Contributor Panelist view all contributors

Michele Colucci, Esq.

Michele is an experienced lawyer, serial entrepreneur and CEO of MyLawsuit.com, a marketplace of lawyers who will accept cases without payment of upfront legal fees (lawyers take a percentage of what they win).


child custody

The Basics of Child Support and Child Custody

How are child support and child custody determined? Child support is often calculated by using a formula based on income of each party. However, if the parents make over a certain income, then support may be determined by the lifestyle enjoyed by the couple during the marriage. The thinking behind this is that the divorce was not the fault of the children and therefore their lives should change as little as possible. For instance, if a child's life included this sport or that camp, and the couple's income can afford to maintain that schedule because the income is high enough, then the courts feel that this should continue. But how support is actually calculated varies from state to state so be sure to check your state's family law website to get more specific information. Child Custody is determined in a similar way in that the children should have as little change in their life as possible during and after a divorce. So the 'status quo' which is how time was divided before, are often the standard. However, if a parent did very little with a child before and in the divorce is asking to spend more time to get closer to an equal split in time, the Courts will absolutely try to get as equal an arrangement as possible. Sometimes in search of that equal split, Judges do what is called 'splitting the baby." This expression conveys the sentiment that regardless of what's best for the child, courts want to award parents 50/50 custody. This is often true because they believe it to be in the best interest of the child. Whether or not it really is depends very much on the relative fitness of parenting that each parent is able to provide. Are there really any advantages to being the mother or father in earning custody rights? The law likes to be impartial but the reality is that there are some natural times in life when children are more closely bonded to one parent or the other. For instance, oftentimes from the age of birth until children are out of diapers, they spend the bulk of time with their mothers. So ages of the children could be a factor in determining the amount of time with each parent. What you have to keep in mind is the concept of ‘status quo.’ Courts like to minimize the impact on children so they try to make as few changes as possible after a divorce. There are naturally going to be changes because the parents are living in two different locations. However, if the children were spending a certain percentage of time with their mother and a certain percentage with their father prior to the divorce, the Courts usually try to maintain that percentage split. That can change, however, if children are going through certain developmental changes and need more time with one parent or the other as a result. It could also shift if the safety of the child is at issue. Basic care, safety, security, necessities of life, these are the things that are critical for children. If there is evidence of neglect, abuse, inappropriate parenting, etc. then these facts could absolutely impact the percentage of time the child spends with one parent or the other. The other major consideration for custody splits is which parent will facilitate communication best with the other parent or which is better able to keep the memory of the other parent alive when they are not around. This is very important and frankly the reason many people end up with much less custody time than they expected. Children benefit from having both parents and not feeling abandoned by either. If one parent is talking poorly of the other and keeping the children from communicating with the other parent while they're in that first parent's custody, that is probably the parent who will end up losing the privilege of having a lot of time with their children. How should parents ensure they put their best face forward in court? The focus must always be the children. The best face one can put forward is the toughest: calm clarity. Judges understand that divorce is a highly emotional experience for parents. But if those high emotions are displayed in court, then the Judge has good reason to think they will also be displayed in front of the children that could be harmful to them and very inappropriate. So the best advice I have is to be prepared, be clear, stay calm, have what you are asking for clearly written down and be prepared to have a conversation with the Judge. Understand that the Judge has to make an informed decision without really knowing you so help make their job easier by speaking in a clear manner, with logic and patience. Parents should also be real. When thinking of the children’s best interest, they should be honest about what the percentage of time split has been – and not just put on their ‘best face’ to avoid having to pay higher support in exchange for lesser time. That doesn’t mean that the parent who traditionally spent less time with the children should not ask for, and receive, greater time now that the couple is divorcing and living in separate locations. But before trying to make changes to their children’s lives, I highly suggest thinking through first what would have the least impact on them and then phasing in over time whatever new amount of time is being requested. What child custody arrangements are most common? There are a few child custody arrangements that we see again and again. One very popular schedule for working dads is that dads take Wednesday dinner, sometimes with an overnight to school on Thursday, and then every other weekend. Holidays are almost always split between the parties (Winter break in half) unless the parents live in two different locations in which case the non custodial parent may have more vacation time to approximate a more equal custody split. Another schedule for the non holiday time with a more equivalent split is the five days on, five days off, three on, three off. Still another schedule has one week on, one week off, changing on Sundays. Some parents choose “nesting” arrangements which is where the children stay in the same house and it’s the parents who switch back and forth. While great for the children, this can be tough on parents. Sometimes parents will also try this as an interim move so the children have time to get used to the idea that the parents are not with them together and the move to different houses once things calm down. It’s hard to say which arrangements are better – but I tend to think the ones with the least impact and confusion on the children is best. This often means that one parent will have most of the school days (if that parent stays at home or is the homework parent) while the other parent has more of the weekends and free time, but ideally children don’t have to go through the “If it’s Tuesday This Must Be Belgium” dilemma. If children know every X day they’re at mom’s and every Y day they switch to dad’s, that tends to take the guesswork out of the equation. Parents also often change days to accommodate their schedules but I’d urge people to do this as little as possible because children in emotionally charged situations need stability, routine and structure. If the parents are constantly changing things to accommodate their own schedules, the confusion can often wreak havoc on the children and cause them to become unglued. Whatever the schedule, it is important for children to spend time with both parents so they don’t feel a sense of abandonment from either parent. But how that time is spent and when (day time, weekends, overnights) are the items that should be considered when creating a split that gives both parents time with their children.
parents estate

