How To Lower Your Lawyer’s Legal Fees

You’ve heard all the lawyer jokes (How do you make a lawyer smile for a wedding photograph – ask them to say “Feeeeeeeees”) and read the bad press (“Compensation wiped out by legal fees”), BUT a good lawyer can help save you money, and money carefully spent on his or her legal fees is well spent.

o Is my first appointment free? Some lawyers provide the first appointment or initial consultation for free. Ask about this when you make an appointment. You certainly shouldn’t have to pay for an initial consultation, although some lawyers will try charging a fraction of their hourly billing rate. Don’t even consider a lawyer who wants to charge you his or her full rate for an initial consultation.

o Understand the law firm’s fee system before you hire a lawyer. Understanding what and how you are to be charged is obviously important. Billing procedures and rates are a common point of disagreement between lawyers and clients. The more you know ahead of time, the better off you’ll be. Again, this is another one of those questions designed to eliminate disagreements later on. Too often clients find themselves on the hook for hidden costs they knew nothing about.

Ask about the account management process – i.e. how often will you get to speak to the lawyer about how your matter is progressing and be given an update and breakdown of costs? If you have a tight budget, let them know and see if they will agree to a fixed price for the work – if it’s a straightforward piece of work, this shouldn’t be out of the question.

o Check for hidden extras. Ask what additional charges there are likely to be (often referred to by the lawyer as “disbursements”) such as searches, stamp duty, bank charges etc. Although it should have been made very clear, make sure whether the figure you have been quoted includes or excludes VAT.

o What do you estimate as the total cost to me? Don’t be concerned if the lawyer resists answering this question. So much of the cost of a case depends on the degree of conflict between you and the other party, and you know that better than the lawyer. You may learn a lot from the lawyer’s answer, however, so it’s helpful to ask. If your fee arrangement is to be hourly, you should also ask your lawyer to notify you when he or she realizes that the estimate is likely to be exceeded.

o What can I do to reduce the charges? Ask if there are any tasks you can do yourself to cut down on the amount you will be charged.

o Conditional Fees (No Win, No Fee). This means that if you lose your case, you don’t have to pay your lawyer, but you may have to pay the legal fees of the winning party. However, if you win, you might have to pay a higher fee. This type of arrangement is most often seen in cases relating to accident/personal injury, human rights cases and insolvency. Increasingly, forward thinking commercial lawyers are prepared to share the risk of other types of commercial transaction with the client. Expect the fee to be higher for a win than it would have been had it been a fixed fee, as long as you pay less or nothing for a “loss” or aborted transaction.

o Please confirm this in writing. In most cases your lawyer must advise you in writing how much the work will cost or, if that is not possible, how costs will be calculated. Don’t sign any agreement about fees unless you understand it and are happy with it and don’t even consider a lawyer who won’t give cost details.

o When do I have to pay? In most cases your lawyer must advise you in advance and in writing how and when you will have to pay. You are entitled to receive a detailed bill before you pay. Some lawyers will agree to wait until the matter ends before you pay them. Remember how and when you pay can always be negotiated.

o Negotiate! Fee and billing schedules aren’t set in stone, and the market place is competitive. So if you think the price is too high, or that you’ll need more time to pay the bill, try negotiating with the lawyer. ..preferably up front. Shop around but also remember cost should not the only factor in choosing your lawyer.

Getting a Good Bankruptcy Lawyer

There is nothing worse than having to file for bankruptcy. Bankruptcy is a very serious matter which can destroy the lives of many people and render them completely helpless. Before moving forward with this article it is important to describe bankruptcy and what it entails. Bankruptcy is also referred to as insolvency and is a legal state of being unable to repay debts owed to creditors.

Bankruptcy is applicable to both individuals and organizations. When bankruptcy happens to an organization, many creditors will normally file a bankruptcy petition in an effort to recover a portion of the money owed to them by the company or organization. This results in the organization seeking the services of a bankruptcy lawyer. A bankruptcy lawyer is someone who is conversant with bankruptcy law and will be able to defend you against the petition filed by the creditors. Bankruptcy lawyers are quite expensive and you will have to prove to them that you can pay them before securing their services.

