Client walks through the door

Someone has a legal problem. Or a problem where she is told lawyers may be able to do something about.

Some cases are clear cut. If someone is arrested, or scammed a lot of money online, she will need a lawyer (probably the first one available at hand).

But suppose this is not a clear cut case. Arguments arise between family members, landlords/tenants, bosses/employees/business partners. It ebbs and flows; sometimes (almost) boils over; sometimes looks like things may resolve itself.

In the end, it gets too much. The person affected concludes she cannot handle it herself, with ber budget of time, energy, and emotional tolerance.

She decide to get a lawyer. But who should she choose? What counts as a good lawyer for her?

No objective criterion for “best lawyer”

There used to be fewer solicitors and most people probably didn’t shop around. There are now a lot more, and with Google one can now pick and choose.

But how does one choose? Folklore suggest the following factors to consider, but each of them needs to be (severely) qualified upon sustained reflection:

  • Years of experience But exactly how many years of experience is required? And what exactly are the years of experience measuring?

  • Areas of specialisation This may make some sense in a large jurisdiction, such as the UK. But in Hong Kong, most high street firms offer quite a similar range of service, and most international firms do not cater for non-corporate clients that are below a certain (high) asset threshold.

  • Degrees and qualifications But with a heated entry market into the law and something of a CV war, there are so many options left even if one focuses on lawyers with many achievements on their CVs.

Moreover, what exactly are we comparing here? Surely being lawyer is not like being an athlete.

  • Except in Court, there are no clear winners and losers.

  • And even within Court, when a lawyer wins/loses a case, how much of it is due to the fact and how much her research/advocacy? From the judgment itself, it is often difficult (if at all possible) to tell.

  • Furthermore as explained below, by the time it goes to court, the issue has gone through many filters and may be nothing what like what the original dispute. A glittering victory on paper may well not feel anything like it at all to the participaints.

Lawyer as tour guide

As opposed to athletes competing for a prize, a better mental model for assessing lawyer is assessing a tour guide.

Client choices in law are not binary. There are a wide range of different options along the way, each with their own consequence. The lawyer is not there to make decisions for her client: she is there to help her decide for herself.

Sometimes, in fact often, not even the destination is clear.

Family and inheritance disputes are a classic example. What counts as “winning”, assuming there was a reasonably amicable relationship earlier? Is it to get as money as possible; to salvage as much of the relationship as possible; or to draw a line and move on? Only the client can tell.

This point applies to comparative or even total strangers too. In all but the largest cases, legal costs will eat into a larger and larger piece of the pie, until the prize goes away.

Moreover, even if one wins the case, an unscrupulous defendant can often takes steps to frustrate enforcement. The client needs to make up her own mind on when she needs to push forward and when it is time to let go.

Some thought experiments that may be helpful are below:

Assessing competence

  • One key characteristic that a layman can judge of lawyers is whether she sounds fair, sensible and helpful. Presenting a certain way of looking at things as fair, sensible and helpful is in many ways what contemporary judge-only hearings are all about.

  • This obvious point needs to be made because there is a myth that lawyers need to have unusually good memory, attention to detail or felicity with words.

  • But those are general desirable traits, not necessarily the right kind of cleverness for lawyers. No judge is going to be impressed by Counsel just because she has sky-high IQ or is capable of unusual intellectual feats. Instead, they would be impressed by someone who is able to explain the situation accurately, fairly, and able to articulate a sensible course of action going forward.

  • Putting it another way: the nature of the lawyer’s task is in the modern court room to tell the client’s story to the court. It is a subjective exercise where some points must be emphasised and other de-emphasised to what the advocate considers to be the best effect.

  • Putting it yet another way: would the client entrust her lawyer to tell her story to the Court, with the lawyer’s own twist and emphasis, even if at the end of the day the Court rejects that version and rules against her? Would the client regret not being able put the matter differently, with her own stress and emphasis? The answer should be respectively “yes” and “no” for a lawyer worth her salt and suitable to the client.

Assessing trust

  • The client-lawyer relationship demands an unusually high degree of co-operation and mutual understanding.

  • This is not just (1) there are many options available (above) and (2) the result depends on the subjective opinion of the judge, which can never be known for sure in advance.

  • It is also because (3) there is also the opponent who is there to present an opposing case. As Bokhary NPJ put it in an interview, it is as though there is a doctor on the other side of the courtroom trying to make the opponent ill.

  • The trust and confidence between client and lawyer must therefore withstand a hotbed of anxiety and doubt that in a hostile adversarial environment.

  • One test for trust is fees. Here is a subject where client’s interests are unavoidably in conflict with the lawyer’s. Can the lawyer navigate this well, with reasonable estimates and open discussions?

  • If not, then the relationship likely rests on shaky foundations, and may be severely shaken if things do not go as expected.