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Legal Ease By Michael Hanks

1. Handling Telephone Calls With Your Attorney: Remember that an attorney spends a lot of time on the phone and must charge for the service. Be prepared to pay. If your attorney doesn’t return calls, send him a letter advising that you are not pleased and if it continues, you will move your business, then do unless he or she improves. Your time is important as well and you deserve respect. Use email whenever possible. Easier for all since timing is not important.

2. Meetings with Your Attorney: Face to face meetings are still the best way to brainstorm and address complex or emotionally charged issues. lf you are encountering problems with your attorney calling up and requesting a 15 minute meeting at no charge to discuss can be an excellent way to resolve them. Avoid small talk and chit chat at meetings. Expensive and wasteful of everyone’s time. Be candid and on time. Take notes and if appropriate, request a follow up letter to summarize conclusions and assign duties. Michael

3. Negotiating Fees with Your Attorney: Most attorneys are hourly billers and have a set rate determined by the market. Negotiating a lower rate is difficult and usually self-defeating. So long as the attorney can fill his time at his normal rate. he has no incentive to agree to a lower rate, even in exchange for more work. This results in lower overall billings and neglected files as the “full fee” files are preferred.

4. Mediation: Many attorneys include mediation clauses in contracts now rather than arbitration clauses. Mediation is non-binding and usually as effective at resolving disputes as binding arbitration. Mediation requires the parties to devote the time and energy at working out a solution. Almost always a good idea.

5. Aggressive Attorneys: Despite certain prevalent attitudes, most people don’t need an aggressive attorney to handle their problem. They need a reasonable and experienced attorney who, if possible, has good relations with the opposing attorney. Such representation usually leads to good communication between the parties, which is critical in law, just as in politics and all other aspects of social life. Needlessly aggressive conduct on the part of either the attorney or a client usually just antagonizes and inflames the problem. Who likes to feel pushed around? Moreover, when the shouting starts, reason leaves. Solving legal problems is no different than solving other problems: The first thing is to identify the issues and discuss them rationally. Anger just gets in the way and makes the angry party appear unserious. It almost always has the opposite effect from that intended.

6. Litigation: Usually a disaster to be avoided unless absolutely no alternative can be created. A good attorney does all he or she can do to avoid litigation, or if filed, to resolve and minimize the time and expense before too much is spent by either (usually both) sides in attorney’s fees and costs, making early settlement difficult. Most bad outcomes occur because the parties don’t really communicate until right before trial, after a great deal of the attorney’s fees have been incurred. Early mediation is a good thing, but not often enough used. Look before you litigate. If you don’t, be prepared for the expense and stress.

7. Getting Legal Advice Early: Best time to talk to an attorney is before you commit legally or change your position and make the “simple” solution no longer available. Best time to talk to an attorney is before you become bound to a contract or change your position and perhaps make the optimum solution no longer available or feasible. A dollar of legal advice before you move is worth ten dollars after a bad decision is made. Think of a good attorney as a source of trouble avoidance. He or she can not only bring experience, but common sense and objectivity to bear, and usually come up with solutions you never considered. What is good advice worth? Ask anyone who has acted without it and suffered the consequences.

8. Estate Planning: You will never spend a more powerful dollar than in estate planning. For every dollar spent, your return is usually tenfold or more. It also removes the worry from your list and simplifies your life. It is also easier than you think. Be proactive and improve your life plan with estate planning.

9. Lawyers and Society: Lawyers are necessary to a free society. Citizens without lawyers are citizens without legal rights. The only thing worse than a nation of lawyers is a nation without lawyers. Just ask anyone who lives in a dictatorship . The character in Shakespeare who urged “first kill all the lawyers” was in fact conspiring to take over the government. Lawyers just stood in his way and had to be eliminated .Lawyers are also problem solvers, despite what may appear. Many people have the opposite impression because they don’t want to admit that all dealings among humans involve at least two sides and two stories. Without lawyers, our only method of enforcing rights would be violence. Think of the old west. Who really wants to live without law?

10. Estate Planning for Children: One of the sometimes overlooked advantages of estate planning is designating guardians and trustees for children and extending beyond 18 the age at which they receive funds. A plan can also provide for “incentive” trusts, which reward good behavior (one dollar of trust distribution for every two dollars earned through honest effort, for example). In my trusts, I urge early distributions for graduating from college or a recognized trade school. A plan can also set up “special needs trusts” for disabled children in order to preserve Medi-Cal eligibility and enhance his or her quality of life. When considering whether to plan for your minor children, ask yourself: How well did you manage money at 18? Then call my office to start the process of planning. An excellent investment of time and money.