Taking Over Your Parents’ Estate Gracefully

How can you help them prepare their wills and get their estate in order respectfully? It’s very difficult to get parents to face their mortality. They often feel threatened that somehow granting a child powers over their financial or physical person is a loss of control. As we age, maintaining control over our life is the biggest struggle. Physical control is starting to wane with illness and deteriorating muscles and bone density. Mental control is often frustrated with memory losses or lack of clarity, especially under pressure. So financial control is the only thing they actually have left in their hands. Fear of losing that control can make parents suspicious of anyone who wants to take that decision making power away. A direct request to handle financial affairs from a child can often be misunderstood as an attempt to personally benefit from their financial stockpile, a threat to their financial stability or impatience to inherit their estate. Yet monitoring and preparation is critical when the aging population is vulnerable to caregivers to whom they feel the need to ingratiate themselves for better care or vulnerability to financial predators who are incredibly aggressive through phone calls, pressuring them to send money for various scams and reasons. With the advent of Google maps and satellite visuals, predators can now see the elderly person’s house down to the front door keyhole. So as our parents age, it is increasingly important to ease them in to a co-management situation whereby you receive copies of bank statements or other investments so their financial activities can be at least monitored. Explain that the added security of having a second pair of eyes insures there isn’t any identity theft or mistakes being made. No one can look at every statement the moment it arrives so two sets of eyes are better than one to spot mistakes. Once dual copies are in place, start small conversations about the investments. Ask questions and seek their advice and input on how and why the investments were made. Don’t try to tell them they are doing something wrong even if you think they may be. If you see something that concerns you, tell the broker instead. That way there will be a record of a concern and the broker will be on notice that someone else is watching for mistakes, inappropriate investments and churning of accounts. Parents love teaching so engaging to learn makes the conversations easier down the road if you see decisions are being made that may hurt their financial position. The best way to encourage parents to prepare is by example. If there’s a horror story from their social circle about dying intestate or with a will but without a trust so the tax and time caused catastrophic results for the spouse and/or decedent’s family, talk about it. If their own parent’s death caused problems, discuss it. The best is often reminding them that their spouse’s financial stability could be compromised and if they’re gone, they won’t be around to take care of it. The combination of example and the reality that it can happen to their own family often helps make the need for preparation more of an urgent reality. The other way to broach the subject is to let them know that you want to be sure that their wishes are respected if they were to get sick. Give them examples of whether they’d want to stay in their home, whether they’d want to be kept artificially alive, if they’d like to be at home if they have a terminal illness, would they want to be cremated or buried and where, etc. This psychologically makes them feel there are decisions they need to make to stay in control of their lives if they aren’t able to make the decisions later. It makes taking the step of drafting a will or trust far more attractive. Drafting a Power of Attorney for Medical Decisions is a short jump from drafting a Power of Attorney for Financial Affairs and both are most often contained in the same document. So entering through one door may enable you to go through the other. If you meet with great resistance, I’d suggest taking yourself out of the mix and at least get them to consider a will or trust that puts the control into the hands of a few independent parties with a fiduciary duty to protect and administer their assets. Even the least expensive online solutions like LegalZoom can offer wills or trusts that comport with specific state laws. Once that initial step is taken, the next step to adjust or amend it with a legal estate professional can be more easily broached and the procedure refined to a more appropriate solution with time. Do you need to be named Durable Power of Attorney (POA) to access their accounts? To access bank accounts you will need to provide the bank a document that gives you the power to access their accounts. This can be a Durable Power of Attorney, a document that adds you to the account as a joint account holder, something to demonstrate that you have a beneficial interest in the account (rights of survivorship) if something were to happen to them. The documents vary depending on State, situation and institution but simply paying a visit to the specific bank(s) should provide the form and substance of what is needed for this contingency. What information do you need to be prepared to take care of your parents’ finances? Ideally to take over parents finances you need serious investment savvy or a relationship with a very good financial manager. You are under a fiduciary obligation to be a good manager of their finances and there are offices in the government that will investigate complaints of people not managing the financial affairs of the elderly appropriately. So take this job seriously and ideally have an accountant or investment professional make decisions with you. You will certainly need knowledge of where everything is and what form it takes (ie cash, stock, bonds, life insurance, safe deposit boxes, etc.) For investment accounts, confirm what the registration cards said when the investments were made and insure that the investment goals have not changed. For instance, a person may have checked off ‘aggressive growth’ investments 20 years ago when they opened a brokerage account but now that they’re older, their appropriate risk tolerance may shift to ‘cash preservation.” So update their registration cards with brokerage firms if necessary. Find out what the start and end dates of bonds, if they automatically roll over, the decision making period for that rollover, what that investment pays and if it’s competitive with other market options. If they are holding a five or ten year bond that automatically rolls over one month prior to expiration, then you may want to liquidate that long term investment if their life expectancy is shorter than the expected maturation date of the investment or if the funds are projected to be necessary for their care. Understanding the mix of investments is critical. If they have stocks, check what the companies actually do and measure the attractiveness of that stock in light of today’s changing world of technological advancement. Sometimes stocks sit in an account for 30 years without movement which may or may not be good to maintain in today’s economic climate and with their new financial goals. Ideally the mix is balanced with an emphasis on cash preservation. You should also identify what items will be necessary to pay moving forward. If the person is in their same living situation with caregivers, then there’s water, power, phone, mortgages, taxes, medical insurance, life insurance, medical expenses like medicine and medical equipment, caregivers, food, etc. I used Amazon to deliver items like Insure, diapers and groceries to my Aunt’s home to take the power away from the caregivers who can often abuse the credit card or check writing role. I kept a positive balance in the accounts with the utilities in case bills were not received in a timely manner so nothing would be compromised. If they’re in an assisted living facility, they have a system for billing and what it covers. The one thing I would keep my eye on in this instance is medical insurance premiums and life insurance premiums. Insurance companies are notorious for not sending bills and then cancelling insurance for the elderly. Stay on top of that and set up auto debits for critical payments that can’t be missed. It’s also critically important to understand their wishes and try to maintain as much consistency in their life as possible. Oftentimes when people age, their long term memory increases and short term memory decreases. So if they’ve lived in the same house for 40 years, changing that environment can cause significant and unnecessary fear and panic. Try to keep the things around them that have comforted them for many years that are memorable and recognizable. That will go a long way to making their later years peaceful and they will be able to maintain their dignity as they age. They will also be less resistant and fearful to a smooth transition of the management of their financial affairs.
divorce seasons

