July 2011

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This is Mark Garfinkel.  It is nice to touch base with you again. After leaving OPIC, I moved my family outside of WDC to the sleepy spa and art town of Berkeley Springs, WV.  Although, I hung out a shingle in an old Victorian at the end of last year, most of my clients are elsewhere.  In my spare time, when not trading legal services for chickens and restaurant meals, I have been writing articles on the legal profession.  Over the next few months you can read new articles on how to choose a law firm in 2011, how to manage your legal counsel and how to monitor your legal bills.  Obviously, I am not looking to win a popularity contest among lawyers, but I hope you find these articles both instructive and interesting.  I look forward to hearing your comments. Please feel free to email me with any questions you have.   



How to Choose a Law Firm in 2011: Part I



It's a Buyer's Market


There couldn't be a better time to hire a law firm to represent you or your company for almost any type of project.  Sure some divisions of some firms are busy, but by and large, the legal services industry is in a tailspin.  The recession has shifted the balance of power to the benefit of the buyers of legal services. Successful law firms are meeting this new challenge by agreeing to alternative billing practices, spending more time giving prospective clients estimates, and, finally, taking the initiative to rebuild their own internal cost structures.


Most lawyers these days, especially those at the larger firms, are hungry to say the least.  Last year about 12,000 lawyers working at law firms were laid off.  Each year, about 40,000 new lawyers hit the streets fresh out of law school.  Those lawyers busy enough to keep their jobs face a never ending battle to find the next good client.  You can count on lawyers working hard to impress you.  As a result, buyers of legal services now have an opportunity to compare different firms and different attorneys in a meaningful way.


Take the Hiring Process Seriously


When I manage the outsourcing of legal services for a client, I take the responsibility very seriously.  I have been general counsel for a US Government agency, outsourcing millions of dollars in legal services each year, and I have been General Counsel to two private sector companies.  In my current practice, I commonly act as part time general counsel, and frequently find myself in the role of managing the outsourcing of legal services I cannot handle for a client.  I learned the hard way to be rigorous.  I know how much it smarts to make a mistake and have to switch horses in mid-stream.


Just remember that there are many good attorneys, but finding the right attorney for your specific representation is not an easy task.  There are also a lot of attorneys looking for the next cash cow client.  Don't become one of them.  

Avoid this Typical Scenario


Here is a common scenario you want to avoid.  Your company finds out it has a specific legal need.  You make some inquiries to get a couple of recommendations and then make a call to the first recommended partner.  After the typical meet and greet introductions, the partner launches into a used-car salesman type pitch on why his firm and his partners in the practice area are super lawyers in your area of need.  Most likely the best firm on the planet.  Finally you get your opportunity to stumble through an overview of your particular legal mess.  It quickly becomes clear that you are not prepared to lay it all out clearly in fifteen minutes.  The partner asks some questions to show his instant grasp of the matter.  He tells you he will handle the matter personally but needs to bring one of his expert partners into the deal.  Even worse, he suggests forming a team.  He quotes some high hourly rates, asks you to send the file and requests a retainer.  You learn that you will be paying to get everyone "up to speed."   He asks for the retainer again.  He knows it is your point of no return. You hang up the phone and wonder if it even makes sense to call the next firm.  How do you compare anything other than hourly rates?


Develop a Selection Process


Following is an example of a legal outsourcing need I had recently.  One of my clients was sued for trademark infringement in a west coast District Court, and they asked me to manage the company's defense of the suit.  This is a practice area that I was quite familiar with, but not able to take the lead role in defending the matter which needed to be litigated in a distant state.  The client requested that I find a mid-priced law firm that was efficient and cost conscious.  The attorney needed to be creative, tough and able to stand up to bully tactics.  I knew literally hundreds of attorneys in different firms and many I call friends.  Despite this, I called only one specialist I knew for guidance.  This is usually not the time to call the attorneys you have been working with on other matters.  You don't want to feel pressured to stay with the same firm.

The attorney selection process I followed is similar to the following:


1. Sit down and take the time to carefully prepare a chronology of your legal dispute referencing key events and noting the most important documents and other evidence.  Provide a paragraph of two summarizing your problem and addressing any issues you think are key to the matter.  Be sure and note the type of attorney you are looking for.  If there is litigation pending be sure to provide the court and case number so the attorney can access the docket online. Last, but certainly not least, add a list of questions that you want answered.  This is the place to test an attorney's creativity and enthusiasm for the case.  You want to focus on strategic issues.


