Episode 142 - When is it time to change lawyers?

Choosing the right lawyer can be a tough decision. Choosing when it is time to change lawyers can be even harder. Are you simply not understanding the legal system and having trouble communicating with your lawyer? Or, is your lawyer simply not performing as he or she should and you have to find another lawyer who knows what they are doing and can handle the case? Sometimes it is hard to tell. In this show, Leh and Todd answer these questions and give you some suggestions on how to make the right call. They even share some horror stories of when the person made the wrong call. In one situation, the person should have fired their lawyer but didn't. As a result, they had to deal with terrible consequences. In another one, the person did fire their lawyer, hired another one to try the case, and ended up with a verdict that cost them an extra $100,000 above what their previous lawyer had in the form of a settlement.

Leh Meriwether: Welcome everyone. I am Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to the Meriwether and Tharp Show. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time, even tips on how to take your marriage to the next level. If you want to read more about us, you can always check us out online at atlantadivorceteam.com.

Leh Meriwether: Well Todd, I'm ready for this show because I think it's... I don't think we've ever done this show before. Some shows-

Todd Orston: We're doing the show right now Leh.

Leh Meriwether: I mean the topic. The topic.

Todd Orston: Oh, okay. You scared me there for a second. I was about to tell Andrew to call 911.

Leh Meriwether: This is our first show ever. No, it's the first time we've ever taken this topic on.

Todd Orston: Okay. I think you are correct. I think it's been... We've talked about what we're going to be talking about, very cryptic. It's been embedded in shows where we've sort of touched on it alongside other issues. But you're right. In terms of doing just a dedicated show. But it is so important, and we're talking around it. But let's sort of jump in and let's at least share what the show is about.

Leh Meriwether: So, we're going to talk about six signs where it may be time to change lawyers. We're going to give a few caveats here. First off, when folks call us about changing lawyers, we often, and we're going to go into that in the show, but we talked to about maybe this isn't a good idea. We often have talked people out of hiring us and staying their lawyer, and it wound up being a great result for them. Pursuant to the Georgia bar rules, we have an ethical duty to not try to steal clients away from other lawyers. So that is something we take very seriously.

Leh Meriwether: But at the same time, there are situations where the client is being drastically hurt by their lawyer. I've had at least two cases... I've had many cases, but I've had one that went all the way to the Supreme Court. And the lawyer had basically abandoned the client and there was a trial, and the client never got notice of the trial. I actually have had this happen twice. So the first time, I wasn't able to get it undone, and the client got a very unfair, I mean, very unfair hit with alimony and equitable division of property. It was terrible and I'm still... won't say I'm bitter, but I still feel like the trial court in that Court of Appeals, was either the Court of Appeals or the Supreme Court made the wrong decision. But it is what it is. But that's part of the reason why we want to do the show.

Leh Meriwether: Another time, something similar to that happened. The guy had actually been disbarred. Somehow this client had actually hired two lawyers that got disbarred during the course of the case. I've never seen that happen-

Todd Orston: That's called bad luck.

Leh Meriwether: Yeah. But now, this one... And a trial went forward without him, but I was able to undo that. We did a motion for new trial, set it aside-

Todd Orston: And it's not, and this isn't me trying to pat you on the back. But for anyone listening, it's not easy to do that. If you miss court and your reasoning is that, "I didn't know. My attorney didn't tell me," usually the court's response is, "Not my problem. You should have known. You should have been here. We had court." Basically, tough, and that's not something that is easily appealable, either, because-

Leh Meriwether: Right. As I found out.

Todd Orston: Because you didn't show up, the Court of Appeals is not going to undo that because the court didn't do anything wrong. Remember an appeal is all based on that the court made some kind of a technical mistake, a legal mistake. It's not a mistake to move forward with the trial if proper notice was given to anybody or everybody.

Todd Orston: So anyone listening, please understand, if you are working with somebody and you're not communicating well, I know I'm jumping into sort of tips and... But I want to make it clear that it may be time to start thinking about a change.

Todd Orston: But, to your point, Leh, I too have told clients many times, "It's not a good idea because you're too close to a trial." The catch up for the new attorney is going to be long and expensive, or maybe your expectations of the attorney are not reasonable. And if you came over, understand, we'd be acting similarly.

Leh Meriwether: Yes. And we've told clients that before.

Todd Orston: We've told people that.

