For a myriad of reasons most folks do not equate a law firm with a “regular business”. Most businesses accept all offers to sell a product or render a service. All businesses exist to make money. A sale of a product or service typically results in a profit or benefit to that business.
Effective lawyers and law firms both big and small take care in their selection of what cases or clients they accept. Do otherwise often results in losses of money, time or worse – loss of reputation.
What to do if you think you have a case or if you have an issue because you are being threatened with a lawsuit? How do you get an experienced lawyer to get interested or even eager to take you on as a client? Here are some more tips when you first speak to an attorney whether by phone or in person.
1. Be truthful.
Tell the attorney what really happened. Don’t conjure a story, alter facts or make them up to entice the attorney to pursue your matter. Often folks go to various attorneys, they interview and shop around, before selecting one and so doing is just fine (and a good idea). Some people, surprisedly, have their cases rejected by an attorney for one or more reasons. Solid attorneys reveal to the prospective client the reason(s) that he/she does not want to be retained.
As a result, these same folks alter their stories based upon the reasons they have been given for rejection. An excellent and extremely common reason is that the reason given causes the prospective client to “eliminate” that fact/reason when consulting lawyer #2. Examples in the personal injury field abound. For example, a lawyer rejects an auto case saying, “You were doing 30 mph over the speed limit. That is an issue that minimizes the value of your case or eliminates any chance of success. Doing 55 mph in a school zone with a 25 mph limit likely places any chance of success in deep peril.
As a result, the prospective client lies and tells lawyer #2 that, “I was doing 25 mph because I knew it was a school zone” A classic subterfuge easily determined by the attorney to be false. Occasionally the lie based on consultation with attorney #1 is more subtle and gets revealed after attorney #2 checks witness statements or police reports. Example: “I put my infant in a child seat” The prospective client intentionally neglects to tell the attorney that the kid was not buckled in. This may take lawyer #2 even more time, energy and money to determine that the potential suit is without merit. In the end, the truth will come out.
2. Don’t tell or suggest how the attorney ought proceed.
Unless you are a lawyer, tell your story and let the experienced attorney do his/her job to achieve the best results. If you know nothing about plumbing and have a major water leak don’t tell the plumber how to fix it. Your Google research does not trump a lawyer’s law degree.
The Internet is chock full of lies, distortions and half truths authored by folks whose sole qualification is ownership of a keyboard. If you believe that for whatever reason you can’t work with the attorney due to his/her attitude (or yours) Don’t hire that attorney.
You are talking to an attorney because presumably you are going to rely on their advice. Lawyers are also called “counselors”. You should take their counsel.
3. DIY (Do it Yourself) legal letters.
Along those same lines of not getting advice online or from friends (or friends of friends, to relative of a friend’s friend), do not, and let us repeat this in big bold letters so you don’t miss it, DO NOT SEND A DIY DEMAND Letters or any other letters to someone you may want to bring a legal action against. What you write to someone can have severe consequences that will severely bit you in your consequences.
4. Answer just the questions the attorney asks.
It is unlikely that your entire life story is relevant to a determination to commence representation. If you believe the attorney has not asked critical questions, then ask or tell the attorney additional facts after or along with the inquiry the lawyer is making with you. For example – “I didn’t have my hearing aides in and thus didn’t hear the police car’s siren so I didn’t stop until I was forced over”.
What your lawyer doesn’t need to hear are “facts” like “I was driving my second car, a nice blue Prius, because my wife was driving my other car, a green Buick. It’s. A weird color but works for that car. My wife is actually a good driver, we met in college……….” To which we say “ZZZzzzzz”. Just stick to the facts and answer directly to the questions asked, and only the questions asked.
