Author’s Note:  The article below is a chapter or excerpt from the book “Law, Lawyers and Your Case:  A Dollars and Sense Examination” (hereinafter “LLYC”)  (2003, Graduate Group*) by David Dixon Lentz,  Attorney at Law, Author.  Please also be sure to read the very important and limiting disclaimer at the end of this article.  It is being republished here because much, if not most, of it remains valid and true today.  This article/blog which also appears in in www.reasonandbalance.com is subject to  Copyright 2021 and 2003.  David Dixon Lentz.  All Rights Reserved. .

[In an earlier blog on courts we describe what a “Court of Record” and a “Lower Court” is.   However:

If you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts.  The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.]

[* Unfortunately, the Graduate Group has since gone out of business and therefore ceased publication]]

[This article is only for very generalized informational purposes, a nationwide audience and is not intended to provide and does not provide particularized legal advice to anyone in a particular case.  In part, this is because this article may not cite current law in all jurisdictions.  All readers must consult a licensed lawyer in his/her state in order to obtain proper legal guidance.]

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GETTING GOOD RESULTS IN YOUR LEGAL CASE

 

[Author note:  The Chapter below from LLYC has a different title but it’s all about how to get the best possible results in your case given the facts and the law.  While both lawyers and clients are sometimes constrained as to possible outcomes by the facts and/or the law, being lazy can be costly.  Here’s how clients can improve their outcomes by helping their lawyers.]

 

 

Chapter 3:  Think About Your Case and Communicate with Your

                     Lawyer.

 

The purpose of this chapter is to help you assist your lawyer in the preparation of your case.   Assisting your lawyer is essential to obtaining effective legal results.  The most important way that you can assist your lawyer is by giving your lawyer all of the information that you have that is relevant to your case.  In order to determine what information is relevant, it is necessary for you to begin thinking about your case even before you contact a lawyer.  Thinking about your case is important because it helps to assure that important facts and potential legal issues are not overlooked.   It also makes the lawyer-client communication process more effective and less costly.

 

Lawyers want to attract and maintain good relationships with clients.  Most lawyers are polite and patient and want to empathize with their clients.  Clients, however, must be mindful of certain realities.

 

To a lawyer, time is money.  The reasons for this are explored in the chapter dealing with a lawyer’s costs.  In short, the more time that a lawyer spends on the client’s case, the greater the cost to the lawyer.  Moreover, and depending on the fee agreement executed by the client, this cost may ultimately be passed on to the client.

 

Like most people, lawyers are busy.  Thus, there is a great temptation to try to cram telephone calls and office visits into a short period of time.   This often results in time being wasted because insufficient information was relayed to the lawyer during the appointment.  When partial information is received over the course of several meetings or telephone calls, the lawyer (or his paralegal) has to stop what he is doing, get the client’s file (if it’s available and he’s in the office), record the information and then re-file it.  Under such circumstances, mistakes in the recording or in the filing of the new information increase.  The risks of miscommunication also greatly increase.  If a lawyer takes a case or any other action based upon incomplete or inaccurate information, time can be wasted and unnecessary expenses incurred in the form of unexpectedly large legal bills.  Even worse, undesirable legal results may be suffered.

 

Consequently, lawyers want to learn all of the essential facts about a case as quickly as possible.  The same can be said about the lawyer’s desire to obtain all relevant documents and other evidence.  In short, lawyers want complete information in the fewest possible telephone calls and office visits.

 

Lawyers do not, however, want to be inundated with information that they cannot use.  In this regard, a lawyer is much more interested in the relevant facts that can be established by admissible evidence and by supporting documents than he is in the client’s opinion or speculation about his opponent or the case.  This is because the lawyer cannot use speculation to help his client during trial.  Speculation is not helpful unless it allows the lawyer to discover other admissible or useful evidence.  Moreover, a lawyer cannot generally use a person’s (including the client’s) opinion in court unless that person is a qualified expert on the subject in question.  Lawyers are only interested in facts that can be established through the testimony of people who actually were present and saw what happened or through admissible written documents.  Naturally, they are also interested in relevant pictures, tangible evidence and the testimony of qualified expert witnesses.

 

This is not to say that lawyers aren’t human or that they don’t have bedside manner.  Lawyers realize that they have to allow their clients some leeway in expressing their feelings and emotions.  Having said this, however, it is extremely important for a client, when contacting or communicating with a lawyer, to use the lawyer’s time efficiently and effectively.

 

Contacting a Lawyer for the First Time.

 

Preliminarily, it should be noted that a client is not a “client” until he hires the attorney and the attorney agrees to take the case.  Before the lawyer agrees to take the case, the client is merely a prospect or a prospective client.  Although a lawyer has certain ethical responsibilities even to a prospective client, he has no obligation to file any pleadings, make any court appearances or to render any legal services on behalf of the prospective client until he agrees to take the case.  Usually, this occurs when the lawyer and the client enter into a fee agreement and/or the lawyer accepts a deposit or a retainer from the client.  Thus, a prospective client should not wait to the last minute to attempt to hire an attorney, especially if he faces a filing deadline under an applicable statute of limitations.  This is because the attorney that he attempts to hire may refuse to take the case and, in such an event, the prospective client may suffer an adverse legal result.  For ease of discussion, however, the term “client”, as used in this chapter, will also include prospective clients and persons who have merely contacted a lawyer but who have not yet hired him.

 

The Need for Complete and Accurate Information.

 

When a prospective client first contacts a lawyer, the lawyer must not only assess whether some effective legal action can be taken, but he must also assess whether the client can afford his services and whether he, the lawyer, can handle the matter in a profitable manner.  Remember, a lawyer is never required to take a case.  In other words, when first contacting a lawyer, the client should remember that the lawyer is interested in information that will allow the lawyer to answer the following questions:  Is there something that I (the lawyer) can do for this client, and if so what?  Will the client get the result that he desires?  How much time is it going to take?  What will my out-of-pocket costs be?  How much should I charge?  Am I (the lawyer) likely to get paid for my efforts, and if so, when?  What kind of fee agreement should I enter?  And, in some cases, the lawyer may also ask himself:  Am I going to be able to communicate and get along with this client?

 

Why is it important for the client to keep the above in mind?  The answer is that lawyers have to decide upon a course of action based upon the information that is provided by the client.  That decision will be guided by the answers to many of the questions set forth above.  A major factor, however, will be the amount of time and money that the case will require.

 

Similarly, clients are also in a decision-making mode.  In this regard, the client wants to receive as much feedback as possible from the lawyer regarding the likely outcome of his case.  The client also wants the best possible advice.  Moreover, he also wants a good estimate of the attorney’s fees that will be charged.  In short, the client wants to know, based upon feedback from the lawyer, whether he wants to hire that lawyer, hire another lawyer, represent himself, prosecute, defend, settle the case or drop the matter.  Unfortunately, the lawyer cannot adequately assist the client in this decision-making process if the prospective client does not provide him with the best available information.  Thus, if the client provides the lawyer with incomplete or inaccurate information, then the lawyer is likely to provide inadequate feedback or advice to the client that will, in turn, increase the likelihood that the client will make faulty decisions.

 

Assuming that a lawyer accepts a case and that the client hires the lawyer, the interchange of information between lawyer and the client remains a continuous and ongoing process throughout the case.  Nevertheless, it is still critical that the client provide the lawyer with as much information as soon as he can.  This is because the courts impose time deadlines that must be taken very seriously.  Especially important are the time limitations that are imposed with respect to the issuance of witness subpoenas and the completion of any applicable pretrial discovery.  In fact, the legal process can be viewed as a train, conducted by the lawyer, that moves inexorably and relentlessly towards its scheduled destination.  Relevant information, evidence and witnesses are much like the passengers and cargo that are supposed to be on that train.  If the lawyer is unaware of certain facts and the existence of certain witnesses, then the necessary passengers and cargo will either have no ticket or they will be too late to catch the train.  In either event they will not be on it.

 

Admittedly, sometimes new information is unexpectedly learned.  Facts unfold.  From the lawyer’s perspective, however, surprises are usually not welcomed.  They are much like unexpected obstacles on the railroad tracks that cannot be avoided because the train cannot be stopped in time.  This is because surprises are either bad news for the client’s case or the lawyer does not have sufficient time to subpoena favorable witnesses or to take any other action that is necessary in order to be victorious at trial.  In short, misinformation or lack of information can cause the train (the client’s case) to derail.

 

Confidentiality and the Attorney-Client Privilege.

 

Why should a client or a prospective client trust a lawyer?  How does the client know that the lawyer will not tell others, including the opposing party, about his secrets?

The short answer is that attorney-client communications are privileged and lawyers are ethically obligated, under the rules of the various state bar associations, not to disclose a client’s confidences and secrets either to other persons or to the court.  In addition, these rules generally protect confidential information and secrets disclosed by a prospective client who contacts an attorney but does not hire him.