Leh Meriwether: Or potential clients, I should say. And basically talked them out... And on one occasion, I actually got a call from the other lawyer thanking me because apparently they went back and they told the attorney that I had talked to them. And I guess it came out when they met with them and, well, "That's what Leh said." And, "Leh Meriwether?" All of a sudden I get called, "Hey. I just want to say thanks for backing me up." But I was like, "Yeah. That's what we're here for." Because that actually would've been a disservice to the client.

Leh Meriwether: But we're going to talk about the signs that if these happen, if these six signs happen, that you either may or should absolutely consider changing a lawyer. Because going back to the trial, in Georgia, if your lawyer is given notice of a hearing or a trial, that counts as notice to you. So let's start with number one, the nonresponsive lawyer, and we're going to talk about... Just because your lawyer hasn't gotten back to you in 24 hours doesn't mean you should suddenly fire your lawyer.

Todd Orston: Yeah. So responsiveness, the reason we're going into this is because, like I was saying before, some people who call their expectations in terms of how responsive an attorney or an attorney's office should be may not be very reasonable. You are not the attorney's only client. The attorney is going to have other court appearances, mediations, other things on their calendar, and that needs to be taken care of, which means that they're not available to work with you and talk to you. But there are some guidelines because just as quickly as I could say, "Well, you know what, you haven't heard from an attorney in 24 hours," it's sort of reasonable because they had something on the books. And they were not available to talk to you. They were in court. If you haven't heard from your attorney in a week, if you haven't heard from your attorney in more than a week, that is a warning sign. That's something you have to be really careful about because that may be sort of a sign of even bigger issues in that relationship.

Todd Orston: If you're not reaching your attorney, what else are you missing? What else, more importantly, is your attorney missing?

Leh Meriwether: Interestingly enough, that's the number one complaint to the Bars in the whole country as I understand is a lawyer's lack of responsiveness. But I do think that at least 50% of the time, it's a result of a lawyer being called into court or in middle of multiple mediations that are all back to back. So they haven't gotten back to you, not because your case isn't important. They're just tied up. But if your emails are going unanswered, so if you send in two emails and you go a week without getting an answer to your emails, or at least, "Hey. I received your email. I'm in the middle of a trial. Can we talk next week?" That's a great response that says they're acknowledging they're there, that you're important to them. And then just get it on the calendar. If you get an email like that, pick up the phone, call their staff. Hopefully they have staff. We're going to talk about lack of capacity later on. But contact their staff. Don't bother going to the lawyer, and get on their calendar. Sometimes that's what we tell people, schedule.

Todd Orston: Get on the my schedule, and then I know we're going to talk at that time. And you know I'm going to be available absence of an emergency.

Leh Meriwether: And we've had clients, potential clients call in saying, "Well, my lawyer won't get back to me." And we'll ask, "Have you contacted their paralegal or secretary?" "Well, no. I haven't. I'm talking to my lawyer." Well how about this, call them back. I wouldn't be surprised if they may have been called into a week long trial, and they just simply can't get back to you. It's just they're totally focused in on that, and if you had to go to trial with your lawyer, you would want your lawyer 100% focused on you in that point and time. So call them. Often they'll say, "Oh. He's been..." They'll tell them what's going on, or sometimes people get sick.

Leh Meriwether: We've had some very young lawyers who are in great health come down... Two years ago, we had a rampant case of pneumonia go through our firm, and two-three of the firm lawyers went to the hospital. And they were in there for... One of them was over a week, and then when they got home, they couldn't even come into... We didn't want them to come into work to be frank. In that case, we had a team, and we tell our clients, "Hey. If you're not getting a response for your lawyer, contact your paralegal or someone else on the team." And then we jumped in.

Todd Orston: Yeah. But like you were also talking about, I don't want to jump to lack of capacity. Sometimes you also have to think of it in terms of other decisions that you have made. If you decide to go with an attorney with a big firm where there is a lot of support staff, then it is really unreasonable to go long periods of time without being able to reach someone...

Leh Meriwether: I agree.

Todd Orston: .. who can answer your questions. If you elect to go with a solo practitioner who maybe has no support staff, there are plenty of fantastic solo practitioners out there.

Leh Meriwether: You were a solo-

Todd Orston: I was a solo for 10 years. I mean, I had other people working. But there were times when it was just me. But you have to be more understanding, if you will, because you've made a choice to hire someone who it's just them. And therefore if that's the case, if you call and they're in court, you're leaving a message. You're not talking to a human. So you have to understand your choices carry consequences, and that's not to slam solos. Like you said, I was a solo for years. But by working with a solo, you just need to have a higher level of understanding.

Leh Meriwether: And just a little more patience.