Seasons for Divorce

In General: I have noticed some seasonal trends in divorces. The start of the year is a big one: people have gotten through the holidays, family time has not improved an intolerable situation, and New Year's resolutions often include addressing things that we have avoided. Spring when school is almost over and a long summer break with the family seems intolerable. A third time is in the fall when family vacations are over and things are no different, and before end of year bonuses are due or the holidays set in. Nobody really wants to start a divorce during the holidays so many suffer through it before they make a move. In general, if it’s divorce data you’re after, the most recent surveys are from the Center for Disease Control, National Survey of Family Growth. They cover data from 1990-2011 broken down by state which can be accessed here: http://1.usa.gov/1636yCT Who in the marriage typically files for divorce? The statistics show that women usually file first for divorce but I’m not sure that’s a relevant topic for conversation. There are so many reasons that couples (husband or wife) file for divorce including but not limited to infidelity (theirs or their spouses), loss of attraction to the spouse, lack of interest in a physical relationship, loss of trust, perceived or actual lack of freedom, tension from differences in salaries, divergent beliefs in child rearing, simply growing apart, etc. What I have found interesting in conversations with people in unhappy marriages is that, in spite of the high rate of divorce, both men and women are usually extremely reluctant to divorce. There are many reasons for this including considerations such as impact on children, division of assets, the change in standard of living and comfort/routine. I’ve found that couples are willing to stay in a situation without affection, partnership or trust even to the point of contempt, arrogance and infidelity just to avoid having to turn their entire world, and that of their children, upside down. And even when couples do take a step in the direction of divorce, some still change their mind during the process. How should couples go about property division? Evenly. Honestly. Openly. My advice to the couples I have worked with is the sum of the whole is larger than the sum of two parts. What I mean by that is, if both parties are working together to make the marital estate larger through tax deductions and less attorneys’ fees, then there is more for both. So whenever possible, recognize that and work together. Does marrying later in life lower the risk for divorce? That’s an interesting question. Statistics show that people are marrying 9 months to a year later and the divorce rate is decreasing from about 50% to 45% (41% of first time marriages end in divorce; 60% of second marriages end in divorce; 73% of third marriages end in divorce). But whether or not there’s a causal connection is unclear. On a philosophical level I have always argued that we, as people, start to understand who we are as we get older and we’re thus better able to see what works for us and what doesn’t. As a result, one can argue that we make more informed choices. But I don’t think anyone can answer that question definitively. Has the poor economy discouraged divorce due to financial reasons? I think the poor economy has encouraged divorce for high earners and discouraged it for low earners. There was a great article in the New York Times a few years ago that, more or less, noted that money is often the glue that holds marriages together. When it disappears, there is no longer a strong reason to stay together with someone with whom a connection has been lost for whatever reason. If there is little or no money in the marriage, then the high cost of divorce (or the perception that divorces are expensive) seems to keep many people in a state of limbo. Sometimes those marriages reconcile but more often than not they eventually find someone to help them and divorce. I often read articles where people think divorcing too easy of a process. And for people with great wealth it may be easily affordable, but it is almost never easy in any other way. How can couples save money on attorney fees when filing for a divorce? Mediate with one lawyer. Or meet with your Accountant, ask him/her to suggest or recommend a division of the assets and propose tax saving opportunities in the process. When I help couples, I almost always work with an Accountant. To do so otherwise is missing possible opportunities to make the process smoother and to provide more incentives to work together for everyone.
practicing law

Surprising Truths About Practicing Law

The practice of law has changed greatly over the past few decades. But one thing is consistent which I do think would surprise most young aspiring lawyers: law is a business and, like all other businesses, depends on finding clients who will hire you. We tend to think of a law degree as the equivalent of job and income security and that people will just come to you. But the practice of law is half expertise and half business development, or “rainmaking” as it is referred to in the legal profession. In most businesses this would be obvious but not so in the eyes of the general public. With the increase in legal fees, legal services are sadly out of reach for the mainstream of America. And even more disappointing is the fact that many law school graduates are unable to work in the pro bono field or provide legal services at much reduced rates because they have hefty law school loans that they have to repay. A large number of law school graduates are simply unable to repay those loans because the repayment requires making a significant income on a consistent basis. That is simply not a reality for most lawyers. Another surprising aspect is that there are certain requirements for particular types of practices. For instance, if you want to be a patent lawyer, you would have had to take a certain number of science/math hours in your undergraduate years to be licensed in this area. Oftentimes one does not know they are going to law school so it’s primarily luck that enables one to qualify. And if one does know the type of practice, most often they do not understand that any requirements exist other than a law school degree and passing a state bar exam. Another interesting footnote is that all young law school students are focused on writing for the law review, graduating at the top of their class and landing a job at a top paying corporate law firm when they graduate. What they don’t know is that there are alternative career paths that may actually be more lucrative or more rewarding. For instance, contingency fee practitioners (who take a percentage of the recovery, if there is a recovery) were often viewed by lawyers in prestigious law firms as having to take contingency fees because they weren’t good enough to get paid upfront hourly fees. This perception has changed dramatically over the years as plaintiffs’ lawyers recoveries often equate to on an hourly basis to much higher than practitioners who charge some of the highest up front hourly fees. In fact, many traditional law firms are now getting in to the business of contingency fee practices though in limited capacities. True contingency fee practitioners require entrepreneurial thinking and oftentimes larger risk taking than what would make most lawyers comfortable. I decided to pursue a law degree for several reasons: regardless of what I did with my career, I always knew I would be able to understand and negotiate my own deals. Interestingly enough, another unexpected result is it gives you credibility. People think you know things in spite of the fact that you may not. This has advantages but also disadvantages. I’ve seen many lawyers take on cases they were ill equipped to handle to their detriment. A law degree does NOT mean you can handle any legal matter. It means you have a generalized level of knowledge about how to operate in the legal system. The next several years are generally spent getting the equivalent of a ‘graduate’ degree by practicing with a firm or under the mentorship of a more senior lawyer learning the ropes of a particular type of law. So, despite the fact that the State says you’re competent to practice law when you graduate and pass the bar exam, the reality is that most lawyers require years of experience before they can handle a case on their own, and many more years before they can develop an expertise in a particular area of law in which they will specialize. The most rewarding part of being a lawyer is that you can help people who don’t know where to go or how to get assistance. That is a wonderful feeling, bar none.
medical malpractice