Tips on how to hire a good bankruptcy lawyer?
The increase in bankruptcy petitions has resulted in an increase in demand for bankruptcy lawyers. This has led to an increase in the number of lawyers who are looking to make a quick buck at the expense of debtors who do not know any better, while offering very poor legal services in return. It is important to ensure that the bankruptcy lawyer you have chosen is up to the task and will give you the required help you need throughout the entire process. Some of the tips you can use when trying to identify a good bankruptcy lawyer are given below.

Investigation: Many people often panic when they declare bankruptcy and will select the first bankruptcy lawyer that they come across. This is not a wise move because you need to conduct a thorough investigation. This investigation should involve a thorough background check of the lawyer and should be done before the bankruptcy claim is made. This will also give your lawyer enough time to prepare for the case.

Word of mouth: A good bankruptcy lawyer will be well-known, especially in the business world, so it is very important to ask around and gather information about companies that have filed for bankruptcy and who represented them. It is also important to know the outcome of the cases. You are bound to get information that is helpful. Experience should be your main focus in the search for a good lawyer who can adequately represent you.

The courts: A bankruptcy court is a good source about bankruptcy lawyers. You should always take some time off and visit a bankruptcy court so as to see and experience a bankruptcy case. This will give you an idea of how a good lawyer should conduct the trial when defending someone.

The panel of lawyers: The best place to find out about the best and most respected lawyers is by visiting the bankruptcy lawyer’s panel. The reputations of these lawyers precede them and you are likely to find a very good lawyer who deals with bankruptcy issues and is experienced in the field. Visiting the office of the lawyer may also give an indication about the lawyer’s reputability.

Attending free consultation sessions: Free consultation sessions are the platforms that make it possible for you to ask as many questions as possible about bankruptcy and where to find good lawyers. It is also the beginning of a good working relationship between you and the lawyers because you might get good contacts which will help you in the future. A bankruptcy lawyer will make the difference in the outcome of your case so you should ensure that the lawyer you choose is able to swing the final result in your favor.

Commercial Law – Alleged Breach of Contract – Building Contract – Performance Bonds

The case of Spiersbridge Property Developments Ltd vMuir Construction Ltd [2008] involved a determination relating to an action alleging breach of a building contract. A bank had paid out an amount demanded by the pursuer under a performance bond and it had to be decided, if the demand on the bond exceeded the sum ultimately due, whether the pursuer was obliged to account for the excess to the bank or to the defender.

The pursuer in this case was a property development company and the defender was a construction company. The parties entered into a building contract in June 2005, in accordance with this contract, the defender was to design and construct a development consisting of warehouses and office space.

This case was centred on the pursuer claiming for alleged delays in completing the works whilst the defender counterclaimed, requesting for an extension of time in which it could complete its obligations.

According to clause 2.10.2 of Appendix 1 of the building contract, the defender, as the contractor, made an undertaking to execute and deliver to the pursuer, as the employer, no later than 14 days following a written request from the pursuer to do so:

“…A performance bond in an amount not less than 10% of the Contract Sum in terms the same as the draft performance bond set out in Part Five of this Schedule”.

The Bank of Scotland subsequently issued a performance bond. The performance bond was in the form of a letter which was addressed to the pursuers and included substantially the same terms as the draft bond referred to in clause 2.10.2.

Then, in November 2006, the pursuer made a demand requiring the bank to pay £503,193.75 under the bond, which the bank duly paid to the pursuer. The defender stated that it was obliged, under a counter-indemnity it had granted to the bank, to pay that same amount to the bank and that it had duly done so.

Furthermore, the defender stated in its counterclaim that the grounds on which the pursuer called on the bond were erroneous. The defender argued that the grounds were erroneous due to the fact that it was not in breach of contract as alleged by the pursuer. It asserted that the pursuer was obliged to account to it for the sums received under the bond. The basis for that assertion being that the following term was to be implied into the building contract:

“…In the event that… the pursuer should make a call on the bond it would account to the defender for the proceeds of the bond, retaining only the amount equivalent to any loss suffered by the pursuer as a result of the defender’s breach of contract, if any”.

It was argued that such a term required to be implied as a matter of business efficacy. This meant that the dispute as to whether the defender was in breach of the building contract, as alleged by the pursuer, was yet to be settled.

