The Proper Measure Of An Attorney

"I’d rather have a lot of talent and a little experience than a lot of experience and little talent" – John Wooden

"The error of youth is to believe that intelligence is a substitute for experience, while the error of age is to believe experience is a substitute for intelligence" – Lyman Bryson

Attorneys are typically measured by their education, experience (age/years of practice), and accomplishments. Attorneys who have gone to "better" law schools are deemed by the public to be better attorneys, as are lawyers who have been practicing for a very long time.

But I am here to tell you that where a lawyer went to law school, or how many gray hairs a lawyer has on his or her head, has very little to do with how well a lawyer will handle a case. Some of the best lawyers I have come across went to "sub-par" law schools, and some of the worst I have come across have been practicing law for more than 25 years. So it’s not about where or how long.

I think the most important factor in evaluating a lawyer is his talent. I define talent in this context as the ability to spot legal issues, develop legal arguments, devise a litigation strategy, and execute that strategy. But how do you determine if a lawyer has talent? This is difficult, but possible. I would look at what his opponents have said about him. I would also look at the results he has obtained. These are the best indicators, in my opinion.

A close second is the lawyer’s experience in the specific area of law for which you need a lawyer’s services. If you have been wrongfully terminated, you need a lawyer who focuses his practice on that area. For example, it does not help you if an attorney has practiced for 30 years if he has never handled a wrongful termination case. You need a specialist, however, California only allows attorneys practicing law in certain areas to claim they are a "specialist," e.g., family lawyers, criminal lawyers, and appellate lawyers. Those kinds of lawyers must take a test and meet other requirements to be able to certify that they are specialists in a particular area of law. Lawyers who practice in other areas of law cannot claim they are specialists, even though they may have substantial experience in a given area. So, you’ll often see attorneys saying things like: "My practice focuses on elder abuse law," or "I concentrate my practice in the area of libel law," to communicate that they "specialize" (in the traditional sense — not the sense forbidden by the California Bar) in an area of law.

This brings me to a court decision which prompted me to write this post. In the case of Russell v. Foglio (2008)160 Cal.App.4th 653, the appellate court affirmed the lower court’s ruling with regard to defendant’s anti-SLAPP motion and held the attorneys’ fee award was not an abuse of discretion.

The court rejected plaintiff’s argument that defense counsel’s hourly rate ($300) was unjustified because defense counsel had only been practicing law for 3 years. Here is what the court wrote:

"Plaintiff attacks the award for Attorney Bray on grounds the $300 per hour rate claimed and allowed was excessive. Plaintiff so contends based on the facts that Bray had been a lawyer only since June 2002, that he had graduated from an unaccredited law school, and that his experience was in family law as opposed to defamation. These facts do not establish an abuse of discretion in the trial court’s ruling.

From the standpoint of Bray’s capability, experience, and performance, the identity of his law school made no difference. In the same respects, that Bray had become a lawyer two years and eleven months before he undertook the case also was not dispositive. The trial court recognized Bray’s representation that he brought to the case far more extensive trial experience than an average junior associate at a law firm would have had. That Bray’s experience had arisen in the family law context was also not discrediting. What the court perceived as relevant about that experience was its practical extent. The court referred to Bray’s “family law experience” simply as shorthand for his in-court experience.

FN5. It is incorrect for plaintiff to refer to Bray as a “second-year” lawyer. Bray had more than three years licensure when he handled the crucial evidentiary hearing on reconsideration.

Plaintiff’s arguments also fail to take into account the court’s observations concerning the quality of Bray’s performance and the time constraints under which he undertook representation of defendant. These factors supported the court’s determination of the value of counsel’s work.

Ultimately, while expressing awareness of plaintiff’s submission regarding junior associates’ billing rates, the court concluded that Bray’s experience, the exigency of the case, and “the demonstrated level of performance by counsel” justified the hourly fee level. Given all the circumstances, that ruling was not an abuse of discretion."

The court was mostly correct in ruling the way that it did. It does not matter that an attorney went to an unaccredited law school and has only practiced a short period of time. What matters is the skill displayed and results obtained. That’s all the client cares about any way. I did disagree with the court in that the family law experience had little to do with anti-SLAPP law. Anti-SLAPP is a very complicated area of law, and doing family law petitions and the like, does not relate to the anti-SLAPP statute. As a result, I believe the trial court should have reduced the lawyer’s fee to reflect his inexperience in the specific area of law.

At the end of the day, it’s about talent and experience in the specific area of law. That’s it. Do you agree? Write a comment below and share your thoughts.

 

 

Comments

  1. says

    Your advice about finding a lawyer is sound, but to lower a fee award because the attorney hadn’t previously practiced in that area is horrifying in its implications. As you note, licensure is a binary – either you are licensed to practice, or you’re not. To subject a fee award to post-hoc, subjective discounting based on some unspecified experiential requirement would be to impose a hidden, undisclosed and additional burden on the practice of law not supported by any statute or bar regulation.
    It’s also inconsistent with your point that the most important aspect of lawyering is talent, which I think can fairly be thought to include the ability to learn new areas of law. The fact that the lawyer in this case prevailed itself seems evidence that this lawyer had sufficient talent to warrant what is ultimately a reasonable fee. (Many lawyers charge much, much more!)
    Furthermore, it would be pretty absurd for a losing party to somehow get a bargain because of a lawyer’s relative inexperience. Barring completely exorbitant rates, the lawyer should be able to charge what he can get his client to pay. If the client loses, he’ll have to bare those costs, which the lawyer would be under no obligation to discount. Whereas if the court could discount the fees as you suggest, it would mean that by virtue of WINNING, the victorious lawyer, because it’s only his first case, would have to provide a subsidy to the losing party. Instead of getting his full fees, either he or the client would have to eat the difference. Even though, as is especially the case of anti-SLAPP, they’d been sucked into a fight the other party picked. So even if the lawyer’s fees were a bit to high, the losing party should have realized he’d be taking the risk in needing to bear them when he filed his SLAPP in the first place. Even if the client struck a bad bargain with his lawyer, it was in the wake of suddenly being sued! The very idea of fee-shifting is to discourage these sorts of suits; to make them arbitrarily cheaper for the plaintiffs would run counter to that value.

