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The Importance of Using a Lawyer Before You Encounter a Problem

Legal disputes can be very expensive, very risky, and very time consuming. In my experience, most disputes could have been avoided if the client had sought the assistance of a lawyer before they entered into the agreement or transaction that was the basis for the dispute. Unfortunately, many people don’t see an attorney until after a dispute has arisen. At that point, it is often too late to undo the damage and the client spends substantially more time and money addressing the dispute than they would have if they had sought the assistance of a lawyer before they signed the contract or started the project.

Such experiences cause me to think of the old Fram Oil Filter ads – the ones that said, “You can pay me now or pay me later.” Fram’s message was that you ought to pay a small amount of money to regularly change your oil filters rather than a whole bunch of money later to fix the problems caused by not maintaining your oil filters. The Fram Oil Filter ads imply, as I advocate in this article, that it makes better sense to pay a little for some prevention early on rather than paying a whole bunch more later when a problem develops. I believe the same can be said for the use of lawyers.

Before signing a contract, entering into a transaction, or starting a new venture, you should weigh the risks of the actions you are about to take. You should also perform a cost-benefit analysis to help determine whether you need to use a lawyer to assist with addressing the risks in the contemplated venture or transaction. The more risks you take on, the more important it is to use a lawyer to assist with the transaction or business venture. This may even be more important in the current economy when profits are not as easy to come by as they were a few years ago.

While it may only take a few hours for a lawyer to review a contract, form a business entity, or provide you with advice about a transaction, the amount of hours necessary to prosecute or defend a business dispute can be staggering. Many disputes that I have seen could have been avoided if the client had an attorney provide them with a few hours of advice before they got involved with the project. In addition to providing specific legal advice regarding the contemplated transaction or business venture, the right lawyer can also provide valuable general advice based upon their years of experience and experience with similar matters.

In addition to providing legal advice about a contemplated venture or transaction, I also have some general advice I’ve found to be valuable to clients regarding contemplated transactions or business ventures:

-Listen to your gut and the gut of your business partners and spouses. I have seen a number of disputes where one or more of the parties affiliated with our client felt early on that something was not right about the transaction or the parties with whom they were dealing. In hindsight, clients have informed me many times that they wished that they had listened to their gut or the gut of their business partners and spouses;

-Be very careful when the other party to your venture or transaction asks that you do things differently than you have done in the past. This is a red flag. Watch out. If you have never previously dealt with the other party, you may want to require that the venture or transaction be handled in a manner similar to how you have handled it in the past.

-Be very careful if the other party to the contemplated venture or transaction tries to require that you utilize a contract or documentation that differs from what you typically use for similar transactions or makes you feel uncomfortable. If there is a dispute regarding the transaction, the written contract and related written documentation will be the primary documents upon which the judge or arbitrator will render their decision. Also, make sure that any changes to the agreement or transaction are documented in writing.

If used in a preventative manner and timely manner, you can get good value from a lawyer. If, however, you wait until after a dispute has arisen to see a lawyer, it will likely be much more costly and time consuming. I suggest that you take the advice of the Fram Oil Filter guy and pay a lawyer a little for some legal advice before entering into the transaction or business venture. Otherwise, you will likely have to pay the lawyer a whole lot more later after a dispute arises.

Is your family fighting over who should or should not get dearly departed Dad’s property? Are you fairly certain a trustee is lining his own pockets, rather than aiding the beneficiaries? Did a caretaker unduly influence your ailing mother so he inherited the vast estate? Then you need to talk with a fiduciary litigator: You need someone on your side that can walk you through the legal and emotional challenges of fiduciary litigation. You need someone that possesses these traits:

1. Communication Skills.

Litigation is stressful. Litigation involving other family members or family money is especially stressful. If you find an attorney that primarily works with corporate clients, he may lack the ability to communicate with you about the many steps involved with litigation, having become too comfortable with a standard business cost-benefit analysis of litigation. For example, if litigation is unfamiliar to you, you will need to hear the same advice repeatedly, so you need someone to communicate clearly – and patiently.

2. Empathy.

Venting is an important part of the grief process, as well as the litigation process, as can be ranting, crying, or beating your head against the wall in frustration. If you find your attorney only wants to discuss the law, then you need a different attorney. The law is applied to the facts, and to know the facts, the attorney must know you. And to know you is to listen to you and empathize. Fiduciary litigation creates more than an attorney-client relationship; it bonds you together, so choose someone with whom you connect.

3. Strong Legal Team.

Certainly you want your fiduciary litigator to know the law, but the universe of law encompassing fiduciary litigation can be large. There may be good solo practitioners out there that handle fiduciary litigation, but more often than not there can be complex real estate, tax, or other legal issues intertwined with the trust or estate dispute that requires the fiduciary litigator to reach out to those who specialize in those areas. The best solution is to locate a fiduciary litigator that has a firm with other attorneys that can collectively provide their expertise for such situations. This is particularly true when the vast majority of cases settle short of conventional trial, so the involvement of tax law specialists on complicated settlements is often needed.

4. Confidence.

To effectively persuade a judge or jury, one needs to be confident. But there is indeed a fine line between being a confident attorney and a/an [insert your favorite expletive here]. Sadly, those that gleefully leap over that line are what give trial attorneys a bad name. But the confidence of which I speak is not limited to the courtroom. A good fiduciary litigator needs to have the confidence to be able to tell her client the weaknesses or risks with the case, as well as the potential for recovery. It takes confidence to be honest with the client.

This is a short checklist, but it covers the important points. Simply put, spend some time to interview your fiduciary litigator, because you do not want to settle for the least expensive attorney or the one that you heard was a “bulldog.” You want one that meets your needs and makes a real and personal connection with you. Such attorneys do exist.

Pay Me Now Or Pay Me Later

Top Four Traits for Your Fiduciary Litigator

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