Client walks through the door

You have a legal problem. Or a problem where you are told lawyers may be able to do something about.

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

But suppose this is not a clear cut case. Arguments arise between your family members, landlord/tenant, boss/employee/business partner. It ebbs and flows; sometimes (almost) boils over; sometimes looks like it might resolve itself.

In the end, it gets too much. You conclude you cannot handle it yourself, not least with your budget of time, energy, and emotional tolerance.

You decide to get a lawyer. But who do you choose? What counts as a good lawyer for your case?

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 do you need? If you are ill, you go and see a GP before deciding whether to see a specialist. Where is the equivalent of a GP here?

• 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 is no clear winner or loser. 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. So a glittering victory on paper may well not feel like it to the participants.

Lawyer as tour guide

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

Client choices in law are not binary. There are many different options along the way, each with its own consequences, and the client needs to think them through and decide for themselves.

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.

This point applies to comparative or even total strangers too. In all but the largest (multi-billion dollar 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.

A tour guide however still needs to have a basic degree of competence and trust from the client. In the context of lawyers, the test for competence and trust are as follows.

Competence

• One key characteristic that a layman can judge of lawyers is whether she sounds sensible. Presenting a certain way of looking at things as fair and reasonable is a core skill in litigation. If a lawyer doesn’t convey this impression even to her own client, that is likely a red light.

• This obvious point needs to be made because there is a myth that lawyers have especially unusually good memory, attention to detail or felicity with words. All these are no doubt virtues, but it is meaningless to speak of them in the abstract.

• A chess master can recognise and memorise a mid-game chess board very quickly, because she is used to seeing all these patterns play out in games. She is by definition a master of the chess board.

• Similarly for lawyers: in areas they know well, the terrain can be as familiar as the back of their hand, and they can ask the right questions almost right away.

• Ask an experienced money service licensing person about a licence problem, she would be able to tell you immediately about the distinction between refusal to renew, revocation, imposition of condition, as well as the crucial matter of when the change comes into effect. Within that chess board, that lawyer has a lot of value to add.

• But to generalise from chess/law to alleged overall intelligence or the other way round is a dangerous distraction. There can be lawyers/doctors/chess-players/mathematicians who are clever but just not in the right way. In the wrong hands, the appeal to general cleverness could be a thin disguise for exploitation.

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 and (2) the result depends on the subjective opinion of the judge, which can never be known for sure.

• It is also because (3) there is also the opponent in the litigation who is trying to undermine the clients’ position, as Bokhary NPJ observed in an interview).

• Misunderstanding or second-guessing between client and lawyer can therefore be particularly fatal to the whole enterprise.

• Trust and confidence starts with fees: if you, as the client, feel too timid to have an open discussion on fee estimates and fee structures with the solicitors, this is a red flag. Costs is no doubt a sensitive issue, but any lawyer worth her salt should be able to have a frank and honest discussion over it (cf. the expertly illustrated legal humour text Queen’s Counsel Official Lawyer’s Handbook).

• In the end, the nature of the lawyer’s task is 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.

• The test for trust and confidence should be this: would you entrust your lawyer to tell your story to the Court, with her own twist and emphasis, even if at the end of the day the Court rejects that version and rules against you? Would you regret not being able put the matter differently, with your own stress and emphasis?

• Ideally, the answer should be respectively “yes” and “no” .

To clarify, I do not subscribe to the extreme view that all qualified lawyers are equal. Some are clearly better and some lack even basic integrity, let alone other qualities.

My claim is merely that beyond a basic threshold of competence and integrity, there is no further objective distinction: and the client should (quite rightly) choose on the basis of trust and “click”.