Thu, 23 May 2013 17:35:04 -0500WeeblyWed, 02 Jan 2013 12:41:15 GMThttp://www.mcclanahanlaw.com/1/post/2013/01/nc-lien-and-bond-rights.htmlLiens

North Carolina law allows contractors on private projects certain lien rights. Liens are not allowed on public property.

Effective April 1, 2013 the Legislature amended the lien law.

For projects over $30,000 excluding residential projects by the homeowner, the owner must designate a Lien Agent, typically a title insurance company. The Lien Agent’s contact information must be posted on or near the permit. Although a permit is not supposed to be issued without this information, an owner is also required to provide such information upon written request.

The statute requires contractors who deal with material suppliers (ie. folks who do not show up on the job site to see the permit), within 3 days of contracting, they must provide the Lien Agent’s information. The statute says this can be accomplished by putting the information in the contract/ PO.

If a contractor or subcontractor who works on a project wants to keep his lien rights, within 15 days of starting on the project, he needs to provide the Lien Agent with his contract information. The statute provides a form to use and the form must be sent by some method where you can get a receipt including hand delivery, fax, email or certified mail. To be effective against a transfer, a contractor must also either A) give the notice OR B) record a claim of lien before a transfer deed is recorded.

After the initial notice, a contractor’s lien rights depend on whether or not it dealt with the owner of the property.

A contractor who dealt directly with the owner is entitled to a lien on the property. To receive these lien rights a contractor must: 1) file a Claim of Lien within 120 days of the date it last worked on the project or supplied materials and 2) file a lawsuit to perfect the lien within 180 days of the date it last worked on the project or supplied materials. Both the lien and the lawsuit should be filed with the clerk’s office in the county where the property is located.

The lien rights of a subcontractor, or one who did not deal directly with the owner, include a lien on funds and a subrogated lien. To receive a lien on funds, a subcontractor must prepare a Notice of Claim of Lien and send it by certified mail to anyone above him in the contract chain. Upon receipt of the notice, parties are obligated to retain funds in the amount stated. If a party fails to retain these funds, it becomes personally liable to the subcontractor. If the owner pays in violation of the notice and the subcontractor also filed a proper claim of lien at the courthouse, the subcontractor has a lien on the property to the extent of the wrongful payment.

A subcontractor also has subrogated lien rights. By filing the proper papers, a subcontractor can obtain a lien on the property through the lien of the contractor and any higher tier subcontractors. Since a subcontractor’s subrogated lien rights depend on other parties, an owner may defend a subrogated lien with the defenses of the higher tier subcontractors and the contractor. Contractors can cut off the rights of second or third tier subcontractors by posting and filing a Notice of Contract within 30 days following the issuance of the building permit. Subcontractors, however, can renew their rights by responding to the contractor with a Notice of Subcontract.

Bonds

Bond claims may be available on private jobs. Bond rights are stated in the bond itself. It is essential to obtain a copy of the bond from the owner to determine your bond rights. Often private bond claim rights expire after 90 days of last working or providing materials on the job site (as opposed to the 120 days on a public project). If your job has a bond, know its terms before you have a problem or you may lose your bond rights before you know what they are.

State and federal bond rights vary. Generally speaking, public projects valued at over $300,000 must have performance and payment bonds. The purpose of a performance bond is to ensure the owner that the project gets completed and subcontractors/ suppliers paid. The purpose of the payment bond is to protect contractors and subcontractors who provide labor and materials to a public job. Upon proper request by a subcontractor, contractors are required to provide a copy of the bond within 7 days. Notices required:

     - Contractors are required to give the subcontractors they deal with a notice containing various information (project name, project address, etc). Subcontractors & suppliers who receive this information are required to pass it on to their subcontractors and suppliers.

     - If you deal with the general contractor (person who contracted with government agency), then notice may not be required. If you did not deal with the general contractor, then notice by certified mail is required to be sent to the general contractor (usually within 120 days of last supplying material or labor to project). It is a good idea to send a copy (certified mail) to the surety, owner/government agency and other affected parties.

