|
Legal FAQs
Frequently Asked Questions about Legal Matters
When do I need a Lawyer?
- Many people believe they need a lawyer's services only to solve a problem or to get out
of a difficult situation. Often, the best time to see a lawyer is not when you are in
legal trouble, but before that trouble occurs. The saying that "an ounce of
prevention is worth a pound of cure" is as true with legal matters as it is with
regular medical checkups. Preventive legal work is one of the most valuable services a
lawyer can perform. By eliminating potential problems, preventive legal work can save you
time, money and needless worry.
Some of the circumstances which may require professional legal assistance are:
- Before you sign a contract which could have a major financial impact upon you or a
family member.
- Before signing a lease or contract that extends for a number of years .
- Before signing a contract involving a lot of money or calling for financing.
- When starting or buying a business or forming a corporation, partnership, or limited
liability company.
- When you want to have a will or trust prepared, want to plan your estate, or have
concerns about how your property will be handled in the event of your death or
incompetency.
- When planning a living will, a durable power of attorney, or a health care proxy
- When you have tax problems or questions.
- When a lawsuit is brought or threatened against you, or when you want to bring a lawsuit
against someone else.
- When you are contacted by the Internal Revenue Service or any other federal, state or
local taxing or licensing authority.
- If your are contacted by the FBI, the U.S. Attorney's Office, any state or local
district or prosecuting attorney, or any other person who displays a badge and asks to
speak to you (Call your lawyer immediately!!!).
- When making an appearance, application or appeal to any court, governmental agency
or board.
- When you are having problems with unpaid bills or bill collectors.
- When there are changes in your family status -- marriage, adoption, divorce,
guardianship.
- When you are arrested or charged with a crime.
- When you are involved in an accident in which there is personal injury or property
damage.
- When you are not sure if your problem has a legal solution.
How do I find a good lawyer?
- One of the most difficult tasks a person may face is finding a good lawyer to handle a
particular type of legal problem. There is no established method that will guarantee
success in finding a good lawyer. However, following certain steps usually will lead you
to a good attorney.
-
- First, determine what type of legal assistance you need. If you are buying a business,
you do not need a criminal attorney. Likewise, if you have been arrested on assaulting
your neighbor, you do not need a tax lawyer.
Next, ask your friends, family, employer, accountant, minister, or other trusted advisor
if they can recommend a competent lawyer to handle a situation like yours. If you have a
friend or relative who is a lawyer, ask them for a referral. (A WORD OF CAUTION: in all
but the most unusual cases, do not hire a lawyer who is a close friend or relative; an
attorney-client relationship is a professional engagement in which the attorney and client
are most comfortable when the lawyer is disinterested).
If you are still unable to get the names of two or three attorneys, you can contact the
state or local bar associations listed in the phone book and ask for a referral. However,
be cautioned that bar association referrals are usually not screened for legal ability or
ethical standards. The referral service is usually open to all attorneys who desire to
enroll, including even those who are incompetent or unethical.
Once you have selected a potential attorney, do not make a final decision until you meet
with the attorney. During your initial meeting, you will be able to determine whether the
lawyer makes you comfortable and if this is the type of person that you want to look out
for your interests. Ask lots of questions about the lawyer (years in practice, experience
in similar cases, current caseload, etc.), the lawyer's perception of your case (best
case/worst case possibilities, expected course of action, special problems, etc.), how
your case will be handled (who will work on the case, what activities the law firm will do
and what activities you will be responsible for), and any other matter of concern.
Remember that this matter is important to you and do not let any topic be off limits in
your discussions.
Have a discussion about fees. Regrettably, the cost of top quality legal representation
has become quite expensive. Most legal situations involving even moderate complexities
involve legal expenses in the thousands and tens of thousands of dollars. A clear
understanding of the fee structure on the front end will prevent surprises and
disagreements later.
If after taking the above steps you have become comfortable with the lawyer you initially
selected, hire him or her. However, if you have any reservations, politely decline to hire
the lawyer and renew your search. These matters are important. If you put forth the effort
to retain a competent lawyer in whom you have confidence, you will have one less concern.
