Are Unregistered Domains A Violation of Trademarks?

Young lady laying on the floor using a black laptopThis could be the end of GoDaddy.

Five years ago, the Academy of Motion Picture Arts and Sciences (AMPAS) filed suit against GoDaddy.com.

GoDaddy allows customers to buy domains and “park” them.  Parking them means that the domain points to a web page that has advertisements on them from Google.

When clicked, the owner of the web page gets a portion of that ad revenue. When the page is parked using GoDaddy, both the owner of the page and GoDaddy split the ad revenue.

AMPAS owns The Oscars. It’s website is registered to the domain oscars.com. But someone else registered “theoscars.com” and was holding it ransom. This is sometimes called cyber-squatting; but it is legal in most cases.

Usually, in this situation, someone in AMPAS’s shoes would pay tens of thousands of dollars to recover “theoscars.com” from the registered owner. Or, they would ignore it.

Unfortunately for AMPAS, they are suffering from 56 Oscar-related parked domains. These domains include 2011Oscars.com, Oscar4re.com and Oscarcam.com.

So AMPAS sued GoDaddy. AMPAS claimed that GoDaddy pocketed roughly $90 million in revenue just from their parked pages directed at The Oscars alone. To put this in perspective, GoDaddy annually generates a revenue over $1 billion dollars. If AMPAS wins, that would be nearly 10% of GoDaddy’s annual revenue in damages. That’s a lot of ad clicks.

While this case may seem like it is the fighting of giants and unrelated to the rest of us, that is not so. The ruling could seriously impact millions of business owners. Here’s how:

  • You may now have recourse if you found out that someone was using a domain name that is similar to your trademarked name. Should you sue?
  • GoDaddy’s business would take a crippling hit, possibly scuppering it and the millions of websites it serves. At the very least, expect prices to go up.
  • GoDaddy and other domain registrars may become forced to police trademark violations by registrants, which means more work for all of us.
  • If you own trademarks, you may be required to put in claims on domains in order to keep your marks protected (and not considered “abandoned”).
  • The cyber-squatting industry may die. But more likely, it will continue overseas, outside the jurisdiction of the United States. This will make American companies like GoDaddy suffer, as it will put them at a competitive disadvantage.

Domain hijacking is a common problem that most business owners deal with. If you’ve registered a domain recently, you probably noticed spam that came a few days later trying to sell you similar domain names.

For example, our CEO is publishing a book on election law for third parties titled Just Pursuits. We put up a sales page at JustPursuits.com. About a week later, we were hit with a demand to pay thousands of dollars for “justpursuit.com” (the s is dropped off the end).

In more serious cases, someone will put up a malicious page to try and force you to buy the domain. This happens to celebrities and politicians a lot. For example, Carly Fiorina (former CEO of Hewlett Packard who is running for President) got this gem: CarlyFiorina.org. (Not only are different spellings a problems, the top-level domain suffix like .com, .net, and .org can create problems.)

By the way, only non-profits are supposed to register .org domains. But this is not policed, really.

Ms. Fiorina’s .org spoof page isn’t too bad. There are worse ones depicting pornography, foul language, or other scurrilous materials.

If you haven’t experienced this, try typing in your domain name with minor changes and see what comes up. Are there other sites out there with similar names to your own? If there are, this case means a great deal for you.


 

Given the impact this case will have on how it does business, GoDaddy has gone through trial in this case. A verdict is still pending.

GoDaddy has not played nice during the lawsuit, either. For example, GoDaddy accused AMPAS of rigging the court system to have U.S. District Judge Audrey Collins, whose daughter is a professional actress, oversee all of the GoDaddy cases. The Honorable Collins has made some decisions that were unfavorable to GoDaddy. GoDaddy got “bench slapped” for that one, but ultimately achieved a new judge assignment.

But both sides know what is at stake. AMPAS says that it seeks to establish cybersquatting as a “serious problem that should not be tolerated even if it is being perpetrated by a company that generates over a billion dollars in revenue….

For its part, GoDaddy says that the guns are aimed at the wrong target. “GoDaddy is not a cybersquatter. It is not a pirate,” its attorney said in opening statements at trial. And GoDaddy also tried to help AMPAS. Within three days after receiving AMPAS’s complaint about parked pages, GoDaddy redirected 37 domain names to no-ads templates. Given the current state of domain registration governance (something controlled by an international body), this may have been the best that GoDaddy could do for AMPAS.