     - The statute also provides a form for subcontractors and suppliers to send to contractors within the first 75 days on a project.

Failure to send proper notice may result in your claim being limited to $20,000 or labor/ materials provided within 75 days service of notice.

Bond claims must be perfected by filing a lawsuit within one year of last providing labor or materials to the debtor for the job site.

For lien and bond claims, the law provides for the recovery of attorney fees if the other party unreasonably refused to resolve the dispute.

This area of the law can be very complex and you are encouraged to seek competent legal advice. The deadlines, notices and amounts are statutory and subject to change from time to time.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.
]]>Thu, 13 Dec 2012 12:41:33 GMThttp://www.mcclanahanlaw.com/1/post/2012/12/selecting-a-builder.htmlLots of people dream of building a home (or substantially renovating their existing home). Ask anyone who has ever built a home and they will tell you that it can be incredibly stressful. The best chance you have to avoid your dream becoming a nightmare is to choose the right builder.

You see, it is not a matter of whether there will be problems, the question is how many and how severe will the problems be. The right builder knows how to solve problems and this is the kind of person you want on your side in making your dream a reality. That really is the key to success- you and the builder being on the same team to get the home completed on-time, in-budget and in a workmanlike manner.

First you need to locate some builders. Some suggestions include: ask your friends and associates for recommendations, contact the local Home Builder’s Association, drive around town till you see a neighborhood or house you love and ring the door bell, or do the Parade of Homes. I would use a phone directory or web search as a last resort.

Once you have some names, narrow the list. Find out each builder’s experience. Ask how long he (she) has been building homes and how he learned the business. How many homes does he build per year? How long has he been building in the area you’ve selected? How long does he take to build a home, on average? Which jobs does he subcontract, and which does he perform himself?

Ask about finances. How is the builder’s credit rating? Which lending institution(s) provides his construction loans? Will he purchase the lot and construct the loan on his credit line, or will you be expected to facilitate financing? How is payment expected during the project? What about payment for changes?

Ask for references (get a recent customer as well as one that is a few years old). A spec buyer and a presale buyer may give you different viewpoints. Ask for a list of addresses of several homes he has built- a new home and one about five years old, and at the very least take a look at the exterior of these homes.

Ask about license and reputation. What is his general contractor’s license number and what level of license does he hold? Check with the General Contracting License Board to verify license status and any complaints. Is he a member of the local Home Builders Association, the Board of Realtors or another local trade organization? Call the Better Business Bureau and/or NC Attorney General’s Office to check for complaints against the builder. (Just because there is a complaint, don’t automatically write off that builder. There are two sides to every story and some consumers use these complaints to get leverage over builders. Conversely, just because there is no record is not a guaranty.) Check at the county courthouse to see if a builder has any outstanding judgments, liens or lawsuits against him.

Ask about the process. How often will you get to meet with the builder during construction? Which decisions will he make and which ones will you make? How does he prefer to communicate with you? For example, phone calls, e-mails, on-site visits? How should concerns be expressed and addressed during construction? Are signed change orders used for any changes in the contracted work?

At this point you should have some names of builders whose work you like that seem professional. Now you’re shopping for the best value. If the plans are selected, get price quotes. Ask how long the builder estimates construction will take. Learn whether the builder provides any warranty and what kind of punch list work is provided after closing.

Armed with this information, you should be able to make the best choice. Before signing the contract, however, you should talk with someone else who has built a home. Find out what they liked about the process and what they would change. Then, take a deep breath and decide if this is something you’re ready to commit to. Finally have a lawyer review the contract to see if it is fair and reasonable.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.

]]>Wed, 09 May 2012 11:40:02 GMThttp://www.mcclanahanlaw.com/1/post/2012/05/tips-on-buying-a-home.htmlBuying a home is generally the biggest purchase of a person’s life. First-time buyers typically go on an emotional roller coaster from the time they first enter a real estate agent’s door to the day of closing. While you’re excited about fulfilling a dream, you realize you don’t even know what questions you need to ask.