Todd Orston: That's right.

Leh Meriwether: So bigger firm that has a team, if that's part of their advertising and you're not getting a response from someone on the team, then maybe it's time to... And they won't schedule an appointment, reach out to get on their calendar, and they won't do that. Might be time to change lawyers.

Leh Meriwether: All right. Well, up next, we're going to get into the five other signs that it might be time to change lawyers.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to this show live, you can listen to 1:00 a.m. on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston: Better than like counting sheep I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very soft.

Leh Meriwether: Todd, I struggled putting this show together just because I know we have that ethical responsibility of not stealing clients away. But I looked at this as we're not trying to steal anybody away from their lawyer and come to us. We're trying to protect folks in any state that may anybody wherever you're listening. If there's something going on with your lawyer, that could drastically jeopardize your case, and you may need to take action to change lawyers.

Todd Orston: I agree. And look, we started the show off with stories about how we've talked people out of changing lawyers. So this really is not a conversation of, "Hey, it's time to leave." It is you need to be looking at your relationship with your attorney and determine, and you have to constantly be looking at this and considering this, determine is this relationship working? Remember, this is your case. It's your divorce or whatever the legal matter is. I need to know that I have an attorney and/or an attorney team that is working for me, that is there for me, and it's a give and take. I mean, you are putting a lot of trust in that attorney, but you have to have some understanding that the attorney has other clients and striking that balance and figuring out what the right balance is.

Todd Orston: Sometimes for clients it's difficult. They may have unreasonable expectations. "I called, and I can't believe I've been waiting for three and a half minutes. This is insane."

Leh Meriwether: Or they sent an email in the morning, and when nobody responds, they call in the afternoon.

Todd Orston: Right. That might be fine depending on what the issue is, but sometimes it's mundane issues. It's not an emergency. So anyway, all we're trying to do with this show is explain to people that when you hire an attorney, it's a relationship. And just like every marriage, sometimes it doesn't work. Sometimes the relationship between you and your attorney may not be working. With a bigger firm, that's fine. You can go. You can maybe even change attorneys and stay with the same firm, which is very efficient. But if you can't do that and you have to leave your attorney, there are issues you have to deal with. But it maybe the right thing.

Leh Meriwether: Right. So let's talk about number two, doesn't listen.

Todd Orston: Wow. I complain about you all the time. No, jokes aside. Doesn't listen. I'm going to start by saying remember it is your case. You are hiring an attorney to represent you, and while an attorney has the ability to dictate what the case management looks like and case strategy looks like, it is your case. You set the goals. You have to understand and have an understanding with the attorney, "This is what I'm trying to accomplish." Last week we were talking with Karen McMann, and we were talking about some of this stuff about being solution focused, understanding what the goals are. You need to set some goals and know that you have somebody on your team that understands what you want and is striving to accomplish that for you.

Leh Meriwether: And it's listening to your goals.

Todd Orston: That's right.

Leh Meriwether: Because sometimes, and we've seen that where these lawyers go, "All right. I'll get you divorced, but it's my way or you can go somewhere else." And then you call and say, "But, but I want the kids to have a relationship with their husband." "Oh, no. We need to do it this way, and we need to have a temporary hearing because he's going to screw you." I mean, we've seen that happen before.

Todd Orston: I've had cases where the parties have reached an agreement. Whether it's a temporary issue or permanent issue, but I've had situations where my client calls me, it's like, "You know what, had a great conversation with my spouse. I think we agree on X, Y, Z." Fantastic. We have mediation tomorrow. I think things are going to go great. We walk in, and the attorney... I had an attorney once say to me, "Well, yeah. I know they talked about that and they agreed on those things. But, you know what, I don't think that that's reasonable." And it had to do with parenting time. So it had to do with... And it wasn't wrong. It wasn't something where I'm like, "Well, I can understand." Doing 20 minutes on, 20 minutes off parenting schedule. That's not going to work. But opposing counsel was not listening to the client and came in and created problems. And it actually resulted in us having to terminate that mediation session because it was like, "Look, if the parties can't talk and reach an agreement and everything is going to be second guessed, and you're going to undo everything they've accomplished, then I don't know what we're doing here."

Leh Meriwether: I've even seen in the middle of mediation where the mediator has said, "Hey, Leh. Do you mind if I meet with your client and then the other side?" It's just the parties and the mediator. I have a pretty good relationship with most of the mediators we use, and I know exactly what's going on there. So I step, "Yeah, sure. Absolutely." And then next thing you know, the case is settled.