 

While we await the verdict on this matter, it important to realize that it may have serious implications for us all. Currently, there is no solid law on what to do about cyber-squatters and parked pages. The legal system has simply not caught up with this issue.

There are dozens of conflicting interests at stake when it comes to domains and cybersquatting. This is an issue that impacts small and big business and even international relations.

Companies who feel their trademarks rights are being violated by parked domains have limited options, such as complaining to the domain holder, registering their page with an organization seeking to block parked pages or attempting to purchase all similar domain names so no one else may register them. Many businesses may find themselves playing a frustrating game of whack-a-mole.

We will update you with the verdict and its implications after it is reached and as the law on this evolves.

Debt Collection and Accounting

CREDITOR’S RIGHTS AND DEBT COLLECTION

All parties to a written contract are expected to comply with the provisions of that contract.  When a commercial debt goes unpaid, the delay in receipt of payment can wreak financial havoc on the creditor.   When your business suffers financial harm because another company fails to live up to the terms of your contract or written agreement, you are entitled to exercise your legal rights as a creditor.  

The debt collection attorneys of Bellatrix PC take an ethical but aggressive approach to recovering commercial debts on behalf of corporations, partnerships, and limited liability companies.  We have extensive experience handling debt-related legal matters including but not limited to Chapter 11 bankruptcy, writs of attachment, writs of execution, foreclosure, garnishment, commercial liens, detinue, and replevin.  We focus on recovering commercial debts as rapidly and efficiently as possible, so that your business can keep moving forward with minimal disturbance.

To arrange for a private legal consultation with our experienced business attorneys, call the law offices of Bellatrix PC at (800) 889-8376.  The sooner you reach out to us for assistance, the sooner we can start exploring the possible routes toward resolution of your debt-related legal issue.

Does the FDCPA Apply to Business Debts?

Congress enacted the Fair Debt Collection Practices Act (FDCPA) in 1977 to better protect consumers against abusive debt collection practices.  The FDCPA prohibits, among many other tactics, calling debtors at certain times of day, using certain language, and communicating with third parties.  The FDCPA is further bolstered by similar laws on the state level, such as California’s Rosenthal Fair Debt Collection Practices Act (the “Rosenthal Act”), Cal. Civ. Code §§ 1788 et seq.

The FDCPA applies exclusively to the collection of consumer debts, and does not regulate business debt collection agencies or their representatives.  15 U.S. Code § 1692a provides the following definition of a consumer debt:

“The term ‘debt’ means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.”

Only debts which meet this criteria are subject to the collection regulations mandated by the FDCPA. That being said, commercial creditors must nonetheless take precautions to avoid engaging in abusive business debt collection practices.  For instance, members of the Commercial Collection Agency Association (CCAA) must comply with CCAA ethical criteria, or risk losing their CCAA certification.  

Our attorneys will help your company evaluate its legal options to determine the most appropriate and cost-efficient means of debt recovery available to you.

money collections and debt collection

 

Domesticating and Enforcing Foreign Judgments

If a judgment has been entered in a state other than California, it is considered a foreign judgment and must be domesticated in the state of California before it can be lawfully enforced and collected by the creditor.  Depending on the specific origin and nature of the debt, the creditor may be required to:

  • Domesticate a sister state judgment.
    • Cal. Civ. Code § 1710.10(c) defines a sister state judgment as “part of any judgment, decree, or order of a court of a state of the United States, other than California, which requires the payment of money, but does not include a support order as defined in Section 155 of the Family Code.”
  • Register a federal judgment.
  • Domesticate a foreign judgment.
  • Confirm a foreign arbitration award.

In accordance with Cal. Civ. Code § 1710.15, judgment creditors are required to apply under oath for the entry of a sister state judgment.  The application must be filed in a superior court, and must include, among other components:

  • A statement confirming that the judgment is not based on a statute of limitation which has already expired.
  • A statement confirming that no court has ordered a stay on the judgment which would interfere with enforcement and collection.
  • A statement confirming that no pending actions are ongoing in any other courts.

Once the judgment is properly registered and domesticated, it becomes a California judgment.  The judgment becomes enforceable once it is served on the commercial debtor, and the creditor may obtain a writ of execution within 30 days.  The debtor has 30 days to file a motion to vacate the judgment.  Due to the short deadlines which are involved in these types of cases, it is essential for creditors to be proactive and seek legal assistance as soon as possible.  

