What should a law firm know before hiring a “contract attorney” to provide legal-writing services?

By Karen Hazel, Esq.

Owner & Principal

Hazel Communications LLC

 

It sounds simple enough: Your law firm is overworked, understaffed and in need of a fairly complex, lengthy memorandum of law within a week. Your fellow bar association friends have touted the benefits of hiring someone “on the outside” to tackle such work so you can meet a client’s critical deadline. You even have some referrals, based on other lawyers’ favorable experiences. Simple, right?

Not exactly.  Unless you address a few critical considerations before engaging the writing services of a contract attorney, you could end up in worse shape than if you drafted the content yourself, however busy and stressed you may be.

1.  Think a Little, Draft a Little – To begin, as the hiring attorney and the project overseer, you must be clear about what you want or you can hardly expect an outside attorney to understand what it is you want. It should come as no surprise to most of us that even the most skilled practitioners can become, shall we say, confused about what they really want to argue and include in a legal document.  Therefore, begin by drafting a simple summary of the project itself. Include a description of the writing required (“Memorandum in Support of our Motion for Summary Judgment,” or “Memorandum of Law on the following legal issues,” etc), the timeframe (“Due in first draft by next Wednesday”), the legal issues you want addressed, and if possible, an explanatory paragraph of anything else you deem important.

This step is crucial for three reasons. First, you are providing the contract attorney with a helpful roadmap that will keep his or her efforts corralled within appropriate parameters. Second, it serves to help you crystallize your own thinking before you pledge the job to an outside attorney (who will soon be sending you an invoice for his or her labor). Finally, a project outline or summary protects you and your client from unnecessary fees. Let’s say you assign a project to an outside attorney and your project summary clearly states that you need a memo supporting a motion in limine arguing why a client’s statement to police should be disallowed as evidence at trial. When the contractor bills you for 10 hours he spent researching Fourth Amendment violations, you’ve effectively protected yourself from such liability, because search and seizure was never part of the initial project assignment summary. Silly example, but this sort of thing does happen, believe me.

2.  Samples Speak for Themselves – There is nothing more helpful or sensible than a sample of legal writing that demonstrates, or at least approximates, the end result you are seeking. Whenever possible, provide your contract attorney with a sample of legal content that was successful for your firm in a similar proceeding; one that you believe demonstrates strong legal writing; or one that closely matches the “style” of writing you’d like the contractor to employ for this project. This can save time, and help push the writer toward achieving the results you desire.

3.  Issues, Issues and More Issues – Whenever possible, give your contractor at least a sense of the legal issues you want included, addressed or at least researched. Some guidance is better than none, unless you truly don’t know what issues to argue. If that is the case, you’re probably talking about a research assignment given the facts at hand as a starting point. This is fine–but make sure you’re clear about that from the start.

This key point always reminds me of an assignment that I, as the contract attorney, received by a well-known, highly regarded practitioner with far more experience in litigation than most. The charge was simple enough – draft a memorandum of law supporting the firm’s motion for summary judgment. The problem was, it was after I’d accepted the assignment that I looked at the pleadings that it became clear that legal writing was not this attorney’s forte. The pleadings were vague, confusing and did not point to a clear stance for summary judgment. As a result, the attorney ended up spending hours discussing with his colleagues—with me observing, on the clock—which issues they should argue presented no question of material fact. This kind of consideration is best hashed out before a contract attorney is brought on board, for the sake of you firm, your client’s wallet, and your own reputation.

4.  How Do I Bill Thee? Let Me Count the Ways – Attorneys are no strangers to billing others who owe them for services rendered. But when attorneys are placed in the other seat—the seat of the  “billee”—things can get dicey. Here’s some general guidance: A contract attorney can be paid in one of two ways—by the hour or per project.  Ask the contractor how he or she typically bills for a similar project, for a start.  If you feel uncertain about what you hear, consult with colleagues or trusted connections in the legal community for general feedback. If you’re hiring an outside attorney to “figure out” what issues to argue in a given case or motion, then you’re probably in need of pure research, which is almost always billed by the hour.

Always ask the contractor for an estimate in regard to how much time she or he believes the draft will take.  If your memorandum consists of arguing a single legal issue but involves incredibly complex, convoluted facts, take that into account, because the contractor will have to get up to speed quickly and fluently without the benefit of the familiarity you’ve acquired from months of working on this case.  If you don’t like what you hear in terms of expected hours, suggest a flat fee that you deem reasonable.

Deadlines can impact fees, especially if you are on an aggressive timeframe.  If you are asking for a fully researched brief within 72 hours, and that timeframe spans a holiday weekend, you can (and should) expect to pay more.

As a general rule, hourly rates tend to reflect the attorney’s experience level, reputation and samples.  As for flat fee arrangements, these can be beneficial to you as the “client,” because you are owed a quality deliverable regardless of how long it takes the contractor to create it. If you go for a flat-fee payment arrangement, always request a first draft and revision.  And, make sure you discuss and agree upon a “kill fee,” or the amount owed if you see a first draft that you absolutely hate. The kill fee is the amount you pay to compensate the writer for time-spent, but that doesn’t break your bank and allows you to replace the writer with another, if possible.

5. Time is of the Essence – I don’t care if you’ve landed Harvard Law’s recent top graduate – who happens to be headed to clerk at the SCOTUS next year – always, always, always specify your deadlines and ask to see some form of draft or progress BEFORE you reach your final deadline. I have heard horror stories from attorneys who believed they’d unloaded a project on a great writer and therefore didn’t need to check in with him or her until the deadline to file was upon them. Wrong. No matter how skilled a legal writer your contractor is, he or she is human (we hope), and we humans have been known to miss deadlines, get sick or confused, or lose parts of a file. Any number of things can derail the draft of your dreams, so check in with your writer periodically. Never be afraid to ask for a status update, or to see work performed/drafted to-date. As the paying client, you are entitled to “demand assurances” at any point in the process.

A last word on hiring attorneys as writers: disclosure. Your writer can only deliver a draft that is as good as the direction or leadership you provide. If you’re scattered or unclear, that may be fun for your legal assistant to talk about at happy hour. But for a fellow member of the bar who is building a reputation and earning a living as a legal writer, a client who behaves like “The Nutty Professor” is far from amusing. Protect your project and your own client through clarity, disclosure and frequent check-ups, and chances are, you’ll successfully delegate writing duties efficiently, economically and fairly, and get winning legal content as a result.

 

© 2012 Hazel Communications LLC. This article is for informational purposes only. It is not intended as career, legal or investment advice or for advisory purposes. This article may not be reprinted or repurposed without express permission by Hazel Communications.