Todd Orston: And that's a trust issue, right? We've had mediators... I've used mediators where I don't have that working relationships where I would be reluctant to do that, but with the ones where I have a high level of trust, I have absolutely also stepped out of the way because I don't want to be...

Leh Meriwether: Not that we were holding it back. It was the opposing attorney holding it back.

Todd Orston: Yeah. No, no. But the point is, I don't want to be, and I hope opposing counsel feels the same way, the impediment*. I don't want to be the person who avoids or not avoids but prevents the parties from reaching an agreement if that's what they really want. So if I'm the problem, I'll step aside. If opposing counsel's the problem, listen, mediator, if you can get them over the finish line, fantastic because that's what I want.

Leh Meriwether: Now let me give a caveat here because sometimes your lawyer really does know something that's going on, and so the key is are they listening to you? Are they acknowledging what your goal is because sometimes I say, "I hear your goal." And they may say, "That goal's not realistic. And let me tell you why," because make sure they're explaining things. If they say, "We're not doing it that way," and that's it, I'd worry. And the reason you worry, and here's the reason to worry. The lawyer says, "This is the way we're going to do it." You're like, "Okay. I'll go along with it." It doesn't feel right, and you walk into the courtroom and you get hammered. Not only do you get hammered, now all of a sudden you're paying the other side's attorney's fees because the judge felt you were unreasonable. We've seen that happen before too.

Leh Meriwether: But going back to the caveat, your lawyer, just make sure they're explaining things to you because I have had a case where we went to mediation. It came to a point where I told my client, "Don't move from this position. This to me is not exactly your worst case scenario, but you shouldn't move from it."

Todd Orston: At that point, statistically speaking, you have a very good chance of accomplishing what they're offering. You even have a really good chance of getting something more. So why would we accept something even less than this when I really believe that you have a good chance of getting more from a judge. So I've had that conversation numerous times.

Leh Meriwether: So in this situation, the client called me, and we had a very serious conversation because he was wanting to make sure I was listening to him because he really wanted to get this case over. And so we went through his goals. What are the perimeters you want this case over with? And he quickly realized their position was not going to fit those perimeters. I said, "Well then, we need to be patient." And guess what happened, she fired her lawyer because it was her lawyer, the other side's lawyer that was taking it unreasonable position. And eventually the other side realized it, fired their lawyer, and came in and signed the settlement agreement. I wasn't being aggressive or anything. It was the right way to settle the case.

Todd Orston: And I'm glad you're saying that because, again, it could've just been that you were taking an unreasonable position and they caved. But that's not what we're talking about. We are talking about situations where we are truly trying to reach a reasonable agreement on whatever the issue is, and if the opposing party takes an unreasonable position and isn't listening to the client who maybe is saying, "Well, I think I'm okay with that." No, you're not. Okay. "Well, I'm going to tell them we'll see them in court." Well, again, it's your case. You can dictate that level of strategy.

Leh Meriwether: And just remember, your lawyer's not there to blindly advocate for you either. They're going to tell you that you were positioned maybe unreasonable. So just keep that in mind. The key I think if you're struggling with this sign is number one, are they listening to me on what I'd like to do? And number two, when they're going against what I've suggested, are they giving me a reasonable explanation as to why my goal or my position is unreasonable? So that's what you really need to focus on.

Leh Meriwether: Number three, refusal to consider settlement. This is a little bit different than the other one I was talking about. These are what we call, I don't know what other people call it, but to me this is what we call bulldogs. They never want to talk. They just want to fight.

Todd Orston: We are Georgia. Maybe we want to call junkyard dogs.

Leh Meriwether: Yeah. True. Out of respect to Georgia.

Todd Orston: Yes, exactly. Exactly.

Leh Meriwether: Yeah, they just never want to settle. They never want to talk settlement. They just want to get in the courtroom and fight, fight, fight, fight.

Todd Orston: And a lot of, unfortunately, and I know we have to go into a break very shortly, but the problem is a lot of people don't realize. I've had people come in and sit in front of me and say, "Look, I don't know if you're the guy. I want a pit bull. I want somebody's who's going to go in and fight, fight, fight." And I have to explain, "No, you don't. You want somebody who can fight. You don't want somebody who goes out and picks a fight constantly." So there's a really big difference that I think we should get into when we come back.

Leh Meriwether: Yeah. So up next, we're going to get into the three other signs. We're going to finish up this one and finish up the three other signs. Lack of capacity, lack of professional, and communication style.