You’ve already rendered a product or service – now you deserve to be paid for your time and effort.  If your business has suffered financial losses because of another company’s failure to pay the debts which you are rightfully owed, our creditors’ rights attorneys are prepared to take aggressive collection and enforcement actions on your behalf to protect your financial interests.   

If litigation is not desired, we are also qualified to assist your business with alternative dispute resolution in a mediation capacity.  In some cases, mediation proves sufficient to effectively resolve the collection matter.  To start discussing your business debt issue in a confidential consultation, call the experienced legal team at Bellatrix PC at (800) 449-8992 today.

 

How to Hire A Lawyer Part Five: Interview

Interview And Hire A Lawyer

Lady smiling with an orange in one hand and an apple in the other hand

Now that you have decided what is important to you, done a little research, and narrowed down the list of potential candidates, the final step is to interview one or two lawyers.

If you have been able to identify a good lawyer through their body of work, you may only need to interview one. Some people want to interview up to three lawyers, but that is time-consuming. When I hire any professional (business consultant, accountant, doctor, etc.), I go through this same process and usually only have to interview one. I will only interview a second if my first choice triggers any red flags or is not a good fit with me at the interview.

As mentioned in the previous article, when you contact the law firm, you should expect to go through an intake process. Prepare your forms and provide documents to the lawyer with enough time for them to fully prepare for your consultation.

As you are going through the intake forms, write down any questions that come to mind. You should have your list of questions regarding the process, lawyer’s expertise, lawyer’s plan of action and pricing prepared.

When you get to the interview, you will need to evaluate the following intangibles:

  • How was the experience in dealing with the law firm’s staff?
  • Was the lawyer prompt and considerate of your time?
  • Did the lawyer listen to you?
  • Did the lawyer address your concerns directly?
  • Did the lawyer exhibit forthrightness? (Examples may be that the lawyer will tell you that she would need to research a particular legal issue or that she would have to spend some time thinking about a question you posed. Another example of forthrightness is when a lawyer tells you the downsides and risks of your legal problem, as well as possible upsides.)
  • Did the lawyer give you a concrete plan on how to handle your matter?
  • Did the lawyer demonstrate skill and mastery over the subject matter in a concrete way?
  • Did the lawyer ask questions and appear thoughtful before giving you advice?
  • Is the lawyer articulate?
  • Did the lawyer give you her full attention during your meeting?
  • Was the lawyer professional?
  • Was the lawyer respectful of you and treat you with collegiality and empathy?
  • Do you like the lawyer?
  • Do you trust the lawyer?

Lawyers are funny people. Sadly, they often lack in the most basic of social skills, can have strange quirks or suffer from arrogance. Also, lawyers often take too much work and run the danger of missing something important. A quirky lawyer might be OK, but not hire awkward people whom you are hiring as trial lawyers — that only works on TV. Arrogance, inefficiency, inattention, and poor customer service must be avoided. All of these items go back to the list of Traits of the Best Lawyers discussed in article three of this course.

If the lawyer listened to you and addressed your needs directly and if the lawyer treated you like a partner in solving your legal issue, then that lawyer is more likely to be responsive and service-oriented. More importantly, that lawyer will be respectful toward you, have an ego that is under control, see your legal problem as important, and consider what your end goals are in crafting advice and resolution.

That last bit is critical, in fact. It is vital that you have a lawyer who considers your particular needs, preferences and circumstances at all stages of your relationship. A lawyer who does not understand or care about your needs will waste your time and money and you risk a result that is less than satisfactory to you.

Remember, you are looking for the right lawyer for you. That means you want a relationship that feels comfortable. You want someone you like and can trust. Once you find that person, do not hesitate to hire her. In most legal situations, time is of the essence.

Attorney’s Fees

Without fail, every client or prospective client I have asks one question: “What is this going to cost me?” It’s a fair question. The answer, unfortunately, is rarely a simple one. The only way you can be sure of the fee is if it is a flat fee.

The truth is, how attorneys price their services can be a whole series in itself. It’s a huge topic that draws strong opinions from within the profession. But for your purposes today, there are some threshold decisions that you need to make about fees to help you interview the right lawyers.

Price vs. Value

First, you need to decide whether you are going to shop based on price, or based on value.

I don’t recommend that you shop based on price. It can be penny-wise but pound-foolish. Ideally, you want the best lawyer because your business, property and life are on the line. Sometimes your liberty (freedom) is on the line. Why would you go for a discount professional when so much is as stake? You want the best, and the best lawyers are typically not the cheapest lawyers.