Filing for Medical Malpractice

How do you move forward with a medical malpractice case? If you think a medical professional has made some kind of error or omission and that has resulted in your physical injury, you should speak with a lawyer right away. The reason you shouldn’t wait is that things can happen between the time you are injured and the time you file suit. In defending doctors or hospitals, their lawyer may argue that the injury really occurred during that time period; they may also claim that by not doing anything you exacerbated, or made worse, your injury and thus they are not responsible for the magnitude of your injury. Another problem with allowing too much time go by is that it is more difficult to obtain medical records, to remember the facts of what happened or to get people who were there to sign a statement about what they witnessed. Time can change perception so if you believe the doctor or hospital did something wrong and you intend, now or later, to do something about it, you should not wait to seek professional legal help. How do you hire a medical malpractice lawyer? Medical Malpractice lawyers, or “MedMal” lawyers, clearly identify this as a practice area in their listing on State Bar sites, in listing services or on their resume pages of their law firm. You can connect with lawyers who practice in this area through many ways: call the State Bar and ask for a list of medmal practitioners (note: you can find this online at most State Bar websites as well); you can use a website that lists lawyers or connects you to them (but beware of the sites where lawyers pay to be listed – you will find lawyers who pay to get business, not necessarily ones who would otherwise get business); you can come to a connection platform and put your case on to see if lawyers will respond (like the site I operate, MyLawsuit.com, where lawyers represent clients for a percentage of the recovery); you can speak to a friend who’s had a similar matter if you know of someone; etc. There are now, thankfully, many ways to find a lawyer in a particular field. The problem is finding one that is knowledgeable about your particular type of matter. Once you find one you’d like to retain, you will be asked to fill out a “retainer agreement” which is the document stating you hire them to represent you in your case. There are many things to look for in those contracts including how the lawyer charges you for costs (like Xerox copies, Fedex, etc). Some add a profit to those costs, others pass them through at the amount it costs them. Read this document carefully and ask questions if you don’t understand. If you know someone with legal expertise who can help you to read and understand the contract, as long as they’re not trying to get you to go to someone they know or handle the matter themselves, even better. What should you look for when hiring a medical malpractice lawyer? Questions you should ask? Experience, experience, experience! Most important is the types of cases the lawyer has handled that are most like yours, when they handled it and with what results. Also ask the percentage of time they spend on medical malpractice cases. If it’s 1% or 5%, they’re probably not as well versed in the latest laws or they may not get many clients who want to hire them. They may also be new at it and trying to establish themselves. Whatever the case, it’s probably better to go with someone who does it all the time. As they say, practice makes perfect! For your own edification, it’s a good idea to ask them timing and what you should expect. Most people don’t understand how long these cases can take and what to expect in the way of communications from their lawyer (ie frequency of conversations, importance of keeping records, attending medical appointments, etc.). If both sides understand what is expected of them and how the matter will proceed then there will be less chances for frustration and dissatisfaction down the pike. Finally, most medical malpractice lawyers take the cases for contingency fees (ie they receive compensation in the form of a percentage of the total award, before or after costs depending on state laws, and that percentage is negotiable.) Standard contingency fees are 33% prior to trial; 40% if the matter proceeds to trial; 50% if the matter must be appealed….plus costs (which can often run 10-15% more). So it’s a good idea to discuss and agree on this up front and understand what you are and aren’t paying for. Most critical is to understand if you will be responsible to pay for the costs of the case (ie experts, faxes, etc) if you lose or if the lawyer will take that loss. Most reputable and successful medical malpractice lawyers won’t require the client to come up with the costs of their case if they lose. Others, who may not have the financial wherewithal to handle a loss, will ask to be reimbursed. However, the best percentage for you may not be the best lawyer for you. Just remember, a lawyer who recovers 100.00 but asks for 40% is better than a lawyer who recovers 10.00 but asks for 25%! Are there specialty personal injury lawyers? Yes, law is a highly specialized practice these days. In the past one lawyer would handle many matters. Those days are long gone. Though some law firms or lawyers handle both personal injury matters on contingency fee and other matters for upfront legal fees, most specialize in one particular area of law and “personal injury” is a broad description for multiple types of injuries. If you have a medical malpractice case it would be best to insure the lawyer you hire has extensive experience in precisely medical malpractice cases. How should you document a medical malpractice event? IMMEDIATELY keep detailed notes. Keep notes at the time things are happening to you. Keep names, dates, documents, prescriptions, bills, reports, etc. Whatever you are given, keep a binder for documents with a lined notebook at the front where you can record dates and what transpired on those dates. In the end of the day, a medical malpractice case is only as good as the evidence that exists to support your claims! Good luck!
personal injury lawyer