Todd Orston: I mean, all of these things, they are incredibly important. Again, not trying to convince anyone to leave an attorney, but understand what some of the guidelines are so that you understand what you are working relationship with your attorney should look like.

Leh Meriwether: And you want to make sure that you've got the right lawyer to get the right outcome in your case, and you're not left with a disaster.

Todd Orston: Hey everyone. You're listening to our podcast. But you have alternatives. You have choices. You can listen to us live also 1:00 a.m. on Monday morning on WSB.

Leh Meriwether: If you're enjoying this show, we would love it if you could go rate us in iTunes or wherever you may be listening to it. Give us a five star rating, and tell us why you like the show.

Leh Meriwether: Welcome back everyone. This is Leh and Todd on the Meriwether and Tharp Show. If you want to read more about us, you can always check us out online at atlantadivorceteam.com.

Leh Meriwether: Today, we're talking about the six signs that it maybe time to change lawyers. And I feel like this is an important show that we actually haven't... We've touched on it here and there on other shows, but we haven't dedicated a whole show to it. And I felt like it was important because I have seen a lot of cases, I've dealt with the aftermath of someone not having the right lawyer for the right situation. So that's what we're talking about today.

Leh Meriwether: We've already hit number one and number two, which is a lack of responsiveness and somebody that doesn't listen to you. And we've explained what we mean by that. So if you missed it, you definitely want to go back and listen to this. You can listen to the whole show at divorceteamradio.com. You can find it in iTunes, Stitcher, Spotify, Sound Cloud. Wherever you can find a podcast, we should be there. If you missed the first two segments, go check it out.

Todd Orston: So we were talking about refusal to consider a settlement, and I'm going to say of course we are resolution focused. This is litigation. It's adversarial. I get it. But there's a quote that I like that everybody has heard. Teddy Roosevelt said in the early 1900s, "Walk softly and carry a big stick." And actually it may have been even speak softly and carry a big stick. But the point is you don't need to go out looking for the fight. You don't need to be going out there like the junkyard dog bark and bark and barking at everybody. You go out there and you need an attorney who is able to fight for you. If you have to go into mediation, they're going to stand up for you. If you have to go into court, they understand the system. They understand how to basically present to a judge and to fight for you. That's what you want.

Todd Orston: But I can tell you after many years of experience, the attorneys who are out there that are the junkyard dogs that are fighting for just the sake of fighting, it is a problem. I'll give one example. Had a case where I represented the husband. He was the breadwinner, and I knew because the mother was a stay-at-home mom. I knew there was going to be requests for some money to be freed up for legal fees, and I had a conversation ahead of time proactively with my client. I said, "Look, the conversation's coming. And whether you want to give money or make money available," because it's marital money, "or not, doesn't matter because I can tell you right now, it's reasonable. And if you take a hard position, we'll end up in front of a judge. And I'm telling you right now not only will you have to give some money for legal fees, but you'll end up paying for all of the fees related to that hearing we just had unnecessarily."

Todd Orston: So opposing counsel calls me out of the blue, and he was just one of those attorneys. He starts yelling. "My client is a victim." I let him-

Leh Meriwether: Did you start laughing when he talked like that?

Todd Orston: Yeah, and he did sort of talk like that. And I sat there and I listened for about a minute. Two minutes go by and he's still barking at me. Then I'm like, "What do you want?" He goes, "Well, my client needs fees." "Okay. That's fine. How much?" "$5000." "Okay. I'll have a check brought over to your office tomorrow." Now I'm sounding like one of those cartoon, "Preposterous." Within seconds, he hangs up the phone. But that was minutes of arguing and fighting. All he had to do was say, "Hey, Todd, look. Your client makes the money. My client has a need. Is he going to pay some fees?" "Yeah, absolutely. I've already talked to my client." Done. Fantastic. But that kind of an attitude could have created a much bigger problem and a much bigger fight simply because of the approach.

Leh Meriwether: Right, and if you had taken a hard position and gotten angry with him and just said, "I'll see you in court."

Todd Orston: That's right. Now all of a sudden I'm talking like him with that same... And we're both talking like this.

Leh Meriwether: Well, but then your client would've been... Not only would your client still have to pay the $5000 but paid you to go to court to fight about it. And I just want to change this. I just realized. So we call this number three refusal to consider settlement. I kind of want to change this to almost a refusal to negotiate because I want to do the flip side and keep it inside this number three.

