A man with three buttocks! The over-40s in the audience will certainly catch that Pythonesque reference. "Monty Python's Flying Circus" was an amazing thing to discover as a kid and it almost certainly guaranteed my geek status in college when I could quote large chunks of dialogue from memory from various bizarre skits and movies (read: "The Witch Scene" from "Monty Python and the Holy Grail"). In fact, if memory serves, one of the requirements for my getting into a fraternity at M.I.T. was to engage in a spontaneous reenactment of The Witch Scene in Boston Common, in full view of the public. The brothers' hope was one of public humiliation. Instead, it was one of public acclamation, since, as we all know, Bostonians are some hep dudes. I got bettah!
PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME
Recently in General Information Category
Articles 71 through 75:
And here we come to the end of it at last. This last series of articles accomplishes two important functions: it specifically spells out what the client is retaining the attorney to do for the client and it makes clear to both the client and the attorney when and how the attorney-client relationship is concluded with regard to the litigation at hand.
And, really, this is what any decent retainer agreement is always about: when do services commence?; what are those services?; how much do those services cost?; what is the objective of those services?; and when do the services end?
It's that simple.
Articles 68 through 70:
The remainder of the retainer agreement includes what is known in the profession as "boilerplate". This is merely contractual language that is commonly found in many or most retainer agreements simply because it so perfectly captures specific aspects of the contractual arrangement between an attorney and his client.
Articles 64 through 67:
Here are four more articles which deal with matters that are patently obvious to fellow attorneys but may not even occur to clients. These articles basically deal with the inevitable obstacles one encounters in litigation. Those obstacles can be quite annoying when they turn out to be specific individuals with a reputation for being "difficult". And, for the client, "difficult" almost always translates into "expensive".
Articles 61 through 63:
Just like the previous blog post in this series, these articles are included to apprise the client of the possibility of "hidden" fees when the judge decides that it might be a good idea to order the client to do something as a part of the ongoing litigation.
If there are allegations (or worse: testimony) that the client has a bit of a temper - and very young children are involved - then it is not at all surprising to have the judge order the client to register for, attend, successfully complete, and follow the recommendations of an anger management class.
The same holds true if the judge suspects that the client has any sort of substance abuse addiction - even if it's something as "harmless" as regular marijuana use or drinking as little as a can of beer a day. Anything potentially harmful substances that smacks of regular use is a red flag - again, especially if young children are involved in the litigation. This should not be surprising at all, given that children are so vulnerable and judges will do everything that they can to protect children.
However, because many clients have been taken by surprise by these sorts of things, I've decided to include these items in my retainer agreement.
Articles 58 through 60:
One thing in particular that clients (and attorneys) hate, more than anything else, is surprises. Attorneys build their reputations on being able to divine likely outcomes to cases given a certain set of facts, laws, and personalities. Being thrown a curve ball which results in the destruction of your case is the stuff of nightmares.
With clients, they don't like "hidden" or unanticipated fees. So, why not be as candid as possible about the likelihood of auxiliary fees in the litigation. Expert fees is a big issue in matrimonial matters. However, there are also fees in Family Court matters as well. Two such fees are psychological evaluations (which often start at $750.00!) and parenting classes (which are much less expensive but often much harder to schedule).
These fees are often mandatory if the judge issues an order directing psychological evaluations and/or parenting classes. If the client fails to pay the fee to take the evaluation or the class, then the client would then be in violation of a court order - with the possibility of the judge sending the client to jail for contempt of court. While judges strongly prefer not to do this, I have actually seen it done on rare occasions, usually where the party has repeatedly failed to obey a court order.
Jail has a wonderful way of making people get their priorities straight.
Articles 54 through 57:
These four articles cover the initial and middle stages of the litigation, giving the client a basic overview of what to expect. Again, this is painfully obvious to all litigators but it is often a revelation to clients, which is why it is included here.
Clients seem to perceive litigation as mostly occurring in court when, in fact, very little actually occurs in court. The overwhelming majority of litigation occurs outside the courtroom, on paper and in phone calls. I try to persuade clients to view court appearances as a way for the court system to force everyone into the same room so that everyone can be brought up-to-date as to the status of the litigation. The judge is there to nudge the litigation forward and to act as the referee for any disputes.