- How are lawyers paid?
Lawyers generally charge in one of several different ways:
On a flat fee basis, for handling a particular type of matter. The lawyer
may quote you a set amount or standard fee for a routine legal matter. You also usually
are expected to pay court costs and to reimburse the lawyer for out-of-pocket expenses,
such as travel or copying costs. For example, many wills, real estate closing, simple
bankruptcies, and simple divorces are handled on a flat fee basis.
On the basis of a percentage of the amount recovered, which is called a contingent
fee arrangement. This means that if your lawsuit is successful, the lawyer
receives an agreed upon percentage of the amount recovered, plus out-of-pocket expenses
and court costs. Cases involving personal injury or collection of unpaid debts are often
handled on a contingent fee basis.
On an hourly rate basis for time spent and expenses incurred on your
behalf. Hourly rates of lawyers generally depend upon the lawyer's experience and the
demand for his or her services. There is no set hourly rate, and the rates vary. Rates
between $125 and $400 per hour for experienced lawyer's have become the norm in most urban
areas. Many business matters are charged according to hourly rates.
On a retainer basis, where an individual or business employs a lawyer by
giving him or her a down payment toward the fee for specified legal services. In return
for the retainer the attorney will work for you on any matter for which you may need his
or her services. Additional costs may be added to the final bill for services involving
extra time and effort from the lawyer.
- Some lawyers use a combination of one or more of the above types of fee
arrangements.
-
- How and when should I discuss the fee and payment arrangements with my
lawyer?
In your first meeting with a lawyer, you should discuss how much your legal work is going
to cost and how it is going to be paid for. You need this information to make an informed
decision about how to proceed. Often, a lawyer cannot tell you exactly what the total
charge will be because it is hard to estimate how much work is going to be involved. But
lawyers can usually estimate the minimum and maximum limits of the fee for that particular
work, or give you some idea of the problems involved and the time that will be required.
The timetable for paying legal fees depends on arrangements between you and your lawyer.
Usually, lawyers require an advance payment, often called a retainer, to cover the initial
work and court costs paid on your behalf. In other matters, you will be billed at the end
of each month, or at the completion of the services. You should never hesitate to discuss
fees at any time during the handling of your legal matter.
If you receive a statement that isn't clear to you or believe the fee isn't proper, talk
it over with your lawyer. Misunderstandings about fees usually result from the fact that
the client is not aware of the extent of the lawyer's work on the case. This is by no
means the client's fault. If you do not regularly see your lawyer, you may understandably
believe that the activities of the lawyer are limited to those which you do see. But you
should remember that a lawyer, unlike a doctor or dentist, performs many professional
services when the client is not present. For example, clients are expected to pay their
lawyer for time spent on phone calls, writing letters, or drafting and reviewing
documents.
I have selected a potential lawyer. We have had our initial meeting and we
have had a discussion about my case and the fee arrangement. How can I know if this person
is the right lawyer for me?
- Remember, when you hire a lawyer, he or she will be working for you. The lawyer should
be genuinely interested in your problem and in giving you the best possible advice. The
lawyer may not be able to accomplish everything you want because of the facts or the law
that applies in your case. Many times a good lawyer will advise you to avoid court action.
A lawyer should be able to explain, in terms you can understand, what he or she hopes to
accomplish for you and how he or she plans to do it.
-
- Think about how the lawyer responded to your questions, about his or her experience, and
about whether you will be able to work with the lawyer in the way you would like. Based on
your initial consultation, you should consider the following factors before agreeing to
hire a lawyer:
- Personality -- do you get along well with and trust the person?
- Experience -- are you satisfied with the amount of experience the lawyer has had with
your type of problem?
- Communication skills -- could you talk with and understand the lawyer easily? Does the
lawyer explain legal concepts and terms in language that you can understand?
- Ability to pay -- can you afford to pay the lawyer according to the fee arrangements you
discussed?