Leh Meriwether: Refusal to settlement meaning that on one side you got someone that just doesn't want to even talk settlement. They just want to try, try; let's fight, let's fight. And then on the other side, you have someone that's somebody makes an offer. "Well, here's what we're going to do. I think you should take it." "Have you not been listening to me? I can't live off that." "No, that sounds like a reasonable offer." "You haven't even analyzed their offer."

Leh Meriwether: The funny, I shouldn't say funny. There are lawyers that we know are like that, and you know from a strategic position, you can take kind of a harder position with them knowing they're too afraid to walk into the courtroom. So there are some folks that are, I hate to say it, afraid of the courtroom, whatever it maybe. And usually the other side knows it.

Todd Orston: Yeah. You just need to know your attorney and make sure that they're listening to you and understand another red flag. An attorney has an obligation to present you with any offers that are made, and I have had situations where we have made offers to... Let's say on a temporary basis to settle something. And my client will give me a call a week later and be like, "Why didn't you make that offer?" I did. I actually forwarded you a copy of the communication that I sent. "Well, my wife is saying that she hasn't heard anything about it." And they're gearing up for a hearing. "That's not us. That's opposing counsel, and why opposing counsel not only is not considering this offer but hasn't even communicated it to your spouse, I can't answer that. But if you need me to forward you the communication again where I sent it, I gladly will. But I'm telling you right now if you have any communication with your spouse, tell her to start looking at those communications and talk to her attorney about why that wasn't communicated to her."

Todd Orston: There's an obligation. So make sure if you're not getting those types of communications from your attorney, again, red flag.

Leh Meriwether: And I'll say this to listeners out there. In that scenario, you are not permitted to forward that same email to the opposing party because they are represented by an attorney. We have to communicate between the attorneys. But that doesn't mean that you as the client aren't allowed to forward any communication, like copies. You don't want to forward anything that we've sent you because that would be opening up any... That means you're waiving your attorney/client privilege.

Todd Orston: And a quick piece of advice is being careful if you do start to forward emails because sometimes it's an email chain, and be very, very, very careful because I've seen people go, "Oh, I'll forward this email," which is a copy of the offer that was sent to opposing counsel. But meanwhile you've had nine more communications back and forth with your attorney where you've shared all kinds of strategic points, and now opposing counsel has it. So be very careful.

Leh Meriwether: Don't do that.

Todd Orston: Yeah. I've seen that happen.

Leh Meriwether: We're on the phone, we can't even necessarily say, "Well, forward it to your wife," because that could be looked at as going around the attorney. But people do do that. I've had situations where the client... I wouldn't say that's why. We keep our clients in the loop, and I have had clients say, "Well, we made an offer." Because what happened was the wife was getting mad or maybe it was the other way around. The husband was getting really, really mad because he felt like the wife was taking an unreasonable position. She's like, "I thought I was getting screwed with the offer that we just made." He's like, "You didn't make an offer." And so, "Oh, yeah I did." And then that lawyer got really upset. I mean, I'm sorry, the husband got upset with their lawyer because they never passed it on.

Todd Orston: And the flip side is, again, you have to have trust in your attorney because refusal to consider settlement... If the attorney has a rational basis why it's not a good settlement, and this is sort of going to what you were saying before, then you have to trust or should be able to trust your attorney. It's your case. If you end up saying, whether it's reasonable or not, "I will take that," your attorney should be running with that and facilitating the settlement. But, again, just because they are taking a position of, "No, we are not going to accept that or shouldn't," doesn't mean that they are wrong. Like you were saying earlier, it may not be a great settlement.

Todd Orston: Let's go into the... start the next one. Lack of capacity, and I don't think we're talking about mental capacity.

Leh Meriwether: Well, we could be. I just now thought of that. We could have had that in there.

Todd Orston: Right. If your attorney has severe mental health issues-

Leh Meriwether: Actually I have had that before where the other side was... There was something-

Todd Orston: Okay. But that's not really the... I don't think we need a radio show to tell you if your attorney is suffering some malady, but we're talking about and going to talk about is sometimes attorneys just take on so much and they just can't get to your case. And it's unfortunate when you're, again, you're with a solo versus a bigger firm.

Leh Meriwether: Sometimes it can happen at a bigger firm. It shouldn't, but-

Todd Orston: When I was a solo, at one point and time, I had 60-70 cases. If I was on my own, I had a paralegal at the time, but I was crazy busy. Here, with our firm, we may have two attorneys on the team, two paralegals, a legal assistant. We can handle more cases. You have somebody who's by themselves, they get very busy very quickly.

