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Preventive Lawyering: How an Ounce of Prevention Can Save You A Ton in Legal Fees

January 21, 2010 by  

Preventive Lawyering: How an Ounce of Prevention Can Save You A Ton in Legal Fees

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.

Practice Situations

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.

Robert E. Bauman, J.D.

is a Former U.S. Congressman from Maryland. He now serves as legal counsel to The Sovereign Society, Editor of Offshore Confidential and Chairman of Freedom Alliance. He is the author of Where to Stash Your Cash: Offshore Financial Centers of the World and the Passport Book and more. Sovereign Society members and others know Bob as the prolific author of many articles, reports and books. His writings have appeared in The Wall Street Journal, the New York Times, National Review, Human Events and many other publications. As Chairman of The Freedom Alliance, Bob provides members with up-to-date, critical information about protecting your wealth and freeing yourself from unnecessary taxes and government oversight.

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  • Judy

    When I got a divorce in 1994 everyone was paid off by my husband’s company. I can get no where with this information because the lawyer code is “Protect these scum bags” Any suggestions?
    Judy Palm

  • Dr. smith

    Well that was a wasted read. Didn’t get anything from it. Bottom line: we have to many greedy lawyers. We need tort reform. Isn’t it telling in All the talk of health Care REFORM there is no mention of tort reform? Is it because most of our Reps are lawyers, is it that Obama is a lawyer and received large donations from lawyers?

    why do we have 9 times per person than a country like japan? Look what activist judges (lawyers) are doing to our Constitution.

    One big change that would help: if you sue, and lawyers love to sue, and you loose the case, you must pay for defendants legal fees! That would put some brakes are these #$%ing lawyers.

    Don’t like my comments? Sue me!

    • DaveH

      I went through a nasty divorce. My ex-wife was lying right and left to the court. I told my lawyer that I had written proof that my ex was lying. The lawyer told me that it was doubtful that the District Attorney would bother with a perjury case. So I asked her (the lawyer) “If the participants are not compelled to be honest in court how can the court system expect justice?”. She looked at me oddly and said “David, it isn’t just”.
      That about sums it up.
      We have too many laws, and then they aren’t even properly adjucated. And the Government is constantly adding more. The Justice System is out of control and the Government is out of control.
      If you look at Scott Brown’s issue page, you will see that the voters still haven’t learned as he is just another RINO:

      If you are a Republican, you need to contact the RNC and tell them they will get no more of your votes until they start fielding Candidates that promise to cut back the size of Government.

      A better alternative would be to start supporting the only party that believes in Individual Liberty, Individual Responsibility, Free Markets, and Limited Government. That is the Libertarian Party.

      • DaveH

        For the Libertarian Party Platform:

        We don’t have much time to stop this Big Government Leviathan before it reaches critical mass (more people feeding at the Government trough than not). At that point it is doubtful that we will be able to stop the steam-roller and you can count our economy DOA.

      • Phil Dru

        I have to disagree with the “only” party other than the Republicrats. It’s the Constitution Party. The candidate was Chuck Baldwin, a conservative.

    • Bruce Allen

      That’s actually a brilliant idea.

    • Wm.

      I have had a number of legal concers – before and after legal insurance. I will never be with out it again. Prepaidlegal has never raised its rates on existing members. It is worth looking into. I pay $300 a year. I doubt it is much more now. I apprediated it enough to by my wife an insurance license and PPL association.

  • Adam

    Legal insurance in America like they have in Europe would slow down lawsuits. Pre-Paid Legal?

    • DaveH

      Oh, please. Insurance of any form has only accomplished one thing – higher costs.

    • http://Don'thaveone Sally

      Adam. They have prepaid legal in the US. I thnk the last time I say an advertisement is was something like 79.95 per year. Also on TV there is an outfit that advertises, divorse 79.00, wills so much, etc. etc. What we really need is a cap on pain and suffering how much a person that sues doctors, companies with deep pockets etc plus no frivolous law suits like the ACLU and some other organizations put out – those are what cost the defendant a fortune like no prayer in school etc etc.

      • Paul

        A couple things,
        I went through a nast divorce and after &150K in legal fees, I walk away with nothing. 1 Year later after my ex put my 13 year old son in a mental instatution, I was back in court fighting for custody. I represented myself with the help of Pre-Paid legal. Compared to the $20-50K that a lawyer wanted, I was able to get all my questions on process, case history and many others answered for about $20/ month. I won the case.
        It is not just the political parties it the whole legal profession. They collect money to elect the judges who slow the cases so the lawyers make more to keep these judges in power. What a neat gravy train….

