Scott Greenfield isn’t happy with people wasting his time:

Marketers teach lawyers who turn to them because they need business ways to "sell" the client.  We offer free consultations, which clients interpret as a free hour of a lawyer’s time to provide free legal advice which they can then take away and use.  I get many inquiries from people asking if I give free consultations.  There’s only one reason for them to ask.  I don’t.  But they expect lawyers to do so, and will be happy to enjoy a free consultation when they need answers from a lawyer.  This is because we teach them to expect free consultations.

Clients call or write for a free answer to a legal question.  They’ve been taught to expect that too.  Think Avvo Answers.

When a question or consultation won’t suffice, they want to negotiate, or pay the fee over time, as they would on replacement windows.  Many lawyers will negotiate their fees, lest a potential client walk away. Others will take payments over time, praying that the second, then third payment will come. 

The questions that Brian writes about are rarely a problem for me anymore.  I vet potential clients before making an appointment with them.  It’s quite common for callers to tell me that they have a problem and would like an appointment.  I ask them what the problem is.  Most are refused an appointment.  There’s no reason to sit down with someone when there is no possibility of my taking their case, whether because the nature of the case isn’t suited to my practice or they aren’t able to pay the legal fee. 

Callers are shocked that they can’t have an appointment; they have been taught to believe they are entitled to one.

As Abraham Lincoln said, "a lawyer’s time and advice is his stock in trade."  (I’ve always seen that attributed to Lincoln but have never seen it verified.  As Lincoln also said, "the problem with quotes on the Internet is that it is very hard to authenticate them.")

Lincoln was, like Greenfield, a defense lawyer, though Lincoln was a civil defense lawyer.  In both situations, it’s a misnomer to call the initial client contact a "consultation." There is little upon which the potential client needs "consultation:" the potential client has been sued or indicted, and has no choice but to enter the legal system and defend themselves. If they’re going to defend themselves at all, they’re going to need a lawyer for a lot more than a mere "consultation."

Lincoln and Greenfield thus have every reason to demand compensation for all of the time and advice they contribute to a potential client’s cause: that’s their business.

The same isn’t true for contingent fee plaintiff’s litigation, like personal injury, medical malpractice, class actions, antitrust, false claims act, copyright / patent infringement, business torts, and the dozens of other claims available to vindicate the legal rights of the injured. In those cases, there is an issue worthy of "consultation:" whether or not a lawsuit should be initiated.

In contingent fee litigation, the attorney has chosen to offer as their stock in trade something other than their time and advice. Instead, the lawyer offers their firm’s resources. The contingent fee lawyer agrees to provide all attorney attention and firm funds available as the lawyer believes is necessary and appropriate to achieve a financial recovery that is satisfactory to the client. 

My time is, for better or worse, irrelevant. This bargain is immensely profitable when I achieve a large recovery with a comparatively small investment of time and money; this bargain is also profoundly unprofitable when I’m forced to litigate a case for years without end, paying costs the entire time, without any recovery at all. At the initial "consultation," I try to figure out which the case is likely going to be.

That’s the nature of the business.  In such a business, it’s foolish for me to charge for consultations, since the money I would recover from that initial fee would be trivial in comparison to the overall profit or loss. For us, a consultation fee is little more than a barrier between me and potential clients — many of whom have minimal resources due to the injury in question — who know they have been wronged, but do not know if they have any legal rights or remedies, and so are indeed in need of a "consultation."

Thus, I suppose I am guilty as charged by Greenfield: though I have never told anyone they can get criminal defense advice for free, I have contributed to the impression that a lawyer’s time is not a central component of their representation. To me, it isn’t.

  • As is typical, Maxwell, I agree with you. I spend tens of thousands of dollars in out of pocket expenses, and much more in time, each year evaluating potential contingent fee cases. Indeed, last year our office turned down about 1200 potential medical malpractice cases. This sort of “free work” is necessary for personal injury lawyers. Clients expect it, I guess, but quite frankly I would do it even if they did not.
    Why? First, most of our potential clients have no money. Zero. They are trying to keep body and soul together, and are frequently failing at the effort.
    Second, I view each case as an investment of time and money – and I would like to earn a fair return on the investment portfolio I assemble. Before I make the investment, I undertake due diligence. Usually due diligence requires nothing more than reviewing a case intake sheet prepared by the person who receives potential case calls. Other times it requires actually meeting the potential clients. Still other times it requires ordering, organizing and reviewing medical records. And sometimes it requires hiring one or more experts to evaluate the case. This is simply a cost of contingent fee litigation.
    This is not to say I don’t take on pro bono cases or what I refer to as “cause” cases – cases that don’t make economic sense but I undertake for some personal reason. I do. But I make those decisions on the front-end of the case, and the only way I can end up with a case mix (a portfolio) of cases that make financial sense is to do my homework for free on the front-end.

  • Thanks for the comment, John. We’re similar around here, very selective about potential cases. We have two full-time nurses who spend most of their time reviewing medical records for potential cases, and, like you, we spend enormous sums having experts review the more complicated cases just to see if they’re worth pursuing.
    Frankly, I’m relieved when I pay a few thousand dollars to have an expert tell me a case isn’t worth pursuing: better to learn that upfront than to learn it after years of work and five or six figures in costs.
    It is part and parcel of our business. Anyone who gets a bill for a consultation fee from a personal injury lawyer should run as fast as they can — the lawyer either doesn’t know what they’re doing or doesn’t do a good enough job actually winning cases to support themselves.