Leh Meriwether: Yeah. So up next, we're going to explain a little bit more about what we mean about lack of capacity, and I won't go off in any more tangents. And we're also going to talk about what to look for when there's a lack of professionalism and their struggles with the communication style.

Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to this show live, you can listen to it 1:00 a.m. on Monday mornings on WSB. So you can always check us out there as well.

Todd Orston: Better than like counting sheep I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk really soft.

Leh Meriwether: Welcome back to the Meriwether and Tharp show. This is Leh and Todd, and I'm going to do a really short intro because I realized we are almost at the end of the whole show, and I was talking too much.

Todd Orston: Surprise, surprise.

Leh Meriwether: Well, I was trying to relay a lot of information, but there's three more points that we wanted to get to before the end. I will say these are a little easier to relay, but we kind of order them in the frequency of what we see. But let's hit them. I need to stop talking.

Leh Meriwether: Lack of capacity.

Todd Orston: Yeah. I mean, look, again if you hire a solo, you know what you're getting into. If you hire a bigger firm with a bigger team, then you know that there is more bandwidth or at least arguably there is more bandwidth because that means that there may be a senior attorney, younger attorney, paralegal, maybe two. There are enough team members to step in and do the work that needs to be done.

Leh Meriwether: So one of the problems with the lack of capacity is not just that they may not be able to get back to you right away, but if you have a complex case with, for example, lots of documents. Well, your lawyer may not be able to handle all those documents because it's not only is processing the documents but reviewing the documents, making sure we got all the documents.

Todd Orston: Yeah. We're not collecting 5000 documents just because we love killing trees. We're collecting the documents because we need to understand and analyze data regarding bank accounts and credit card accounts or whatever the issues might be, and again one attorney... If you have a solo and he or she has 50-60 cases and is in trial or court constantly, there's only so many hours in a day.

Leh Meriwether: And there's not enough time to process all that information. So if you've got a large... If we're talking about from a divorce standpoint, a fairly large estate, you need to make sure they have the capacity to process everything. When I say everything, like sort of identify potential problems. We did a show about Jeff Bezos divorce, and there's no way I could handle that on my own because it's so complicated. There's so many issues at play in his divorce. Tax issues and security exchange relations.

Todd Orston: I have faith in you. I'll give Jeff a call, and I'll see if-

Leh Meriwether: Well, I think they settled their case.

Todd Orston: That's unacceptable. Jeff, give us a call.

Leh Meriwether: But in a case like that, you've got to have a team around you. Another sign that maybe they don't have enough time to devote to your case is, and this is falling under lack of capacity, is you tell the lawyer, "My name is not Jane Doe."

Todd Orston: Sloppiness.

Leh Meriwether: Yeah. Sloppiness.

Todd Orston: Yeah. You start to see mistakes in their drafting. You start to see in conversations or in emails and those types of communications with your attorney. If you see that they're just not really getting some of the basic facts in your case-

Leh Meriwether: Or they're missing... You say, "I need you to change this term in the settlement agreement."

Todd Orston: And it's not getting done. You send out the draft. You're like, "Change A, B, C," and it comes back and they changed A. B and C still aren't changed, and then you send it back. They're like, "All right. Got it all taken care of." And A and B are now changed but C is not changed. It's that kind of stuff which may not be representative of how they are as an attorney, but it may be just a representation of they just got so much on their plate that they are racing through everything. It's one of those things. You can either take on less, hyper focus on that work, and do A+ work. Or you spread yourself out too thin, and now you're giving everybody B-, C+ work.

Leh Meriwether: And let me give one caveat here. Because if you've given a lawyer that may have a normal caseload, a caseload that should be handled well, and you give them an unreasonable timeline, they may get things wrong. So I have pushed back on clients when they've asked me to turn things around and said, "Look, yours is too complicated. I will do a bad job." I'm up front with them. "I will miss something if you tell me to go that quickly." So make sure you're setting reasonable expectations on when you're going to get these back.

Todd Orston: Yeah. Let's jump into the next one, which is a big problem for you. No, I'm kidding. Actually, jokes aside, Leh, you are one of those people that I think you follow this to the letter and even go above and beyond. But it's professionalism. And it's why we have a two eye policy at our firm. Meaning we don't want letters to go out that are just overly angry or-

Leh Meriwether: Because we are human beings too. We can get-

Todd Orston: Caught up in the emotion.