  2. says

    Cathy,
    Thank you for your thoughtful comment. In the anti-SLAPP context, courts typically apply the lodestar method, that is, the number of hours reasonably expended multiplied by the reasonable hourly rate in the community for similar work. The court may then adjust the lodestar (down or up) based upon factors specific to the case before the court. Case law does not limit what circumstances the court may consider, and in fact, the California Supreme Court acknowledged a trial court’s discretion in setting fee awards. In other words, the court is free to consider any factor in setting a fee award, and courts often do.
    One such factor a court may consider, is whether an attorney has any experience in the particular area of law. In the Russell case, the attorney had limited experience, and the experience he did have had very little to do with handling the complex and challenging area of anti-SLAPP law. While his customary rate for family law matters may have been $300, I believe his rate for handling other matters should have been less based on his lack of experience in the specific area of law. I know this may seem unfair to you, but it is what happens in the real world based on my experience in the anti-SLAPP context.
    Regarding your point about the subjective nature of my suggested approach, the truth of the matter is that setting a fee award IS subjective. For example, a court’s appraisal of the work product of an attorney is subjective. That is precisely why courts suggest the use of the lodestar approach as a starting point in setting a fee award. Then the court is free to consider other factors.
    With respect to talent, it is the most important factor in my view. However, I did write that the attorneys’ experience in the specific area of law is a “close second,” which means that it should be seriously considered in appraising an attorney.
    Regarding your last paragraph, it is true the anti-SLAPP statute is a fee-shifting statute. However, the court has wide latitude to do what it wants and typically gives little to no credence to what the attorney ACTUALLY charged his client. All the court is concerned with is setting a fee that it believes is reasonable under the circumstances. For example, in one case, an attorneys’ hourly rate was reduced from 250 to 150 because he had only been practicing for 4 years, despite the fact that he had considerable experience handling anti-SLAPP motions.
    At the end of the day, what I was trying to say was that an attorneys’ specific experience (while not as important as talent) is a significant factor in setting a fee award. And had I been the judge I would have considered decreasing the fee if the attorney had no prior experience in this specific area of law because anti-SLAPP law is a HIGHLY specialized area.

  3. says

    I bow to your expertise in that this sort of adjustment has actually happened. 🙂 But I still stand by all my afore-cited reasons though for why it SHOULDN’T. At least not for such a modest rate. (If it were $700/hr it might be a different story.) But even for lodestar, I think there still should be an extremely compelling showing by the losing party, ESPECIALLY for SLAPP, that he’s entitled to a bargain. Not saying it should never happen, but the policy balance disfavors it.

  4. says

    Adrianos,
    Excellent post! I’ve had reason to hire a couple of attorneys myself during the past two years and I hate to say that it’s just as difficult to find a good attorney when you are YOURSELF an attorney as it is when you’re not.
    I’d start with the ability to sound like you know what you’re talking about. I rejected at least five potential attorneys based upon their hesitancy to give even a guarded opinion in the area of their specialty. We all deliver CYA messages when first consulting with a client (“the facts are different; their application to the law difficult to project;, etc.) but an attorney can disclaim after daring to voice an opinion about your case or even simply a couple of statements about how those cases are resolved as a general matter.
    Once you’ve found an attorney who sounds like s/he knows what s/he’s talking about, I’d list a good-to-great attorney’s qualities as follows (not in the order of importance):
    1. knowledge of subject matter (industry and legal specialty usually a given or statements that one is a fast learner if one is a generalist)
    2. ability not only to outline a strategy, but to immediately put it into effect
    3. the ability to inspire trust and confidence in the attorney’s ability to accomplish the goals set by him/her
    4. work ethic (get it DONE)
    5. no excuses (see work ethic)
    6. reporting back to client (see work ethic)
    7. listening to and responding appropriately to clients’ concerns even if they are not strictly within the legal framework, i.e., don’t tell the client their concerns are “irrelevant” (I can’t tell you how many times I hear attorneys say this to their clients during mediation ~ I say (gently) “it may not be relevant to the legal claim, but it could well be relevant to the resolution of the dispute”
    8. remember that your job is to SOLVE THE CLIENT’S PROBLEM, not to tend the “legal case” as if it had a life of its own
    9. never let the client feel as if your relationship with opposing counsel is more important or engaging than your relationship with your client (again, my mediation observations are that too many attorneys marginalize their clients, instructing them as if they were children, and being more of a pal to counsel and mediator than they are to their client
    10. if your attorney doesn’t know something, he should acknowledge it and promise to obtain an answer to your question in short order

  5. says

    Vickie:
    I especially like #8: “remember that your job is to SOLVE the CLIENT’S PROBLEM, not to tend the “legal case” as if it had a life of it’s own.” That is such a wise statement. Perhaps you may want to write a separate post about it!

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