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#121 If your lawyer's bill seems to high ?

mp3 #121 What Can You Do If Your Lawyer's Bill Seems Too High? (mp3 file)

First, speak up. Ask your lawyer to explain what he or she charged you for. You may find that the case was more complicated and took more time than you realized. Or your lawyer may agree that a mistake was made on the bill.

What if you and your lawyer can't agree?

Instead of going to court, you can take the dispute to Arbitration.

By law, you have the right to have most fee disputes settled by Arbitration.

Arbitration is an impartial hearing conducted by one or more persons not involved in the dispute.

Like judges, they hear both sides' arguments and decide on the outcome. Arbitration is usually faster and less expensive than going to court, and you can do it without hiring another lawyer.

If your lawyer sues you but does not tell you about your right to arbitrate, the court may dismiss at your request any action the lawyer brings against you. But if you fail to ask for arbitration within 30 days of being notified of your right, you lose that right.

In most cases, if you choose to arbitrate, the lawyer must arbitrate. This is true even if he or she has sued you for the money (unless the lawsuit is filed in small claims court) and even if you and the lawyer agreed to the fee in writing.

Six exceptions include:

1. Fees set by the law or by the courts, such as ordinary charges for probating a will, or attorney's fees that a judge orders one spouse to pay for the other in a divorce.

2. Fees charged by an attorney who is not a member of the California bar, who does not have offices in California and who did most of the work for you out of state.

3. Fee disputes that are only part of your problem with a lawyer and you have filed a lawsuit to resolve them. If you sue an attorney in a civil court for negligence, you cannot later request fee arbitration of the same matter.

4. Fee disputes that are taken to small claims court.

5. Fee disputes where the lawyer filed a suit against you to collect the fee and gave you notice of your right to arbitrate, but you filed an answer to the suit before requesting arbitration.

6. Fee disputes where you are not the attorney's client.

How does arbitration work?

Finding an arbitration program is the first step. Your local county or city bar association is a good place to start if you want to find an arbitration program. Mandatory fee arbitration programs operate under standards set up by the State Bar.

Check with your local bar which is listed in the white pages of your telephone directory under the name of your city or county. You also can contact California State Bar at 1-800-843-9053 to find out if there is a local bar arbitration program in your area.

More than 40 local bars operate arbitration programs throughout the state. Some procedures differ from program to program, so be sure to ask your local bar how arbitration procedures work there.

Arbitration almost always is cheaper than hiring an attorney and going to court.

Some local bars may charge a small fee, depending on the disputed amount. Still others may charge a percentage of the disputed fee and possibly a flat fee as well. If you cannot afford the arbitration fee, ask the local bar how you can apply for a free hearing.

If you win the case and the lawyer's fee is lowered, the arbitrator could decide to make the lawyer pay you for the filing fee.

Do not be afraid to take the first step by making your request. You have nothing to lose by asking the lawyer to lower the bill. If you and the lawyer agree to settle your differences, you can ask that your arbitration be stopped.

After you have found the right arbitration program, call them, or write and ask them to send you the forms. When you fill out the forms, you may have to state the type of case (for example, adoption or divorce); the amount of your lawyer's fee and the amount you believe it should be; and whether you want the arbitrator's decision to be binding -- a final decision with no appeal, or non-binding, with both you and the lawyer retaining the right to a new trial in a civil court.

Along with the completed form, you should send a copy of the written fee agreement, if you made one with the attorney.

If you received a notice of your right to arbitration and you are interested in arbitrating, do not delay. With most programs, your arbitration request on the local bar forms must be received in the bar office by the 30th day from your being notified of your right to arbitration. You may waive or lose your right to arbitrate if your request is late.

All fee arbitration programs use lawyers as arbitrators, and some use non-lawyers as well in some cases. Depending on the amount in dispute, the program will assign a single arbitrator or a panel of three. If a three-person panel is assigned, one member may be a non-lawyer.

You and the lawyer have the right to challenge the arbitrators chosen if you believe that they will not be fair or impartial. You can disqualify one arbitrator for no reason, but you must have reasons to challenge all others.

Remember, you and the lawyer can settle the fee dispute at any time before the hearing.

Arbitration hearings are informal. They are conducted in plan English.

You can be represented by a lawyer if you want to pay for one, but you do not have to have a lawyer. If you do not speak English, you can arrange for an interpreter.

You and the lawyer have a chance to make statements and ask each other questions and to bring evidence, such as letters or the fee agreement, which you feel backs up your statements. You also may bring witnesses, people who were present when you and the lawyer agreed on the fee. If you have problems obtaining certain papers, ask the bar for help.

If you think you will need moral support, ask the arbitrator if you may bring a family member. Fee arbitration hearings may be closed to everyone else, except witnesses while they are testifying.

If you want a transcript to be made of the hearing, you must make arrangements for the court reporter and pay all costs.

The State Bar also holds arbitration hearings.

If there is not an authorized local bar association arbitration program, the State Bar probably will hold a hearing in your county.

It also will hear your case if you or the lawyer believe a fair hearing is not possible through the local bar.

You may telephone the State Bar by calling area code 415-538-2000 or 213-765-1000. Refer to your local telephone directory for the address and phone number of your local bar association.

If both you and the lawyer agree in writing beforehand, the arbitration decision can be final and binding.

If either of you do not agree, the decision is non-binding, and both you and the lawyer can ask for a new trial in the civil court. If no one asks for a trial, the award will automatically become binding in 30 days.

If the binding decision says you must pay and you refuse, the lawyer can go to court to change the award to a judgment. If that happens, the lawyer can try to have the sheriff's office order your employer to give the lawyer part of your wages, or have him take one or more of your possessions, such as your car.

If the binding decision says the lawyer must return money to you and he or she will not, you can use the same process to collect.

If you want the chance to have a judge reconsider your case later, then you should not agree to be bound by the arbitration decision.

You should receive a notice with your fee arbitration award that explains the steps to follow if you are unhappy with it.

How can you avoid future fee disputes?

Be an informed consumer. Ask your lawyer for a written fee agreement, and make sure you understand exactly what it does and does not cover. For example, will you be charged each time you telephone the lawyer? Does the fee include making regular reports to you? In most cases, the lawyer is required by law to give you a written agreement.

Ask for a bill at least once a month if the lawyer charges by the hour. Then you'll know how much the case is costing as it moves along, and you can avoid a surprise at the end.

If a lawyer takes your case on a contingency basis, make sure you know how it will work. Contingency means you won't be charged lawyer fees if you lose (but you may still be responsible for costs such as filing fees, investigators or transcripts). But if you win, you pay the lawyer a percentage of the money the court awards you. Find out what the lawyer's percentage will be. Will it be taken from the amount you win, before or after court costs are subtracted?

Do not sign anything giving up your right to arbitrate the fee in case a dispute should occur.

If you think your lawyer has been unethical, call the State Bar toll free at 800-843-9053.

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