There are a number of issues you will face in purchasing a home: How much house can I afford? Should I buy a re-sale or a new home? What features do I need to look for? Where is the best available location? You will also encounter a number of legal issues. This article will focus on identifying and discussing legal issues to help you make informed decisions.

The agent. After you decide on a real estate agent, you will be asked to sign an agency agreement. You have a number of choices: buyer’s agent, seller’s agent or dual agent. Unless you know what you’re doing and have a really good reason otherwise, you should consider a buyer’s agency agreement. (You want them working for you, right?) As your agent, this person owes you certain fiduciary duties such as honesty and loyalty. Make sure communication lines are always open to avoid any dispute with your agent. Finally, whatever agreement you choose, read it before signing and get any questions answered.

The contract. Most all agent’s use a standard form contract titled “Offer to Purchase and Contract.” Once you have decided on a home and want to make an offer, you should sit down with your agent and fill out an offer. Be careful what you put in it! If the seller signs it, you may be legally bound to buy the property. What to look for in the contract:

1. Is everything you want in the offer specifically included? Don’t assume the seller will leave those ceiling fans or window treatments. List every fixture or appliance that you want to be part of the deal. Assume that if it’s not in the contract, it’s not part of the deal.

2. Is your offer conditional? Again, don’t assume the seller will know that your offer is conditional on the sale of your current home or on you obtaining financing. If a condition is not met, you should not lose your earnest money. It’s not enough that you talked about these conditions, they must be in your offer.

3. What about the condition of the home? Whether new or old, you should have the house inspected by a qualified and licensed inspector. Most lenders require this anyway. The condition of the home and property should always be a condition of your offer. Be sure and review the disclosure statement. It is difficult to close on a home and later come back and complain about conditions/ defects. Do a proper inspection before closing.

4. What about timing issues? If you want the offer to expire after 10 days, say it. If you need the closing to take place before 60 days, say it. Timing is always an issue in real estate transactions, so put any deadlines in your offer. Note: unless your contract sets a closing date and states “time is of the essence,” you probably cannot recover damages for a delay of the closing.

There is an Additional Provisions Addendum which allows for you to address many of these issues. Agents are pretty good about raising these issues, but you should also be aware of them so that your offer is the best it can be. Finally, read and understand each paragraph of your offer before signing it. Although the language may be “the standard legal stuff,” the standard wording is not necessarily be to your benefit.

The earnest money. When you make an offer you obviously intend on following through with it. But what happens if the deal goes south? Then you start to think about that earnest money. Here’s the law in general terms: If the offer is signed, a contract is formed and the only ways for you to get your money back are if: 1) the seller breaches the contract or 2) a condition is not met. If you just want to back out of the deal, you forfeit the earnest money. It’s best to work out earnest money disputes with the seller because real estate agents will not turn over earnest money until everyone agrees on a resolution. If things start to get nasty, consider contacting an attorney.

The closing. Everything is falling into place and you want to sign the papers so you can move in and get on with your life. Not so fast. It is not uncommon for people to be scurrying around at the last minute putting out fires and pulling out hair. Do everything possible to give yourself plenty of time in and around the closing to deal with delays and surprises. You are only adding more stress to your life if the moving truck is to arrive 1 hour after the closing is scheduled. Don’t be rushed into signing unless you understand the details of the transaction and are comfortable that the paperwork properly reflects the true deal. Review carefully the settlement statement. Ask if you are a named insured on the title policy and about exclusions on the title insurance.

You may feel pressure to close even though there are some loose ends, such as a repair that has not yet occurred. At closing, make sure any loose ends are covered by a written, signed agreement.