Hiring a Personal Injury Lawyer

Personal injury lawyers cover matters from dog bites to medical malpractice to securities lawsuits to patent litigation and then some. The type of injury you sustain determines which personal injury lawyer you should hire. Let's be honest: you wouldn’t go to a foot doctor for heart surgery. So you have to match the specialization of the lawyer with the facts of your case. The days of the generalist in medicine or law who did everything are long gone. This is because the degree of knowledge required to handle specific matters varies greatly. So with that in mind, the answer to the questions (below) are as follows: When do I need a personal injury lawyer?: If you have been injured as a result of someone either not doing something they should have or doing something wrong, and if your matter involves an injury which is significant in terms of dollars, then you should look for a personal injury lawyer. How much does a personal injury lawyer cost? How much should I pay? A personal injury lawyer generally takes a case on a contingency basis (no upfront fees; pay only a percentage of what you win if you win). So any lawyer who works for a percentage instead of upfront fees requires the case have enough potential monetary recovery to make it worth their time to “bet” on getting paid. So both a strong case and a decent potential dollar settlement are necessary to get their interest. Another aspect of charges are the costs of litigating a case. Some lawyers will ask for the client to pay the costs of the case (ie fees for experts, fedex, copies, court reporters, etc.) while others will take the case costs out of the recovery. This is always something you should ask up front: "How do you handle case costs? Am I expected to pay those fees upfront or will you pay them and not charge me if I don’t win?" Either way, if a recovery is obtained, costs will always be subtracted along with lawyers fees before any money is paid out to the client. Some lawyers also ask for partial or full up front fees. Hybrid payment arrangements are not unusual and depend on the strength of the case and the lawyers willingness (or financial ability) to risk his/her salary or costs at that time. The big plaintiffs firms mostly work on full contingency fees because they have large reserves for funding the cases. One usually sees hybrid fee arrangements from smaller firms without the financial cushion or from law firms that are not usually in the plaintiff business (ie they usually get paid hourly fees and don’t have the risk tolerance that experienced plaintiff’s attorneys have). Finally, if a case is expected to have massive costs such as in patent cases or class actions, then a lawyer oftentimes seeks litigation funding and the costs of borrowing those funds may be passed on to you, the consumer. So lawyers who handle run of the mill cases like auto accidents, dog bites, medical malpractice and traditional areas of plaintiffs law generally do not charge up front fees. Cases which are more expensive or lawyers who are not as well funded or convinced of the high probability of success of a case will probably require upfront fees or hybrid fee arrangements. Are there specialty personal injury lawyers? Absolutely. Lawyers advertise their specialties or list them on their websites. If there is only one lawyer in the firm and there are 20 specialties, you can expect them to either refer the case to other lawyers for a “referral fee” (essentially a fee for sending them the case – which is approximately 1/3 of what the lawyer who does the work makes) or you can expect their knowledge to be limited and shallow. Beware of the plaintiffs lawyer who professes to know it all! What should I ask a personal injury lawyer before I hire him? You should always ask if that lawyer has handled other matters like yours. Ask for detailed information about that case including the results. Ask how long that lawyer has handled matters in that area and try to get him/her to speak about how many cases or the size of the cases they’ve handled in the area. Make sure you check the website or the State Bar for the areas of law that lawyer claims to know. You can also ask if there are special certifications for the type of law they practice. Some State Bars offer classes that designate a lawyer as a “certified specialist” in a particular area of law. On another note, you need to ask specifics about their fee arrangement ie whether case costs are forgiven if you lose or if you will have to pay them regardless of recovery. Ask them for an estimate in percentage of case costs and then add that into the retainer agreement. Ask how they bill costs (ie do they charge you .10c for .10c of cost or do they charge you .25c for a .10c copy. I would also ask them to give you some estimation of time and what is involved in a case such as yours. What you can expect. Oftentimes clients think the process is very different than it really is and if they had been told upfront about the time or expense, some say they may not have pursued a case or pursued it differently. Being informed is always important. But always be respectful. Remember, you’re asking them to work hard without getting paid for a potentially long time. You’re asking them to gamble on you. So being informed is important. Being overly aggressive like you would if you were buying a used car is probably not going to get you very far.
class action