 

As stated above, it is essential and in the best interests of both the attorney and the client that there be a complete and truthful exchange of information between them.  The client must be able to trust his lawyer.  In return for that trust, a client rightfully expects to have his discussions with his lawyer kept confidential.  The lawyer, on the other hand, needs to know all of the facts of the case in order to give his client the best advice and to render the best possible service.  In order to further foster this relationship of trust, most lawyers take the position that it is not the job of an attorney to make judgments about the character of his client or to judge the client as a “good” or a “bad” person.  Instead, lawyers have an ethical obligation to zealously represent their clients within the bounds of the law.   In other words, it is the lawyer’s job to put his client in the best possible position given the law, the facts and the evidence regardless of any personal opinion that he (the lawyer) has about his client.

 

In criminal cases, the interplay between the defendant’s constitutional rights and the lawyer’s ethical obligations make matters a little more complex.  A defendant in a criminal case has a constitutional right to remain silent.  He cannot be compelled to testify.  In addition, a defense lawyer must keep his discussions with his client confidential.  This means that the defense lawyer cannot take information given to him by his client in confidence and turn around and disclose that information to the prosecutor, to the judge or to the jury.  In addition, a defense lawyer also has an ethical obligation, imposed by the bar, to defend his client zealously.  It is, therefore, the lawyer’s duty to see to it that all evidence introduced by the prosecution at trial was legally obtained and to bring to the court’s attention any evidence that tends to raise reasonable doubt about his client’s guilt.  In essence, this means that a vital part of the lawyer’s job is to see to it that if his client is convicted, that the conviction rests only upon legally obtained admissible evidence that tends to prove guilt beyond a reasonable doubt.  The foregoing reflects some of the reasons why it is ethical for an attorney to represent a criminal defendant even though the lawyer may subjectively think that his client is guilty.

 

Having said this, however, if a client willingly chooses to take the witness stand and to testify, then the lawyer cannot knowingly allow the client to lie or to commit perjury.  Thus, if a client takes the witness stand and commits perjury and the lawyer is certain that he has done so, the lawyer has ethical obligations that may, in some cases, require him to withdraw from the case or to bring the possibility of the perjury to the court’s attention.  For this reason, the lawyer’s duty to disclose perjured testimony should be discussed by the client and the attorney as early as possible in the attorney-client relationship.  This is true not only in criminal cases, but in civil cases as well.

 

Have or Bring Your Documents When You First Contact an Attorney.

 

When contacting a lawyer for the first time, whether in person or by telephone, you should always have all of the relevant papers, pleadings, speeding tickets, warrants, bond information, breath test results, contracts, deeds, wills, letters and/or other documents that are related to your case with you.  If this is done, the attorney can either make copies of the documents or, if the conversation is by telephone, the client can read relevant portions of documents to the attorney.  It is necessary to have all documents available regardless of whether the case involves a personal injury matter, a breach of contract, a criminal matter or any other kind of problem.

 

Many times clients think that they can explain a situation to an attorney and that the attorney will fully understand what has happened.  Unfortunately, many times the technical aspects of a situation make this difficult to do and sometimes clients overlook or misstate important details about their cases.   In this regard, if a client has all of the relevant documents with him when he contacts an attorney he can clarify the situation and allow the attorney to act much more quickly and with much more assurance that he is relying on the right facts.  This is particularly important in emergency situations or where the attorney has to act quickly.

 

Read Your Documents.

 

               People are naturally intimidated by legal documents.  This is particularly true of printed documents that contain small type.  Regardless of the reason for this, all clients should force themselves to read all pleadings, motions, complaints, warrants, subpoenas, orders, decrees, judgments, bonds and all other legal documents in their possession that relate to their cases.  The same holds true for any contracts, deeds, mortgages, promissory notes, leases or other documents that are relevant to their business transactions.  Moreover, clients should read their documents before they contact a lawyer.  Often many questions that clients have can be ascertained just by reading the documents that are in their possession.  Even more importantly, if the client has read his documents it will make the discussion with the lawyer far more fruitful.  Naturally, when reading legal documents, the client should be particularly mindful of any time deadlines that are involved and that are stated in the documents.  If any deadlines are near, a lawyer should be contacted immediately.  No one should wait until the last second because delay increases the possibility of error due to the lack of time for adequate preparation and planning.

 

Keep Your Own File and Keep Track of What’s Going On.

 

Most people fail to consider the benefits of setting up their own file at their home or office.  Doing this is desirable and necessary in order stay abreast of the case.  It also puts clients in a better position to review the case before testifying at trial or at a deposition.   As pointed out in the chapter that discusses trial and testifying, reviewing the file to refresh one’s memory can be absolutely critical to the success of any lawsuit.

 

Keep Track of the Money, the Bills and the Damages.

 

In your personal file you should keep track of all items of expense relevant to your case.  This includes copies of all of your legal bills, bills for expert witnesses, court reporters, investigators and any other bill relevant to your case.  This is extremely important for a variety of reasons.  It affects your pocketbook and will help you to better assess whether you want to settle a case prior to trial.  Moreover, if you get into a fee dispute with your lawyer having the bills would be helpful to you.

 

In this regard, you should be sure to keep all relevant insurance information.  In personal injury cases, for example, you should also keep copies of all medical bills, drug prescription bills and all medical records relating to your injuries.  Keep records of repair bills for property damage.  Keep copies of all relevant records from your employer regarding time missed from work because of your injuries.  If your lawyer is using tax records to establish your income, keep copies of those tax returns and records as well.  Naturally, you should provide copies of all of these documents to your lawyer as soon as possible.

 

Moreover, you should keep track of whether your insurance company has paid any money to your doctor, hospital and/or car repairman and if so, how much.  You should also keep track of whether the hospital and/or doctor will bill you for any services that have not been paid by insurance.  This seems obvious, but many people simply don’t do this.  Too often, especially in personal injury cases, the client will just sign a medical authorization form to permit the lawyer to obtain all medical records and bills and then just leave it to the lawyer to sort the situation out.  Do not do this.  Keep copies of all bills and records relevant to your case, including your doctor bills.  You should then study and understand them.

 

Also, if you have a plaintiff’s personal injury case, you should have your lawyer explain to you, in detail, whether any moneys paid on your behalf by your insurance companies (for example, by your health insurer, your automobile collision insurer or whoever) have to be repaid out of any recovery that you receive.  In other words, ask your attorney about what right your insurers have to subrogation.  Also, ask whether any hospitals, doctors, healthcare providers or other persons have any statutory liens that require that they be paid out of any judgment, pretrial settlement or other recovery.  These issues can have a substantial effect on the “net” amount that you can expect to receive out of any recovery.  In other words, if insurers have a right of subrogation or if statutory lien holders have to be paid, then the amount of recovery that you will receive will be less than you otherwise might expect.

 

In short, keep track of your financial situation.  What bills do you have outstanding?   How much has been paid?  If you win, will you be required to reimburse your insurance company for moneys they’ve paid on your behalf?   Similarly, will any unpaid doctor or medical bills have to be paid even if you lose your case?  If so, how much will you have to pay and to whom?   In other words, know what you owe and to whom!  Know who has made payments on your behalf.  Know who has already been paid and how much.

 

The foregoing is just common sense.  Nevertheless, many clients don’t do these things.  The point is that unless you have a firm and clear understanding of the overall financial situation surrounding your case, you cannot make rational decisions about it.  This includes important decisions such as whether to make or accept settlement offers.  Remember it’s your financial situation that is at stake.  Your lawyer is more focused on preparing for trial than in committing your financial situation to memory.  While lawyers typically do help you with these issues, this is ultimately your responsibility because you have to live with it.

 

War Story:  A young associate in a law firm once was assigned the dubious task of trying a case for a senior partner who, at the last minute, could not attend the trial.  The case involved an automobile accident, and the client, who was the plaintiff in the case, was seeking money damages for personal injuries.  It was a small case, but it was important to the client.  The client and the associate were virtual strangers to each other.  On the day before trial the associate spent what little time he had reviewing the facts and the evidence for the case and preparing for trial.

 

The next day at trial, during a recess, the defendant offered the client a cash settlement.  The client and the associate became immediately confused about whether the client was fully insured for all of his medical bills or whether the client had any outstanding bills.  There was even some confusion over whether the associate had received all of the client’s medical bills from the client’s doctors.  Moreover, there was additional confusion about any subrogation rights that the client’s health insurer might have to share in any judgment or recovery.   In short, the associate and the client could not ascertain what the client would “net” from the settlement offer.  Therefore, they were not in a position to make an intelligent decision regarding whether to accept the offer.  Nevertheless they had to make a decision quickly.