11. Medi-Cal Planning: Congress just made Medi-Cal asset planning more difficult. Impoverishing your parents through asset transfers are almost never in the parent’s best interest. Medi-Cal care in a nursing home is not the equivalent of private care (no private rooms, for instance). Most elder law attorneys discourage planning not in the elder’s best interest. Think about quality of your parents’ lives, not your own. It’s their money.

12. Mediation: Many attorneys include mediation clauses in contracts now rather than arbitration clauses. Mediation is non-binding and usually as effective at resolving disputes as binding arbitration. Mediation requires the parties to devote the time and energy at working out a solution in an atmosphere of compromise and agreement. It is also typically less expensive than arbitration. The key is locating a good mediator with both legal and personal skills to handle stressful and (sometimes) angry clients. Retired judges now dominate the field, using the prestige of their (former) positions and their experience with jury decisions to motivate parties to resolve disputes and end the attorney’s fees. A good idea almost always, and one that has the best chance of success prior to trial.

13. Communicating with Your Attorney: In my experience, most attorneys these days communicate more through email than by telephone, although both still have important uses to convey information to your attorney or to ask questions that don’t need an immediate answer, send your attorney an email. Likewise, I use email for the same situations with clients. It allows both more flexibility in dealing with the issue and creates a written record. For more urgent situations, I use both email and the telephone, and you should also. An attorney should return your phone call within 24 hours or have an assistant call to set a time to talk. Attorneys fail to return phone calls for one primary reason: They haven’t done the work and don’t have an answer to your question. If your attorney (or any professional you use) fails to respond to your email or phone call within 24 hours, send an email and leave another message stating that you expect more responsiveness in the future, and reminding him or her that your time is also valuable. If he or she continues the pattern, find another adviser. Remember: You are the consumer paying for a service, and you are entitled to timely responses

14. Legal Problem Solving: A good lawyer is a problem solver, not just a problem identifier. To solve a problem, you first have to define it. Many clients seeking my advice over the years had mis-identified their problem, and so were unable to solve it. The first step in a legal consultation is to identify the underlying facts and then determine their legal context. Once that is done, the lawyer defines the range of options available and evaluates each one from a legal, economic and practical standpoint. One logical approach typically emerges. Nothing mysterious about the process, but its results can be magical. Ask anyone who has been able to resolve a dispute without litigation due to a lawyer’s objective problem solving.

15. Courts and Contracts: Courts enforce legal contracts according to their terms. A lawyer’s starting point for any analysis of a contractual dispute or issue is always the contract itself. Too often I talk with clients who think that if required to decide a contractual dispute, a court is free to ignore the contract terms and apply some vague “fairness” analysis to decide the issue. Not true. Only rarely will a court venture outside the express terms of a written agreement to achieve a “fair” result. While this may sound cold, it is in fact the central doctrine that allows a private enterprise market economy to operate. Persons making financial commitments in reliance on another’s promise have to be able to rely on and enforce contracts in court. Otherwise, commerce would soon become chaos. Indeed, such enforceability of contracts distinguishes advanced economies from third world economies and is one of the lynchpins for mankind’s advancement. Next time you sign an agreement, expect the court to hold the parties to their word.

16. Emotion versus Logic in Legal Problem Solving: One of my primary duties to a client is to identify the emotional from the logical aspects of his or her legal problem. Too often, clients are unable to identify their problem clearly due to emotional involvement. A good attorney, while sensitive to the emotional aspect, understands that only a clear-headed analysis of the facts, law and logic will provide the answer. The task at hand is to convince the client that how he or she feels about an issue almost certainly has nothing to do with what he or she needs to do in order to resolve it. This is a fact of life that most adults eventually understand generally, but have difficulty applying to their own situation. That’s where a good lawyer comes in.

17. The Importance of Meetings: Much time and legal expense is saved these days with electronic communications by lawyers. Emails and conference calls (even for some court appearances) permit the attorney do more in less time, which means lower fees to the client. However, for some purposes, face to face meetings are still the best, and sometimes the only, way to move a case or a deal forward. The personal interaction and synergy of a sit-down can make all the difference. An experienced attorney can tell when one is needed. Sometimes, there is no real alternative to humans talking directly to humans. We can’t let technology stand in the way of communication and diplomacy.

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California’s Estate Planning Essentials