Navigating Class Action Lawsuits

We began to wonder about the advantages and disadvantages of being part of such a large collective group looking to get fair compensation. We invest in products to keep us safe, and medicine to keep us healthy. But sometimes, these items can fail to perform. When you end up injured or misled by a product or service, is it more advantageous to opt out of a class action lawsuit and sue independently or be represented by the qualified lawyer representing the larger class? Answer: Like everything in life, there are pro’s and con’s of joining a class action. Primarily the key differentiator seems to be the type and extent of the injury you’ve sustained. So, if the defendant is a Company who caused a very small amount of damage to each individual – but if you add the damage up the dollar value is great – that’s the type of class action where it wouldn’t pay for you to have your own lawyer so joining the class is probably your only option. Also, if the injury you’ve suffered is pretty much the same as others, and the facts needed to be proven are the same as for others, then the class action may be preferable. (I discuss why below). However, if the injury you’ve sustained as a result of the company’s wrongdoing translates into a lot of money and the facts needed to prove your injury are specific to your situation only, then opting out of a class and having your own personal advocate who will argue the specific facts of your case, may be preferable. On a more detailed level…here are the pro’s of being part of a class: A lawyer who represents an entire class is looking to earn a substantial amount of money so they have to be at the top of their game. Usually what happens is that several lawyers represent similar plaintiffs and then they get together to ask to have their case “certified” as a class action – or the matter litigated in one trial in front of one judge. This will be granted if the facts needed to prove liability are substantially the same amongst all the plaintiffs because it leads to greater efficiency (ie you only have to pay an expert once, documents are produced only once, only one judge has to hear it all, etc.) Lawyers then choose amongst themselves who will represent the “class.” Generally the lawyer who has the greatest expertise, financial wherewithal and standing is the one who is “voted” to represent the class by the rest of the lawyers. So that person is probably the best representative you can find. Further, these matters can be very costly with expensive experts, market studies, product analysis, etc. In a class action, all those costs are shared over many plaintiffs instead of being put on the shoulders of one person. Once a recovery is obtained, the lawyers then fight amongst themselves over the value of their claims for distribution. In the case of some class actions, the company agrees to give each plaintiff something such as a credit, gift certificate, sum of money. In those cases everyone gets the same recovery. I remember once getting a $50.00 gift certificate from Cartier (which could not be used for watch repairs). So since their cheapest item was over $1,000.00, I figured this was the equivalent of getting a maximum of 5% off any purchase I might make. Since I was not in the market to purchase expensive jewelry, it was literally worthless to me. However, the lawyers made a whole lot of money on that case! (Note: in 2005, changes in the law provided for independent review prior to judicial approval to insure the consumers equally benefit from the terms of the agreement). The following are the cons of being part of a class action: Class Action lawyers make concessions for the good of the whole. Those concessions may be in the best interest of one individual as opposed to another. Likewise, parties can engage in individual or small group discussions with the defendant exacting a good deal for their clients but not a good deal for those who are on the outside of that group. Class action lawyers try to work together because most of them understand the concept of “United We Stand, Divided We Fall” but others may try to put their own interests or those of their client before other lawyers and clients. They may also get pressure from their clients to act in a manner which is not uniform. In those cases one runs the risk of recovering substantially less than others in the class. It’s the job of the lead litigator in a class action to try to “herd cattle” if you will. Try to work out the best deal for the good of the whole and then try to get all the lawyers to buy into it. That is not always easy so infighting can ensue to the betterment of some, detriment of others. Another aspect of the dilemma is that some people in the class may have interests which are not the same as other members. Being treated all the same may give some members a bigger benefit and others a significant handicap. In general, the concept is a more socialist form of cooperation – there will always be some who gain an unfair advantage but on the whole results should be fairly uniform and far more cost effective for the individual. Now, there are some times when lawyers would like to have their matter certified as a class action but the Judge refuses to grant certification (ie does not allow the cases to be tried together). In that case, all individuals must retain their own lawyers. This can be very difficult as individual lawyers may be unable to bear the burden of the high cost of litigation if they each have to go it on their own. In some cases lawyers can still share information, research and experts but most have to be duplicated. This is why many Companies oppose class certification. If each case has to pay for their own costs of litigation, many will not pursue the case because either the costs are too high or the recovery is too small. A few years ago, in a discussion with Professor Deborah Hensler at Stanford, she opined that class certification was on the decline. I haven’t seen any recent numbers but if that’s the case, it could certainly account for why the number of people who actually pursue litigation is so minor in comparison to the number of people sustaining injuries. I got a letter inviting me to participate in a class action lawsuit. What do I do? Is it a scam? While letters are in fact the manner in which lawyers reach out to potential plaintiffs for class actions, there are always unscrupulous people on the internet looking to take advantage of an otherwise legitimate request and turn it into an event to steal money from people. First, whatever you do, do not pay anyone money. Class action outreach is done to determine who should be included in the plaintiff class – not to ask for money from people to participate. Second, a few clicks on the internet should assist in the “smell test.” Look up the name of the law firm on the internet. Look at the biography of the law firm and the lawyers involved. Then go to the state bar for the state in which the lawyer operates and check his/her license and if it’s in good standing. Then look at the phone number/address information on the State bar records and confirm that you are calling/writing to the same law firm/lawyer. And again, remember, do not send money! What happens if I don’t respond to a class action lawsuit? Nothing happens if you don’t reply to the class action immediately – however, all matters have filing deadlines by which a claim must be filed. If you don’t join the class or retain a lawyer to represent you on your own in time, you will be prevented from moving forward with a claim. Some circumstances may warrant an exception to the filing deadline - but it would be an uphill battle that you would probably lose unless your reasons are very valid. Do I have to pay anything to participate? NO, you should not have to pay anything to participate!
virtual lawyers

