Since 2010, my wife Heather and I have run focus groups asking people their opinions about cases that attorneys have sent to her jury research company, Seventh Amendment Productions. In group after group, we have found that the biggest hurdle trial attorneys (especially personal injury trial attorneys) have to overcome is a genuine feeling of distrust.
If you or your family member are about to take the big leap and trust a personal injury trial lawyer with a 1/3 interest in what is probably the most significant catastrophe in your life, we believe there are a few questions you should ask. Below is a list along with an explanation of why we have included these questions on the list. Whether you hire our firm or are considering another firm, we believe that the right answers to the questions below separate the “opportunists” from the advocates. As always this information is merely educational and you can feel free to contact us to elaborate on this list:
- How long is your contract?
- Do you like your job?
- How many cases do you have right now?
- How often do you conduct focus groups?
- How many cases have you taken to a jury trial?
- Do you have malpractice insurance?
- Do you teach at continuing legal education programs?
- What do you like about your job?
- When was the last time you went to a client’s house?
- Can you give me a list of three previous clients I can call?
Here is why we included each of these questions on this list:
1. How long is your contract?
Is this lawyer going to play “gotcha” with you? Your “B.S. alarm” should go off if you are asked to sign a 15-page contract that includes every possible scenario. Believe it or not, the State Bar of Montana actually encourages its members to use a contract that is 15 pages long! A lengthy contract simply perpetuates the distrust the public has with people in our profession. These contracts are not written to help you, they are provided to put you on the defensive from the very outset. You should not need a lawyer to review a contract from another lawyer you are thinking of hiring.
Although I am two generations off the farm, in my household, a handshake and looking into someone’s eyes means more than anything on a piece of paper. At our office, we follow a simple principle: You cannot expect anyone, especially a client, to trust you until you trust them first. We believe our simple, one-page contract in personal injury cases is a reflection of the trust we have in our clients and a statement about the relationship we are about to enter.
2. Do you like your job?
This is probably the most important question you can ask in the process of hiring a lawyer. There are stresses placed on lawyers that make their jobs difficult. However, happiness among lawyers is not as uncommon as you might think. The ABA Journal completed a study of lawyers who found their work satisfying and were happy in their work. You may want to take a look at the survey and consider the results: A lawyer who likes his or her job is better at that job. A lawyer who likes his or her job is less likely to take that job for granted and less likely to take you for granted as a client.
I really do enjoy my work as an attorney. With the possible exception of playing professional baseball, I cannot imagine a more fun and enjoyable line of work.
3. How many cases do you have right now?
This question and the last question tend to go hand in hand. Law firms with huge advertising budgets and big overhead tend to take on way too many cases. If the personal injury attorney you are thinking of hiring is carrying over 50 cases at a given time, it is very unlikely your case will receive the type of attention it needs.
At our firm, we limit the number of complex personal injury cases to no more than 10 at a time. We will take on some workers compensation claims which do not require as much individual attention as the remedies are driven by statute. Finally, we handle a handful of serious criminal defense cases but only when we truly believe we can provide the type of attention required in such serious matters. I may have referred you to this page after we have decided not to take on your case. If that has happened, please understand that our decision not to handle your case does not necessarily have anything to do with the merits. We are very careful with our time and want to provide the best representation we can for the folks to who have agreed to provide us with the opportunity to represent them.
4. How often do you conduct jury research projects?
Don Keenan of Atlanta, Georgia, is one of the nation’s best trial attorneys. He says, “it is legal malpractice not to conduct focus groups on a significant case.” If the law firm you are considering does not conduct focus groups on a regular basis, and your case may have a value of over $250,000.00, that firm is not prepared to handle your case and you need to find another law firm!
A strange metamorphosis occurs when people go to law school. Not only do many people become bullies, law school graduates have often left their common sense back on campus. Conducting focus groups on a regular basis has not only become common, it is the new standard for attorneys who call themselves trial lawyers.
In addition to working with clients at Foust Law Office, my wife, Heather Foust, owns and operates Seventh Amendment Productions. Through my wife’s business, we have organized and led over 100 jury research projects, more than anyone in the state of Montana. Other attorneys come to us to help figure out how their case will play in front of a jury.