 

Unfortunately, they decided to reject the proposed settlement for fear of not being able to pay for any medical bills that weren’t covered by insurance.  The trial proceeded.  The judge rendered a verdict in the client’s favor but it was for less than the settlement that was proposed by the defendant during the recess.  Moreover, the amount of the judgment was not sufficient to pay all of the client’s bills and expenses.  Unfortunately, the defendant’s proposed settlement, if it had been accepted, would have been sufficient to pay all of these bills.

 

The foregoing war story illustrates how important it is for a client to know his own financial situation.  It also illustrates that a client should not exclusively rely on his lawyer for this purpose.  This is because it is the client who ultimately has to pay any unpaid medical and other expenses.  In addition, the client’s liability for these expenses affects his decision-making because it affects the amount of risk that he is willing to assume in going forward with the case.

 

Take Pictures.

 

Pictures are often an invaluable source of evidence because they help the judge and the jury visualize what happened at the time of the accident or the incident in question.  Often they say more than any words ever could.  Thus, it is often advisable to take pictures of the scene where the accident or the incident occurred.  If this is done, the pictures should be taken from various angles to show the relative sizes and distances of all relevant objects.

 

In personal injury cases, if you are the plaintiff, you should take pictures of all personal injuries along with pictures of yourself using any medical equipment or aids that have been prescribed for you.  You should also take pictures of any damage to your vehicle or property.  This can be important to show the direction and severity of any impact.

 

In construction cases, products liability cases, breach of contract cases and in any case where defective work, defective repair or a defective condition is alleged you should take pictures of the defective work or condition.  Naturally, it may be too late if the condition or the work has already been fixed, but if you have the foresight in a situation where things appear to be going wrong and headed towards a lawsuit, you should take pictures.

 

The list of the possible uses of pictures is endless and lawyers and clients alike should consider taking pictures or videos of anything that might be useful to their cases.

 

Keep in Touch With Your Lawyer.

 

As early in the process as possible, you should get your lawyer to thoroughly discuss the important issues that will have to be addressed in your case.  You should ask him to explain the legal principals involved and the specific evidence that you will have to produce at trial in order to get the most favorable result possible.  Ask enough questions so that the case and what has to be proven make sense to you.  Ask your lawyer what the tricky or dangerous areas or questions are.  Ask him to identify the questions that you should you look out for on cross-examination by the opposing attorney.  In other words, make your lawyer help you understand your case from top to bottom.

 

You should also call or contact your lawyer periodically.  While lawyers do not like to be called incessantly by clients who have no meaningful information to convey, it is your right to be kept informed about the case.  Moreover, it will keep your case in the lawyer’s mind and will tend to move the case along.  More importantly, it will make it less likely that a lawyer will inadvertently miss any filing deadlines for pleadings and discovery.

 

It is difficult to generalize about how often you should contact your lawyer.

A safe rule of thumb should be at least once every thirty days.  Naturally, if your trial date is approaching, you should probably be in contact more often.  It is strongly suggested that when you do call your lawyer that you take notes. This will help you keep a record and it will help you prepare for trial.  Also, it will avoid the necessity of having your lawyer explain concepts over and over again (which will help keep your legal bills down if you are paying hourly).  It may also help you to become familiar with the terminology that he’s using and it will also help you to understand your case better.  Finally, if he requests you to do anything you’ll have your checklist of things to do right in front of you.

 

You should also make sure that you contact your lawyer about thirty days before trial to make sure that he has the names and addresses of all witnesses and the names and addresses of any custodians of any documents that may be required to be put into evidence at trial.

 

It is a good idea in any case to contact your lawyer the day before any critical date, such as a trial date or a hearing date.   This will allow you to verify that you will appear.  This will also allow you to inquire if there is anything that you need to bring with you to the trial or the hearing.  Lawyers who handle a high volume of daily cases can sometimes inadvertently fail to schedule something through innocence or error.  They can even occasionally miss a hearing.  Contacting a lawyer helps to eliminate the risk of these errors.  It also provides the lawyer and the client with an opportunity to go over any last minute details or strategy.

 

Make Sure That Your Lawyer Always Knows How to Get in Touch With You.

 

Emergencies can arise necessitating prompt legal action.  For this reason, always make sure that your lawyer knows how to get in touch with you.  Always make sure that he has your current address and telephone number, both at work and at home.  If you move, let your lawyer know.  If you go on vacation, let him know how to get in touch with you.  Pleadings and discovery responses sometimes have to be filed or corrected at the last minute.  Sometimes settlement offers are unexpectedly made.  Other crucial matters can arise as well that require your immediate appearance or attention.  If your lawyer cannot contact you in emergency situations, it could seriously jeopardize your case.

 

Emergencies and the Need to Contact the Lawyer as Early as Possible.

 

In situations where a client wants the lawyer to start a lawsuit and obtain immediate judicial relief, the importance of quickly providing all relevant information and documents cannot be overemphasized.  Clients should be aware that is often very difficult for an attorney to get or to schedule “emergency” hearings before a court.  There are several reasons for this, including: (1.)  It is often difficult to schedule a time with the court to conduct an emergency hearing because of crowded court calendars; (2.) getting service of process on the opposing party and/or subpoenaing the necessary witnesses to conduct a hearing normally requires a certain amount of advance notice; and (3.) the attorney’s own schedule may have many conflicting dates on it.  In some cases, all of these potential obstacles can be overcome.  For example, in some instances, procedural rules do not require that the opposing party be given notice of a case if the party filing the suit only seeks a temporary restraining order or a preliminary injunction granting temporary relief.  Even in these situations, however, the lawyer must often at least attempt to notify the other party of the emergency proceedings and he must prove that the client has a strong likelihood of prevailing once a full trial is held at a later date.  Thus, the attorney must be able to present sufficient evidence very early in the case that client is likely to win.  This means that the attorney must have strong evidence and information at his disposal at the time that the suit is filed.  Clients should be aware, however, that even if the lawyer is successful in obtaining temporary relief, the parties will have to appear again and conduct a full trial, after full notice and opportunity to be heard is given to the opposing party.   Consequently, clients should consider the costs and the extra legal fees involved in requesting emergency and temporary relief in a case.

 

General Information Required in All Cases.

 

The sections that follow discuss the information that is typically required in certain types of cases.  Naturally, attorneys are likely to request the name, address and telephone numbers (day, evening and cell phone) of the client as well as that of his employer.  It should also be assumed that the client’s social security number (or tax identification number), date of birth and marital status will be requested as well.

 

What Happened? What Was the Sequence of Events?

 

Of course, the lawyer will want to know all of the relevant information about what happened.  In this regard, the time and sequence of events are very important, especially in litigation matters.  What happened?  When did it happen?  Most of the time a chronological explanation of the events is the most helpful.  This is because time and the sequence of events often play a critical role in determining the outcome of a case.  In other words, what happened first?  What happened next?  What happened after that?  Go step by step and try to be as detailed as possible.  Try to stick to the relevant facts.

 

Tell the Lawyer the Unfavorable Facts.

 

As noted above, before a client begins discussing any of the facts of his case, he should ask the lawyer about the attorney-client privilege and the lawyer’s duty to disclose perjured testimony.  In a criminal case, the client, if he is the accused, should also ask the lawyer about his Fifth Amendment privilege against self-incrimination and his right not to testify.

 

Having said this, lawyers want to know the bad news.  They are very interested in the facts that are not favorable to a client’s case.  Knowing the unfavorable facts is just as important as knowing the favorable facts.  If a lawyer is unaware of the unfavorable facts he cannot prepare for them at trial.   In other words, he will not have time to subpoena witnesses or documents that may lessen the effect of the unfavorable evidence.  Moreover, by knowing the bad news in advance, the lawyer is far more likely to devise a trial strategy that can minimize the impact of the unfavorable evidence.  Even if this cannot be done, knowing the bad news in advance permits any settlement negotiations to take place within a far more realistic framework and will probably allow the client to avoid incurring unnecessary costs and attorney’s fees.   In any event, there is nothing worse than being blind-sided with unexpected and unfavorable evidence during the course of a trial.  Many times this leads to unexpectedly bad results.  In short, a lawyer is likely to provide faulty legal advice and the outcome of the case is likely to be less favorable than it otherwise might have been if the unfavorable evidence had been disclosed to the lawyer in a timely fashion.

 

One of the best ways to communicate the unfavorable facts is to consider what the opposing party is going to allege or say at trial.  Who will the opposing party’s witnesses be?  What documents and tangible evidence will he rely upon?  What will the opposing party say on the witness stand?  A client should consider these questions and then tell his lawyer exactly what he expects the opposing party to do at trial.

 

The following sections are designed to help the client think about his case and make his consultations with the lawyer fruitful.  Hopefully, these sections will help clients provide their lawyers with as much relevant information about their cases as possible.

 

Civil Cases  (Personal Injury, Divorce, Breach of Contract, etc.).