If you still can’t sleep at night because you feel you’re in over your head, you might consider buying an hour of an attorney’s time. You’re probably spending well over $100,000 on the house. Spending a $200 or so to obtain a level of comfort about your decision is not only reasonable, it makes sense. But remember, if you’ve already made your offer, the lawyer is basically limited to advising you of your rights and obligations.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.
]]>Tue, 10 May 2011 14:23:37 GMThttp://www.mcclanahanlaw.com/1/post/2011/05/payment-for-extra-work.html_Before beginning a job, it is important that you carefully read the requirements of the contract governing payment for extra work and/or extra materials provided to the project. Contracts often have specific notice requirements regarding claims for extra work along with a requirement that you obtain a written order from the other contracting party prior to starting any extra work. North Carolina courts will enforce both the notice requirement and the requirement of a written change order. This means that if you did not provide the required notice or failed to obtain a written change order, the courts may not require payment for the additional work even though all of the parties may have been aware of the claim for extra work from the moment the claim arose.

In sum, to get paid for extra work you have to comply with the contract. If the contract requires written notice, verbal notice of a claim for extra work does not comply with the contract’s requirements. If the contract requires a signed change order before you start the additional work, wait until you have a signed change order.

But what if the contract is silent? Then the issue becomes a matter of proof. With the ease of email in mobile phones, if someone tells you to do something extra on a job, shoot them an email and ask them to just reply and confirm. Be sure to include the material information as to scope of work and payment. This type of proof can avoid people forgetting verbal agreements to pay. This practice may keep you out of court, but if you end up in a dispute, this kind of proof can help you win.

Finally, in order to limit disputes over the value of the additional work, keep detailed records of all of your expenses (labor, equipment and materials). It is also a good idea to keep the other party well advised as to the cost of the extra work. Your chances of payment without a dispute are greater if the other party isn’t surprised by the cost of the extra work.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.
]]>Wed, 12 May 2010 14:11:03 GMThttp://www.mcclanahanlaw.com/1/post/2010/05/contractor-waiver.html_ If a contractor works on a project and discovers a dangerous or defective condition, he should definitely tell the owner of the condition. But what if the homeowner can’t afford or just doesn’t want to repair or remove the condition? Or what if a homeowner specifically directs a contractor to do something that the contractor knows won't work?

If the contractor follows the homeowner’s instructions, can the contractor be held liable simply because he worked on the project? For instance, a contractor discovers a crack forming in a furnace. He tells the owner and the owner promises to get it fixed. A month passes and the homeowner doesn’t fix the problem. The furnace explodes and the homeowner is dead. The homeowner’s estate sues you because you worked on part of the furnace. You explain what happened but your only proof is your recollection of a conversation with a dead person. Do you want to be put in this situation? How could the contractor have protect himself? The best step is to have the homeowner sign a waiver and release before leaving the job. A possible release is set forth below:

    FULL WAIVER AND RELEASE OF LIABILITY

    I, [owner], have been duly warned by [contractor], on [date], that [problem] exists on my property located at [address]. [Contractor] has advised me of a problem involving [problem] which has a potential for causing [danger]. [Contractor] has advised me that if this problem is not fixed, it could result in death or harmful injury to myself and others. At this point, I do not wish [contractor] to perform the necessary repairs. My signature below acknowledges that I have been advised of the problem described above, that I understand the risks involved, that I release [contractor] from any possible liability, and I take responsibility to warn and protect other persons who may be affected by the danger.

    [Date]

    [Signature of owner]

The above waiver should be presented to the owner as soon as he declines to fix the problem.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.
]]>Thu, 07 May 2009 14:03:38 GMThttp://www.mcclanahanlaw.com/1/post/2009/05/disclosures-in-the-sale-of-real-property.html_There are two ways sellers can expose themselves to liability in the sale of real property. The first is to make a statement that is false and the second is to omit a statement about a material defect in the property. Both of these statements are types of fraud. To qualify as fraud a statement must be: factual (ie. not an opinion), false, “material” (ie. the passes the “so what?” test), intentionally made, and reasonably relied upon by the buyer (ie. cannot claim fraud if it is obvious the statement is not true or the buyer had the chance to verify the statement or perform an inspection which would have revealed the truth).

