Preventive Lawyering: How an Ounce of Prevention Can Save You A Ton in Legal Fees
January 21, 2010 by Robert E. Bauman J.D.
Finding a good lawyer is too often a difficult task.
The best are always busy—and usually very high-priced. If you know and trust the advice of someone who personally has been served by a particular attorney and—based on that service—is satisfied enough to make a good recommendation, that’s usually a good bet.
An initial half hour consultation with an attorney is usually free. After that first meeting, however, most attorneys require a "retainer fee," an up-front payment that can be a considerable amount (possibly $5,000 or more), depending on the extent of the legal work proposed. Usually, charges are assessed against the retainer fee at an hourly rate. When the retainer is used up, the client is billed for additional time. All this is embodied in a retainer agreement signed by you and your lawyer.
But even before O.J. Simpson’s highly publicized trial for murder… or the unprecedented establishment of a sexual harassment legal defense fund for the personal benefit of then president of the United States, William Jefferson Clinton, many Americans were well aware that only the rich could afford the supposedly “very best” attorneys—especially at a rate of $500 to $1,000 an hour.
Laurence Tribe, noted Harvard University law professor and frequent television “legal expert,” once billed a client $625 for a one-sentence letter actually written by one of his law students. “It was a very long sentence,” Professor Tribe explained shamelessly.
In arguing that you don’t always need a lawyer when legal issues arise, here are just a few common areas where you, with a little research and reading, can find the law by yourself: rights and obligations concerning marriage, divorce, alimony and child support; securing your assets by incorporating your business or forming a partnership; controlling distribution of your property after death with a will, trust and guardianship; involvement in a civil lawsuit, whether you’re the injured party (plaintiff) or the one being sued (defendant); protecting yourself when you buy, sell, rent or rent out property; what to do if you’re in an auto or other accident; what you need to know before drawing up or signing a contract of any kind; your rights as a consumer; and how to deal with the government in disputes over Social Security, disability payments and workman’s compensation.
Even if you think you need a lawyer in some of the situations I described above, it helps if you research and know the basic law before you meet with the attorney. You’ll be a step ahead and he or she will be impressed.
A Real-World Example of Preventive Lawyering
Let me give you an example of what I would call “preventive lawyering” that you can practice to avoid lawsuits…
As long as human interactions have occurred on earth, people have injured each other and damaged each other’s property, either accidentally or on purpose.
The law governing such unfortunate events is known as the “law of torts.” “Tort” is an ancient English word adopted from the French word meaning “wrong” and, in turn, derived from the Latin word tortum meaning, literally, “twisted.”
The basic concept of tort law holds one person responsible for injuring another or for damaging another’s property. The person who commits the wrong must pay money to the injured person, as recompense for the damage caused. Generally, wrongful (or “tortious”) conduct fits into three categories: 1) negligence; 2) intentional misconduct; and 3) conduct for which the law imposes strict liability.
Torts, Trespassers and You
You own a home or an office—real estate or real property, it’s called. How does the law of torts apply to your home place and your office?
Well, when a person goes on to, or remains on, the real property of another person, without the express or implied consent of the owner or the owner’s agent—even if no damage results—that is called “trespass to real property.”
An owner may use “reasonable force” to eject a trespasser, but has a duty to avoid inflicting intentional harm and to warn of any existing dangerous conditions known to the owner.
A similar duty of warning about known dangers is owed by an owner to invited guests. If a person can be classified as a “business visitor,” such as a delivery person or a customer, the owner has a continuing duty to keep the premises safe and/or warn of any known dangers.
Practically what that means is if you have a Jack Russell terrier that habitually nips at the mailman, you better post a “Beware of Dog” sign so, if necessary, you can say, “I warned you.”
When You Really Need a Lawyer
I must admit, as an attorney myself, I have been rather tough on my colleagues with this writing. My criticisms certainly do not apply to all lawyers.
There are many situations which can have serious legal ramifications on your life—so serious, in fact, that the best course of action is nothing less than obtaining the professional guidance of a qualified attorney.
If you think you need a lawyer, get referrals from trusted acquaintances, check the Internet or the yellow pages of your phone book under “Lawyer Referral Services,” or contact the office of your state or local bar association, which are also found on the Internet.
Robert E. Bauman, J.D.