 

In all civil cases, when contacting a lawyer, it is important to be able to answer the following questions:

 

1. What is the full and correct name and address of the opposing party? For clients who are plaintiffs, this information is necessary in order to obtain service of process on the defendant so that a lawsuit can be initiated.  It is therefore important to be accurate in providing this information in order to avoid delay and possible costly and time-consuming amendments later on.

 

2. What are the names, addresses and telephone numbers of the persons who actually saw the incident, accident or the alleged wrongdoing? This information is necessary in order to be able to subpoena witnesses.

 

3. If you are a defendant and have been sued, have a copy of the actual court papers served on you present when you contact the lawyer. Provide them to the lawyer.

 

4. If you’ve been sued, does the other party have a lawyer? What is the opposing lawyer’s name, address and telephone number?

 

After providing the lawyer with the above general information, clients in the particular civil cases should provide the additional information set forth below.

 

Personal Injury and Property Damage Cases.

 

Many of the questions posed in this section are phrased in the context of an automobile accident.  The questions, however, are often equally applicable to any situation where someone is hurt or killed in any accident.  This includes products liability cases, medical malpractice cases, slip and fall cases and even intentional tort cases such as assault and battery cases.  These questions even apply in situations where no one was hurt but property has been damaged.  Information regarding insurance of any kind is always highly relevant.  This includes any kind of liability, collision, hazard, health or accident insurance covering the injured person, the premises or the wrongdoer.  Naturally, information regarding damages, repairs and injuries will also be sought.  Copies of all repair bills, estimates and medical bills will always be requested even if insurance has paid for them.   Moreover, because the mere happening of an accident does not mean that one party will automatically prevail over another party, lawyers will always be keenly interested in any information relating to the negligence or fault of both of the parties (including the client).

 

1. When did the accident happen?  At what time?  On what date?

 

2. Where did the accident happen?  In what city, town or county?

 

3. What is the correct name and address of the other party?

 

4. What are the facts of the case?

 

5.    Always provide the name, address and telephone number of all persons who saw the incident or who saw the injuries.   What did they see and what will they say happened?

 

6. What were the lighting, road and/or weather conditions?  Where were the witnesses located?  Could the witnesses see and hear what was going on?

 

7. Were you or the other party on duty or at work when the incident occurred?  Who are the employers of both parties?  Employment information can be important because both the employer and the employee may be liable as defendants if the accident occurred while an employee (who is also a possible defendant) was on the job.  Also, the plaintiff’s employer is important because he may be required to provide information regarding lost wages.  Alternatively, if the plaintiff was on the job, the case may involve worker’s compensation.

 

8. Who are the relevant insurance companies of both parties?  This could be your automobile insurance policy, your homeowner’s insurance policy, your health insurance provider and any other policies that may provide coverage under the circumstances.  To the extent that you can provide policy and claim numbers, it is very helpful.  If you have this information for the opposing parties’ insurers it is also very helpful.

 

9. With respect to the insurance that is involved, how much coverage do you have?  Which bills have been paid by insurance?  How much has not been paid by insurance?

 

10. Is the injured person covered by health or medical insurance? If so by whom? With respect to health insurance, is the plan a self-funded employer or an “ERISA” plan?  Does the injured person’s automobile policy have a “med pay” or a “pip” provision?

 

11. The names and addresses of any treating physicians, dentists, chiropractors, physical therapists, and hospitals should be provided to the lawyer. The client should also provide the lawyer with any and all medical bills, including bills for prescription and over-the-counter drugs.  What ambulance or rescue company responded to the call?  If repairs have been performed on any property damaged in the incident, repair bills will be required.  This includes estimates of the value of any property that was damaged beyond repair or that was deemed to be a total loss.

 

12. Has the person who was injured been treated for any injuries or ailments that are similar to, or related to the injuries sustained in the accident in the past? If so, when?  By whom?  (In other words, the lawyer is always interested in knowing whether an injured person had a pre-existing condition that was similar or related to the injuries that he sustained in the accident.  This is because pre-existing injuries can raise serious issues at trial regarding whether the accident caused the injuries or whether they were pre-existing.)

 

13. In connection with the incident, were you or the other party charged with any traffic offenses or other crimes by the police? If so, what?  In connection therewith, did either party plead guilty in the criminal or traffic infraction proceeding or otherwise make any statements or admissions in connection with the case?

 

14. The lawyer will also want information regarding lost income caused by the injury. How many days of work did the injured person miss?  Was the injured person paid by the hour or was he on salary or commission, and if so how much?  Relevant tax information and/or verification of time missed from the job will be requested by the lawyer, including all supporting documents from the injured person’s employer.  Tax returns and pay stubs will also be requested to verify income.

 

15. What is the injured person’s prognosis for a full recovery? Will there be any limitations regarding the work or the jobs that the plaintiff can perform in the future?  What is the effect of the injuries on the injured persons earning potential in the future?

 

16. What evidence was there that either party knew or should have known of the danger of the situation? What did the plaintiff do that was wrong?  What did the defendant do that was wrong?  The mere fact that an accident occurred is usually not enough to win a lawsuit.  In most cases, the person who is being sued (the defendant) must have been guilty of some negligence or fault in order for the plaintiff to prevail.  Did anyone, including the injured person, have knowledge of any danger or problem before the accident occurred?  If so, what prior knowledge?   When did he have it?   Information regarding the fault of the injured party (that is, the plaintiff) is also relevant to possible defenses such as the plaintiff’s contributory (or comparative) negligence and/or the injured party’s assumption of the risk.  These defenses can often preclude recovery by the plaintiff.

 

17. What statements did you give to the police, to the other witnesses, to the opposing party, to insurance adjusters, to nurses, doctors or the rescue personnel? Include any statements made about either the accident or any injuries sustained.

 

18. What statements about the accident or any injuries did the opposing party make to any of the people listed in the previous question?

 

19. Are there any pictures of the scene of the accident, of anyone’s injuries or of any of the damage done? If so, who has them?  Can pictures still be taken?  If so, it’s probably a good idea to take them.

 

20. What did each witness say happened? To whom did they make these statements?  Who are the witnesses that can testify as to any damages or injuries?  What will they say?

 

21. For each hospital, doctor, chiropractor or other medical professional consulted, a description should be provided to the lawyer of the nature of the treatments received and how often they were received. Was any prescription medication prescribed and, if so, what?   Was the injured person given crutches or put in a neck-brace?  In other words, what medical aids or devices was the injured person given?   With respect to each medical professional, has treatment been terminated?  If so, when?   What is the prognosis for full recovery?  How long will medical treatments continue?

 

22. Who is in possession of any physical evidence? Where are the vehicles that were involved in the accident?

 

Divorce, Child Custody and Support Cases.

 

Most of the questions below apply to divorce cases.  Many also apply to contested child custody and support cases.   The amount of information that a lawyer will need, however, will depend on whether the case will be a contested case.  In uncontested divorce cases where the parties have already agreed on all property settlement, support and custody issues the lawyer will probably not need some of the more detailed fault-related and financial information set forth below.  If, however, the parties are contesting alimony, child support or property settlement then more information will be required.

 

1. What is the full name (including the middle name) and address of the spouse or the other parent?  Include the name of the actual city or county where he or she lives (not just the city or county of their mailing address).

 

2. What was the date of the marriage (in divorce cases) and where were you married?  Be specific in giving the state and the actual city and county where the marriage occurred.

 

3. What are the maiden and all previous names of the parties?

 

4. What are the social security numbers and dates of birth of the husband, the wife, (or the father and the mother) and of all of the children?

 

5. What was the address of the last place where the parties lived together or cohabitated?   In divorce cases, have the parties separated, and what was the date of their separation?

 

6. What are the names of the employers of the husband, the wife and/or both parents?  How long has each spouse or parent worked for each employer?

 

7. How much income do you and your spouse make collectively and individually?  The same question should be answered for both parents in a child support case.  Does either spouse or parent receive significant rental income, dividends, interest, business or other income?  If so, how much?  Is either of the parties self-employed or employed part-time, and if so, how much does he or she earn?   Income from any and all sources should be considered.  Also, copies of recent tax returns and pay-stubs are often very useful and may eventually be subpoenaed in contested cases.  The lawyer will probably be interested in at least a two or three year income history.

 

8. In divorce cases detailed information should be presented regarding the value of any home and the value of any other assets or property that are owned by either or both of the parties.  In this regard, the lawyer will be interested in obtaining information on any pension plans; retirement plans; IRA’s; profit-sharing plans; stocks; bonds; mutual funds; certificates of deposit; other real estate; checking and savings accounts; insurance policies and all other assets of either or both of the parties, whether held alone or jointly with the other party.  The lawyer will also be interested in specifically knowing who owns each piece of property — the husband, the wife or both.