When determining whether fraud exists, courts will look at a couple of important factors. First, the court will look at the parties involved. Courts look to see if the parties are both equally skilled and savvy in business matters. When a contractor purchases land, the court will generally assume that the contractor possesses the skill to determine if the land is satisfactory for its purposes. However, regular consumers may not be held to the same standard as a contractor. Next, a court will look at whether the buyer had full opportunities to investigate the property, and whether the buyer took advantage of these opportunities. If a contractor buys land, but doesn’t do soil tests and doesn’t ask the seller pertinent questions, establishing a fraud claim is very difficult. Likewise if a buyer requires a home inspection before the closing, the chance of a seller being liable for withholding information is greatly reduced.

In the case of the second type of statement, a seller who is in a relationship of trust or a seller who knows the buyer is unaware of an important fact that it is not likely to discover may have a duty to affirmatively disclose “material” defects. Here’s the $64,000 question: the seller knows of a problem but is not sure if it is major, should he/she disclose it? We suggest one of two approaches: go with your gut feeling and hope for the best or require the buyer to have a home inspection and make them sign something that you make no guarantees as to the condition of the home.

IF YOU ARE THE BUYER: Ask the seller direct questions. If you don’t get a direct answer, check things out. Get a home inspection. If the home inspection raises issues, get those checked out. The amount you’re spending on the home is worth knowing what you’re getting.

IF YOU ARE THE SELLER: Opinions are not facts so saying the home is in “good condition” is usually not a problem. You also should not have a problem about defects you do not know about. The problem is the thing you know about but don’t want to say because you really want to sell. If you are having sleepless nights about whether to disclose something, it’s probably major. If it bothers you, it would likely bother a jury. So either disclose it or make it clear that the buyer has the responsibility of inspecting the home and you are selling it “as is.”

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.
]]>Mon, 05 May 2008 11:43:03 GMThttp://www.mcclanahanlaw.com/1/post/2008/05/what-to-do-when-youre-in-a-car-accident.htmlYou have places to go and people to see. Catching red lights is getting on your nerves. You decide to speed up. Somebody pulls out in front of you and SLAM! you didn’t have enough time to stop. Now you’re really going to be late.

This is an unfortunate scene played out on the streets of every city every day. It does not matter whether you are totally at fault, partially at fault, or totally innocent- you have to deal with the accident. Below are some tips that, if followed, should guide you through the aftermath of an accident with the least cost and stress.

•  Stop. North Carolina law requires that drivers involved in an accident stop at the scene of an accident.
•  Call for help. If someone is injured, call an ambulance. Rendering reasonable assistance will not expose you to liability, but it is generally not a good idea to attempt to provide medical assistance unless you have training. You may leave the scene to get assistance, but you must return as soon as possible. Also, notify the police if the accident involved an unattended car or caused property damage over $500.
• Remove obstructions from traffic. If cars can be moved and doing so will not destroy evidence, clear the road. If you cannot move cars due to damage or if you feel the officer needs to view the scene before it is changed, do what you can to alert oncoming traffic.
  
• Assemble information. As soon as the officer arrives you will have to produce your license, car registration, and insurance information. Have this information handy in your car. If necessary, take notes so you remember important details like your speed and position, the weather, the layout of the road/intersection, the identity of any witnesses, and the name of the officer making the report. The officer will fill out a report, but by making your own notes you insure that information will not be lost. Taking pictures of the scene can greatly help you in a lawsuit. Use a camera-phone if you have it or you can keep a disposable camera in your car or maybe you’re accident will be in front of a supermarket or gas station that sells cameras. If any witnesses stopped to help be sure and get their names and contact information.
• Avoid speaking to the other driver. There are two reasons for this. First, the other driver may be so angry that any contact may create a threat to your safety. Second, it prevents you from making a statement you will later regret. The trauma of an accident may prompt some drivers to say seemingly innocent things like “I’m so sorry” or “I never saw you” and some drivers may feel compelled to offer to pay for damages. These statements are not so innocent sounding when repeated in a courtroom. Don’t make them.
• Before leaving the scene... Make sure you have information regarding the other driver including name and address, passengers’ names and addresses, the number of the police report, and the other driver’s insurance information.
• After the accident... If you have any discomfort or concern, see a doctor. If there’s a chance the other driver might sue you, call your insurance company so they can prepare for the claim. If you think you might want to sue the other driver, contact a lawyer. In all three cases, the sooner these parties get involved, the better.