        • DaveH

          I agree Paul,
          It is quite a conflict of interest to have Judges who are lawyers. Of course they are going to lean towards feathering the nests of their fellow lawyers.
          And good for you for getting custody of your son and getting him out of the institution.

  • Swansong

    Good advice!

    Having gone thru “The Legal System” once, I’ll share this:

    America’s legal system is not about “The Truth”, it is about winning and as there are NO disincentives to sue (like: you brought suit and YOU LOSE, then YOU pay the other sides LEGAL fees!) it’s a free-for-all.. No wonder the courts are jammed!

    Don’t expect Your “Legal System” to protect you, it protects the rights of the law-breakers, not the victims.

    There are lawyers out there that quite simply should be imprisoned for their abuses of the system and the damage they have inflicted on innocent people.

    Outside of real evidence, the lawyers and the judge determine what other facts are NOT REVEALED to the jury in court – THE JURY never knows the whole story – just what they have been allowed to hear.

    Maybe the ENTIRE US ends up suing each other in one final legal climax. Maybe then we’d all look at each other with wide stunned eyes and decide we need to change things.

    US Legal system in a nutshell: Damaged, destructive and broken. Stay out of it.

    • DaveH

      I agree Swansong. I’ve spent my whole life trying to fly under the Legal radar but I’ve still been bit twice.

    • Phil Dru

      I bet there are almost no lawyers who would touch a case of abuse by another lawyer. BTW, the Fully Informed Jury Association is a good source for knowing your rights as a juror: Judge the Law as Well as the Facts! Is the Law Constitutional? Judges will not tell you about that!

    • http://Don'thaveone Sally

      You are so right swansong. I was involved heavily to the tune of 50,000 in a law suit brought on by an employee. My husband and I owned a very small business back in the 80′s which was a computer store, the secretary was the only non family member so therefore we didn’t have to have worker’s compensation however, we asked her which she would rather have, WC insurance of hospitalization – she chose hospitalization of course. So one Saturday, she cane in (she had a key to the office)and was playing on her computer, then left to go to a picnic so she said. Anyway, a couple of hours later she came back and told my husband that she had hurt her back and was going to the dr., he wished her well etc. not knowing that she was going to try and pin it on our business – to make a long story short, she did that and during the trial we were not allowed to bring up that she had been a convicted felon and served time in NJ gor doing practially the same thing to another employer. They rulled in her favor because she had a key to the office and we couldn’t have any testimony from our employees because they were all family. She could have had her back fixed on her hospitalization but would be off work for three weeks and she wanted pay for when she was off. Dummy me, we would have gladly paid three weeks salary. PS She was living in our condo which we rented to her at a very low price.

      • Bruce Allen

        Absolutely amazing. That’s the second time I’ve heard a story exactly like that. What the hell is wrong with people?

  • http://?internetexplorer macon mcdavid

    I would like to talk personally with you….Macon McDavid raleigh nc 1-919-801-3442

  • http://peace&quiet Richard Youngman

    What constitutes peace & quiet in my neighborhood. Where can I get the best (relatively speaking)free information regarding this issue?
    You can’t ask the police; They just give you generalities.
    I could be more specific; But I’m not sure I can and fit it in here, but to say, it is in regards to physical activity in the evenings that cause a lot of discomfort do to traffic and noise.

    • Phil Dru

      It’s called “Quiet Enjoyment” and most generally runs from 10pm to about 8am. Check local code.

  • jim

    Most representitives and senators were lawyers before they got into politics. Former lawyers write the laws so you need one of their lawyer buddies to interpret it for you, or if not re-elected they have a job to go back to.

  • tomeg42

    I’ve used the lawyer referral services before and it seems to me they send you to the lawyers at the bottom of the barrel. I’ve show up at their offices for meetings only to wait an hour to find out the lawyer wasn’t even in his office and nobody could locate him to find out if he were going to honor our meeting. I say be very careful before you sign on with any attorney because once they have you they know they will be paid whether they do you right or wrong.

    • Vic

      That’s exactly how my laywer treated me!

  • Robert

    You know what they call a thousand lawyers at the bottom of the ocean? A good start.

  • David

    Do you know that 99% of the attorneys give the rest of them a bad name?

    • jim

      What is the difference between a vampire and a lawyer? One is a souless, blood sucking monster that preys on the weak and helpless. The other is a bat.

  • Vic

    I told my lawyer: “I want justice!”.
    He answered: “How much justice can you afford?”

  • Edna

    My daughter just informed me that her landlord is trying to illegally evict her from a condo she is renting from him. No writ, no court hearing, just a written two day notice sent from him. Oh, by the way, the condo is in forclosure.
    Can you give me a clue what a tennants rights are in this situation. I have done property management in MI, but don’t know Florida’s laws where she lives. Never delt with this situation.