 

9. Detailed information regarding any debts should also be provided.  This includes the name of any holder of any real estate mortgage and the outstanding balance of any first, second or other mortgage, including any equity lines of credit.  What is the regular monthly payment on these obligations?  Who is on the title or deed as the named owner of all pieces of real estate?  This same information will be required for all lien holders on all motor vehicles. The lawyer will also be interested in knowing a considerable amount of information in divorce cases and child support cases about the debts owed by both parties.   Thus, the lawyer will want to know the relevant names, value, account balances and/or amounts and account numbers of all of the following with respect to both spouses and/or parents: Credit cards; personal loans; doctor bills; student loans and other debts.  This includes any judgments and loans from friends or relatives.  In other words, the lawyer will be interested in determining how much total debt either or both parties have and the amount of their respective monthly payments.  Care should be taken to note whether each debt is a joint debt or whether it is the debt of only one of the parties.

 

10. What are the living expenses of both of the parties? This can be particularly important in contested divorce cases or if child support or alimony is in question.  In other words, what are both parties paying in rent (or in mortgage payments)?  What do both parties pay for utilities, telephone, internet service, food, medical care, clothes, car repair, car insurance, dry cleaning, daycare, tuition, club memberships, health insurance and other regular living expenses.  An attempt should be made to be as complete as possible in assessing all of the expenses of both parties.  Naturally, all of this information is not always readily available for the opposing party but at least a good faith effort at estimating these expenses should be made.

 

11. Information regarding the level of education of both of the parties, including educational degrees and professional licenses or certificates held by either of the parties should also be provided to the attorney. Were any of these licenses or degrees obtained during the marriage or through the support of the other spouse?

 

12. Is there any expectancy that the children will go to college? Will either of the parents pay for college?

 

13. Who is carrying health insurance on whom? Are the children covered?  What is the ability of the other spouse to obtain comparable or cheaper insurance through his or her employer?   Is there any life insurance and, if so, how much?  Who is the beneficiary thereof?

 

14. What motor vehicles do the parties own? What are the loan balances on any vehicles?  What is the present fair market value of all vehicles owned by the parties and what is any relevant monthly payment?  Who is on the title to each vehicle?   Who carries insurance on these vehicles?

 

15. What property was owned by each spouse prior to the marriage? Were the moneys or funds of one party disproportionately used to buy real estate or other property held in joint or in both spouse’s names?  Was any property that was separately owned by only one spouse commingled with any jointly held property?

 

16. What property, if any, was acquired by either spouse by gift or inheritance from friends or relatives during the marriage?

 

17. Does either spouse pay or receive alimony or child support on account of a previous marriage or relationship? If so, how much and how long will this continue?

 

18. What caused the marriage to fail? Is there any evidence of adultery, cruelty or abandonment by either spouse?   In other words, were there fault grounds for the marital dissolution?  Some states require that the grounds for divorce be corroborated by a third-party witness, otherwise a divorce will not be granted.  This sometimes makes it difficult to obtain a divorce on “fault” grounds because the evidence of fault (such as adultery and cruelty) usually occurs behind closed doors and outside of the presence of independent witnesses.  On the other hand, no-fault divorces normally require a separation for only a certain period of time which can be easily proven by independent witnesses.  If fault grounds do exist, when did the fault occur and did the husband and wife continue to engage in marital relations after the fault grounds were discovered by the innocent party?  This information is important because, in some states, sexual relations after the grounds for divorce were discovered by the innocent party can constitute the defense of condonation which may prevent a divorce from being granted.

 

19. What about day care for the children? How much does daycare cost and who pays for it?   When do the children go to daycare?   Who drops them off and who picks them up and when do they do so?

 

20. Do the children have any unusual medical expenses? If so, for what ailment or condition?  How much do the treatments cost on a monthly basis?

 

21. What do both parties want or demand in terms of alimony, child custody, child support and in terms of the division of their property and debts? Will the marital home have to be sold?  Who will live there?  Who will pay the mortgage?  How will the equity in the home be divided?  Who will get the family vehicles?  Who will maintain insurance on the vehicles and make car payments?  Does either party want a share of the other’s pension or profit sharing plan?  If so, how much?  Knowing the desires of the opposing party is important for settlement negotiation purposes.

 

22. Do either of the parties have a criminal record, use illegal drugs or otherwise create a bad home environment for the children? If so, why and how?  What independent witnesses are there to these facts?

 

23. In child custody and contested divorce cases, who will the witnesses be? Who actually saw or can testify as to what happened between the parties?  What are their addresses?  What did they see?  Who has first hand knowledge of any evidence of any bad parenting by either party?  Did anyone, other than either of the parents, see either of the parents using drugs in the presence of the child?  Did anyone, other than either of the parents, see either of the parents engage in any act of physical or mental abuse of the child?  What independent evidence is there that either one or both of the parents do not care for the child when they have physical custody of the child?   What independent evidence is there that one parent or the other does not provide medication for the child or feed the child properly?  There is usually a presumption in the law that both parents should have access to and should care for the child.  Again, bad parenting usually occurs behind closed doors and many times the case will boil down to one parent’s word against another’s.  Moreover, many times the courts and/or the parents are hesitant to have the children testify in a child custody case.  Thus, bad parenting can be difficult to prove.  For this reason sometimes courts order or permit the appointment of a guardian ad litem or a “home study” wherein a court sponsored agency or person visits the home of both parents to make a recommendation regarding custody and visitation.  The court may or may not accept the recommendations of these guardians or the results of these studies.  It must be remembered that the court is primarily concerned with the best interests of the child.  It will try to determine who will provide the best environment in which the child should be raised.  The court is less interested in the parties’ opinions regarding who is a good person and who is a bad person unless it can be shown that the child will be subjected to the misconduct of either of the parents.  In any event, even if a parent is not granted custody, unless there is a good indication that he or she has a bad influence on the child, the non-custodial parent is usually granted reasonable visitation given the schooling, daycare, employment requirements and the geographical location of the parties.  Visitation for the non-custodial parent under normal circumstances includes at least some period of extended visitation during summers and the granting of visitation (usually overnight) on alternating weekends and holidays.  Visitation is also often granted on at least one school night.  Naturally, if the parents are getting along they can agree to “liberal” visitation and work any daily visitation out among themselves as they see fit.  The non-custodial parent is usually restricted to supervised visitation (with another adult present) only if the non-custodial parent is a potential threat or bad influence on the child.

 

24. Normally, copies of all prior child custody and child support orders, separation agreements and divorce decrees will be requested by the lawyer.

 

25. In child custody cases, courts will be interested in information concerning the employment schedules of both parents as well as the child’s school or daycare schedule.

When do both parents go to and leave work?  When do the children go to school or daycare?  When do they come home?

 

26. In child custody cases, courts will also be interested in the home environment of both parents.  Does either of the parents live with other people?   If so, who?  Is any other person who lives in the same home as the child also the boyfriend or girlfriend of one of the parents?   How many other children live in the child’s household?   How many bedrooms are there in the child’s household?  Does the child share a bedroom with a brother or sister of the opposite sex?

Courts often try to avoid giving custody to a parent who is living with out of wedlock with a boyfriend or a girlfriend.  Courts also often try to avoid over crowded living conditions particularly if children of different sexes will live in the same bedroom.  In this regard, it must also be asked:  What are the living arrangements of the parent who does not normally have the child?  What school district does the mother live in?   What school district does the father live in?   In other words, where is the child the most likely to get the best education?  How long has the child lived in the neighborhood of the parent who has taken care of the child?  Where do most of the child’s friends live?  Again, the best interests of the child is the key.

 

27. Often report cards of the children are important in child custody cases because they are evidence of how well a child is doing in his present environment. Thus, a lawyer may well request them. What sports, clubs or other activities does the child engage in where he currently lives?   Is there any other evidence that he or she is doing well or poorly in his or her present environment?

 

Breach of Contract, Broken Promise and Misrepresentation Cases.

 

These cases involve situations where the parties have entered into some type of relationship based upon a promise or a representation.  These promises or representations can be in writing or they can be orally made.  They can also involve fraud or misrepresentation, such as where a person makes a false statement inducing another person to enter into a contract.  Landlord-tenant cases, construction contracts, contracts for the purchase or sale of real estate and contracts for the sale of goods or services can also be involved.   Employment cases can also be included, especially if there is a written employment agreement.  Employment cases can also be included in this discussion if there is an employee handbook or a set of established grievance procedures.  Even suits between property owners that are based upon restrictive covenants found in deeds, homeowner’s association rules and the like can be included in this category.  In short, the list of these types of cases is long.  In these situations, the lawyer is going to be interested in at least the following kinds of information and documentation:

 

1.   The names, addresses and telephone numbers of the opposing party and his lawyer if he has one.

 

2. Copies of all written contracts, agreements and documents that deal with the rights and responsibilities of the parties. Naturally, all amendments, as well as any changes and additions to the contract will be requested as well.   Often these agreements refer to or incorporate other agreements and documents.  Copies of the other agreements and documents that are incorporated into the contract will also be needed.  This includes, for example, plans and specifications in a breach of construction contract case.  Another example, in an employment case, would be the employee handbook or manual containing any applicable employee grievance procedures.  In cases where real estate is involved, if a closing has occurred, the lawyer will probably request copies of every document that was executed or delivered at the closing.

