How to choose the right attorney
Choosing the right attorney to handle a medical defense case can be as daunting a task as choosing the right physician to treat an illness. Plastic surgeons, especially, feel disadvantaged and frightened when faced with litigation. That, in itself, makes it difficult to make a good decision. Either they meekly accept the lawyer provided by their insurance carrier, or they scramble to hire the first attorney they find who promises an easy victory. Both of these decisions can carry severe consequences.
When Lightning Strikes
Choosing an attorney does not have to be overwhelming or confusing, and it certainly should not be a decision made in desperation. When a difficult patient requests his/her records—and suddenly you envision your hospital privileges revoked, your malpractice insurance canceled, and your good name disgraced—first, take a breath; and second, don’t panic. Keep in mind that in today’s litigious society, this scenario happens to many noted physicians. You are not alone. With some common-sense advice and a few tricks of the trade, you can make a strong, confident choice in obtaining representation.
The Rules of the Road
Let us begin with some common-sense basics. Consider the convenience of an attorney’s location. It is possible that the right attorney for your particular case may be worth a long commute to and from each meeting. But chances are, if the location is inconvenient, you will have less contact with your attorney than you would like or should during a case. Generally, the more face-to-face contact you have with your attorney, the harder it will be for your case to become deprioritized. The more frequent your face-to-face meetings are, the harder it will be for your attorney to ignore you or be unprepared. If this remains the case despite your constant presence in his/her office, it’s better to find out sooner than later that you need to look elsewhere for a proper defender.
Bigger Is Not Necessarily Better
When seeking representation, some may advise you to choose a small firm; others may recommend a large one. The truth is, the size of the firm is far less significant than the ratio of attorneys to paralegals. Case in point: If the attorney you are considering has a large number of paralegals and junior associates working at the firm, the more likely he/she will delegate the brunt of the work to them and simply oversee your case. It all comes down to heavy workload. It would be almost impossible for an attorney to personally tackle the bulk of each case on he/she takes on.
Therefore, it is vital that when interviewing prospective attorneys, you ask him/her what percentage of the workload he/she will handle. Do not be easily dissuaded if the attorney answers that even if someone else works on your case, he/she will check the work before proceeding. If you are paying an hourly rate (which will be substantial), a good amount of the work should be done by your attorney. It is important to agree on this point in writing before you write a retainer check. When the bill arrives each month, you want to be certain that you are not billed at your attorney’s rate when in actuality a student law clerk is the one drafting your motions.
Another crucial point: Be sure to ask if any of the work on your case will be outsourced. Try to determine if this is a standard practice for this particular firm or an indication that this particular attorney is swamped in litigation and really does not have time to take on your case, but does not want to turn away your business—or money.
Do Some Investigating Yourself
Another wise move is to research an attorney’s record of disciplinary action. Conduct an Internet search with the attorney’s name, contact Bar Associations, or subscribe to a lawyer-finder service; some of these list disciplinary actions. At the same time, amass references from clients and speak with others who have previously worked with this attorney. A prior employee, such as a paralegal, office manager, or secretary, may be an invaluable resource. They are familiar with the attorney’s work ethic and know better than most if he/she takes on too many cases, makes mistakes, loses files, or fudges on the billing.
Also, it is a good idea to ask your prospective attorney for a list of publicly recorded documents he/she has filed or worked on. Find out if he/she has published any articles dealing with your specific situation. A true expert in his/her field will usually be widely published.
Issues of Good Faith
Examine the issue of trust very closely. Does this attorney engender feelings of trustworthiness and personal commitment to your plight? To help you make this decision, ask yourself the following questions:
Is this attorney accessible when you call, or are you always transferred into voice mail?
When you do leave voice-mail messages, does he/she return your calls? After how long?
Does he/she speak with you personally, or do you usually find yourself referred to his assistant or paralegal?
Trust is not about charisma. You need an attorney who acts with professionalism, competency, accuracy, promptness, and attention to detail.
Another issue is bedside manner. Many people advise that you find an attorney who seems to be an honorable person. Others advise hiring the toughest, nastiest lawyer you can find to ensure your victory.
Ibelieve that negative personality traits should raise a red flag to the fact that what you see—is what you might get one day. In other words, you may be on the receiving end of the same unfair or unethical treatment that you observe your hard-nosed attorney giving opponents.
It might be tempting to hire a notoriously aggressive attorney with the reputation of a shark in hopes that he/she will be effective against the other party (especially if the other party has also hired a shark). But, unfortunately, the rule of thumb exists that any attorney who behaves in an obnoxious, aggressive, or underhanded manner toward his/her opponent will likely behave the same way toward his/her client if issues arises between them, such as a dispute over fees or disappointment over performance. It is more prudent to choose a strong, articulate, intelligent, and competent attorney than one who is simply a bully. A competent attorney will effectively handle an aggressive opposing counsel without having to resort to a strong-arm approach. That being said, do not go too far in the other direction either by choosing an attorney based primarily on his/her charm or likableness.
Do not place too great an emphasis on a particular attorney’s background, mannerisms, personal tastes or politics, either. It is more important to feel comfortable with legal ethics than personality and sometimes, it’s not easy to distinguish between the two. This issue is similar to the difference between a physician who may have a poor bedside manner but a high level of skill, versus an arrogant, aggressive physician who is skilled but is insensitive to a patient’s needs. A wise person chooses the former.
The following are warning signs that signal stay away!
Be nervous about an attorney who promises success. Most successful lawyers present both sides of the coin and caution you about all potential risks.
Be suspicious about bragging and bravado. Some attorneys claim to have never lost a case even after a lengthy career.
Be wary of lawyers who speak negatively about their competitors. A worthy lawyer can stand on his/her own record without denigrating the record of his competitors.
Run from any lawyer who tells you that it is OK to lie or otherwise act dishonestly. This advice is not only immoral but illegal; and it may put you at risk for criminal penalties, including jail time.
Make sure you understand the fee agreement before you sign it. Make certain that your attorney adds into your written agreement an accurate explanation of what costs might be involved. Ask him/her to put in writing a commitment not to bill for “individual time” if a group of lawyers meets to discuss your case. For instance, if four members of the firm discuss your case for one hour, you should be billed for one hour—not four hours. If you have a maximum amount you are willing to pay for an attorney’s services, make certain that your agreement clearly states that you cannot be billed beyond your maximum amount without your express written consent.
Following these steps will help you make good decisions when choosing an attorney, and you will feel empowered throughout the litigation process. Remember: Courts are there not only to serve disgruntled patients, but also to provide physicians with a remedy against harassment, frivolous lawsuits, and intentional affliction of emotional distress.
Linda Rosen, JD, is an attorney at law practicing in Florida. She can be reached via email at [email protected]