Despite the fact that a ‘proof before answer’ had been appointed, the parties also disagreed on whether the pursuer was obliged to account to the defender for that excess, assuming it was found to be entitled to a sum less than it was paid under the bond.

Accordingly, the pursuer argued that its duty to account was owed to the bank and not to the defender. The pursuer’s principal concern was that if it made payment of that excess to the defender, it risked being sued for an equal sum by the bank.

The parties came to the mutual decision to have the issue decided in a debate before the proof. The question for decision during the debate was:

“Where a demand had been made on a performance bond in an amount which was ultimately found to exceed the sum due to the party making the demand, was that party obliged to account for that excess:

(a) To the bank; or

(b) To his opposite contracting party?”

Counsel for the pursuer said that there were three contracts which needed to be considered:

§ The bond contract, namely the contract on the performance bond between the pursuer and the bank;

§ The building contract, which was the contract between the pursuer and the defender; and

§ The banking contract between the defender and the bank pursuant to which the bank agreed to issue the performance bond.

It had to be decided to whom the pursuer should account for the excess and the route to achieve this. It was submitted that the most sensible route was by implication of a term into the bond contract. The term would state that the pursuer would repay the excess to the bank. This would be matched by a corresponding term to be implied into the banking contract under which, if it had already been paid by the defender, the bank would repay the said amount to the defender.

This however raised some potential difficulties. If the term was implied into the building contract where the defender became insolvent, and the pursuer was required to account for the excess to the defender, the payment by the pursuer would go into the pot for the general body of creditors of the defender. This would mean that unless it had already been paid by the defender, the bank would lose out.

Counsel for the defender submitted that the term should be implied in the building contract. If it were the case that it was the bank that could sue on the bond for the excess, the bank would be undertaking the burden of seeking to prove in litigation with the pursuer that the defender was not in breach of contract. Alternatively, that the damage suffered by the pursuer was less than the amount called under the bond.

It was argued that that was not a task a reasonable banker would be particularly willing to undertake, not just because of the difficulty of running such a case, but also due to the fact that it would be expensive.

It would be much better for the bank to be able to rely upon its counter-indemnity from the defender at the time that the bond was called. If the bank had the right of action for recovery of the excess, counsel for the pursuer argued that those difficulties could be overcome by an assignment of the right of action by the bank to the defender. However, this would not work as the terms of the bond prohibited the bank from assigning its rights without the pursuer’s consent. Furthermore, if the bank had been paid by the defender pursuant to its counter-indemnity, it would not have suffered any loss and would have no claim to assign.

After much deliberation, the court held that where a demand was made on a performance bond in an amount which was ultimately found to exceed the sum due to the party making the demand, that party was held to be obliged to account for that excess to the opposite contracting party. In the circumstances of this case, the parties had agreed that the obligation on the pursuer to account for any excess must rest upon an implied term in one of the contracts to which it was a party.

This meant that the question then became one of establishing which implication best gave the intended business efficacy to the transaction.

The court was of the opinion that the natural implication was an implication of the type for which the defender argued, namely an implication of a term into the building contract as follows:

‘…In the event that… the pursuer should make a call on the bond it would account to the defender for the proceeds of the bond, retaining only the amount equivalent to any loss suffered by the pursuer as a result of the defender’s breach of contract, if any’.

It was held that a term implied into the building contract had none of the disadvantages of involving the bank in the merits of the case. Furthermore, it also allowed for establishing what loss, if any, the pursuer had suffered as a result of the defender’s alleged breach of the building contract. This could be determined in litigation or arbitration between the parties to that contract.

The court further held that it was unrealistic to think that the bank would not have agreed with the defender a counter-indemnity in terms of which the defender would in turn indemnify the bank in the like amount upon a call being made upon the bond.

In the event that the call on the bond was excessive, the defender would be out of pocket, not the bank. According to the court, it seemed quite natural that it should be the defender to whom the pursuer had to account for that excess. This did however leave one potential problem. That problem being that if the defender became insolvent after the bond was established by the bank, but before the bank could claim against the defender on the counter-indemnity, then the bank would stand to lose out if it had not taken security.

This potential problem was held to merely be a commercial risk which the bank would decide whether or not to take depending upon its assessment of the defender’s creditworthiness. As such, the bank could overcome this problem by refusing to issue the bond, or require some security before agreeing to issue it.

© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

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