There is a distinction between price and value. A lawyer who offers a lower hourly rate may be cheaper in price, but a worse value. He may not be as efficient, experienced or capable as a more expensive lawyer. Ultimately, they may deliver you a worse result, which actually ends up costing you more money than if you went with the better lawyer (e.g. you pay more in damages/settlement or you pay more in hourly fees because the work is less efficient).

So price should not be your foremost qualification for a lawyer. Value should be.

Consider what is at stake and try to put a value on it. How much money is at issue? Or is your freedom threatened? How important is it to you to get the business deal done? How vulnerable is your business or property and how much is it worth over your lifetime to build and protect it? How much is your time worth in dealing with legal problems or losing ground in your business?

Value is what the lawyer makes you or saves you in addressing your legal problem. That is what matters.

Pricing can be a part of value as a larger equation. If you pay a lawyer $1000 per hour, is he three times more valuable or more efficient than the lawyer at $350 an hour? Will he deliver a superior result that saves you thousands or more? Will he use his lower cost staff to do routine work but supervise the strategy and handle the specialized work (such as negotiations or trial)? Does the firm offer a holistic approach to your legal matters? What kind of client experience will you have working with them?

After you begin considering the overall value of the services you need rendered, you will have a better idea of how much you should pay for them. If a lawsuit has only $20,000 at stake but the lawyer is going to charge you $300 per hour for 100 hours ($30,000), then you lose $10,000 and that is not a good trade. But if you have $1,000,000 at stake and the lawyer charges you $150,000, then you gain $850,000 and so you have gained significant value.

Alternative Pricing Models

The majority of lawyers and law firms bill by the hour. That means you will be charged every time your lawyer talks to you (or anyone) about your case, emails you (or anyone about your case), or even just thinks about your case. (As an aside, you want a lawyer to think about your case so that she delivers a superior result, so you do not want to discourage gray matter activity over bill sensitivity.)

Unfortunately, hourly billing also means that will bill for the amount of work they do, not the value that works delivers to you. That means your lawyer is actually paid more to be inefficient and is not incentivized to get you good results as fast as possible. That means all the risk for a good result and the amount of effort it takes rests solely on you. (In part, putting all that risk on you is one of the reasons lawyers are most comfortable with hourly billing.)

Flat fee billing is superior to hourly billing because it shifts the incentive. It encourages your lawyer to be strategic and efficient or they will end up working a lot of time for less profit. Flat fees also focus on value. Think about it: do you really care if it takes your lawyer 10 hours or 1000 hours to get you that million dollar savings? What you want is the result. That result has a value. And it should be up to the lawyer (as the professional) to figure out how to deliver that value as effectively as possible.

Monthly retainers are essentially flat fees for a block of time. The lawyer does as little or as much work as required in a month for a set fee. This continues until the legal matter is completed or the lawyer-client relationship is terminated. The lawyer earns the fee by setting aside the time and capacity to do the work for the client, whether it is ultimately needed. Monthly retainers split the difference of risk and incentives between the client and lawyer.

Seriously consider lawyers who offer flat fees or monthly retainers instead of hourly fees. It’ll make the legal process easier to budget and less painful. And you will be able to make legal decisions based on what is good for the case or your business rather than just choosing less work to keep the bill down.


You have reached the end of the course How to Hire A Lawyer. Now you are ready to hire the right lawyer for you. If you would like to learn more about different Areas of Law, please visit our website resources and blog. If you are ready to hire a lawyer in any of the states served by Bellatrix PC, please set up a new consultation or visit our Packages and Pricing pages.

Happy hiring!

How to Hire A Lawyer Part Four: Essential Qualifiers

Essential Qualifiers

In the third part of this course, I told you about the traits to look for in a lawyer. You can get a good feeling for the personality and skill of a lawyer by reading their blog. But before you spend hours reading a dozen legal blogs, there are some technical qualifications that you should also know about. If the lawyer does not meet these specific qualifications, no amount of amazing blog posts will make up for it.

yoga in a suit

Is the Lawyer Licensed in Your Jurisdiction?

In order to represent you, the lawyer must be licensed to practice law in the jurisdiction of your legal issue.