- If you are satisfied with your answers to these questions, it is likely that a sound
basis for working together has been established between you and your lawyer. If you are
not comfortable, you should look further.
- What should I expect when I hire a lawyer?
You are hiring a lawyer to work for you, as your advocate. You should expect your lawyer
to:
- Confer with you to pinpoint the problem.
- Research and analyze all available facts and information relating to your problem.
- Interview those involved.
- Prepare legal arguments for presentation in court, if litigation becomes necessary.
- Negotiate a settlement if both sides can reach a fair agreement.
- Keep you informed about what is going on in your case and answer your questions.
- Discuss fees with you at your first visit, and come to an agreement about the way in
which fees will be paid.
- Be candid with you about your problem, your prospects for success, the time it will
take, and the advisability of accepting any settlement offered.
- Keep in confidence anything you say.
- Prepare all necessary legal documents.
- What will my lawyer expect from me?
Upon being retained as your legal counsel, your lawyer will expect that you will:
- Be completely honest about all facts concerning your case, whether favorable to you or
not.
- Be on time for appointments and not take up an excessive amount of time with visits or
phone calls relating to minor details or petty matters.
- Take your lawyer's advice.
- Understand that no lawyer can guarantee results in a contested matter.
- Be patient and understanding that legal matters are rarely "open and shut"
cases; they require time and research.
- Call for appointments rather than just dropping in without warning.
- Pay a reasonable fee for the work performed.
- How is the best way to communicate with my lawyer?
-
- Lawyers are notoriously difficult to contact by telephone. The nature of the legal
practice takes a lawyer away from the telephone for most of the day (court appearances,
depositions, client meetings, legal research, document preparation, etc.) This means that
you must use other methods to substitute for when the lawyer is unavailable by phone. Four
suggestions are offered:
First, tell the lawyer's legal secretary or legal assistant the details of why you are
calling. Most lawyers rely heavily upon these people to handle communication with clients.
By telling the legal secretary the details of the problem, she can usually contact the
lawyer to get an answer, or if need be, to schedule an appointment or a return telephone
calls.
Second, communicate routine matters in writing. Most lawyers review their mail every day.
Many times this is done early in the morning or late at night. While reading your letter,
the lawyer may find it convenient to immediately address your problem by return mail or
immediate telephone call.-
- Third, if your problem is time sensitive, send a fax. The lawyer and/or the legal
assistance will review the matter and attempt to resolve the problem in the quickest and
best way.
Finally, if all else fails, schedule an office appointment. This will insure that you get
the lawyer's undivided attention for the duration of the appointment. Also, if there are
documents that need to be reviewed, bring them with you. In many cases, a legal problem
can be resolved completely by an office appointment.
While it is frustrating to not always have immediate access to your lawyer, a little
planning and patience can make your interaction with your lawyer more productive and less
frustrating. The above suggestions should help you in communicating in ways that result in
prompt replies.-
- Although my lawyer is well respected in my community, I no longer have
faith in him. What should I do?
The attorney-client relationship is very personal. A successful attorney-client
relationship is built upon many subjective matters. Thus, no matter how highly respected
your lawyer is, if your relationship is not productive, end it. Get another lawyer. Most
lawyers understand this principle and are willing to help you make the transition to
another law firm.
- In short, legal matters are emotionally challenging to deal with under the best of
circumstances. Don't make it worse for yourself by continuing a relationship with a lawyer
in whom you have less than full confidence.
I have decided to hire a new lawyer but my existing lawyer still has all
of my files. What should I do?
- Have your new lawyer handle this matter for you. Depending upon the situation, either
you or the new lawyer will contact the old lawyer to obtain your files (or copies, if
appropriate). Your new lawyer will then handle all of the details, such as notifying the
courts and opposing attorneys, filing any necessary documents, etc.
-
- I have just been sued. What should I do? Do I really need an attorney?
-
- First of all, Don't Panic. A lawsuit generally follows a predictable
pattern. Remember that the basic goal of a lawsuit is to resolve the disputes between the
parties. You should approach the lawsuit with the thought that your goal is to resolve the
dispute.
