorneys short of providing legal advice to clients. The more training, ability and experience of a given paralegal, the more categories of work and the higher degree of complexity that paralegal will be able to address. The more productive the paralegal, the higher the cost of that paralegal will become.

An attorney or law firm that quotes below market legal and paralegal rates can do so only under certain circumstances which include:

(1) the conduct of a bulk practice where the lower compensation per matter is counterbalanced and ideally outweighed by the increased number of those specific matters being handled, but in order to handle the higher number of these matters and achieve a profit, less time and less product cost must be allocated to each matter,

(2) the attorney and staff are in reduced demand and must find a way to induce prospective clients to choose their services, but the lesser demand likely results from less experience, less expertise and a reputation derived from a history of less client satisfaction, or

(3) the law office and attorney are just starting out, essentially untried, inexperienced, unknown, and therefore lacking much in the way of a history of matters and client dealings, which, in turn, creates uncertainty as to the quality of the work to be provided.

Attorneys are not fungible The quality of the work produced and the levels of client satisfaction vary widely from attorney to attorney as do the experience and resulting expertise of each attorney. I have seen supposedly routine and recurring matters such as a residential property sale result in unmitigated disaster because the low quoted fee simply did not permit sufficient attorney involvement with too many tasks delegated to the paralegal behind the scene. This protocol may avoid serious mistakes as long as the transaction is truly routine. Where, however, there are irregularities such as title issues that an attorney will likely discern where a paralegal may not, the results can easily become cataclysmic.

I was involved in defending a party to litigation that arose where recorded wetland restrictions, prominently disclosed in the title report, that limited the use of the subject property were neither adequately discerned by the law office representing the buyers nor properly

explained to their clients. These lapses enabled the transaction to proceed through closing, but thereafter litigation erupted in the form of a legal malpractice suit against these attorneys when the buyers learned they could not use the newly purchased property for their intended purpose. This problem came about because the inspection of the title report was delegated by the attorney to a paralegal that regarded detailed limitations imposed by the wetlands as a routine matter that had little or no bearing. As a result, the issue was not raised by the paralegal to the attention of the attorney, and in this instance the attorney did not review the title search firsthand prior to the closing.

Where this approach of low fee quotes, limited review by the attorney, and broad-based delegation to the paralegal is followed, the client can also expect minimal and possibly no response to questions desired to be raised. Under these circumstances, the client cannot help but feel abandoned, client satisfaction is low to non-existent, and mistakes are far more likely to occur.

There is, however, another side to this coin as well. This occurs where larger firms with extensive numbers of attorneys and paralegal staff overpopulate a matter in order to “feed their hungry beast.”

The “beast” to which I refer is the daily need to support a large platform consisting of numerous attorneys, paralegals, other support staff as well as expansive office facilities. The professed advantage to choosing such a firm is the diversity of capabilities and specialties to be found among a large group of senior attorneys as well as the “fire-power” derived from a cadre of associate attorneys available day and night to rapidly produce the required work.

Whatever attraction this arrangement may hold for the prospective client, however, arrives with a major impact on price. The infrastructure must be maintained, and, in order to do so, these firms tend to work on matters through teams of professionals consisting of a senior partner-attorney, a mid-level partner-attorney, various associate attorneys and one or more paralegals. Each member of the “Team” performs a designated set of functions.

For example, the senior partner will interface with the client, learn the factual situation prompting the representation, intake key documents, and make recommendations as to the general strategy to be implemented. Where the facts are detailed, the senior partner will likely be accompanied by a mid-level partner or senior associate to provide note-taking functions thereby enabling the senior partner to focus on the client.

Following this initial interview, and with the preliminary recommendations to the client in place, the senior partner then confers with and directs the mid-level partner, who will actually supervise the work functions. In this step, preliminary decisions are made as to the research

needed to support the recommendations given as well as the other steps to be taken within the evolving game plan dealing with the matter.

The mid-level partner in conjunction with the senior partner will prepare the engagement letter setting forth the factual background, objectives, and financial terms of the representation for submission to the client. We will infer for this example that no charge will be made to confirm the engagement of services in this manner, but that may not always be the case.

Once the terms and objectives of the engagement are confirmed by the client’s countersignature, the mid-level partner calls his Team of associate attorneys and paralegals together making assignments to implement the evolving plan. Each associate attorney is assigned specific issues to be researched and the resulting file memos to be written. The paralegals are directed as to how to set up the file and which form documents can be produced in initial draft for further development by the associates assigned to the task.