Evaluating Virtual Lawyers

There certainly are benefits of using a virtual lawyer. They have lower overhead so they are able to extend to you better hourly rates. They can offer "unbundled" legal services - or a particular type of service without having to handle the entire matter. And the response time is usually faster than traditional calling. The biggest problem (and an incredibly HUGE one as is the case with the internet in general) - is knowing who you're really working with. And this can be a major reason to be cautious, especially when you're dealing with very sensitive matters. I recently learned of three individuals who were using the name of a particular well known law professor. One in particular was taking cases and handling legal matters under his name but was not even a lawyer much less this very prominent lawyer. Many people hired him without ever knowing he wasn't who he represented himself as being. If one looked up his profile or license, all that would show is the professors background, standing, etc. If you met him, however, you would have immediately seen that his age and ethic background did not match the individual he purported to be. "Privilege" is also an issue when it comes to virtual lawyers. This is what enables you to keep the communications between you and your lawyer confidential. If you are dealing with someone who is not a lawyer, the confidential nature of those communications could possibly be lost. The exception is if you use a website or platform which has verified the identity of the lawyer. This is the layer you need to insure you are in fact dealing with the person they represent themselves to be. If the platform also verifies that the lawyer has current, ample malpractice insurance, as we do, all the better. There are some platforms that offer legal services for a fee; others for a contingency fee. The ideal situation is to find one that does not charge the lawyer to participate because then you may simply end up with lawyers willing to pay for the business. And generally speaking, really great lawyers do not need to pay websites to find them business. Hybrids do exist - some better, some worse. One form is advertising based sites. For instance, many sites where lawyers answer questions are founded on the principle that they pay to answer questions and then they get the client to hire them when they want further information or help. Same situation if you purchase a will or trust online that comes with a "complimentary" consultation which is just a fancy way for the lawyer to try to give you enough information to come to the realization that you need to hire that lawyer to do whatever it is they're telling you. Further some lawyers never practice law at all but simply use the web to find clients, refer them to lawyer colleagues and sit back to receive a percentage of whatever the lawyer makes who actually handles your case. So insuring the lawyer you're connecting with is the lawyer who will in fact handle your matter is another way to make sure you are dealing with the right person. I've found that platforms like ours that connect consumers to lawyers in real offices are probably the safest bet because you get the benefit of looking everywhere for a lawyer with as well as the knowledge that the lawyer is vested in his/her business and needs to win cases like yours to pay the rent. Not having overhead expenses attracts lawyers who may have not found a job, may have lost a job or may not have the level of financial success that would enable them to invest the money it takes to start their own firm. It's generally unusual to find really high quality lawyers that choose not to run their own firm or work in a high paying partnership position with great benefits. And if they are not financially sound, this may also translate into them not having enough funds to pay for the expenses of your case (if a contingency fee case) or for simple filing fees or costs if a fee based practitioner. So for cases that are limited to document preparation like wills, trusts, etc., a virtual lawyer may be useful and more economical. Online lawyers are probably also excellent for handling matters too small for large law firms. End of the day, I'd suggest the following to insure you're successful with your online legal experience: 1) Go through a platform that checks their license to find one. 2) Verify their good standing at the state bar website of the state they're practicing in (though a platform oftentimes does this for you, it's always good to insure nothing recent has cropped up) 3) Ask to see their malpractice insurance certificate (we ask for them to send us this prior to joining our platform) 4) Use them for matters which are unbundled if fee based (ie to do a specific thing which, chances are, they will do well if that's all they do) or use the online platform to connect to practitioners who have actual offices. 5) If your matter is a small thing to get done, then an online resource can be productive. But if there is a lot of money at stake, don't try to save money by going to someone you've never met, don't know if they have the funds to support your case and may or may not be who they make themselves out to be. The web has not come far enough in terms of authentication - ie. where one can go to any lawyer's website, without some filter like a platform that vets lawyers, and be guaranteed that the lawyer really is who they represent themselves to be. So if you can utilize a platform which verifies their license and validates their malpractice insurance, then and only then can you be pretty sure you are dealing with the real McCoy.
legal fees

