Hiring a Lawyer

FINDING THE RIGHT ATTORNEY IS A CRUCIAL DECISION

WHETHER you’re a criminal defendant or buying a piece of property, getting the right lawyer for the task can make all the difference. On its Web site, www.abanet.org, The American Bar Association offers some guidance about hiring an attorney:

Do I have to hire a lawyer if I have a legal problem?
You don’t always need to hire a lawyer for every legal issue. Many people solve their legal disagreement with someone else without using lawyers and the courts. This is called Mediation or Dispute Resolution.

You can also try to handle a legal matter yourself. People without legal training may be able to handle some simple legal matters themselves—this is called proceeding “pro se” or “pro per.”Taking on a legal matter yourself can be risky, however. Each step may involve tax or other consequences that you may not think about. Doing it yourself also requires a lot of time and energy to learn the proper procedures and law. But sometimes people feel that they can’t afford legal representation or they just want to do it themselves. For more information on handling a legal matter yourself, see the “Helping Yourself ” section of the ABA’s Web site.

What should I do when I hire a lawyer?
Before you agree to hire a lawyer, you should ask the lawyer for details about how he or she will calculate fees, what expenses you will be responsible for in addition to fees, an estimate of the total fees and expenses, and how long the legal matter will likely take to complete. If any of these are not clear to you, this is something
you should try to discuss as soon as you realize that there could be a misunderstanding. At the same time, you should realize that a lawyer cannot usually predict exactly how many hours of work will be involved—especially if the case involves a dispute with another party.

Even with the best preparation, misunderstandings and disagreements can develop between clients and lawyers. If you don’t understand something your lawyer has done, or you feel that he or she has not acted in your best interests, you should talk about this with him or her as soon as possible.

What is a lawyer referral service?
Many state and local bar associations offer public service-oriented lawyer referral services. These services will interview clients and help identify the problems a lawyer could help them with. If a lawyer can help with your problem, the service will provide you with a referral to a lawyer. If the problem does not require a lawyer, the service will provide information on other organizations in your community that may be able to help. Most of these lawyer referral services use the telephone to conduct interviews and make referrals.

The ABA sets high standards for quality lawyer referral services. Those that meet our standards use a special logo that says “Meets ABA Standards for Lawyer Referral.”These services are identified as lawyer referral services.

Can you hire a lawyer over the Internet?
Through some Web sites you can hire a lawyer—who may be a great distance away—to either handle your entire case, or just to give you advice or prepare some forms for you.You should be careful and check references, especially when dealing with for-profit vendors over the Web. There are many online directories of lawyers, and services that match clients and lawyers. Many of these are for-profit enterprises. Some earn revenue from fees charged to clients, others support themselves by offering books, forms or other information for sale to the public, and still others charge lawyers a fee to participate. Remember that lawyers are licensed to practice on a state-by-state basis. If you are hiring a lawyer, make sure that he or she is licensed in the appropriate state.You can make sure the person really is a lawyer by contacting the state agency that licenses lawyers.

How do you know if a lawyer is licensed?
Lawyers are licensed by a state agency in each state. You should contact the appropriate state agency to find out if a person has a law license and is permitted to practice in a particular state.

What does it mean when a lawyer is bidding for a case?
With case-bidding services, you post your legal problem on a Web site. Lawyers browse the items posted, and if
they handle that type of case and are interested in working with you, they contact you to bid for the work.They specify a flat rate, contingent fee or hourly rate at which they will take your case. You can then decide which bid to accept. This service is one of the newest offered on the Web, and it may have some problems to be worked out. One serious concern is about client confidentiality. Normally, when you hire a lawyer and tell him/her
your story, the lawyer is bound by rules of ethics and the courts to keep that information absolutely confidential. But you lose that confidentiality if you share the information with many others or post it where many others can view it on the Internet. So if you use these services, be careful to describe your problem in only general terms.

What does it mean to put a lawyer “on retainer” with a prepaid legal plan?
You can arrange to have a lawyer available to handle basic legal matters at a modest cost by subscribing to a prepaid legal service plan. These plans generally cost $9 to $25 per month charged to your credit card, or may be available as part of a benefits package through your employer.

Malpractice is Not a Four-Letter Word

By Ken Javerbaum

O THE lay person who has never been a party to a claim involving malpractice, the word evokes suspicion
and negativity. To some significant extent, this can be traced to what the insurance industry and other interests
have falsely portrayed as a “litigation explosion” as well as by the exalted position in which the medical profession is held in the community. This cynicism has led many very justifiable claims to not being pursued. A study by the Harvard Medical School and reported in The New England Journal of Medicine conclusively established that, contrary to popular notion, significantly less than ten percent of all cases of medical malpractice are reported and a much smaller percentage of such cases result in claims being asserted.

Malpractice can be defined simply as professional negligence. In a routine negligence case, such as an auto collision, a jury is asked to determine whether the parties exercised reasonable care in the operation of their vehicles. The ability to make this determination is within the realm of experience of each juror.

In a malpractice case, the claim asserted is against a professional, e.g. doctor, lawyer, etc., and the issue for determination is whether such professional satisfied a standard of care applicable to the particular field and, if so, whether any such deviation from standard practice resulted in either physical or financial detriment to the party bringing the claim.

Unlike more traditional negligence cases, it is necessary for the party asserting the claim to utilize the services of an expert witness in order to establish a standard of care within the applicable profession to help guide and give a jury direction beyond the juror’s own life experience.

A direct and clear example of this would be the need to explain in the context of a legal malpractice claim, the
meaning of the statute of limitations and the requirement to institute a lawsuit within that period of time in order to protect the interest of the client. In an obstetrical malpractice case, it would be necessary to have an expert physician testify to the standard of care when prenatal sonograms indicate potential fetal distress. In medical malpractice cases, it is necessary to obtain the complete records of the injured party and have them thoroughly reviewed by a physician to provide an opinion as to whether there was a deviation from a standard of care and whether the patient sustained harm as a result. Typical type of cases comprising the field of medical malpractice
include birth defects—including Cerebral Palsy, ERB’s Palsy and braindamaged infants—and improper or
delayed diagnosis, such a the failure to detect breast cancer on mammograms.

Malpractice cases are very sophisticated, and are not for novices or general practitioners. They require the skill and resources of a specialist. In seeking such representation, a client should seek lawyers who fulfill the following pre-requisites that would demonstrate their proficiency, experience and expertise in handling such matters:

• Designation as a Certified Civil Trial Attorney
• Listed as “preeminent” in the Martindale Hubbell Law Directory
• Peer review designation as Super Lawyer by Law and Politics as published in New Jersey Monthly

If you believe that you or a family member have been injured as a result of medical malpractice, you should not hesitate in seeking a consultation with an attorney who specializes in such matters. Any consultation by an experienced attorney will be free and any attorney’s fees will be contingent upon a successful recovery with no responsibility for payment if there is no recovery.

Ken Javerbaum is a founding partner of the firm Javerbaum,Wurgaft Hicks & Zarin, 959 South Springfield Ave., Springfield, NJ; 973-379-4200

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