Jurisdiction refers to which state has power over you, your lawsuit, your transaction or business, or your property. Usually jurisdiction is the state you are in already, but not always. If you are bringing a lawsuit or dealing in a transaction, then you should start with lawyers in your state. If you are defending a lawsuit, you should start with lawyers in the same state as the lawsuit you are defending. Jurisdiction can be complicated, however, so if it is not obvious which state’s laws apply, then call a lawyer and ask.

When you interview a lawyer, ask whether he is licensed to practice in the state where jurisdiction applies. This is an elementary issue. If the lawyer doesn’t consider jurisdiction first off, then he or she has poor skills. In rare instances, a lawyer will take work in jurisdictions in which he is not licensed, which means the lawyer does not have the expertise to practice law in that particular state and may be prevented from doing so by law and ethics. Practicing law without a license is also a crime in many jurisdictions. You don’t want a lawyer who flagrantly violates the law and ethics! This is a rampant problem in hiring lawyers off of services like oDesk or eLance.

 

Without Serious Bar Discipline

On top of being licensed in your state, you need to know whether a candidate lawyer has been disciplined by the bar at any point. There is more than one way to check license status. Most state bars have a website where you can check the member’s standing by searching their name. Most also have a phone number you can call to ask. Or you can check a website like Avvo, which collects and displays discipline information on pretty much all lawyers nationally.

While Avvo can be useful, you shouldn’t ask confidential legal questions on the site. Foremost, it’s a public site and you need to keep your legal issues private. Second, there are a bunch of lawyers on Avvo who answer questions outside of their jurisdictions and practice areas to get points. Neither those lawyers nor their answers can be trusted!

 

Practices In Your Area of Law

There is a joke lawyers make about a lawyer who does not specialize: he practices “door law” — as in, anything that walks through the door. Lawyers who practice door law can be pretty incompetent. You want a lawyer with some experience in your issues.

When you are first looking to hire a lawyer, try to identify the kind of lawyer you need. For example, if you are dealing with a contract or transaction, then you need a lawyer who handles business and contracts, not a divorce lawyer or a patent lawyer. If you have a lawsuit, you probably want a lawyer who has trial skills or associates in his firm with a trial lawyer. If you have a DUI to defend, a civil litigator isn’t the right guy.

There are literally a hundred distinct practice areas. Most lawyers practice in several related areas. You won’t necessarily to be able to pinpoint the exact legal bucket, but you can get pretty close. You can know whether you need civil, family, criminal or patent attorney, for example.

Once you have a basic idea, this is where you can start reading the blogs to see if the lawyer discusses problems like yours. Bellatrix PC has hundreds of pages of content on multiple areas of civil law.  Once you narrow down the area of law relevant to your situation, you can start educating yourself and you’ll be better equipped to evaluate a particular lawyer’s knowledge through her body of work.

 

Special Licenses and Court Admissions

This isn’t typical, but some lawyers have special licenses that are necessary for your legal needs. The most obvious of these are patent lawyers. No lawyer can file a patent for you unless he is also admitted to practice before the patent office. Getting a patent license is actually really difficult, so you have to hire a patent specialist for this work.

Other areas of legal specialization may include admiralty law or admission to special Federal and international courts.

Some states allow voluntary additional specialization in areas like family or criminal law (but these aren’t required to practice in these areas). Most civil law does not have specializations like this. But in California, I typically recommend lawyers in family and criminal law who have such state certified specializations over those who don’t.

 

Recommendations

Testimonials and client recommendations or a list of client references is useful. If you are having a hard time narrowing down the list of lawyer candidates, make this an essential criteria. A lot of lawyers do not go the extra mile to earn and ask for references, so it tells you a little something about their approach to customer service.

 

Responsiveness and Communication

You should also consider how responsive a lawyer’s office is, how organized her staff is, and how clients feel about access to their lawyer. The number one complaint to the bars is that a lawyer does not call back or communicate about the case. This is very common. A well-run law office, however, has systems in place to make sure that clients are treated as VIPs — especially one where the law office is selective about its clients (remember that was one of the traits of the best lawyers described in the third article).

This is something you will quickly get a feel for in the process of setting up an interview. You should expect the staff to respond promptly (certainly within one to two business days) and to use an intake process. You should expect them to ask you professional qualifying questions (such as who is involved in your legal matter) because legal ethics requires lawyers to check for conflicts. A lot of well-run offices will have a legal intake questionnaire (or similar forms) and ask to receive documents in advance of the appointment, so that they can be fully prepared to give you advice at your consultation.