You can’t avoid all car accidents by safe driving. Therefore knowing how to deal with an accident is vital. Following these tips should navigate you through an accident with the least exposure to liability as well as the greatest protection of your legal rights.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.

]]>Tue, 08 May 2007 11:42:30 GMThttp://www.mcclanahanlaw.com/1/post/2007/05/basic-estate-documents.html“If you fail to plan, you plan to fail.” Given this common sense and the “certainty” of death and taxes, it is a wonder why so many people put off basic estate planning. If you own property, have any dependants, or have a spouse/significant other, then you should consider some basic estate planning- regardless of your age or health. This type of planning insures the best “transition” when your time on this earth expires. Furthermore, good planning covers the situation where you, while remaining alive, are incapable of making your own decisions. Typical estate planning documents include:

WILL. A will governs the distribution of your property. If you die without a will, you die “intestate.” The law assumes how people who die intestate would want their property divided. However, in many cases, the law will not pass your property according to your wishes. For instance, if you die without a will and leave a spouse and no children, your spouse might only get the first $25,000 plus half of all remaining assets with your parents getting the rest. Most people would want their spouse to get all of their assets. A will can also state special gifts (to relatives, friends, charities or schools) or appoint a guardian for your children.

DURABLE POWER OF ATTORNEY. A power of attorney allows another person to act for you regarding personal or financial matters. A power of attorney is only valid if you could have done the act yourself (still living). A durable power of attorney allows someone to act for you even when you are “incapacitated.”

HEALTH CARE POWER OF ATTORNEY. As the name suggests, this is a type of power of attorney specifically dealing with medical issues. This document allows another person, your health care agent, to make decisions for you regarding your medical treatment when you cannot make the decision for yourself. North Carolina law changed in 2007 incorporating what is commonly referred to as a “LIVING WILL” into a health care power of attorney. A living will states your desires regarding the use of “extraordinary measures” to keep you alive in the event you become incapacitated. In other words, do you want to remain “hooked up to a machine” if that is the only thing keeping you alive? This document should eliminate a family dispute over your medical treatment.

Basic estate planning should give you peace of mind. You know you’ve done the right thing in preparing for your end of life. Remember: in many cases when you need these documents it’s too late to get them. As far as those “Do-it-Yourself” lawyer forms you can get, depending on what you get, they may do the job. Be aware that 1) sometimes you get what you pay for and 2) every state has different laws. Whether you need to review your existing estate documents or whether need to have them drafted, we encourage you to consult an attorney over these important matters.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.

]]>Tue, 09 May 2006 11:46:35 GMThttp://www.mcclanahanlaw.com/1/post/2006/05/jury-duty.htmlYou’re not a lawyer and you’ve never sued anybody or been sued by anybody. You’ve heard about problems with the legal system and you’d rather it just leave you alone. Then it comes in the mail. You’ve been selected for jury duty. Most people’s first thought is “how can I get out of this?” Well hold that thought. Have you ever really thought about jury duty?

Jury duty is your chance to be part of the legal system. Your chance to be part of the solution. Think about it. Most of the “big cases” go to trial and are decided by a jury. People are responsible for those huge verdicts and those not guilty verdicts.

Now I’m not saying that jury duty is glamourous or even interesting. In fact, it can be very boring. You show up and have to wait until jury selection. In jury selection you are asked questions about yourself that, in some cases, can be personal. During the trial you have to sit and listen to hours of testimony. The monotony of the trial is only interrupted by trips to the jury room so the lawyers can argue. You do get out of work- but that may add to your headaches because work may pile up or your time may be unpaid. To add insult to injury, the pay you get being a juror may not even cover parking.