5. How many cases have you taken to a jury trial?
Although quantity does not always mean quality, if the attorney you want to handle your case does not have a track record of taking cases to trial, chances are the insurance company will not take him or her seriously. As litigation expenses have increased and courts have become more and more crowded, an entire generation of attorneys (those born after 1975), have little or no jury trial experience. Being a successful trial attorney is an art and not a science. Successful trial attorneys are not what you might think and the attributes that make trial attorneys successful today are different than the attributes that made trial attorneys successful 30 years ago.
I am proud to say that I am a graduate of Gerry Spence’s Trial Lawyer College in DuBois, Wyoming. In case you have not heard of him, Gerry Spence is, as my classmate Chris Hammons explains, “the Michael Jordan of trial lawyers.” In Gerry’s program, we learned how to understand ourselves in such a way that we can connect with jurors. More than anything, we learned that we have to be honest with ourselves before we can expect others to be honest with us. Ask yourself: Is the lawyer you are considering honest with him or herself?
6. Do you have malpractice insurance?
This may seem like an awkward question to ask but it is very insightful as to how the attorney handles his or her own affairs. Although the state of Montana requires all of us to have automobile insurance, there is no such requirement for attorneys to carry legal malpractice insurance. An attorney who carries legal malpractice insurance tends to put his clients first. Things happen in the practice of law, and nobody is perfect. If an attorney makes a mistake, his or her clients should not have to suffer. Although this is a difficult question to ask, you should.
7. Do you teach at continuing legal education programs?
Attorneys can spot a quality attorney and can tell you who is less than competent. Although attorney referrals are helpful, one of the best ways to find out who is well-respected in the legal community is to find out who is asked to teach at continuing legal education programs.
I have been honored to speak at a number of continuing legal programs in Montana, Idaho and Wyoming. I have even organized an invitation-only program in Bozeman bringing in attorneys from around the country to speak on effective trial practice.
8. What do you like about your job?
This question is a little different than question number two. This difference is important because it will tell you a lot about the personality of the attorney you may hire. Some attorneys really enjoy conflict while others may appreciate reaching a peaceful and amicable resolution to the case.
When we refer people to attorneys we consider what the person wants out of their case. If you simply want to peacefully move along from your divorce, there is one type of attorney. If you know it is going to be a knock-down drag-out battle, we will refer you to another type of attorney.
I appreciate getting to know my clients. I appreciate finding ways to make their lives better after a very difficult time and will do anything to make sure their lives are better after working with my firm than before. Although money is nice, and we do get a lot of money for our clients, I appreciate creating a great experience for my clients when they enter into the legal process.
9. When was the last time you went to a client’s house?
I am fairly certain this is something you never thought to ask. However, it tells more about the person you are thinking of hiring than nearly any other question you can ask. An attorney who goes to his or her client’s home has a completely different relationship with a client than someone who does not. If you have a very serious case, your attorney should know you very, very well.
I cannot think of a more important part of learning about a person than visiting his or her home. It is almost impossible to fully understand the challenges of a profoundly injured person without visiting his or her home. Attorneys who do not visit with their clients, have meals with them, and take the time to really understand what they are going through simply do not get it and are not deserving of your business.
10. Can you give me a list of three previous clients I can call?
If you do not get a list, you should probably look for another attorney. Also, understand that the attorney is not likely to give you the names of people who have been unhappy. These are the best of the bunch and people the attorney believes were satisfied. Now that you have the list, here are some ideas on what to ask previous clients:
- How did the attorney’s staff treat you?
- How long did it take for the attorney to return phone calls?
- Did you receive all of the documents in your case?
- How did the attorney make you feel while he or she was representing you?
- Did you feel as though the attorney judged you?
- Did the attorney make you feel like you were important?
- Did the attorney talk to your family members and friends while he or she was representing you?
- Would you feel comfortable speaking with this attorney about something other than the case he or she handled for you?
Concluding Thoughts on Hiring A Personal Injury Attorney
This guide is not perfect. The best answers to the questions I have provided are not a guarantee that the attorney you hire will be a good fit. One of the best ways to ensure a good attorney-client relationship is to make certain that your goals are made clear to the attorney from the very beginning. It is also important that your goals and objectives be reasonable. Hiring an attorney is a daunting task and one that I hope is a rare situation in your life. I wish you and your family the best of luck with your situation.
Please feel free to contact me at 406-587-3720 with any questions you may have.