You should also expect them to answer your questions directly. This means that they will tell you about the intake and new client interview process, be able to answer basic questions about your legal matters and the firm’s approach, and treat you with honesty and courtesy. It does not mean that you should expect legal advice and a fee quote for any complex matters. (Routine matters may be sold using flat fee packages. But most legal work requires individualized quotes.)

The reason a law firm’s intake staff (even if that includes lawyers or paralegals) will not give you detailed legal advice on an initial phone call is that it could be malpractice. Most situations are complex enough that a lawyer must have documents and ask in depth questions before rendering an opinion. As an analogy, you wouldn’t expect your doctor to diagnose you after just talking to you, without taking some blood tests and giving you a physical inspection. A lawyer should not jump to diagnosis and treatment either. They may give you some ideas about what they are thinking, but ultimately a careful lawyer will ask for an intake form and related documents before providing you with a legal plan.

 

In the fifth and final article in this course, you will learn how to interview and hire your lawyer. I will also discuss fees.

How to Hire A Lawyer Part Three: Traits of the Best Lawyers

In the second article in this course, I told you about the many things that don’t matter in hiring a lawyer. That begs the question of what does matter? Here’s a handy, downloadable infographic (just right click and “save as”).

Best Lawyer Traits Infographic

Yes, this is a specific list of deep, personal characteristics of someone whom you do not know well (or at all) yet. But you can get a good sense of whether a lawyer has these characteristic by doing two things. First, examine their body of work. Second, interview them.

 

Why look for these traits?

As discussed in the first article in this course, what differentiates a great lawyer from software or a hired thug is their ability to understand complex situations, predict and strategize based on many possible outcomes, apply experience and wisdom in a practical way, and understand and work with predictable human behavior to obtain a desired result.

Wisdom

Good judgment, varied life and business experiences (i.e. someone who lives life as well as practices law), and being results driven means the lawyer has wisdom. Wisdom is what will get you the best results long term, even if it means foregoing instant gratification or hearing the news you want to hear.

When I was a very young lawyer, a wise and well-respected senior lawyer told me, “There is a difference between good news and good advice. Give good advice.” That is something all worthy lawyers live by. Good advice comes from wisdom (as well as courage and maturity).

A student of humanity

The famous Supreme Court Justice Oliver Wendall Holmes said, “The life of the law has not been logic; it has been experience.” What this means is that the law is created around the human experience and all the things that make us function together in society.

Without getting too philosophical on you, consider that the law boils down to standards for how we treat one another (whether it is in our criminal codes, our contracts, or our civil rights). Legal applications by judges and juries is therefore as varied as the human experience of each one of those people. The best lawyers understand this.

That is why you need a lawyer who is courageous and mature, who listens and who is articulate. But most importantly, you need a lawyer who possesses and understands how to use empathy. A lawyer without empathy will never understand you, the other people in your deal or case, or a jury. He will never understand the easiest path to victory or to closing a deal. He will not be elegantly persuasive.

Many lawyers read the law and try to apply it to all situations by rote. This “all problems are a nail” approach will not serve you as the client. The “art” in practicing law is what separates the few, best lawyers from the thousands of average lawyers.

Technical skills

In the first two articles in this course, I suggested that a lawyer must possess a certain number of years experience before he is an able practitioner. A minimum amount of experience is indeed important. But do not equate years practicing for technical mastery. There are many lawyers who have practiced for twenty, thirty or even forty years, who still haven’t figured it out. So you must evaluate whether the lawyer in an expert in his areas of legal practice.

The best lawyers are always learning. They are acquiring and practicing their legal skills. They are staying abreast of changes in the law, both profound and subtle. They are aware and can apply principles from many different legal disciplines (and they know when to call in another specialist).

In addition, you must evaluate how well a lawyer writes. The main job duty of all lawyers (except criminal defense lawyers) is writing. This is an essential skill. A case can be won or lost on written motions alone. A problem can be solved by a letter. A deal can be saved by a tight agreement.

In the same vein, a lawyer must be detailed. In law, the devil is in the details. A contract can turn on a single word. A motion can be thrown out if all the technical requirements are not met (things like page limits, lines per page and fonts matter). Deadlines are unforgiving. Rules and statutes require deep reading as they have layered meanings and applications. A lawyer who is sloppy and unconcerned by the minutia of law is bad at his job.

The right lawyer for you

The right lawyer for you listens to you and works to achieve the results you desire. The right lawyer for you understands you. The right lawyer for you will be able to trust you and fight for you without reservation.  The right lawyer for you will deliver value.

