Part 1

There are two buildings in most towns that we generally want to stay as far away from as possible; the hospital and courthouse. Neither are happy places and both can be incredibly expensive.

For anyone facing potential litigation, or already deep into a suit, you should be asking a lot of questions. Law, like Medicine, has its share of borderline practitioners who see their clients, not as people to help, but as their very own piggy banks, just waiting to be cracked open.

Unless you have an established, long-term relationship with a lawyer or law firm who you trust, answers to these questions are critical:

“Am I in good legal hands? Do they have my best interests in mind or their own financial needs? Is my lawyer competent in this area of the law? Even if we win, will it be worth the expense and risk of loss? How did we get here in the first place? Was there a chance to have prevented this whole mess? Can we just cut our losses and get out?”

Of course, after asking those questions — with one hand holding a stack of bills from your lawyer, and the other a bottle of Tums — you’ll probably wonder, “How can a non-lawyer even begin to answer those questions? Is it wrong to question what my attorney is doing? Who do I turn to for guidance?”

The answer — a second legal opinion

Long ago, the medical profession — or more accurately, insurance companies who paid doctor bills — encouraged patients to obtain second and even third medical opinions before undergoing certain medical procedures. While there are lawyers who do urge their clients to get a second opinion, it is not a common practice. It should be.

Northern California Attorney Michael Hanks believes that second opinions can have a critically important function in a healthy attorney — client relationship. In law practice over 30 years, based in Gold River, California, Mr. Hanks has written extensively about the kinds of cases which benefit most from that second opinion.

“I encourage second opinions on difficult cases, or cases where reasonable, well-informed clients can have different views,” he told me “In fact, when I feel strongly that a client should or should not do certain things, I make them an offer most find to be extremely interesting,” he added.

“There are times when a client may question my evaluation or opinion on an important matter. When that happens, I tell them that if they wish to get a second opinion from another attorney, if that attorney disagrees with my advice, I will pay for the consultation. To be sure my client speaks with an experienced lawyer, I provide a list of attorneys who I know are qualified to provide that second opinion,” he points out.

“Occasionally clients and their lawyers might seem to be on different planets, where the client can’t wait to have that suit filed, and the lawyer is urging a different approach. Typically, this often arises when a client is focusing on principal over economics or practicalities.”

“My typical advice in these situations is that principal is a red herring — it should not form the basis of a decision to file suit,” Attorney Hanks stressed.

Where the client is motivated by “a desire to teach someone a lesson,” Mr. Hanks offers this bit of advice to new lawyers about second opinions.

“Let’s say your client has a neighbor who refuses to chip in on replacing their common wooden fence and wants you to file suit for the principle of it. You better explain this could be horribly expensive, ultimately disappointing and not a good idea where neighbors are concerned. Tell the client that you won’t do a thing unless they get that second opinion. Experience usually proves chances are good the client will be told the same thing, see the light and everyone gains,” he points out.

“A lawyer has an ethical duty to help clients find an economic solution. Sometimes, that solution is to just walk away, not throwing good money after bad, or possibly sending them to Small Claims Court. Often, it will be a recommendation of settling for far less than the client wants, just to make the thing go away. That is where an opinion from another lawyer — as to the value of the case — is often valuable,” Mr. Hanks added.

“Yes, but I don’t want  to upset my lawyer”

I asked Attorney Hanks how he responds to this frequently heard statement: “I’m really not all that happy with the way things are going, but at the same time, afraid to upset my lawyer. What if he just walks away from my case or get mad at me when I tell him what the other lawyer said?”

“That’s a legitimate concern, but not something I would overly worry about,” the Northern California attorney replied.

“Lawyers have tough skins. While some people call us sharks, I think we are much more like elephants. We are considered as medical miracles — our skin is so tough that most surgeons, if given a chance to operate on a lawyer, have an extra charge for knife sharpening.”

“Seriously, in all my years of practice, I have never come across a lawyer who was upset because a client got a second opinion, unless that other lawyer was trying to steal the case, or had some other agenda.”

Finally, I asked Mr. Hanks about clients who might object to paying “just” to discuss this case with another lawyer.

“Litigation is a negative, expensive situation to be in. Even the idea of just talking about a case — and having to pay for that little chat — is upsetting to a lot of people. It is best to look at a second legal opinion just as you would a medical opinion. Sure, it will cost something, but could, in the long run, save you a great deal of money. It could result in your changing lawyers. Or, might even prevent that lawsuit from ever being filed in the first place,” Mr. Hanks concluded.

Next Week: The story of the auto mechanic who finally did get that second opinion, after spending over $50,000 in a suit which should never have been filed.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post When to get a second legal opinion – Part 1 appeared first on Dennis Beaver.