Evaluating Legal Fees

How Should Clients Evaluate Legal Fees? I think this question requires a distinction between fee based services and contingency fee services. In the former, the risk is borne by the client whereas the latter it’s borne by the lawyer who is putting their time and money on the line in hopes they will be able to successfully litigate the case and be rewarded for that risk/burden. For fee based services, paying legal fees are like any other service. You want to make the most of your money so being prepared is always critical. Write all your questions down before you meet with the lawyer. Oftentimes legal matters can bring emotions to the surface and that can cloud your clear thinking so having questions at the ready is a great idea and will save both you and the lawyer time and money. If you have any documents to show, itemize a list of what they are, what they prove, and then put that list on top of the documents so the lawyer won’t have to take time reading everything and figuring it out for him/herself. Evidence is what proves your case and your lawyer is only as good as what you give him/her to work with so be prepared. Don’t forget to always clarify up front if a consultation is free or if a fee is charged. I routinely see both but usually if the lawyer is very successful and handles large cases, they don’t charge for consultations. Some of the smaller practitioners or those with law firms who push them to bill hours will charge. I’m generally against a fee for a consultation because you’re interviewing to hire lawyer. It seems wrong to charge for the privilege of being considered for a job. But in areas like divorce, people will play games by meeting with several lawyers so the ex spouse won’t be able to use them. In those cases, a fee for a consultation could possibly make sense because it insures they are at least sincere about the reasons for meeting. But for the most part, you shouldn’t have to pay a lawyer for a meet and greet. Having a lawyer “on retainer” simply means you pay a monthly fee and the lawyer takes his/her fees out of that amount until it’s used up or until it hits a certain level and then you are required to replenish it. It just assures the lawyer that funds are available to pay for the work they’re doing before they do it. Retainers aren’t ‘flat fees’ as some people may think. You can view it as an ‘advance’ so it really only benefits the lawyer and not you. “Flat Fees” or what is sometimes called a results-based deal is one for a particular service. You can think of this as purchasing a product. For instance, if you want to file a patent, you may be charged a flat fee of $10k for the paperwork and fees associated with that patent filing. But just be informed about what possible additional fees might follow. For instance, in patents, there are international fees, fees for maintenance, etc. that come in to play down the road and those, of course, are not included. Flat fees are a good idea in general but you will undoubtedly find a lot of disclaimers associated with the flat fee because the reality is all sorts of issues could pop up requiring the lawyer to do more work than anticipated in the original engagement. So while in some cases it can be helpful to know you won’t be spending more than X to achieve Y, on the other hand, if it takes a great deal more time, the lawyer may take shortcuts or give it to a paralegal to complete because it is no longer worth their time. Bottom line, it’s a double edged sword between getting good value for a flat fee and getting too good of a deal that it takes out the incentive for the lawyer to perform at top level. I’ve come to realize it’s good for consumer budgeting but in the end doesn’t really ‘save’ you all that much money. “Contingency Fees” are where a lawyer agrees to do the work for a percentage of what is recovered. (ie you pay them no legal fees upfront) Certain cases will be handled for a contingency fee such as medical malpractice, product liability, pharmaceutical cases (ie drugs), car accidents, patent litigation, securities litigation (ie broker lost your $), etc. This is where lawyers do all the work without being paid their hourly fees. The percentage they charge, on average, runs 33% of the recovery prior to trial; 40% if they have to try the case in court; and 50% if they have to appeal your case. This does not include the percentage that will be taken out for case costs. Many lawyers also pay up front all the costs associated with the case (like experts, research, etc.) that can cost hundreds of thousands of dollars if not millions (depending on the size of your case). While these fees should be negotiable, unless you have some leverage it’s difficult to get them to lower those percentages. And the flip side is, if a lawyer does lower the fee beyond another 10% (which is acceptable because if another lawyer sends them the case, they will kick back an amount close to this for having been sent the case, or ‘referral’), then they don’t have the same incentive to work hard for a win. So your best bet is to have your case in front of multiple lawyers which may, in turn, give you the leverage you need to get the best fee arrangement. Frankly if you are lucky enough to get a really great lawyer interested to take your case (statistics show they take 1 in 3 qualified cases on average but recover 85-90% of the time) then he/she knows what has to be done. A component of a ‘really great lawyer’ is that the defendant knows them and their reputation and ability to stick it out so your recovery may be greater because the defendant knows they’ll have a big fight if they don’t pay out otherwise legitimate claims. Many defendants just stonewall the best of cases because they know the lawyer isn’t financially stable or good enough in this particular area of law to get a large recovery out of them. So you may get a lower contingency fee, but that could also translate into a lower award if at all (and as such, your percentage of less is much less). As they say, penny-wise pound foolish. The reality is, if you have a case that is worth a lot of money, there will be a big, expensive fight over giving you that money. The only way to fight that kind of fight is by finding a contingency fee lawyer who has the credibility and financial wherewithal to make the defendant back down and negotiate/pay. It’s as much who you choose as how strong your case is. The trick here is in picking the lawyer. If it’s a great case, lots of lawyers will want it but getting to those lawyers and then picking the one who has the greatest change of recovering the most for you is the hardest part. If you’re unsure, you may consider asking the lawyer (politely) if they’ve handled a case in this area before, and if so, what the results were. If you still have doubts, you can ask if you can talk to the former clients. Some lawyers will be put off by this because in their mind you are questioning their credibility. So it could backfire. If you can find out this information online by looking up what they’ve done, then that works best. If you don’t see anything online then asking makes sense because chances are if they’ve done it before they’d be advertising it in some way. In the end, you’re asking them to take their precious time which can reach into the thousands of dollars per hour and risk it to work on your case with no guarantees of ever getting paid or recovering money they put out on your behalf for costs (if they forgive them with no recovery. Others will still make you pay for the costs even if you lose). So as long as you can see they are conversant in this particular field of law through previous similar cases and have good standing in the industry (ie certain specializations, certifications, etc.), then you should be pretty happy to get a good, decent lawyer to take your case at all. That having been said, if they do take your case, don’t forget the squeaky wheel gets oiled first ;-) For contingency fee cases, costs are critical. Always always always ask if the lawyer will pay the costs if you lose or if you will be responsible for them. Get that in writing. Also ask if they up-charge you on the costs or if they ‘pass through’ the costs. Passing through means they charge you what they paid. Up-charging means they might charge you, for instance, $1.00 per copy instead of the .27c that they actually pay for those copies. Ideally your “retainer” agreement, or the contract you sign to hire them to represent you, reflects costs as ‘pass through’ and ideally they don’t charge you for those costs if they are not successful in obtaining a settlement or award for you on the case. If they pay for the costs even if you lose, then I’d be less strict on trying to get them to put a ‘cap’ or limit on the percentage of the recovery that goes to costs. Costs can range from about 5%-15%+ depending on the type of case and how much is needed to prove your case. Patent cases, for instance, are very expensive to litigate because the time and work required are great. Other cases that require expert testimony can be expensive. But in general, case costs in terms of routine copying, fedex’ing and the like are not costs which should take up more than 5% of the recovery. And finally, I’d be very wary of online resources ‘answering’ your questions. There are lots of people who want to give advice (which incidentally is illegal if you’re not a lawyer) but there are just as many disclaimers about trusting whatever it is that people are saying, lawyer or not. Disclaimers mean if you follow the advice and it’s wrong, that’s your tough luck. Resources like legal aid offices and law school clinics are great places to get pretty reliable advice without having to pay fees but they are limited in what matters they will handle. Getting access to justice has the obvious financial challenges – but it also has quality concerns. One without the other could hurt you more than help. *Michele Colucci is currently CEO of MyLawsuit.com.
law specialty

Choosing a Lawyer Based on Specialty

So the single most important questions I would ask are: 1. Have you handled a case like this before 2. If so, how many 3. What were the cases about 4. Did you recover 5. What was the recovery 6. How much time did it take start to finish If they have "badges" like Superlawyers, Ratings, Memberships, etc. you can simply Google that type of credential and "requirements" and see what it takes to be considered. Many of these monikers are frankly paid for. And the lawyers know it. But the population doesn't. So you can also ask an impartial lawyer to look at the "resume" of the lawyer you're considering and weigh in on whether or not this person looks like they are qualified to handle a particular type of matter. You can also look at how a rating is put together (i.e. is it by clients who aren't lawyers and have a tough time judging the quality of lawyer - or is it by peers or judges who know better). Is the voting public or private? Does the company that provides the ratings get paid anything by the lawyer? Most sites lawyers pay for a base listing before they can get a rating or be recommended. And some are elected but if they or their firm doesn't pay for large ads in that particular issue, they are out the next year. You can always go to sites and look under "lawyers' and see what it costs to join/be considered. I could go on and on - it's taken me years to develop the resume that I provide for lawyers to fill out so clients on our platform can 'see lawyers through the eyes of a lawyer.' But it's a very important and critical decision and I am really so glad you're writing this article. I've had judges tell me how happy they are that I'm tackling this issue because when a client comes into their courtroom with poor representation, they are not allowed to do anything to let the client know they are being very poorly represented. The only thing they can do, if the client sues that lawyer for malpractice, is to rule in their favor. But it's very frustrating for many Judges because their hands are tied. I'd also mention that, as they say, the wheel that squeaks the loudest gets oiled first. Not too squeaky but enough to get feedback. Lawyers take on many cases and they don't like to be pushed - but setting clear concise time frames for things to be accomplished are very important. And always, always have everything in writing. If they do something wrong, it's your word against theirs and chances are you will have a very tough time trying to prove that you're in the right.