-
- As soon as you receive the suit papers (usually referred to as a Complaint or Petition
and a Summons), you should contact your lawyer's office immediately. If the lawyer is
unavailable, tell his or her legal assistant or secretary that you have been sued and give
details as to when you got the suit papers, what is the basis of the lawsuit, the name and
address of the opposing attorney, and the name of the court where the suit is filed. Make
arrangements to get the suit papers to the attorney's office immediately, by facsimile or
hand delivery if at all possible.
-
- Immediate attention is crucial. In most cases, you will have only a limited time to file
a written answer (usually, 20 days, but in some situations, such as a car repossession or
eviction, you may have only 5 days or less). If you do not timely file an answer,
generally YOU LOSE!!! Technically, it is called a default judgment. If a default judgment
is entered because you failed to make arrangements for a timely answer, you likely have
waived all defenses and countersuits and will have to pay the judgment, EVEN IF YOU DON'T
OWE THE MONEY.
Remember, Contact your lawyer immediately. If you don't have a lawyer, immediately hiring
one is strongly recommended. This is the best way to protect your interests.
- Do I really need a lawyer to handle a lawsuit for me?
In almost all cases, the answer is YES!!! For someone not educated in the complexities of
the law, our legal system can be a confusing and frightening place. Just as you likely
would not go into a wild jungle the next time without an experienced guide, you should not
attempt to handle your own lawsuit without competent guidance, if the outcome of the
lawsuit is important to you.-
- Can't I just call the other side and work out a settlement?
-
- As far as directly contacting the other party directly before you talk to a lawyer, this
is strongly discouraged. Once a lawsuit is actually filed, very seldom can a defendant
achieve an acceptable settlement without the assistance of a lawyer. Direct contact with
your opponent also raises the risk for two common problems:
-
- First, to borrow a cliche, "anything you say can and will be used against
you." When you contact your opponent, anything that you say possibly can be admitted
at trial. For example, if you say, "Gee, I'm sorry about this dispute and I would
really like to work it out", our opponent could possibly exaggerate and say,
"The Defendant [i.e, you] admitted that he was in the wrong and wanted to work these
out." By communicating through legal counsel you remove this problem.
-
- Second, in an number of situations, parties have worked out a settlement, the Defendant
did not contact a lawyer, did not file an answer before the deadline expired, the
settlement fell through and a Default Judgment was then entered. Remember that if a timely
answer is not filed, judgment by default can be entered against you. Once a Default
Judgment is entered, typically you waive all defenses and countersuits. In other words, by
direct contact, you run the risk of thinking that the matter is resolved, not filing an
answer and giving up valid defenses and countersuits. Do not let this happen. Regardless
of what agreements you may reach, FILE A TIMELY ANSWER TO THE LAWSUIT.
- I am thinking about buying or starting a business. What should I do?
DO YOUR HOMEWORK! The amounts of money that become at risk in such a venture requires
detailed planning. Research the specific business, the general industry, the local
economy, and any other factor that may impact the success of the business. Once you have
identified the business that you want to buy or start, the real preparation starts. This
preparation can generally be broken into three stages. In connection with each stage,
develop detailed checklists of activities to be undertaken before proceeding to the next
stage of the venture. While this approach may appear simplistic, all good transactional
professionals have detailed checklists that they routinely follow, regardless of whether
the matter is a $5,000.00 home-based business or a multi-million dollar merger.
- The three stages of preparation are : (1) the investigation of the business and the
negotiation of the terms of the sale (or, if a new business is being started, the details
of the formation); (2) the implementation of purchase or formation; and (3) the operation
of the new business.
-
- With regard to the investigation and negotiation phase, you will want to gain access to
the financial records of the business being acquired as well as reviewing all pertinent
legal documents, such as leases, loan documents, contracts with suppliers and customers,
etc. You will have to decide on the terms for an acceptable transaction. Such terms
include not only price and timing of payments but such issues as assumption of
liabilities, indemnification agreements, prorations of expenses and costs, etc. This phase
usually consummates in an Asset Purchase Agreement, a Stock Purchase Agreement, an offer
and acceptance, a letter of intent or other similar document. Caution is advised herein
since these documents, even where not overly formal, create binding legal obligations and
can result in unexpected litigation.