But jury duty is a vital part of our justice system. Now, there are problems with the legal system. They start with unreasonable clients. Add unprofessional lawyers. Mix in some judges who won’t make proper decisions and a media with an agenda. Finish it off with a jury with a mind of its own and there’s your recipe for injustice. Most cases don’t have all these ingredients. In fact, I’d venture to say most cases have none or only one of these ingredients. But it just takes a couple of cases with these ingredients to give a justice system a black eye.

In fact, many of the “problems with the legal system” are more in perception than in reality. We’ve got a pretty good system. One reason for the system’s success is because people like you participate in jury duty. It’s a civic duty, like voting. It’s your part of the legal system. It’s your way to insure that the system works. So when you get that jury duty notice, think of it as your opportunity to make a positive difference rather than a stroke of bad luck.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at (919) 861-0693.
]]>Fri, 06 May 2005 11:45:57 GMThttp://www.mcclanahanlaw.com/1/post/2005/05/selecting-an-attorney.htmlAs a lawyer, my response to lawyer jokes has always been to point out that people love to hate lawyers, except theirlawyer. When people are in serious legal trouble, most people find great comfort in the fact that they have somebody on their side, someone whose sole purpose is to help them through the situation. But what if you don’t already have a lawyer? How do you choose the right one?

If you need a lawyer and don’t have one, you probably have a specific problem or need in mind. Since most lawyers today limit their practice to certain fields (it has become impossible to know every area of the law), you should focus on lawyers that deal with your area of need. You can locate these lawyers through the yellow pages, through lawyer referral services, or through referrals of people you know (probably the best source).

Now you have a list of names of potential lawyers. Call them and ask for an appointment. Many lawyers are happy to meet with you and provide you with an evaluation of your case. This initial meeting is usually free, but if it’s not, remember this: if your problem was worth taking to a lawyer, it’s worth spending the time and money to get the right lawyer to handle it. Whatever the arrangement, it is a good idea to discuss up front whether the interview is free or not. As they evaluate your case, you get to evaluate them. Some of the factors you should consider are:

1. Cost. Can you afford the lawyer? Typical billing arrangements include flat fees, contingent fees, and hourly rates. Don’t be afraid to request a hybrid: a lower hourly rate with a contingency bonus for example. Make sure you understand what is in the fee and what is not. For instance, most fees do not include expenses such as court filing fees and office expenses like postage and faxes. Ask the lawyer for a budget. Although it is impossible to predict the outcome of a case, an experienced lawyer should be able to provide you with a best and worse case scenario and a good guess at where your case falls between the two.
2. Competency. Did the lawyer seem to know what you were talking about? Ask about their experience- how long they have been doing this type of law? Ask them to explain to you the law on the subject. If they cannot explain it to you clearly, they probably cannot explain it to a jury either. However, just because a lawyer cannot give you a direct, immediate answer does not mean they are incompetent. All legal problems are unique and require some thought and possibly some research.
3. Comfort. Did he or she make you feel comfortable? This is an intangible factor but you’ll know it immediately. Was the receptionist rude? Was parking an ordeal? Was the lawyer’s office a mess?

At this point you have enough information to make up your mind. But remember: you are still the customer. If later you become uncomfortable or dissatisfied, tell them. Give your lawyer a chance to make things right. If you don’t understand what the lawyer is doing or if you feel like nothing is being done, ask. If you don’t like the attorney who is handling your matter, request that someone else in the firm handle it. If you’re still not happy with your first decision, remember you have the freedom to choose a new lawyer.

Selecting a lawyer is an important decision. You should know that when you get sued and don’t yet have a lawyer, you’ve got about thirty days to find one, sign a retainer, give them the facts, and get something filed. If you know you’ll have a problem sooner or later, find a lawyer now. The process will be more relaxed and you will have the time to find the best. Another benefit is that a lawyer who is familiar with you or your business is in a better position to represent you than someone who’s never heard of you. In addition, your lawyer may be able to do some preventative work an avoid a lawsuit all together.

This article is meant as general knowledge and not meant to substitute for legal advice on specific issues. If you have a question, please call Doug McClanahan at 861-0693.
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