All work product emanating from the associate attorneys will likely flow to a senior associate for review and embellishment, but will nevertheless then proceed to the mid-level partner for review and approval, then to the senior partner for ultimate review before the work

product is submitted to adversary counsel and copied to the client. These steps are replayed for each phase of the representation, each issue and event that arises, until the matter is resolved. The foregoing narrative is generic, but equally applicable to both litigation and transactional matters.

As should be obvious by now, the totality of these functions can be performed by fewer personnel even in the most detailed, comprehensive and important matters. Each of the participants in the Team’s efforts are dutifully recording the time spent in performing their assigned tasks. Where this large firm systemic “Team” approach is turned loose, an interesting anomaly often results: while there are “only” twelve to fourteen hours in the most aggressive workday, the collective time entries of these Team members can easily eclipse the number of those workday hours resulting in more hours billed in a given day than there are in that day.

Let’s examine the following chart illustrating this large firm narrative:

TABLE 1: The Large Firm Experience

Under this example, even though our hypothetical aggressive workday is “only” twelve to fourteen hours in duration, the Team of senior, mid-level and associate attorneys coupled with their two paralegals managed to bill for total hours of 18.6 at a staggering cost of $6,185 in that one day for the initial service evolutions of recommending, confirming and commencing to implement the plan to represent the client. As the matter progresses under this large firm “Team” approach, this billing experience will likely be more or less replicated on a recurring basis.

In my experience, gained through being requested by disenchanted former large firm clients to review the billing statements rendered to them for potential abuse, the foregoing example is neither over-stated nor uncommon. The Team approach utilized by large firms, as explained above, comprises their routine because it is essential to financially support the platform of personnel, space, equipment and other resources comprising those firms.

Assuming that the Team approach is even financially supportable for your matter, the question arises as to whether the cost factor to deliver this representation is merited? Is there a viable alternative to this method of representation?

Happily, regarding the option of an alternative, the answer is a resounding, “Yes!” Let’s compare the same narrative of processing this generic example at Donner Law. The client interview and discussion will occur with me alone taking notes and intaking documents. In the course of the client interview, preliminary assessments will be shared with the client and objectives established. Promptly following this conference, the engagement letter is prepared, without charge, setting forth the factual background, objectives and financial terms of the representation and presented to the client.

With my experience and qualifications comparable to the senior partner in my prior example, I will conduct the legal research that may be needed and perform the analytical review rather than delegating these tasks to less experienced associate attorneys. Since I am not directing a Team of subordinates, file memos are unnecessary, and I can proceed directly to the preparation of litigation pleadings or transactional documents, as applicable. Again, my experience enables earlier and more keen insights than the associate attorneys in my large firm example.

Documents are prepared in one draft with minor revisions. The product is then shared with the client for discussion, and completed for delivery to the adversary. This process occurs in the same manner, from issue to issue and event to event, until the matter is resolved.

We can now review the following summary of these actions as conducted at Donner Law with the resulting expense to the client:

TABLE 2: The Donner Law Experience

In Day One of this representation, under an hourly rate lower than the Senior Partner in the large firm example, but higher than the other Team participants, the same necessary functions are performed at Donner Law within the same working day time frame. I produced these results, however, at an expenditure in production time of 6.45 hours versus the large firm example of 18.6 hours and at a dollar cost of $2,580 instead of the $6,185 generated by the Team at the large firm.

Is the quality of the work produced at Donner Law comparable to that produced by the large firm Team approach? The best way to answer that question is by noting I routinely deal with large firms when representing my clients, and I have never lost a client to the large firm approach. A number of my clients, however, have come to me at Donner Law from large firms after recognizing that quality representation need not come with a punishing price tag.

Moreover, at Donner Law I have implemented a ground rule concerning the ultimate cost of the legal representation that I provide: the total fee will never exceed one-third of the economic value sought to be recovered or preserved through the services for which I have been engaged by the client.

The choice rests with you, the potential client, but when my clients call Donner Law, they reach me, the attorney intimately knowledgeable about and responsible for every phase and detail of their representation. I produce the legal work for which I am engaged rather than delegating it to several others, who have only dealt with the issues to which they have been assigned. My clients also know that this level of service that I provide to them is not cost prohibitive and is in proportion to the economic stakes in their matter.

This interaction not only assures these clients they are being actively represented, but also reaffirms the bond of Trust on which our relationship is based. I am never more than a phone call away, and they are not alone.

Jeffrey A. Donner, Esq./Donner Law