-
- The next phase is the actual closing of the purchase or the formation of the new
business. Many details must be addressed at this time. First, you need to decide whether
you are going to incorporate or form a limited liability company. In most cases, the
formation of such an entity will be advised.
Next, you will have to turn your attention to the actual completion of the transaction
(usually referred to as a "Closing"). Before money changes hands, you must
confirm that you are receiving good and clear title to all assets free of all liens except
those that you have expressly agreed to assume. You should have a full understanding of
all actions to take place at Closing and you should have previously prepared a Closing
checklist which should be closely followed. Remember, after money has changed hands, it is
sometimes difficult to get a Seller to sign any needed documents such as car titles,
transfers of telephone numbers and post office boxes, etc.-
- The third stage involves the actual operation of the business. You will want to take due
care to make sure that all necessary permits and licenses have been obtained. Also, you
should have previously decide whether the new business will operate as a corporation,
limited liability company or some other type of entity. If so, you will need to make sure
that all bank accounts, office stationery, brochures, etc. contain the proper business
name. You will need to make sure that you have an accounting system in place and that
adequate arrangements are made to address payment of taxes. Once again, given the detailed
nature of such activities, preparation and following of a checklist is strongly
recommended.
-
- One obvious question is whether you need a lawyer or CPA. This answer is maybe not. If
the business venture is relatively simple and you have had previous experience in buying
and running a business, you may be able to adequately prepare for and carry the activities
that will be required. However, given the complexities of today's business world, a good
lawyer and CPA with experience in advising small business are typically advisable. The
expense of professional assistance may be less than you think and may save you untold
hours of work and years of frustration. After all, you want to run your business, not
become an expert on all of the various legal and financial aspects that you need to know
to buy or start a business. Use of professional help will free you to run the business.
-
What should I do if I am arrested?
- Call your lawyer IMMEDIATELY!!!! Do NOT talk you anyone (not the police, not
anyone at the jail, not a friend or spouse) until you have spoken with your lawyer and
receive guidance . Obviously, you will have to give out some very basic
information to the authorities (such as name, address, telephone number, name of nearest
relative), do not discuss any aspects of your situation until you have you lawyer to
assist you.
Do not think that you can make this situation go away or that the police or prosecutors
will go easier on you if you tell them everything you know before you get a lawyer. IT
WILL NOT. Only with the assistance of a competent attorney can you evaluate your options
and effectively exercise your constitutional rights. -
- Do I need a will?
-
- The answer is maybe. In a few situations, a will does not provide any legal benefit for
a person. For example, a single person with no children, very few assets, and no specific
property that he or she wants to leave to a particular person probably does not need a
will.
-
- Most people, however, do have good reason to prepare a will. Obviously, if you have a
large net worth, you should have a will. Likewise, if you have minor children, you should
have a will (a will can set forth provisions for the appointment of guardians for the
children). If you have specific property that you want to leave to a particular person,
you likely need a will. If you are married with property acquired before the marriage or
as a result of a gift or inheritance, you probably will need a will if you want your
spouse to receive any portion of the property upon your death.
-
- In short, if you are concerned that you may need a will, you probably do. You should
discuss your concerns in detail with you attorney.
DISCLAIMER
- Persons visiting this site are reminded that the foregoing
information is provided for general informational purposes only and is not a substitute
for consultation with an experienced attorney admitted to practice in your jurisdiction.
If you have a legal problem, you should immediately contact competent legal counsel. For
further information, see the DISCLAIMER
NOTICE on our Home Page. To review this DISCLAIMER NOTICE,
please click the "HOME" bar below to return to the Home
Page. The DISCLAIMER NOTICE is located at the bottom of our
Home Page.
|