2. Now find yourself two or three law firm partners that have depth of experience in your area of need.  I expect to find detailed resumes on law firm web sites and I am always a bit more wary when a firm chooses to only provide short bios.  To identify candidates, make a few calls to colleagues, but plan on spending a couple of hours online searching law firm websites and reading articles related to your dispute.  Your goal is to identify several highly qualified attorneys who have on point experience both in terms of subject matter and forum in the geographical area where the matter needs to be litigated or addressed.  Remember you are hiring a specific attorney, the firm is secondary.  The idea that opposing counsel will shrivel into the woodwork because you hire a big name firm is a much overrated strategy.


3. Now look through all of the resumes of the other attorneys in the relevant practice area.  Check the backgrounds and experience of both the other partners and senior associates.  Would you want any of them helping on your case? Take notes or print out their resumes. If the matter is significant, you want to be sure that there is enough depth of experience in the practice area for your attorney to form a highly qualified team if warranted.  Plan on discussing exactly who will be working on your case if you hire the firm and why.   I generally insist that the attorney I call manage the representation and do most of the work.  Watch out for firms that try to put partners that are slow on your case.


4. Now you are ready to begin comparing the selected attorneys and their firms. Send an email directly to each attorney you are considering.  The email should contain what you prepared before: the chronology, summary and your list of substantive questions.  Attach any relevant contracts, complaints or other key documents.  Introduce yourself and/or your company and give the attorney some times when you are available for a conference call.  Make it clear in the email that you are looking at several firms.


5. Expect to hear back right away.  There is nothing like a new problem and a new client to energize most attorneys.  Figure on having at least two conversations with each attorney you are considering before deciding whether to hire the attorney and his firm. The first discussion should address the substance of the matter. Control the conversation.  The focus should be on key issues and strategy and you can expect questions.  Listen carefully, I cannot stress this enough.  Most clients love to show they have a deep understanding of the matter.  That is not why you are on the phone. Talk as little as possible and hold the details for another time.  Your job is to listen and size up the attorney.  Is this the best attorney for the job?


6. Has he or she reviewed the materials you sent him?  This is where the rubber meets the road.  Some attorneys will start reviewing the matter for the first time when they get on the phone with you.  I rarely give these guys a second chance.  What I am looking for, is the attorney who not only has read my materials but has also done some extra research and has already consulted with his colleagues on the matter and how it could best be handled by his firm. Take note of issues raised and creative strategies he mentions.  Try to get an initial feeling for whether the attorney will be cost conscious.  Can you work with this person on a daily basis?  Before you hang up be sure and tell the attorney that before selecting his firm, you are going to need a detailed cost estimate and would like to discuss the same on another call.


7. A second round of phone calls will usually be necessary in order to discuss any lingering issues and focus on a cost estimate and the retainer arrangement.  Make a list of key tasks as you see them.  If you are headed towards litigation, think of the steps that can be taken before a complaint is filed and during discovery. Ask the attorney to give you estimates for each task or phase of the representation.   Don't hesitate to ask for this in writing.  Some attorneys will offer to cap costs by task.  Others will give you a cost range or even an estimate of the number of hours.  The amount of the retainer is always negotiable.  My experience is that the bottom line cost per firm will generally be relatively close.  Regardless, the exercise is particularly useful in establishing client reality and enabling monthly burn rate budgeting.


8. You should now be ready to review your notes and make the final selection.  Remember you are not judging a personality contest. The attorney need not be exceptionally friendly or personable, but you need to get the feeling that he or she is smart, tough, organized and generally exciting about handling the matter. If you can't make a decision, consider broadening the search and postpone the selection.  Always be polite and respond to the inevitable follow up calls from the attorneys.


Next month we will review popular alternative billing practices and how to monitor legal invoices.

Issue: 1

mark winter
In This Issue
How to Choose a Lawyer
Avoid this Typical Scenario
Attorney Selection Process


Welcome to the Law Firm of  Mark Garfinkel, Esq.



We are a boutique business law firm that proudly serves both international and domestic clients.  Our office is located in an old Victorian in downtown Berkeley Springs, W.V., which is about an hour outside of the WDC metro area. 


The founding partner, Mark Garfinkel is admitted to practice in the District of Colombia, Maryland, Pennsylvania and West Virgina.  Prior to founding the firm, Mark was the General Counsel of OPIC in WDC (www.OPIC.gov).  
Prior to founding his law firm, Mark was the VP and General Counsel of OPIC in WDC where he was responsible for closing hundreds of overseas projects.    
Mark is an experienced business and corporate attorney with both domestic and international clients.  He is also a commercial mediator who relishes solving business disputes without legal fighting.  See his website at www.garfinkellaw.com to find out more about his practice areas. 


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Law Firm of Mark Garfinkel