You make the Decision here

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I received a perfect Value Pricing issue this week. A fellow lawyer had a fee question, which I get from time to time. L (short for Lawyer) takes an opponent to task for a “frivolous pleading” and the court agrees, sort of. The judge finds that the pleading was frivolous (according to L) and awards L’s client the sum of $100 to punish OP (short for opposing party) for the bad faith action. My first reaction is “Thanks Judge, where is your memory of being a lawyer?”

L asks: “How much do I make my client happy by chasing the OP and its counsel for the $100?” The lawyer’s conundrum. What do you do when a client’s choice is “not worth it” from a dollars and cents point of view?

DON’T just hourly bill it based on your previous arrangement. Have a conversation with your client. Tell C that the judge did C a small favor. Both sides know the judge agreed, but did not think it was worth the fight. Now the client has a big decision to make – do you try to collect, or hold it over OP’s head? The fact is that you will spend nearly as much time trying to collect $100 as you did proving that OP filed the frivolous pleading. Let’s say that was $500.

As a sensible lawyer you probably would not spend an additional $500 (in addition to the first $500 which an economist would label a sunk cost) to collect $100. But that is not your decision to make. Talk to your client, tell her the truth, that to collect the $100 will be more expensive than the $100, but that this is their dispute and you are not in the business of subsidizing the fights of your clients. Then do three things that are part of Value Pricing: 1) tell the client what it will cost to pursue the $100 award, in order to prove to OC that the client won that issue; 2) tell the client that this is a fundamental change in the fee agreement, so the client is entitled to a second legal opinion under Rule 1.8 of the Rules of Professional Conduct, and; 3) let the client decide.

So, you make the decision here – do you spend $500 or more (I guessed that the value of the chase was $500, it might be $300 or $800 or more) to teach the opposing party OP a lesson that the judge valued at $100? Make your comments to let us know.

What is your lawyer worth, and who gets to decide that?

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The measure of a lawyer’s worth is decided by two folks. You as the client and the lawyer. The best way to make that determination is for the lawyer to make an offer to you, tell you the services she or he can offer and the price for those services, and then let you as the client make the call. Just like a new pair of jeans, you decide whether to hire the lawyer, because you know the price.

Generally it is when the client carefully decides which lawyers to consult that the first steps are made. A dartboard to the phone book is not the way to choose the lawyers you want to talk to, and a quick reaction to a fee quote is not the way to decide if that is the lawyer you want handling your legal matter. After the appointment, take the time to consider, in a calm way, the issues the lawyer describes for you. If it is a lawsuit, see if you agree with the early analysis. What attitude will the opposing party take, if you know. What is known about the opposing lawyer, if one is in the case? What experience does the lawyer have with this area of the law?

One question is whether you should research the lawyers you want to consult with. My answer is — of course. You have to be careful, since appellate cases are easy to find on Google Scholar and other sites. But beware, because some lawyers take lots of lost cases up on appeal, while other lawyers win in a manner that discourages appeals. Some lawyers do appellate work and you will see their names often, but are not to successful. Look for other signs of the lawyer’s professionalism. Generally you won’t see testimonials for lawyers in Indiana in advertising or on websites. The Rules prohibit lawyers from using testimonials in most cases.

Take the measure of the lawyers you want to consult with. Choose two or three, and tell the lawyers what you are doing. Compare and contrast the lawyers, make a decision based on the issues that are important to the case, and to you. Do you communicate easily, did the lawyer understand the issues? Did the description of the issues make sense to you? Do you think the lawyer can do a good job representing you?

Then consider the remaining issues before you make the decision. Is the fee of your better candidate in line with (not necessarily the least of) the other lawyer you have consulted with? Was the staff helpful and attentive? What is the lawyer’s reputation for timeliness and accuracy? Do your personalities compliment each other – high intensity clients often favor high intensity lawyers, while calm clients may not mesh with a scorched earth style lawyer.

While the high fee quote lawyer may not be your first choice, look at the offer without emotion or frustration. What does the offer mean? Is the fee capped? If so, what can cause it to change? If the fee is not obviously capped, then you need to decide if the lawyer is putting some risk of the case on the client. That can work, if the risk of savings is with the client as well as the risk of extended efforts and higher fees. Determine if there is a money back guarantee for any or all the issues. Can the case be broken into phases, leaving the client with some opportunities to stop the case?

The more options for the client, the easier to do the analysis to choose the lawyer for your legal matter. The first choice is the lawyer’s, the final choice is yours, as the client. Exercise it wisely. Don’t get caught up in sticker shock.