“Fees Fi Fo Fum”: Lawyer Fee Arrangements, Part 2 – The Billable Hour

Welcome back to the Lawyers & Liquor discussion on fees!  So last time we talked about the historical difference between the American Rule and the English Rule, which is essentially the difference between you paying someone to kick you in the nuts and someone else paying to try to kick you in the nuts.  A brief summary of our last post is as follows:  In America, lawsuits require that you bear all of your own expenses, paying the lawyer out of your own pocket even if you win, with a rationale of “access to justice.”  However, the traditional rule on most Common-Law countries, and indeed in a lot of the world, is that the loser in a civil action will pay reasonable attorneys fees for the winning side, the idea being that it’s the losing side’s fault the matter was in court at all to begin with.

This isn’t a new thing.  America deviated, as we talked about, back in 1796 in a Supreme Court decision that found making the loser pay up may actually dissuade people from going to court and asserting meritorious claims and defenses because of the specter of the money-grubbing attorney in the background.  We also talked about how that decision is a remnant of a time when it was completely acceptable to pay your lawyer with a side of beef and a fresh coat of paint on his palatial farmhouse in the country.  America, it seems, never got the message that when a ham has less monetary value and doesn’t stretch as far, a refiguring of the way we award fees may be needed.

So what does this mean for you, the lawyer or layman in the good old U.S. of A who may want to make sure at some point they see a payment on a fucking bill or, in the case of the latter, may want to know what they’re getting into when they hire a lawyer?

It means we have a sort of complicated set of “ways to pay for shit” that clients can utilize.  Which we’re going to talk about today, starting with the Billable Hour.

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“Fees Fi Fo Fum”: The English Rule and The American Rule, Part 1

Good morning and welcome back to Monday here on Lawyers & Liquor, where I try to recoup all the goodwill I burned through in recovering from an injury and being a general roustabout in anything not case related by redirecting you all away from my flagrant ignoring of my responsibilities on this site and back towards the questions of law, fact, and fun that tend to pop up profanely here.  Isn’t that just one hell of a run-on sentence? Anyhow, I’m your hobbling host the Boozy Barrister, here to pour seething hot rage and recommendations into your eyeholes as we keep trucking on through the dark night of litigation finance.

You may remember that last week, before I disappeared into the netherworld of lazy lawyers in their off time, I spoke about the threats that are coming to bear on the Legal Services Corporation, the federal agency that provides grants to legal aid non-profits and assists them in letting the indigent have their day in court.  The whole reason we have to have organizations like this is because, frankly, if someone hires me to bring a lawsuit or defend one I expect to get fucking paid as a result. Now, some of you out there are saying “Boozy, I thought lawyers only get paid if you win!” To that I say: Do I sound like the type of guy who takes cases on contingency? I like eating my meals. The only gambling I ever do is at the pai gow table, surrounded  by hard-smoking and hard-drinking Chinese businessmen screaming things in Mandarin and Cantonese (neither or which I speak).  I’m not gambling in the office.

I mean, I would if I could, but it’s been hell on wheels trying to get the partners to recognize the need for a pai gow table in the conference room.

No, in most cases us American Attorneys get paid win, lose, or draw.  You may go home with empty pockets and a judgment against you, but I go home with my check or I don’t sally forth into the legal battlefield with you in the first fucking place. And that, for many people out there, is the problem.  But…what if I told you there was another way?  And there may be one, too, if we dig back through the past and examine the alternative method of paying for a lawsuit…which is what we’re doing this week.

But first, let me explain the two historical methods of paying for a lawsuit: The English Rule and the American Rule.

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“The No-Bill Profession” – Legal Aid and Pro Bono

You know what’s nice? Knowing that the practice of law is a profession that places as its benchmark the pursuit of justice and higher school of thought.  We all go into law school thinking that we’re going to change the world through our practice of the law, and some dolent professor with an Ivy League pedigree extols the virtues of the “Noble Savage” that the lawyer is supposed to be.  We are told, in every class, that the law exists to bring justice and that the role of an attorney is a counselor and advocate for the cause of the downtrodden client.  We are, in the words of the administrators and professors, the gatekeepers of justice, the first line of defense against tyranny, and the vindicators of the downtrodden.