    • Fed Up Gal in NM


      Your comment did not include the reason the landlord provided that he/she is evicting your daughter. One helpful clue you mentioned is that the property is in forclosure.

      I don’t know the specifics of your daughter’s lease, etc…however, take a look at the link I’ve included with this message. This info is related to a new federal law (passed in May 2009) that provides some new protections to tenants residing in buildings that are in forclosure:

      My thought is this: If she was given an eviction notice because the property is being forclosed on…then it may very well be illegal (since federal law will trump any state law on this particular issue).
      The operative word here is “may”, since I don’t know all the facts of your daughter’s situation and of course my interpretation of the new law may or may not be totally correct. Just trying to offer info I am aware of.

      My understanding is that this law was passed, mostly due to the increase in residential forclosures….and in situations where a tenant was renting a home or apartment unit…when the bank/mortgage company took the property back…they were many times posting or sending notices to the tenants telling them “they” (the bank) was the new owner and the tenant must vacate within 30-days (for example only).

      You said the L/L is “illegally” evicting her; so my information is based on the assumption she has not done something the L/L feels is a breach of their lease agreement (non-payment of rent or other lease violations). I don’t know if she would be protected if he makes a good case (in court) that he’s invicting her for said violations, but if she’s being evicted simply because the property is in forclosure…I would definitely do my research.

      Most states have non-profit landlord-tenant hotlines, so I would simply google this (in Florida) and see if they might be able to help her (they may be an income-restricted help organization so you’ll just have to check).

      I would also google Florida’s (state) government landlord-tenant statutes. In my state (NM)…the statutes are called: New Mexico Uniform-Owner Resident Relations Act. I’m not sure what they’re called in Florida, although I did research Florida rental law a few years ago when I was trying to assist someone with information about terminating their lease in Florida (early lease termination).

      Hope this info is helpful.

      Fed Up Gal

    • Fed Up Gal in NM


      Sorry…I should have mentioned….just scroll down the article (from the link I sent you) to the part explaining about:

      Title VII: Protecting Tenants at Foreclosure Act – Protecting Tenants at Foreclosure Act of 2009 – (Sec. 702)

      Fed Up Gal

  • hotspur666

    Edna, I’d say she is pretty safe in Florida.

    Our neighbor never paid his mortgage for three years.
    Time he got evicted, the owner was bankrupt himself.

    A new owner rented to a bunch of blacks who used it as an address for better schools for their brats. Of course, their never paid rent either,
    so I would advise your daughter not only to tell the owner not
    only to go to hell, but dont bother to pay rent too, apparently
    in Florida, you dont need to especially if you’re black or Latino…

  • hotspur666

    To get your rent paid in Florida, you can only do like the
    slumlords do over there.

    You hire the ugliest black guys at least six feet four inches tall and weighting more than 400 pounds.

    It’s the only way to get rent paid, when the tenants have to look straight up at the rent collector!

  • Merl Elton

    Many states have no fault divorce laws. The so called womens’ rights movement has eliminated many of the marital and personal protections and rights to property; and personal safety that women once had without improving women’s economic and social status–typical fruits of the liberal agenda. So, no matter how badly your spouse behaved or treated you personally, including infidelity, mental cruelty, and other forms of spousal abuse including physical abuse; it does not often matter in terms of a divorce settlement; and often not even in terms of custody. And, if your spouse does not have a significant amount of money and possessions; and you will gain virtually nothing in leaving; it saves thousands to do your divorce online; and have a lawyer look it over for about $300. It also saves lots of money to have a prenup then where you know exactly what you will be getting from the start. Average income folks like most of us cannot afford lawyers. Therefore, doing it yourself with some legal oversight is the best way to previal and save money. Sometimes, you just have to cut your losses and go on with your life. Most of us can not afford to be greedy or wallow in the what ifs, shoulda, couldas, wouldas.

  • Merl Elton

    You can thank progressive policies for deadbeats not having to pay their rent, their mortgage, their payments on their Benzes, Bimmers, and CaddyLacs. That is why banks and businesses fail; and hardworking, honest taxpayers have to pay for bailouts which results in high taxes, high credit card rates, high interest rates on loans, runaway inflation, no interest on savings; massive job losses; and the US going bankrupt; and unable to afford decent health care; or effectively defend itself against terrorists; that is what happens. So be very wary and suspicious of any politicians or leaders that advocate radical economic and soocial polices and engineered crisis creation which they can use as a means to an end to bring down this country and its citizens.

  • Chip Spradley

    Never, Never vote for an incumbent judge. Their power is too great especially on about their third term.

  • Attorney Leigh Demonett

    You are a very thoughtful writer. This is a helpful site.


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