 

3. Naturally, copies of all letters and correspondence relating to the relevant contractual provisions in controversy will be needed. This includes any letters that were sent back and forth between the parties that reflect the negotiations prior to entering into the contract.  This is particularly true in fraud and misrepresentation cases.

 

4.   The lawyer will also request any letters or correspondence wherein one party notified the other party of either the potential breach of contract or that a problem or controversy was brewing.

 

5. If the case is based upon an oral promise or an oral misrepresentation, the names, addresses and telephone numbers of any person who heard or witnessed the promise or representation will be needed.

 

6. The names, addresses and telephone numbers of any witnesses who saw the acts or the evidence of any breach of contract or of the fact of the misrepresentation will be required.   Did anyone see the defect before it was cured, repaired or finished?   Are there any witnesses to any defective or satisfactory performance of the contract, and if so, who are they?   What are their names, addresses and telephone numbers?

 

7. Is there any tangible evidence of any defective or satisfactory work done?   Have any pictures been taken?   Can they be taken?  Are there any tangible items or physical evidence?

 

8. Was anyone hired to fix or cure the defective work or the defective performance of the original contract?   How much did it cost to complete or to correct the defective performance?  The names, addresses and telephone numbers of these people as well as copies of any repair bills or the bills to correctly complete the performance of the contract or the agreement will be requested.   In this regard, it is also very important to provide any and all documents that support or that refute any claim for damages.  This is because courts do not grant awards for monetary damages unless there is adequate proof thereof.

 

9. Did one party give the other notice of the defect, breach of promise or misrepresentation and an opportunity to cure it?   If so, when and what evidence is there of this?  (Many times contracts require that before a breach of contract can be declared that the party who wants to declare the breach provide the breaching party with a notice of the breach and an opportunity to cure it.)  The same questions also should be considered for the reverse situation.  Were any notices of breach (whether written or oral) given by the opposing side?   Naturally, any documentation of the foregoing should be provided to the lawyer.

 

10. Is there any evidence of “waiver”? Waiver is a defense to a breach of contract case and, as such, will thwart recovery by the plaintiff.   In other words, did either of the parties permit late payment or the defective performance of the contract in the past and not complain?   In short, did the parties allow similar things to happen in the past and not complain?  If similar things did happen, was anything ever done about it, or did the parties just continue with the contract or the agreement as if the breach or the broken promise did not occur?  How often did that happen?  Who would have knowledge of such incidents?

 

11. All documents relating to any record of past payments made or past payments received pursuant to the contract will usually be requested. This may include cancelled checks or check ledgers.  Often these documents are necessary to calculate damages.

 

12. What will the opposing side say happened? What will their version of the facts be?    What evidence or witnesses will they have?   What will they say regarding any amendments to or any changes or additions to the contract?  Is there any evidence that the plaintiff (the party suing) was himself guilty of a breach of contract?   If so, what evidence is there of this?  Was the contract ever terminated by either of the parties before the alleged breach?

 

Bankruptcy Cases.  [Please note: the Bankruptcy laws have changed since this was written in 2003, so check with your lawyer but most of what follows still applies.]

 

In situations involving spouses, one question that will arise is:  Do both spouses want bankruptcy protection?   If so, then all of the following questions will have to be answered with respect to both spouses.  In other words, all assets, liabilities, income and expense information will have to be broken down and provided for both.  In any event, the lawyer will want to know:

 

1.    The city or county in which the client resides or does business.  How long has the client been there?

 

2. The names and birth dates of all dependents living with the client.

 

3. Is the client or the spouse a veteran?

 

4. Has the client ever filed a bankruptcy before?  If so, where and under what chapter of the bankruptcy code?  When did the client file that bankruptcy and when did he or she receive a discharge?  (The client should forward to the lawyer copies of the petition and the discharge order.)  In joint husband and wife cases this question, like all others, has to be answered for both spouses.

 

5. A list of all maiden names, aliases or other names used by the client in the last six years will be required.

 

6. A list of all of the client’s addresses and dates of residence over the last three years will be required.

 

7.    The names and addresses of all employers over the last three years (including part-time employers).  If the client has been self-employed he should so state. Alternatively, if he is a partner or shareholder in a closely held business he should let the lawyer know this as well.  He should also tell the lawyer how he is paid.  Is he paid in dividends, salary, net profit or how?

 

8.    The annual income of the client during each of at least the last three years should be stated.

 

9. The lawyer must prepare detailed schedules setting forth the following information.  Therefore, you need to provide detailed and itemized lists of the following:

 

• All of your assets (namely, a list of all of the property that you own). You must list an asset even if you hope or intend to keep the asset after the bankruptcy.  Failing to disclose any assets could be a crime and could also be the cause for the denial of bankruptcy relief.  Anything that you own or have an interest in is an asset that must be listed.  This includes, but is not limited to, all real estate, furniture, clothes, jewelry, motor vehicles, appliances, boats, stocks, bonds, mutual funds, retirement plans, IRA’s and other property.

 

• All of your liabilities and debts. You must list all of your liabilities and debts regardless of whether they are secured or unsecured, regardless of whom you owe the money to and regardless of whether you intend to repay the creditor after the bankruptcy. Be sure to include past due taxes, student loans, alimony, child support, fines and debts that you owe to friends, relatives or to anyone else.  Include all car and mortgage debts, credit card bills and medical bills.  The list is of possible debts and creditors is infinite, but it is important to note that a creditor is anyone that claims, or that may claim, that you owe him money.  This is true even if you dispute the legitimacy of the claim and do not think that you owe the person any money.  These contingent creditors must, nevertheless, be listed as liabilities. Creditors also include anyone that has sued you regardless of whether or not they have obtained a judgment against you.  Creditors even include someone who the client thinks may sue him.  Naturally, include any creditor that has obtained a judgment against you as well as those who have garnished or attached your wages.  In short, include every debt that you think someone else may say that you owe.  It is often very helpful to obtain a copy of your credit report and to provide it to your lawyer.

 

• All of your income from every source, regardless of whether it’s self-employed income, including all wages, salaries, commissions, bonuses, dividends, interest income from investments, rents and any other income must be listed. Usually income should be stated on a monthly basis.  Let the lawyer know what comes out of your paycheck every month for taxes, social security, to fund a retirement plan or whatever.  If you get overtime, what do you typically make in a month on average?   It’s not good enough to say that it varies.  Figure out what you earned in a year and divide it by twelve to obtain a monthly average.  Often the lawyer will request a copy of your pay stub.

 

• All of your expenses must be listed, usually on a monthly basis. Your expense statement should be very detailed. What do you pay for rent, the mortgage, your automobile, your automobile insurance, food, life insurance, health insurance and dry cleaning?  What do you give to your church?   What do you spend on entertainment, newspaper subscriptions, cable television, Internet service, doctor bills, car repair and prescription medication?  Everything should be listed.  If the expense is incurred only periodically then take what you typically spend in a year on that item and divide it by twelve for a monthly average.

 

10. With respect to each asset, the lawyer will have to know if it is jointly owned between husband and wife or if any third party or trust is involved.  In other words, who owns each asset?  Also, are any assets leased?   If so, who is the lessor and what are the terms of the lease?

 

11. With respect to each and every asset or piece of property that you own (for example, all real estate, cars, trucks, furniture, bank accounts, stocks etc.) the lawyer will request that you provide your best good faith estimate of the fair market value of that asset as of the date that you intend to file your bankruptcy. (This is the present fair market value, not its value when it was new.)   In other words, what would you get for that asset or property if you sold it today in its present condition?  The lawyer will also want copies of evidence substantiating the value of real estate and motor vehicles.  This includes copies of the “blue book” value of all of your motor vehicles and copies of recent real estate tax assessments or recent real estate appraisals.

 

12. With respect to all real estate that you own (including your home), you should provide your lawyer with a copy of your recorded deed and with a copy of all recorded mortgages or deeds of trust that currently are held on your property by lenders. You should also provide him with payoff statements from all lenders, banks and mortgage companies that have financed or that have a lien on your home or any other real estate that you own.  This includes second mortgages and equity lines of credit.  This is true regardless of whether you intend to keep the property after the bankruptcy or not.

 

13. The same holds true for all motor vehicles and all other assets or property that you own on which a creditor holds a lien securing the repayment of a loan. A copy of a title or a lien verification should be obtained from the department of motor vehicles along with a copy of any loan payoff applicable to those vehicles from the applicable lender.

 

14. You will also need to provide a list of all checking and savings accounts, as well as a list of all stocks, mutual funds and accounts held at securities brokerage firms or other financial institutions. Include account balances or values and account numbers.  Also you should state who holds these assets. (Copies of your most recent statements are helpful.)  The same information must be provided for all retirement accounts, pension plans, profit sharing plans and IRA’s.  Moreover, this same information must be provided with respect to all annuities and/or life or other insurance with a cash surrender or loan value that the client owns.