This is why the best lawyers are selective in what clients and matters they accept. If a lawyer cannot trust you or does not understand you, he is not the best fit for you. The best lawyers recognize this and will decline representation. If the lawyer cannot deliver value to you — perhaps you have a problem he cannot solve — he should say so. The best lawyers are courageous and moral enough to say no to business when they cannot serve the client at their highest capacity.

Volume lawyers are not the best lawyers. Discount lawyers are not the best lawyers. Desperate for business lawyers are not the best lawyers. Remember that.

 

How to evaluate a lawyer’s expertise and traits before interview.

This is easy. You do not need to read legal briefs or technical scholarly journals filled with footnotes. You need to read the lawyer’s blog. Other good sources of a lawyer’s body of written work include the lawyer’s newsletter, magazine articles, white papers, ebooks and print books. If available, you should watch the lawyer’s videos or listen to her audios.

Yes, it really is that simple: read the lawyer’s blog.

There is a saying that, “How you write is how you think.” (This is actually a paraphrase of something Oscar Wilde once said.) While this might be an overstatement for any who do not write for a living, it is an excellent rubric for lawyers.

A lawyer who can write a blog that explains complex legal ideas simply is a lawyer who can also explain your case to judges and juries simply. A blog shows the lawyer’s mastery over language. A blog shows, in a subtle way, the lawyer’s personality, persuasiveness, empathy and values. It also shows how detailed and professional they are (e.g. Do they have a lot of typos? Did they just hire an SEO company to write a bunch of key-word stuffed information? Is the information well-organized?).

A blog also shows the lawyer’s mastery of legal concepts in his area of practice. It is also evidence that the lawyer is staying abreast of legal changes and continuing to learn about law. One cannot blog about a technical subject without research and study.

You do not have to read everything. Just read enough to get a sense for who the lawyer is and what she knows.

 

In the fourth article in this course, you will learn about additional details that are necessary to narrow your pool of potential lawyers so you do not spend the next week reading the blogs of lawyers who are inappropriate hires.

How to Hire A Lawyer Part Two: What Doesn't Matter

Don’t Hire A Peacock.

The first article in this course helped you identify any resistance you have to hiring a lawyer. Hopefully you now have a better understanding of why you need a lawyer and how the right lawyer for you can address any resistance or doubts that you may have.

So now that you are more comfortable with the idea of hiring a lawyer, you need to know how to go about it. Usually most people turn to the internet at this point. Or they call around to ask for a referral.

There is absolutely nothing wrong with these methods to start gathering a list of candidates. Internet offerings and personal references are also a great way to vet lawyers before you waste any time talking to them.

But that being said, a bunch of stuff that lawyers put online to impress you is just a display of colorful feathers. You need to identify the peacocks and move on.

Peacock

I once worked with a lawyer who is the epitome of the peacock. He was bombastic and bragged. He would name-drop. He would encourage the client to be aggressive and he would showboat when the client was around to prove how “tough” he was and how intimidating he would be to the other lawyers. The client loved it. But here’s the truth: other lawyers are not intimidated by this stuff. All his showboating did was create more work for all of us and sour relationships between counsel, making the case impossible to settle. This cost the client more money. This lawyer also would have malpracticed if I had not been there quietly executing a sophisticated legal strategy while he strutted around convincing the client how impressive and aggressive he is. (Although I guess that’s a good strategy for a lawyer who is just interested in getting paid.)

Things That Do Not Matter When Identifying a Good Lawyer

Unless you’ve had the opportunity to be intimately familiar with a particular lawyer’s work style and work product, it’s hard to tell whether a lawyer’s skills are any good. Even other lawyers won’t necessarily be able to fully evaluate another lawyer without seeing them in action for a little bit. So we all rely on certain accolades and reputation (i.e. popularity with other lawyers) to filter through the pile.

  • Rankings and Awards

So a bit of honesty here: I prominently display my 10.0 Avvo rating and my SuperLawyers badges, along with half a dozen other awards on my website. The truth is, people like them. Other lawyers are impressed. People think it means I’m a good lawyer.

And I am a good lawyer. But not because Avvo or SuperLawyers says so.

Those rating systems, like all rating systems, are flawed. For example, I know people rated as a 10 out of 10 on Avvo who have been practicing law for only two years. Unless he’s a savant, no lawyer is a perfect 10 skills-wise after a mere two years’ experience. But they have done all the right things to market themselves and that is why they are well-ranked.