5. Document your story.
Bring any and ALL papers, emails, photos, video, invoices, copyright registration and so on with you to show the attorney the validity of your claim. Rarely are cases settled or won with no physical evidence. Verbal conversations are worth only the paper they are written on. In other words, just talk doesn’t walk or work in a courtroom. Keep your records forever. One of Ed’s clients has in paper AND digital form all of his records going back 4 decades. A contract dated 1984 in your possession is dynamite evidence as most people or companies shred their records after 5 or 6 years or sooner. Cases have been won on the mere existence of a 40 year old contract. In more than one case the other side can not produce a living, breathing human being to dispute that which is in a clear writing. Juries are prone to rule favorably for people who can prove their cases via undisputed paperwork or video. While verbal testimony can be very valuable at trail, juries often expect and give far more weight to videos, photos and written documents of disputed events
One of Ed’s clients told him that the papers Ed needed were lost “three computers ago”. That’s the problem with keeping all your records digitally. Jack has a barn full of his studio’s records from his first day in business in the last century to today.
6. Don’t wait.
All civil lawsuits are subject to what is called a “Statute of Limitations”. In plain English, these are time periods which vary depending on the type of case which govern the time periods within which you MUST sue. Demand letters, warning letters or threats to sue in writing don’t count. Ed has had clients who inquire about cases where the events occurred 10, 15 or even 20 years ago. Many statutes of limitations run around 3 years. So not really long. When the lawyer inevitably asks, “Why did you wait to see a lawyer for the first time after so many years”? Clients give absurd excuses including “I was busy” “My wife had a baby 6 years ago” “Didn’t want to upset my client (the thief)” and equally absurd answers. How many people wait a decade to fix their washing machine?
7. Do not set the lawyer’s fee.
The lawyer will tell you and agree to put in writing what your fee will be. Calling a lawyer and saying “I have $750 for you to negotiate my merchandising deal” typically results in the attorney tuning out and having no interest in what your case is. If you can’t afford the fee set by the lawyer you can try to negotiate it. If you fail, find another lawyer.
8. “I’ll gladly pay you Tuesday for a hamburger today”
Also know as the “Wimpy”, photographers think that “working on contingency” means that a lawsuit will not cost them any cash until/unless they win a pile of money. Simply put such an agreement sets forth the amount or percentage of the total recovered amount of money – if any. Lawyers who advertise “no fee unless we win your case” are lying to you. These are attorneys who work on a contingency fee basis and earn the percentage of the recovery as set forth in a written retainer agreement even if they settle your case. In only about 2% of all cases does a trial actually even commence. About 1/2 of those cases, the 2% that go to trail, get settled during trial. If you are being sued you will likely be charged an hourly fee in pretty much the same manner as CPAs, psychologists and personal trainer charge. There is essentially no way to charge on a contingency basis if you are being sued for money or other forms of relief.
Here’s the basic math and how you or the lawyer willingly runs a risk of getting paid or not. Numbers, percentages and amounts below are arbitrary but realistic.
Amount Recovered $100,000.00
Expenses incurred
(including Court fees) 2,750.00
Net Recovery 97,250.00
Attorney fee 35% of net 34,037.50
Whoever paid the expenses incurred gets that money back dollar for dollar w/o interest off the top. WARNING the vast majority of legitimate, experienced attorneys who do photo cases, do not front expenses like personal injury lawyers do. The client pays expenses as they are incurred without the attorney marking up the actual cost of say a court filing fee. If a lawyer offers to pay the expenses on your behalf – beware. Most won’t. They will settle the case cheap before they dig down into their own accounts to pay say $5,000 for an expert witness. One attorney in the industry has been disbarred and others called trolls because (in part) when it comes time to finance a case, they settle for an amount far less than its true value so they do not to have to lay out expense money. Often those lawyers do not have the resources to pay any expense money.
Legitimate, effective copyright infringement attorneys willing to work on a contingency basis are relatively rare. The bottom line is that the vast majority of IP lawyers do not work on a contingency basis. Ed might in some cases, as might others. Reputation, of both the lawyer’s and the client, is important, especially if the lawyer offers to work on this basis with or without some up front payment from the client. Young, inexperienced lawyers with light to no work loads are easy to find and your odds of you losing money by settling cheap are astronomically high.
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Tips on how to find a competent lawyer are included in our book The Copyright Zone. Remember that lawyers just like CPAs or photographers have families to feed and are in their profession to make a profit.