 

15. The lawyer may also require copies of any leases that you have or at least the name and address of the lessor and the date of the lease and its expiration date.

 

16. Are you entitled to any kind of tax refund? If so, from whom and how much? The lawyer will ask if you are owed any money by any third parties including any trusts or estates.  He will also ask if you are suing anyone?  If so, he will want to know the amount that you claim that you are owed, who owes it, his address and other relevant information.

 

17. If a lawsuit, judgment, garnishment or other creditor collection action has been obtained or brought, the client should provide the lawyer with the name of the party bringing the action, the date that the judgment or garnishment was entered, the case number, the name and location of the court issuing the judgment or garnishment and the amount of the judgment or garnishment. Also provide the name and address of any garnishee.  The lawyer will request that you give him copies of these documents.  Similarly, if any foreclosure is being threatened, the name of any creditor, the issuing court and/or the name and address of any foreclosure trustee will be requested.

 

18. The lawyer may also request information concerning property that any creditors have seized from you in the past two years.

 

19. With respect to each and every creditor, the client must carefully inform the lawyer of that creditor’s address and the account number of the debt. Creditors who are accidentally left off of the schedule may not be affected by the bankruptcy. Unlisted creditors and creditors not receiving notice of the bankruptcy may not be discharged.  Thus, collection activities will not stop with respect to unlisted creditors or with respect to creditors who have not received notice of the bankruptcy.  Therefore, it is extremely important that creditor address information provided by the client to the attorney be correct because creditors are given notice of the case by the Bankruptcy Court based upon the addresses that clients supply to their attorneys.

 

20. With respect to each creditor listed, the client must provide the attorney with

the total amount that is owed on the entire debt (the entire remaining account balance); the regularly scheduled monthly payment amount and any arrearages (or the amount behind that the client is).

 

21. With respect to each creditor, the client must inform the lawyer of whether the creditor is “secured”. Secured creditors are creditors that have a lien on property.  Examples include, mortgage companies and companies financing cars and/or motor vehicles.  Many consumer finance companies have secured liens on items such as furniture, especially if the item was purchased on credit.  If the creditor is secured, the client must tell the lawyer which item of property constitutes the collateral for that debt.  The client should provide the lawyer with any note, security agreement or loan documentation with respect to these secured creditors. [Sometimes, if a client wants to retain property (such as his home or car) that is subject to the claim of a secured creditor, the client may have to enter into a reaffirmation agreement with that creditor, especially if the client is delinquent on the account. The client should question the attorney about the necessity and the desirability of this.]

 

22. If the client has tax liabilities, the client should provide information regarding the type of tax liability (income tax, sales tax, withholding tax, employment trust fund taxes, etc.) and the years for which those amounts are owed. Certain taxes may be dischargeable in bankruptcy while most others are not.

 

23. With respect to student loans, the client should advise the lawyer as to whether those loans were in any way funded or guaranteed by any governmental agency or whether they are HEAL loans (Health Education and Assistance Loans). Again, certain student loans may be dischargeable while most others are not.

 

24. The lawyer will also want to know whether you have paid any creditors more than what they typically would have been paid in the last year. Did you prepay, in whole or in part, any loans or credit cards during that time?  If so, to whom and how much?

 

25. You should also inform the attorney of whether you have used any credit cards or borrowed any moneys in the six months immediately preceding the date that you intend to file the bankruptcy. If this has occurred, who were the creditors, how much was borrowed and why was this done.

 

26. You should also consider what items you would like to “exempt” (or keep) and what property you want to turn over to your creditors. This will require a discussion with the attorney regarding the appropriate exemptions that you have and/or your rights to cure and/or reaffirm debts.

 

Criminal and Traffic Cases.

 

In many instances, especially if the defendant was taken into police custody and held in lock-up, the defendant will be taken before a judge or a magistrate before the close of the following business day.  Under these circumstances, it is very important for the defendant to pay close attention to what happens so that he will be better able to provide the lawyer with the following information.   (As previously noted, when first calling the lawyer, the client should ask his lawyer about attorney-client privilege, the lawyer’s duty to disclose perjured testimony and the client’s right not to testify.)   In any event, the client should be prepared to answer the following questions when he contacts his lawyer.

 

1. What offense is the client charged with?  Is it a felony or a misdemeanor?  If there is more than one charge the client should inform the lawyer as to the nature of each charge.  Naturally, the client should also provide the lawyer with copies of all warrants, summonses, indictments, bond papers and all other court papers that they have been given.

 

2. For each charge, what particular section of the criminal code is the client charged with violating?  Is it a felony or a misdemeanor, and if so, what class?  (This information will usually be contained in the warrant, summons or indictment.)

 

3. Is the client in jail or lockup?  If so, where?  (Some cities and counties house criminal defendants at several locations.)

 

4. Has the client been released on bail or bond?  If so, how much is the bond and is the bond secured by a commercial bondsman?  If no bond hearing has yet been conducted, how much can the client afford to pay for a bond?  (Perhaps, the amount of the bond can be negotiated with the prosecutor.)  Is anyone available to take custody or responsibility for the client if he is released on conditions prior to trial?  If so, who?

 

5. Has the client already been to court?  When?   What was the purpose or reason for that hearing?  What happened at that hearing?

 

6. When is the next court date and time?  What is the purpose of that hearing?  Is it for arraignment, preliminary hearing, trial or just to let the judge know that the client has a lawyer?

 

7. At which court is the client to appear next?   In what city, county or location? (Many times criminal lawyers will be appearing several different courts in a given day and this is necessary scheduling information.)

 

8. What is the client’s prior record of criminal and/or traffic convictions?  Be sure to include convictions from other jurisdictions and states.  This is very important information because the defendant’s prior record affects the lawyer’s ability to plea bargain.  This is because a defendant’s prior record will affect sentencing if he is convicted.  It also affects the lawyer’s advice as to whether or not the defendant should testify on his own behalf at trial.  Lawyers cannot always get instant access to this information and clients in criminal cases can assist their lawyers by getting copies of their criminal records from the state police.  In traffic cases they can get copies of their traffic records from the department of motor vehicles.

 

9. What are the names, addresses and telephone numbers of all persons who have seen the incident or who have information that might help or hurt the client’s case?  This includes all persons who were present when the alleged crime occurred.  It also includes all persons who were present when the arrest took place as well as all persons who were present when any search or seizure of any evidence took place.  In cases where the client claims that he was somewhere else at the time of the alleged crime (and therefore has an alibi defense) it also includes those people who can, based on first hand knowledge, establish that the defendant was somewhere else at the time of the alleged crime.

 

10. What is the name of the victim? What was the nature of any injuries that he or she sustained?  Were there any cuts or bruises?  Was any property damaged?

 

11. What is alleged to have happened? Was the defendant acting in self-defense or in defense of his property? Who did what to whom first?  What was the chronological sequence of events?

 

12. Where and when did the alleged crime happen? What time was it when it took place? The same information is needed regarding any search or arrest conducted by police.  Were there any eyewitnesses?  Was it light or dark?  What was the ability of the witnesses to see and/or hear what was happening?

 

13. What are the names of the investigating detectives and police officers? When did they arrive at the scene?   Why did they arrive at the scene?   Who originally called the police?  Why?

 

14. What statements did the client make to the police? When these statements were made, was the client first advised of his right to remain silent, that he had a right to a lawyer and that if he could not afford a lawyer, that one would be appointed for him?   Was he advised that anything that he said could be used against him?   In other words was he advised of his “Miranda rights”?   If so, when was he advised of his Miranda rights?  Was it before or after he made any statements to police?  Was the client advised that he was arrested before he made any statements to police?   If not, did the client feel that he was free to leave police questioning at any time, and if not, why not?

 

15. Are there any co-defendants charged with this crime? Who are they?  Who are their lawyers?  Have they been scheduled for trial on the same day?

 

16. Was any incriminating evidence recovered or taken by the police? If so, what?  What areas did the police search?  Was there a search warrant when this evidence was obtained?  If there was no search warrant, did the client consent to the search?   If there was no warrant, had the client been advised that he was under arrest before this evidence was obtained?  Did the police take a blood, urine, breath, hair or some type of DNA sample?

 

17. In driving while intoxicated cases, did the police issue any certificate regarding blood alcohol content? A copy of this should be provided to the lawyer.  Detailed questions will also be asked about any field sobriety tests taken.  How did the client do on these field sobriety tests?

 

18. Who would be good character witnesses on the client’s behalf? What are their names and addresses?  What would they say about the client’s character?

 

19. Was the client taking or under the influence of any alcohol or any illegal or prescription drugs at the time of the incident? What?  Who was his treating physician?  When was any drug or prescription medication last taken before the alleged crime?  How much was taken?