Articles 51 through 53:
We're in the home stretch now. These three articles are also self-explanatory and could have been omitted from the retainer agreement. They are included, however, because I believe it is very important for the client to get to know the "third attorney" in most Family Court and Supreme Court litigation involving children.
Attorneys for children play an important role in both representing their clients and protecting their clients. In fact, I am one myself, being a member of several panels in several counties throughout the Greater Capital Region.
Articles 48 through 50:
Part Four of the retainer agreement is extremely self-explanatory and needs no preface. Just read it. Once more, this could easily have been left out of the retainer agreement, but for the fact that I want all of my clients to be as fully informed as possible before the litigation commences. It just seems to be the most responsible thing to do. I do this sort of thing every day. Hell, I even dream about it (yes, I know, I need to see a therapist for this; all the more reason for me to go on vacation ASAP!). But most of my clients have never been involved in the court system before - and they don't have a clue. I'd therefore feel much more comfortable if they had at least some small measure of information concerning what they are about to confront - and pay for.
Articles 46 and 47:
These two articles should also be self-evident but they are included within the retainer agreement because they are apparently not at all evident to many of my clients (which, frankly, I find surprising). As such, I find that a great deal of my retainer agreement contains helpful hints for and aspirational requests to clients. In many ways, the retainer agreement serves as a briefing tool for the client: this is how the system works and this is what you will need to do to increase your chances of success.
Articles 42 through 45:
Because I so often find myself describing the substance found in these articles to almost every one of my clients, I just thought it would be easier to just encapsulate it within the retainer agreement itself.
At my most cynical (which, lately, has pretty much become daily life), I often tell my clients that litigation is like appearing in a play - and the client had damned well better rehearse for his or her role and know all their lines. Clients seem to think that they have control over so little in litigation, without realizing that they actually have control of the most important part of the litigation: themselves.
As with almost everything else in life, this section can be distilled down to a single idea and word: respect. Clients should have self-respect and act accordingly. And, as always, one should dress (and groom) for success.
In court, as in life, appearances - and especially first appearances - mean absolutely everything.
And as for respect ... yes, there are often times when I would absolutely love to tell a judge precisely what is on my mind. However, out of self-respect, I will never - ever - let a judge place me in such a vulnerable position. And neither should you!
Think before you speak! A very great deal depends on it.
Articles 38 through 41:
Again, this should all be self-evident, but I prefer to state the obvious so that the client is as informed as possible. The basic slant to these articles is to allow for the attorney to prepare for the litigation in every conceivable way while only involving the client in the more important aspects of the litigation itself.
I think that most clients are a bit surprised to discover how incredibly boring litigation can be. Ever wonder why you so rarely see television shows concerning what really goes on in Family Court and Supreme Court? Because it would be like watching paint peel. It is the rare case that is actually scandalous or shocking.
Articles 33 through 37:
Here is another section of the retainer agreement that needs no further explanation as it very simply speaks for itself. At the heart of most litigation is regular client contact and multiple contacts with third parties, all in hopes of negotiating the best possible settlement for the client, if at all possible.
Articles 29 through 32:
Inevitably, in almost every agreement and contract I have ever seen, you'll have articles or clauses that address miscellaneous information and you have no idea where to put them. So, you try to group like with like and place them all together in one particular spot. Such is the case with these four (4) articles.
These articles address minor, commonsensical issues that almost always pop up during the course of the litigation, especially where cases appear to be headed for trial.
Articles 23 through 28:
Inevitably, retaining an attorney always comes down to money: how much is it going to cost? And in addition to retaining an attorney, the client needs to understand that there are various costs and fees involved in most litigation. It is also helpful if a client understands how the attorney gets paid via the retainer payment.
And, frankly, the sooner the "money issues" are out of the way, the better, so that the client and the attorney can begin to concentrate on the client's case.
What most clients often fail to realize is that the retainer payment is very often the minimum payment that they will make to the attorney. In instances where there are going to be multiple court appearances or where the litigation is or becomes complicated, then the client will likely have to pay the attorney more money for the duration of the litigation.
In my case, my retainers are most often $2,500.00. This basically purchases twenty-five (25) hours of my time, with the exception of things like mileage and postage. If the case takes more than twenty-five (25) hours to resolve, then the costs will increase accordingly. If the case takes less than twenty-five (25) hours to resolve, then I will return every penny that I have not yet earned.