Coming from someone who lectures, writes and litigates I can tell you that each requires its own “skill set”.  Having the talent for one skill does not necessarily carry over to another.

Here are generic answers to this question we receive almost daily:
“I know I need to hire a lawyer to represent me in what maybe or is even  likely to be a lawsuit.  I never been involved in a litigation. How do I know who to hire to represent me?”

Part 1 of a 2 part check list, follows.  Remember also that while you are interviewing your lawyer (assuming the lawyer is not flat out desperate for business), he/she is interviewing you.  More on that in Part 2.

Its your money, your life so ask:

1. Does he/she actually practice law and try cases in real courtrooms?  Attorneys who write, lecture, negotiate or teach but do not actually try cases in front of flesh and blood judges and juries are of no use to you if you must go to trial.  They are of minimal use in real life except as reference points or sources of information.  Its much easier to convince an audience than a judge or jury.

I’ve taught in a  Masters Class in business and law at SVA.  Jack and I just authored a book.  We lecture all over the country.  None of the foregoing has anything to do with trying cases.  Representing clients, taking depositions, writing and arguing motions, talking to judges and convincing juries.  The former activities are fun and easy. That “legal” stuff however, is hard, really hard.

There is no comparison.  Representing clients and trying cases is a skill set which requires daily use.  Anybody can write and almost anybody can teach. Those who teach and write live longer than those who litigate.  I have learned that lesson about ten years too late.

Check via Google (or equivalents) to see how many cases your lawyer to be has actually tried and how many those went to verdict. If he/she is not actively trying cases, forget about him/her.  Attorneys who do not litigate regularly do not understand the adversary system and its local and current cast of characters.

Attorneys who do not practice law and try cases believe that what is written is.  Those who work in the trenches know that, “What is wrote, may not be what is”.

2.  Is your lawyer utterly familiar with terms of art?  No pun intended.  If he/she does not demonstrate a familiarity with the terms used in photography, publishing, illustration, art, etc. move on.  He/she may still be great lawyer but likely not for your case.

3.  Ask other attorneys for references.  The word gets out in the legal community as to who is both knowledgeable and effective.  Bad references from other attorneys should disqualify your candidate.

4.  Ask the lawyer for the names of long standing client references and permission to talk with them.  True, most if not all names given you will be people who view the lawyer favorably BUT you will be surprised as to what personality traits and problems of the lawyer you can glean from such conversations.

5.  Can you co-exist with this lawyer?  How would you feel being stuck in an elevator with him/her?  This is not a marriage but it is close.  You need to tell this lawyer the truth (yes really!) and trust him/her with your fate.  If you are not comfortable with him/her for any reason, move on.  You need not love him/her but you need to have frequent, productive conversations under very stressful situations.

Don’t get taken in  by pure demeanor.  A seemingly mild mannered, soft spoken attorney may be just as or more effective than a so-called “pit bull” – or vice versa.  Remember this is not a television show.

6.  Does your candidate speak plain English?  There is no legal concept that can not be explained in plain language using words of three syllables or less.  If you do not understand what the attorney is saying to you, what good is he/she?

7.  Never hire an attorney based on an ad.  Do not call an attorney based on an ad.  Ignore each and every ad you ever see for an attorney.  Would you hire a brain surgeon to cut open up your skull based on an ad?  If your answer is “yes”, then you deserve to hire an attorney based on an ad and furthermore, you will deserve the outcome.  I am constantly amazed that this topic which does not deserve any discussion is raised by creatives.  You guys work in advertising.  Advertising is legalized lying.  Notwithstanding your insight some of you are steered by ads!!!!   Just can’t make it up!

8.  Request a written fee arrangement.  Ask questions about any/all of it.  If the lawyer is anxious or not responsive, move on.  Do not sign any retainer agreement unless you understand it, all of it.  If the lawyer does not want you to “take it home to think about it” or show it to your spouse, do not hire him/her.   If you are hiring an intellectual property attorney, show the fee letter to your “regular” business attorney and obtain the benefit of  his/her scrutiny.

9.  If all else fails, and you can’t fine anybody phone your local or closest law school.  Ask for a professor who teaches copyright or intellectual property.  Get a referral from him/her.  These folks generally know who knows how to try a case in your legal and geographic area.  If they don’t know, they can get you references real quick.  In my opinion this is a much, much better technique than calling the local Bar Association (or equivalent).  On occasion – and do not rely on this – if your case is interesting the professor may provide your private attorney with some (unpaid for) assistance rendered by students.  If you have seen the movie, “Reversal of Fortune” you know that Prof. Dershowitz like thousands of other professors, used his students with great results for Mr. Von Bulow.

10. Any attorney who assures or guarantees you a result should be ignored.  No reputable attorney can or will do such a thing.    Ask him/her to clarify the comment.  If he/she is dumb enough to say it again, get up and leave.  Before the other side has even been heard from, some attorneys will frequently guess at to what you case is worth in an effort to seduce you into retaining that lawyer.  Such guesses are almost always useless and if given with some eagerness, beware the source.

Remember, attorneys who do not try cases for other creatives should not be entrusted with yours.

Edward C. Greenberg