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Why Isn't My Lawyer More Helpful? Part III

business contract lawyer

This is the third article in a series attempted to help bridge the gap between clients and lawyers. Sometimes, clients are surprised lawyers “don’t know how to do everything” in the legal field; I mean they went to law school, didn’t they, why doesn’t their personal injury attorney do employment discrimination also? Both fields deal with suing people that wronged you and injured you in a similar way. Perhaps another client is a bit concerned that their experienced counsel still needs to look something up that the client believes is “elementary” or “basic.” Or maybe the client is frustrated that they cannot obtain a “clear” answer from their attorney. How many times have you felt that way when you asked a “simple” question to one of your attorney friends?

In the last two articles, I explained the sheer volume of legal material there is out there. We added some color to the conversation going over how legislatures pass laws and how courts interpret them, and the power of precedents (stare decisis) to add consistency, and how despite precedents, the law sometimes changes from time to time as courts review situations at later periods. I also covered how, just in New York, there are four “judicial departments” and each of them can be like their own court system, so that a case in Manhattan, with identical facts to a case in Queens, could have a different outcome, simply because the former is in First Judicial Department of New York State, and the latter is in the Second Judicial Department. Finally, I talked about how a small dissimilarity in facts can make all the difference in the world. Now, I’m going to talk about the interview process and end with what I hope is a funny story.

Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes. Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; also the laws change. So, use this as a starting point to gain a general understanding. This article, although educational in purpose and substance, nevertheless, might be deemed attorney advertising, and prior results do not guarantee future success.

5. The Interview Process

The Third Degree

How many of you ever felt like your own lawyer gave you the “third degree”?[1] You know, where you guy or gal you hired, or at least consulted with, seemed to interrogate *you* … the one paying them? Why is that? Do they just get off on putting you through the wringer? Asking you the same question three different ways, trying to “trick” you into some kind of answer? Running up the billing clock asking irrelevant questions about business partners, relatives, other business dealings that seem unrelated to the matter at hand?

The reason for all this behavior is simple. Your lawyer is trying to get all facts that could affect you (if you were a fan of the series Dragnet, perhaps you remember the phrase attributed to Sergeant Joe Friday, “just the facts, just the facts.”[2] In some ways, for those of you with a more religious background, your lawyer is almost like your Roman Catholic priest[3] - expecting a full confession, because without it, they cannot help you attain full salvation (from whatever problem you are seeking a solution).

Many times, clients - and please don’t take this the wrong way - do not understand which facts are important and which aren't. Don’t be offended! Until your lawyer gets the full picture they might not fully know what is and isn’t important either. That is the reason lawyers can be so thorough in their questioning process. And, remember, in last month’s article, we talked about how a small difference in facts could make all the difference?

Common Pitfalls

There are many common traps that clients (and even their lawyers fall into), during the interview process. Let’s cover some now.

Foggy Memory: Clients sometimes don’t remember certain things with complete clarity. It’s human nature for our memories to play games with us and “fill in the blanks.” A lot of the time, we do this in a way that is most favorable to us. However, the “Truth will out!”[4] This is the reason your lawyer often “interrogates” you, seeing if you change your answer if asked a different way. It’s not to trip you up; it’s to make sure you remember correctly, and aren’t fooling yourself.

Embarrassing Facts: Just like when a patient goes to their doctor,[5] many clients aren’t completely upfront with their lawyer, especially, if it’s the initial consultation. People don’t like to admit they made a mistake, were swindled by someone else, did something foolish, or worse - cheated someone else or did something else wrong. Many people are afraid that if they confess their wrong doing to their lawyer they might be “turned in” or suffer in some other material way.

Confidentiality is King: However, your lawyer can’t help you, if they don’t know what you did and how did it, or what happened to you, and the manner in which it happened. Keep in mind, generally speaking, lawyers must keep confidential information confidential; in New York the exceptions to that rule generally pertain to clients that intend to commit a crime (not a past crime), and the lawyer correcting the record of statements the lawyer knows to be false.[6] If you aren’t sure, ask your lawyer if what you say will be kept confidential and if so, tell them the whole truth.

Precision Matters: Precision and master craftsmanship is not just for airplane or automobile parts. Sure, much of what attorneys do is actually quite artistic and based on the “feel” - of their client, the matter, the opposition, the judge, etc. However, quite a bit of their work is rather precise. As I explained in my last two articles, case law often turns on the very smallest of facts. Was it in Manhattan or in Queens? Was it one person or two people? Can the same exact facts (i.e., someone didn’t honor their contract with you) be termed a breach of contract, or tortious interference with your business?

Imprecise Consequences: Believe it or not, all these things can make a big difference. We already saw how case law can be different, even in the same city. Representing one or two people can be an ethics violation for an attorney, depending on the circumstances and the precautions the lawyer takes. Tortious interference of contract usually has a shorter Statute of Limitations[7] than the Breach of Contract (meaning you may or may not be able to even bring your lawsuit).

Clarity, Consistency & Honesty

So, in the end, your lawyer isn’t attempting to torture you to death by overzealous questioning, nor run up the bill (at least not usually). They are attempting to get to the bottom of it all. They want you to open up, tell them the truth, at least as best as you understand it, and remember it. If you don’t tell your lawyer the real deal, believe me, as your situation progresses, things will start to come out. If your lawyer is significantly surprised, it most likely will hurt you, not your lawyer - because as long as your lawyer attempted, with professionalism and competence, to get all the facts together, it was your fault, not theirs, if you purposefully withheld information from them that caused harm to your position or your case.