 

20. Has the client ever been treated for any mental illnesses or mental disorders? If so, what and who was the treating physician, psychologist, psychiatrist or other treating health care professional?  What treatments or medications was the client given for his mental disorder?

 

21. How was the accused identified by the victim? Was there a police lineup or a photographic identification?

 

22. What happened at the time of arrest? A detailed description of the circumstances surrounding the arrest should be provided to the lawyer.  Was there an arrest warrant or a search warrant?   Why was the client stopped and/or arrested by the police?

 

23. Did the client do anything to antagonize the arresting police officer? If so, what?

 

24. In many drug distribution and sexual solicitation cases, informants and undercover police officers are involved. Who are they?  Who said what to whom and when?  Who had the original idea to commit the act that got the client into trouble?

 

25. Was any weapon involved in the alleged crime? This includes, sticks, toy guns, or anything that may be perceived as a weapon by another person.  If so, what was it and how was it used?

 

26. What is the victim’s version of the alleged crime?

 

27. What will the police say happened?

 

The Client’s Right to Know.

 

The client is the employer and the lawyer is the employee in the attorney-client relationship.  This means that the client is the boss.  Nevertheless, sometimes for tactical or other reasons, the lawyer will disagree with what the client wants to do.  The client, however, is always entitled to know what the client’s options are and to choose any legally permissible option regardless of what the lawyer’s opinion is.

 

Lawyers, however, are not slaves or miracle workers.  They cannot achieve results that the law and the evidence do not permit.   Nor can lawyers do things that are not permissible under the law or the applicable rules of ethics by which the lawyer is bound.  For example, lawyers are not allowed to file pleadings and motions in bad faith merely for the purpose of delaying the case or in order to harass someone.  Thus, a lawyer who is requested to undertake any unethical activities by the client must decline to do so.

 

Despite these limitations, clients do have certain rights.  Perhaps one of the most important rights that they have is the right to know what’s happening.   In this regard, clients have a right to ask their lawyers about the various procedural hurdles that they will face during the course of their case.  For example, a client has the right to know the answers to questions such as:  Can either party demand a trial by jury?   Can either side engage in any formalized pretrial “discovery”?   If so, how costly or lengthy will it be and what kind of evidence can be obtained?   Are any pretrial motions likely to be filed?  How costly will they be?  What are the applicable deadlines for any pretrial motions?   Will any experts be needed?   How much will expert witnesses cost and who will pay for them?   How long will it take to find an expert?  How long will it take before the case goes to trial?

 

If the case is a criminal case, the client should also inquire as to his right to remain silent.  He also has a right to know whether he has the right to a preliminary hearing and what, if any rights he has during any grand jury proceedings.  He should also inquire about whether any tangible items, test results, confessions or statements obtained by police can be excluded from evidence on the ground that they were illegally obtained or seized.   In addition, criminal and traffic clients also have a right to know (and they should be advised) as to what possible sentence, penalty or fine they may receive at the conclusion of the case.

 

The client also has a right to know about the financial arrangement that he’s about to enter with his lawyer. Written fee agreements are always desirable if not absolutely necessary.  In this regard, the client and the lawyer should discuss fee agreement possibilities and specifically talk about how litigation costs and the attorney’s out-of-pocket costs will be paid.   These costs primarily include any expert witness fees and court reporter fees.  Filing and other fees and costs can be incurred as well.  These issues are discussed in further detail in the chapter of this book that discusses fee agreements.   In any event, an early and thorough discussion of attorney’s fees and costs is necessary to avoid potential attorney-client conflict in the future.

 

Finally, and perhaps most importantly, a client should ask his lawyer what his assessment of the probable outcome of the case is.   He should then follow this up with questions designed to obtain some sense of how certain the lawyer is of his assessment.  Having said this, it must be emphasized that the lawyer’s assessment of the probable outcome is very dependent upon the quality and completeness of the information given to him by the client and is subject to change if new facts come to light.  Moreover, in a litigation matter, a lawyer can never guarantee any particular result or outcome for a case.

 

It should be stated here that once a case has started, clients sometimes get disenchanted or impatient because things seem to take too long or cost too much.   Sometimes clients who were originally enthusiastic about aggressively pursuing a case change their minds.  They do this for a variety of reasons.  Under these circumstances, if a client wants a lawyer to take a different approach or to achieve a different result, this should be immediately communicated to the lawyer.  The client is always free to change his mind regarding what his ultimate goal is in the case.  This is particularly true in settling or plea bargaining either civil or criminal cases in order to avoid going to trial.

 

For example, suppose that a client has a personal injury case.  Suppose further that the client was initially in great pain and that he thought that he was going to be out of work for many years.  Therefore, when he originally brought suit he genuinely thought that he was entitled to a $1 million judgment.  Thus, when he brought suit he sued the defendant for this amount.  Suppose, however, that after six months he felt a little better but also found himself to be in dire financial straits.  If this happens, and if the client so desires, the client is perfectly entitled to instruct his lawyer to settle for an amount that is less than he originally sought.  Moreover, he is entitled to instruct his lawyer to make a settlement offer and/or to accept a settlement proposal made by his opponent even if his lawyer disagrees with doing so.

 

Clients are also entitled to copies of all correspondence, pleadings and court orders that are relevant to their cases.  They should request copies of these documents from their lawyers.  These papers can be extremely important in future matters and many law firms charge clients additional fees to obtain copies of these documents after their cases have been closed.  For example, bankruptcy petitions, lists of creditors, discharge orders, divorce decrees, separation and property settlement agreements and child custody and support orders are frequently requested by lenders when people apply for credit, for a mortgage or for a car loan.  Therefore, clients should request copies of these documents and should keep them as part of their permanent records.  Moreover, clients should request that they receive copies of all documents as they are sent or received by the lawyer during the course of the case.  In this way, they can stay better abreast of what’s happening.

 

 

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DISCLAIMER

The article above is an excerpt from the book “Law, Lawyers and Your Case: A Dollars and Sense Examination.” (LLYC)  Published by the Graduate Group in 2003.   The publisher is now out of business and the book is now out of print.

 

The article above is to provide the reader with only a very general legal framework or reference point—a mere “starting point” to permit the reader to engage in further analysis.  It is not the “final word” so to speak and is not designed to give anyone legal advice.  As such, the foregoing article MAY NOT be relied upon by anyone to resolve his/her/its legal matter. Readers must consult their own lawyer and/or take responsibility for doing their own independent legal research/representation beyond merely reviewing this article.

 

Please keep in mind that laws do change over time and that laws differ amongst the various states, territories, nations and locations. So the rules and laws stated herein may not apply to the reader.

 

Any similarities in names, descriptions or accounts of persons, entities or events is purely accidental and all person/characters, entities and events herein are fictional and not intended to depict or describe any actual person, event or circumstance.

 

Despite the passing of many years most of this book is still relevant today.  It is still helps very useful in terms of explaining the how legal problems get handled, the attorney-client relationship, trial and testifying and very importantly the general manner in which the legal system and the courts operate. Important concepts like discovery, summary judgment and a host of other terms are explained and defined.  Civil, criminal, family law, personal injury and a host of other types of cases are discussed in remarkable detail.

 

If you live in Virginia, in the Commonwealth’s (that is, the state’s) court system, the Lower Courts are the General District Court and/or the Juvenile and Domestic Relations District Court. The Circuit Court is the Court of Record.  The Virginia Supreme Court and the Virginia Court of Appeals are appellate courts.  The United States District Court in the federal system is a Court of Record and the U.S. Fourth Circuit Court of Appeals (much like the United States Supreme Court) is an appellate Court.

 

Dollar amounts for costs, expenses, attorney’s fees, damages etc etc are probably very different because this book was published in 2003 and costs and dollar figures can vary widely depending on the location of the legal matter.   This naturally would also include changes and new jurisdictional dollar limits for most cases before any given court.

 

There have been extensive changes to the Bankruptcy Code since LLYC was first published.  As such, any references to bankruptcy rules, laws and/or legal requirements could be out of date and/or incorrect.

 

Since the LLYC was written there have been changes in the way third party costs and expenses (such as for experts and court reporters etc) may be funded and/or paid for—often making it somewhat easier for the client and his/her lawyer to carry a plaintiff’s personal injury/product’s liability case.

 

If a client has been damaged or lost money because of the ethical violations of his/her lawyer (for example, if the lawyer has stolen or misappropriated funds from the client or the client’s escrow account) many state bar associations have established separate trust funds to reimburse clients for the wrongs of their lawyers.

 

With regard to “property law” matters, this book has been written largely from the perspective of someone living in a state with English “common law” origins (which is most of the United States).  However, folks who live in “community property” or “civil law” jurisdictions my have different rules regarding discussions pertaining to divorce property settlements, real estate law, inheritance and/or other property law matters.