Leh Meriwether: ... caught up in the emotion. We try to take that out as well. But if you see letters that are offensive, overly aggressive, they make things personal. Rather than focusing on the facts, they make conclusions or jump to conclusions based on some facts. And they make personal jabs or attacks. And sometimes it's a fine line because you can have someone that's done something really, really bad. I go back over the years, and I can think of some letters that I wish I could've rewritten. But I didn't have the time and it was a serious issue. The other person's behavior really was unacceptable, but I wish it could've been a little more refined.

Todd Orston: I mean, all of mine the past where perfect. But I think I understand what you're saying. No, but to me, I would also say that understand a lot of people, and I know a lot of clients, a lot of people who are listening are going to listen and go, "All right. But I liked hearing my client fighting for me." That was an example. I'm sorry, "My lawyer fighting for me." But this goes back to something we've been talking the last two shows about where you actually maybe moving farther away from the settlement table, farther away from an actual settlement because of that language. So you may feel like, "Wow. My attorney's really fighting for me." But it's not actually helping you accomplish goals.

Leh Meriwether: Yeah. I've had situations where the other side was... I mean, sorry. My client was really upset with me because I didn't do a certain attack in the courtroom. And I said, "Look, I didn't need to. If anything, if I made that attack, it could've upset the judge. And we won't get the verdict we want." They're very upset, and I understand it because they feel like they've been attacked in the courtroom. But then the verdict came back, and the judge awarded everything I asked for for the client.

Todd Orston: And that's also-

Leh Meriwether: And then the light bulb goes, "Okay. I understand now."

Todd Orston: And very quickly I will say it's also important to watch your attorney's demeanor. If you have to go to court, if you are at a mediation, watching how they interact, not just with opposing counsel. How a person interacts with everyone. I can tell you right now from the bailiff who does an incredibly important job. We all know. We've seen some of the horrible things that have happened historically in courts. But from the bailiffs and the deputies and the court reporters and everyone. How an attorney treats everyone involved in the process, my opinion, it's incredibly important and it's very telling. And that behavior, I have seen attorneys... I cannot prove this, but here's a tip. A lot of times you're in the courtroom, there are microphones in the courtroom. And things that are being said in the courtroom can be heard back in chambers, and I'm not telling you the judges listen or judges. But I'm saying if you think that bad behavior in the courtroom or out in the hall that is seen by a deputy can't be communicated to the judge and can't potentially impact you or your case, you'd be wrong if that's what you're thinking.

Leh Meriwether: Right. On the flip side, just because your lawyer is professional to opposing counsel does not mean they are not fighting for you. Because let me tell you, when the judge sitting on the bench sees your lawyer being professional and kind, now sticking to your... They're fighting for you.

Todd Orston: Just speak respectfully.

Leh Meriwether: They're doing it in a respectful manner. You are gaining major points with that judge. But if they see... Because the judges will often impute. They're not supposed to, but they're human beings. They can impute the lawyer's behavior to the clients. So you see a lawyer in there being disrespectful, being brash and abrasive. They can attribute that to the client, and if the accusation is this client is not going to be a great father because they are just too aggressive with the children and they demean them and they put them in counseling, and then their lawyer acts a certain way. Well, who do you think is going to win the case? The one who's being professional.

Todd Orston: Absolutely. Absolutely. All right. Let's go onto the last one, communication style.

Leh Meriwether: All right. So communication style, and this one is a big one. I'm going to keep it simple. If you can't understand the strategy because your lawyer's communication style just isn't working with you, you may want to change lawyers only because they maybe explaining it very well but not in a way that you understand. And so you may make a decision that is a wrong decision because you didn't understand the strategy that the lawyer had presented. So sometimes the lawyer's a great lawyer. And we do this inside our firm. We have changed clients inside the firm because one lawyer's communication style was different than other lawyer's communication style.

Todd Orston: I've had issues in the past where I felt like I was communicating the right way, communicating the right message, but for some reason, it wasn't resonating with the client. And there's nothing wrong with that as the client. For anyone listening, as a client though, be patient, be clear in what you're looking for, make sure if you don't understand, don't sit there trying to be polite. Don't think that it's going to make you look stupid. Well, he or she just explained it, now I have to ask again. Ask again.

Leh Meriwether: Yeah. Or say, "Let me make sure I understand what you just told me." And then put it in your own words and see if he agrees or she agrees to it. So communication style's very important. Don't just give up right away. Just like I'm not giving up on this show because we're almost out of time. But be patient, sit down with your lawyer, make sure you can explain back what they just explained to you, and-

Todd Orston: You'll have a better experience and hopefully get a better result.

Leh Meriwether: Exactly. Well, everyone, thanks so much for listening.