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Why all the Lawyer Jokes?

By Jonathan Reed

Lawyer jokes arise in part because some people think some lawyers try to wrongly encourage people to get into expensive and unnecessary legal fights.

When I told one of my college science professors that I was going to law school he was clearly disappointed in me. He said, "My first wife and I spent a lot of money on lawyers arguing about how to divide our assets and one day we just looked at each other and said, 'Why don't we just divide this up ourselves and save all this money,' which we did."

Throughout 30 years of being a lawyer I have seen this pattern repeated again and again: People begin lawsuits all charged up about winning over their greedy, oppressive opponent and after experiencing the slow pace and high cost of litigation they get disillusioned and enter into a compromise that they could have had at the beginning.

How can you avoid this situation?

Unfortunately, in some cases your opponent is so unreasonablethat you will need to hire a lawyer just to get a decent result, even if you are very reasonable yourself.

But, what if your opponent has made you an offer? How should you go about evaluating it? Here's one suggestion: Pay a lawyer for an hour or two consultation. I wouldn't even tell the lawyer the offer. I'd just ask the lawyer what he or she thinks would be a reasonable outcome. If you want a helpful opinion you are going to have to put aside any anger or negative emotions you feel toward the other side so that you can tell the lawyer what you think are the strong and weak points of each side. It might even be a good idea to pay two or three lawyers for such a consultation. Most lawyers will try to give you an honest evaluation. A minority may give you an overly optimistic evaluation in the hopes that you will then hire that lawyer to get the overly optimistic result (which probably won't happen, but will get you a big legal bill.) This is why it may be worthwhile to pay for more than one consultation. Keep in mind that if a lawyer impresses you as a super aggressive shark, that doesn't necessarily mean the lawyer will serve you well. Sharks are not fussy eaters. They often eat what is closest. A lawyer who is constantly harassing his opponent is often "billing the hell out of the client." What you pay in consultations might save you a lot more in the long run.

The reason I would consider not telling the attorney about any offer you have at the beginning of the consultation is this: Lawyers are competitive and if the lawyer makes an appointment to see you, the lawyer is interested in being hired on the case. If your posture in the interview is: "I have this offer; can you beat it?" even the honest lawyer's attention is diverted from approaching the evaluation with an unbiased mind to thinking, "If I can beat this offer I've got some lucrative employment." (Of course, if the case is fairly easy for the lawyer to evaluate and the lawyer is honest, knowing about the offer you already have may not matter. But not all cases are easy for attorneys to evaluate.)

Unfortunately, sometimes cases are very difficult to evaluate, either because the lawyer is not that knowledgeable in that area or because it is hard to predict how the fact-finder (the judge or the jury) will evaluate conflicting evidence. Therefore paying for a lawyer or two or three to evaluate a case for you may or may not give you clear guidance on what the case is worth. But, even so, it is often worthwhile to pay for some opinions before you embark on the litigation path.

Finally, many people will be tempted to seek a "free consultation" to try and get a free evaluation. "Free consultations" work well for cases that the lawyer is willing to take on a contingency fee. (If you don't win, the lawyer doesn't get paid.) But, contingency fee cases are usually limited to personal injury cases--the kind you see lawyers advertising for on tv and billboards. If you are trying to use "free consultations" to evaluate your chances of winning a will or trust contest, or a contract case, or a divorce case, you have put the lawyer into a situation in which he or she doesn't get paid for the time spent with you unless the lawyer lands you as a litigation client. Does this create a subtle pressure on the lawyer to oversell you on the strength of your case so that you are more likely to hire the lawyer? If so, that free consultation just became mighty expensive.

But Sometimes Free Consultations Make Sense:

Let's say your widowed mother dies owning a home free and clear and your only sibling, your brother, appears to take over the house. You want to know if you are entitled to half of the house. Say, several months have gone by since her death. A lawyer (or you) can quickly go online and see if a will was filed or how the house was titled. Suppose the house was titled in joint tenancy (mother and brother) 7 years prior to her death. Now it is almost certain that the house is outside the probate estate and passes to your brother automatically. If you call me I would rather tell you that than try and suck you in for a paid consultation. But in this free consultation--almost always a phone call--I am not interested in exploring the remotely possible circumstances that might allow you to get half the house. (Why? Because it would take a long time to do so and you probably don't want to pay me for the likely negative conclusion.)

On the other hand, suppose the same facts as above except that your mother put the house into joint tenancy with your brother 7 days before her death from a long illness. Now, there is a possible undue influence argument. The evaluation of this argument is never simple: it will depend on the detailed facts including any relevant medical records. That situation just doesn't lend itself to a free consultation because it is impossible for a lawyer to quickly determine what the highly probable outcome will be.