How to Pick a Lawyer
By: Patricia H. Latham and Peter Latham
What is the exact nature of my legal problem?
The individual with specific learning disabilities (LD) and/or attention deficit hyperactivity disorder (ADD) may require the assistance of a lawyer in connection with general topical areas such as: elementary school, secondary education, postsecondary education, professional licensing, and employment. Problems in these areas may pose legal issues under the IDEA, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and state laws. Occasionally, criminal law issues may be posed. Once the general topical area and the legal issues are identified, the next question is: "Do I understand the process?" How you begin is likely to be dictated by procedures established by the school, licensing board, or employer. If you understand the general nature of the process and its requirements, the next question is: "Are the facts such that I believe I can persuade them (school, employer, licensing board) on my own?" Sometimes the answer is a resounding "yes". If so, it may not be necessary to retain a lawyer. On the other hand, if you have reason to believe that your claim will be rejected, it may be time to seek the advice of a lawyer.
What kind of lawyer do I need?
Law school training does not educate lawyers to be specialists. Its seeks to train them in the method of legal reasoning and to provide them with basic knowledge of many legal areas. As a result, lawyers who have just passed the bar have received a general legal education and may not be expert in any particular legal area. They must acquire an expertise in actual practice. Lawyers develop expertise in specific legal areas.
ADD/LD can pose legal issues in a number of different areas. There is no single area of legal expertise which addresses them all. Legal areas may include: education, employment, litigation, estate planning, and criminal law. In a particular case, it may be necessary to retain a lawyer with expertise in one legal area, e.g., employment law, and to consult with legal or medical professionals concerning special considerations that relate to ADD/LD.
Where can I find a lawyer?
State and local jurisdictions have bar associations. In addition, the American Bar Association is available nationally. Any of these may assist you in finding a lawyer with expertise in your problem area.
Martindale-Hubbell is a multi-volume work which lists practicing lawyers in the United States. Many major law firms are also listed. The areas of expertise of the lawyers are identified, together with a rating indicating their level of competence. AV is the highest rating a lawyer can obtain. Martindale is available at many law libraries and bar association offices.
The Internet is a source of legal information. First, lawyers' and law firms' web sites are being listed on the Internet with increasing frequency. Second, mailing lists, newsgroups and chat groups are providing informal information on legal resources.
Disability organizations may be able to provide the names of lawyers who have indicated an interest in representing person with LD and ADD: the state and local chapters of LDA and CHADD. Support groups in your state may be an important source of information concerning lawyers and their areas of practice.
Civil Rights groups such as the American Civil Liberties Union and the Judge David Bazelon Center for Mental Health Law, Washington, D.C. sometimes may be able to provide assistance.
How can I afford a lawyer?
There are many ways to pay for legal representation. Many firms will require payment "up front" of a certain sum and your agreement to pay for additional legal services at an hourly rate, together with expenses incurred. Some firms will undertake representation for free. This is called pro bono representation. You are not charged. Others will undertake your case for a contingent fee. Often the fee is a percentage of the recovered damages, if there is a recovery. If there is no recovery, there is no fee. In some cases, applicable statutes will permit the recovery of your attorneys' fees from the other side, if you win. Do not be reluctant to discuss fees and ask questions of an attorney you are considering retaining.
How should I relate to my lawyer?
- Ask your lawyer for an "engagement letter" which defines exactly what he/she will do for you and at what price. Some lawyers will offer an engagement letter without your asking, because this practice is encouraged by many bar associations.
- Ask the lawyer to estimate the cost to you of providing services, such as: advice, negotiations on your behalf, representation in an administrative proceeding, representation in an alternative disputes resolution process or formal litigation.
- Ask what the hourly rates are and which lawyer(s) will be assigned to work on your matter.
- Inquire as to the experience and qualifications of the lawyer(s) who will work on your matter.
- Consider setting a ceiling for monthly fees and expenses and ask that you be informed in writing if it appears probable that the ceiling will be exceeded.
- If litigation is being considered, ask whether alternative disputes resolution procedures (mediation, arbitration, mini-trials) are appropriate in your case.
When to litigate
Litigation is like war. Both can result from passionate anger and give way to weary depression. Remember that you, your abilities, and your disabilities may be major issues in the litigation. The stress of trying such issues could be enormous. Remember that you are seeking a practical result- e.g. damages or preservation of your job. The driving force should not be a desire to inflict harm on an employer or educational institution. Remember that you can make substantial progress toward the goals of a good education or rewarding employment for the emotional and financial cost of a lawsuit.
In litigation, as in war, there are times to fight. Generally, you should seriously consider litigation when a] the facts are simple and easily established, b] the consequences of losing are catastrophic (as where your employment may be terminated after having accrued many years toward retirement), c] the money to be spent on litigation cannot produce a comparable result if spent another way, and d] all efforts to settle or resolve the dispute (including, if appropriate, the use of alternative disputes resolution techniques) have failed.
Reprinted by permission from JKL Communications.