And, also let me tell you … from personal experience, as a very active member of the Bar, and as someone with tons of friends practicing law, none of us likes being lied to. Sure. We often understand the reasons clients lie. I sometimes fib to my doctors (as I alluded to above). That said, we still don’t like it. And let me clue you into something else - it usually winds up costing you money. Sometimes a lot more money. If my client didn’t answer something truthfully or purposely withheld key information that I asked for, most likely, later I will have to “fix” the situation, which is going to take my valuable time - a cost, I gleefully will pass along to most clients; as would all my colleagues.

So, do yourself and us all a favor - be thorough, stay on point, and be honest. Sure, it’s better if your lawyer can make the “interview process” more of a conversation and mutual dialogue, rather than an interrogation. If you have concerns with the way your lawyer is asking you questions or the reason for them, don’t be ashamed to ask! It helps us (lawyers) for our clients to be comfortable and understand the process. Sometimes, it’s better if we don’t tell you exactly what we are thinking so we don’t accidentally “guide” your answers, especially in the beginning, when we want to know that full unadulterated truth. But, you’ll do better and be happier about the whole thing if you feel a bit more in control and involved in the process.

6. A Funny Story About Lawyers & Non-Lawyers

Hopefully, I’m not mischaracterizing this story, which comes by way of an interaction I had with a friend. So, buddy, if you are reading this and think, “hey that’s not what I said!” lol, well, feel free to call me and I’ll edit this appropriately.

That said, it goes like this. A friend of mine was an English major. In college, he had a part time job with some kind of screen writer or talent agency or something. He was told to go over the contracts, and proofread them or something. He started editing them, correcting all the grammar, the punctuation, and worst of all, the terrible run-on sentences, that seemed to extend forever, in an ugly mockery of his beloved English language. All of the sudden, his boss bellowed at him from across the room, “STOP! What are you doing?!?!” Apparently, his boss just wanted him to check for clear errors such as the wrong person was referenced in the contract or something off about the subject matter or an incorrect date. His boss explained “legal contracts” do not follow the rules of the English language.

Ever since then, for over 20 years, I have heard this is the reason he doesn’t like or trust the law, because it doesn’t even follow the rules of the English language, so how can it stand for anything? He believes it’s not consistent, “they” just make the rules as they go along, there’s no rhyme or reason, it’s all fraudulently constructed by corrupt politicians and judges purposefully make it incomprehensible to the average person, etc. etc. I tried to explain to him, that sure, there are certainly occasions when lobbyists[8] slip something into a law that is good specifically for set of folks or one class of the general public, possibly even at the expense of another set or class, but that he fundamentally misunderstood the relationship between law and English. First of all, there is a basic court doctrine, that words should give given their plain meaning.[9] So, contrary to what he was told way back then, that’s not wholly accurate - law, can follow a natural and logical path from the English from which it is derived.

However, that said, sure, the syntax - the way a phrase is written - can have a very specific meaning that is only true for law, that may or may not correspond to the way an English major could read it. The reason for this, as I explained in my last article, is because of precedent; the way a court interprets a specific phrase of the law, as applied to very particular facts. The presence of a misplaced comma (in one case costing about $1M[10]) can sometimes change the interpretation of a sentence, and rightly or wrongly (as to the rules of the English language), if a court interpreted it that way in the past, future courts generally will be bound to make the same interpretation. At the end of the day, the judiciary, not your 8th grade teacher, will interpret the wording for you. That doesn’t mean there isn’t consistence, logic, reason, or justice in the decision. However, it does mean, the person making the final decision had to go to law school, not obtain their PhD from the English Lit Department.

Also, keep in mind, there are both statutory and court doctrines that respect something called the “course of performance” “course of dealing” and “usage of trade.”[11] Respectively, this is the way two business people were dealing with each other in one transaction, in a number of transactions, and the industry standard as a whole. Said another way, if two parties routinely deal with one another, and interpret plainly worded English contracts incorrectly but in a consistent way that both of them respect time and time again, the courts might also will ignore the true meaning of the language the contract and enforce the contract as both parties were interpreting it, rather than the way it was written.

Finally, it should be noted that most clients are cost conscience and don’t want to review, let alone re-write their contracts each and every time, if they can avoid it. Therefore, clients might use “imperfect” contracts, i.e. those with run-on sentence and improper English, again and again, knowing the grammar leaves something to be desired, because the clients aren’t in the mood to spend thousands of dollars to tell their lawyers to “pretty them up.” Over time, these contracts might even become the “standard language” of a group of business people or even an entire industry, and then everyone is afraid to change the language for fear of somehow “messing up” the common understandings.

7. Final Thoughts

Look, I won’t lie. Not every lawyer is great. Not every lawyer is great all the time. Not every lawyer is great with a particular field, or with a specific client. That’s just human nature all around. However, there are many common misunderstandings that confuse and frustrate clients, about the law and their lawyers, and I hope this series of articles has explained at least some of those reasons.

A little trust goes a long way in your relationship with your attorney, and if there is anything that would help you feel more comfortable with your lawyer, definitely let them know. Both of you will benefit, and ultimately you will enjoy the process (as much as you can) more, and probably save money also in the long run.

Condemnant quod non intellegunt![12]


Hyperlinks enabled - try them!

[2] (apparently this was not as ubiquitous as is thought)

[4] (Shakespeare) The Merchant of Venice, Act II, Scene II;

[6] New York Rules of Professional Conduct, 1.6(b) Confidentiality;

[9] "courts should construe unambiguous language to give effect to its plain meaning" (DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]).

[10] (misplaced comma costs $1M in Commercial Real Estate);

[12] “They condemn because they do not understand”


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