And, of course, we then step out into the real world of practice and become made aware of the fact that all that esoteric bullshit and idealism doesn’t make the student loan payment of the rent.  Nobody’s ringing up their landlord and saying “Hey, I stopped a family of five from being evicted today!  They paid me in a big bag of pork rinds!  Will you accept pork rinds in lieu of rent now?”  If your landlord or utility company would ever stop laughing, what they’d choke out is “No, dipshit.”  Idealism doesn’t pay any of the bills.  “Good feels” doesn’t put food on the table.  Advocacy won’t buy avocado toast.

For that, you need money.  And to make money, you have to let go of the concept that you are anything more than a cutthroat mercenary of the legal world.  Because motherfuckers may need justice, but motherfuckers gotta pay to get it.  And yes, there are lawyers out there who provide representation to those people that need it without regard to their ability to pay, and they do some great goddamn work in doing so.  But, and here’s the thing:

They may not be there for much longer, and society has no viable safety net ready and raring to go for those folks.

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When the Check Goes *Boing* – Lawyers and Credit Cards

Hey hey, it’s Wednesday here on Lawyers and Liquor and that means…what exactly does that mean anymore? I don’t know guys, I’m ankle deep in a ton of litigation stuff right now, and as I swim through the sea of stupid that is email and text message review in discovery, I find myself drifting back to a happier time. A nicer time. A more genteel era.  I am, of course, talking about the time when your clients paid their damn bills in full and on time.

Alright, so, a little background here.  My office, when I came into it, did not accept payment in any manner except check or cash.  Now, because I have a bad tendency of representing people, and because people aren’t exactly known for their tendency to carry around thousands of dollars in cash, this meant the majority of my clients paid with a check.  I know, there’s a younger generation of people out there going “What the fuck is a check? I just figured out those squares with the faces of dead guys on them last year, now you’re telling me there’s some other bullshit way of old-timey paying for goods and services?” Here’s the explanation: A check is like a paper version of a debit card that takes three-five days to hit your bank account.

You may be familiar with these if you’ve ever worked for someone that feels Direct Deposit is a tool of the devil or you have a grandmother that refuses to send cash through the postal service.

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Guest Post by Bill M. Hours – A Concussive Blow To Contact Sports Coming to a Family Court Near You?

[Boozy:  Today we welcome back Bill M. Hours, our erstwhile contributor, with another guest post to keep my goddamn queue from overflowing.  Bill is an insurance defense attorney, a peon, a pleb, and an all around nice guy despite his work for the evil empire of Defense Attorneys.  You can find him on Twitter at @billmhours.]

If someone you cared about asked for your opinion on whether they should play football; full contact, pads and helmets, grass-in-mouth football, what would you say?

Many of us today probably would caution against it. I know that when I run this scenario through my mind, my hypothetical self goes through various derivations of “fuck no” before deciding that phrases which aren’t broke don’t require fixing. I’d imagine that if one of my children ever asked me to let them play football, I’d most likely ask for a paternity test, but then also immediately lodge my opposition. In my case, this probably wouldn’t be too difficult to enforce because my spouse, while very interested in cooking, probably isn’t looking to be dealing with scrambled brains any time soon.

Perhaps I’ve tipped my hat too soon, in terms of expressing my opinion on the effects of football, but I don’t wish to make it sound like I hate ‘sportsball.’ In fact, where I come from, football in all its forms is a celebrated pastime. I even partook in the bashing of heads myself as a younger fellow (it was “Billy” back then), and I know from secondary experience that playing football can help young men in having an outlet to express hormonal emotions, and by helping them to develop discipline which can transfer into everyday life.

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