Bad lawyers definitely slip through. I know some real hacks who manage to get well-ranked through clever marketing. I also know some great but incompetent guys who are socially popular enough that they do well with peer-reviews. You do not want a guy who’s highest talent is that he could be your drinking buddy.

Also, many of the awards are “pay-to-play.” Many others, I suspect, are chosen by the committees based on factors including the likelihood that a lawyer or their firm will purchase advertising. I hate to pull back the curtain and reveal the Wizard of Oz is a mere man. But I suspect that pretty much all industry awards operate in the same way.

Awards are great marketing, and perhaps even deserved by most (like me!). But just remember that they are not a substitute for further due diligence when it comes to hiring a lawyer.

  • Guarantees

It is unethical for a lawyer to guarantee you a certain result in your case. We are legally prohibited from doing it. If a lawyer promises you a result or tells you a case is easy, a slam-dunk or without risk… run away because this lawyer is just telling you what you want to hear in order to get your business. He plans to just figure it out later, or maybe he doesn’t care if you are ultimately disappointed.

I understand that a common complaint about lawyers is that we equivocate. I understand that you want an answer, not just a bunch of possibilities and probabilities. But the best I will ever tell you is that your position is strong and therefore you have an 80% chance at winning. Too many things can happen to take the car off the rails for me to say any higher than that. And many times, I will tell you that your chances are worse than that. Or that I have multiple scenarios of varying acceptability that I am aiming for. And any good, truth-telling lawyer, will say the same.

There is no such thing as the sure fire win even if you are as pure as the newly driven snow. There is no such thing as a certain big money award (in fact, a lawyer who obtains a seven-figure award for their client is so rare that there is a special bar for them that is by invitation only). A lawyer who appeals solely to your desire for good news is not providing you meaningful advice or professional service.

  • Where the lawyer went to law school

Lawyers may use a show of wealth and school pedigrees in order to prove that they are skillful and worthy of being hired. These things are not the best indicators of a good lawyer. Lots of bad lawyers went to Harvard, and lots of good lawyers went to the local law school (and vice versa). One of the most incompetent and unethical lawyers I have ever had the displeasure of meeting wore a Rolex and drove a Bentley. So that’s not the way to choose. Don’t use a fancy office or a prestigious school on a lawyer’s resume as a substitute for doing your homework before hiring. Neither a fancy office nor a degree from Harvard are bad things, but they aren’t the important things.

  • Does your lawyer need to have a record of Big Money Wins?

This one depends on the type of lawyer you are seeking to hire. If you have a wrongful death case against Exxon, you want a lawyer with seven figure verdicts at jury trial under his belt. That guy knows how to sell a big case to a jury, and that is a very special skill.

But most of the time, asking a lawyer how much money he has won is not that useful. It is even less useful when a lawyer claims that his firm has recovered millions for his clients (this is not that hard to do in a volume practice or even with just a steady flow or cases settled with mediocre results).

In fact, most lawyers are transactional or administrative lawyers and therefore have no win or loss record. Lots of lawyering work has nothing to do with lawsuits. Criminal defense lawyers plea bargain most things, and conviction rates are 98% of cases that are not plead, so you cannot judge them by their win-loss record.

Civil defense lawyers may settle most cases and therefore have few outright wins. But they may have achieved consistently excellent results for their clients given the circumstances. Indeed, only 1% of civil cases go to trial through verdict. And so the vast majority of lawyers have never even stood before a jury. Of those who have, even the best have lost a case. A win-loss record can therefore be misleading — it certainly does not tell the whole story.

You will need to ask yourself first whether you even need a trial lawyer. It depends on the area of law and the dispute or issue. General counsel and business advice, for example, involve different experiences than trial lawyering (although one person may possess both skill sets). Because true trial lawyers are rare, they command a premium price. But if you are in a lawsuit of any value, you probably want a trial lawyer on the team early in the case work up.

If you do need a trial lawyer, make sure that your lawyer has trial experience, advanced trial training and knows how to work up and present a winning theme to a jury. Graduates of the Gerry Spence Trial Lawyers College are an elite group of specially trained trial lawyers, so you can start with their alumni.

Now that I have told you what you should avoid and what you should take with a grain of salt, you next need to learn what does matter. The third lesson in this course will help you identify the necessary qualities and skills for your lawyer. Here’s a hint: look at their body of work to determine their expertise, knowledge, approach and technical skills.