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What unscrupulous attorneys do to win and how to fight back

Rob Enderle | Dec. 21, 2015
Having experienced a few legal dustups himself, columnist Rob Enderle warns you about some of the unscrupulous things attorneys will do to win, and explains what you can do to avoid expensive litigation.

Selectively reading

This goes to contracts. Taking contract clauses out of context, reading them without punctuation, inserting lines that aren’t in the agreement, and making clauses up are all tactics I’ve seen used in negotiations.   Make sure you read along with the attorney and before entering a negotiation you know every major clause nearly by heart. You need to have a good grasp of the case as well so you understand the core elements of the case otherwise you can get maneuvered into agreeing to items that seem minor, but turn out to be pivotal to your effort.

Attorney changes

It is not uncommon to have to change attorneys during a case, particularly a long drawn-out one. You may find you need different skills, the attorney you are using my not have the time for you, may move, retire, get sick, or even pass.   Litigation can often be measured in years.   What often happens is that when you get a new attorney the other side will argue against decisions and agreements that were made prior are no longer valid and use this as an argument to significantly hamper discovery or move the case in their direction.   The way to overcome this is to either make sure you are fully up to speed on what has been agreed on and are in the room or on the call, or have both the old and new attorneys work the case for a transition period until the new attorneys are fully up to speed.

Disbarment

One thing you need to understand is that getting an attorney disbarred is really difficult.   Generally they either have to be caught stealing money from you or using someone in the capacity of an attorney who isn’t licensed. That’s about it, and even the process to complain about an attorney is pretty convoluted.   The result is that there are a lot of attorneys practicing law who aren’t particularly good at it and likely can’t spell ethics.  

You need to have solid recommendations for anyone you do use and you need to keep a close eye on things and catch them early because your recourse against an attorney’s misconduct is very limited. Even the enforcement of disclosure rules appears pretty arbitrary. Ideally, you want good attorneys on both sides because you’ll likely get to an agreement faster. A bad attorney on either side is just a money hole.   But if a bad attorney is in the mix, having them on the other side is vastly less costly than having them on your side.  

Negotiate reasonable contracts at the get-go to avoid expensive litigation

Litigation is a very expensive undertaking and if you take away one thing realize that two parties typically enter into litigation both thinking their right and one side is invariably wrong. You can save a ton of money if you make sure you avoid getting into legal battles when you are on the wrong side. This means that from an ethics standpoint negotiating contracts that are reasonable for both sides can be far more profitable and less stressful than constantly trying to creatively take advantage of your opponent.

 

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