Nick trusted his lawyer, believing advice which sucked him into a completely preventable lawsuit. The 45-year-old auto mechanic never obtained a second opinion-about the case or his lawyer’s reputation for competence and honesty — until he was billed over $30,000 in attorney fees and faced the prospect of losing $100,000 at trial.

“I felt that trust was something you had to assume in an attorney — client relationship, and that he would act in my best interests. Isn’t that required, legally, that a lawyer act in the client’s best interest?” he asked.

Of course, Nick was correct. Lawyers have what we call a fiduciary (good faith) relationship in which we are ethically obligated to put the client’s interests first. An attorney is legally required to look at economic realities and advise clients what they face if early settlement is not achieved.

At the time we met, Nick was less than a month away from trial.

For Sale — Corvette in great condition

It all began with an ad for a 1971 Corvette Stingray Nick placed on E-Bay. “Body in excellent mechanical condition and car runs well.”

“I like to buy and sell old cars, putting a few dollars into them, and that’s what I did with this Corvette. I’ve sold a lot of cars on e-bay with no problem — until this time,” he explained.

Roger spotted the ad, met Nick at his shop, and took the Corvette out for a drive. He liked the car, and paid $9,500, signing an “As Is” contract which Nick handwrote.

About four days later, Roger phoned Nick, informing him that the car wasn’t really in such good shape as he thought, and would like to bring it back for a refund. Nick agreed.

“When he came back to my shop, Roger wanted $2,000 more than the purchase price, as he had installed a stereo and did some other work before discovering mechanical problems which he claimed were there. I didn’t have a problem with the refund, but felt that I should not have to pay for those items. Unfortunately, this became a shouting match and he left, threatening to file a lawsuit if I did not pay him,” Nick related.

“Several weeks later, I received a letter from an attorney insisting that I immediately refund the $9,500 purchase price, $2,000 for the stereo, plus her attorney fees of $500. She claimed that I should have been licensed as a used car dealer by the Motor Vehicle Department, and without that license, I was in violation of a number of California Consumer Protection laws,” Nick explained.

“Her letter also said that even though I had sold this car As — Is, this was meaningless, because of the way I described it in my e-bay ad, and that the As — Is contract did not meet the requirements of California law. She said that the buyer had a right to rely on my statements of the car’s condition since I am a mechanic,” he added.

“Go Pound Sand”

Nick handed me the letter. I read it and asked him these questions:

(1) Did you do any kind of an inspection — smog, scope, put it up on a rack-before placing the ad? His answer: “Beyond driving it, no. It seemed in good shape, but I did not conduct a thorough inspection.”

(2) When you buy and sell these cars, do you intend to or actually make a profit? “Yes, while this is a hobby, I do make a profit.”

(3) Are you licensed as a used car dealer? He was not.

I put the letter down, looked at Nick and told him he was in violation of a number of Consumer Protection laws. “If you had come to me with that letter, I would have picked up the phone, given her a call, and gotten the matter resolved immediately,” I told the now pale and fearful man sitting in my office.

“Your buyer had a right to rely on your statements since you are an auto mechanic, Nick! It’s certainly foreseeable that he’d put something into the car, like a stereo or paint job. Which is better, paying a couple of thousand dollars more or facing a long, expensive lawsuit and paying their attorney fees?”

“That’s not what Mr. X told me. He said they didn’t have a case and that I did not even have to refund anything.”

Then Nick showed me his lawyer’s letter. It was guaranteed to move the buyer’s attorney from a negotiation posture to all out litigation. It stated, in so many words, go pound sand — sue if you want to.

No Attempt to Settle — No Warning of What Nick Faced

Nick’s lawyer could easily have offered to refund the purchase price and let the seller and buyer take the matter into Small Claims Court over the, roughly, $2,500 difference. After all, Nick had earlier agreed to the refund.

I picked up the phone, and within minutes got his case settled. In speaking with the buyer’s attorney that day, I discovered that Nick was more than a victim of an incompetent attorney. His lawyer filed baseless motions, and Nick was ordered to pay the buyer’s attorney fees — even before the case was over!

Total amount of money Nick wound up spending: $48,500.

Had he obtained a second opinion at the very beginning, I would have not had this story to write.

There are times when, instead of trusting your attorney, you would be better off to trust your own gut feelings. This is especially true where the cost of settling a case is minimal in comparison to getting into a full-blown battle.

This is where it can be critical to get a second opinion from someone knowledgeable in your specific area of the law whose reputation you have checked out.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.

The post When to get a second legal opinion – Part 2 appeared first on Dennis Beaver.