Michael Cohen, President Donald Trump’s former personal attorney, spoke briefly to the media after he finished a long and at times contentious day testifying before the House Oversight Committee. (Feb. 27)
Someday you may need to sue someone. It rarely works when done wrong. And it’s usually done wrong.
There are some basic guidelines for doing it better:
For small bucks, small claims court works. But for this route, prepare well. Much exists online and in booksabout navigating these courts. Several states like California, Michigan and Nebraska won’t let you use an attorney. Rules vary by state. If you’re alone and your opponent has a good attorney, you’re at a huge disadvantage.
Sadly, any lawyer can go to court. In decades overseeing dispute resolution at my firm, the worst litigation advice I’ve gotten came from lawyers who weren’t actual trial lawyers. They think they know but don’t — like some text-book-only surgeon. Ignore them. It’s bloody.
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Think ‘first chair’ attorney
When it comes to legal fights, envision a one-on-one sport. Your opponent does it often. You never have, or maybe twice. So, you’ll likely lose — making beginners’ mistakes your opponent doesn’t. For that reason, businesses often win against individuals — having built trial law muscle over decades. And the biggest mistake individuals make is picking wrong lawyers. My best advice? Learn to pick a good trial lawyer. Trial law is a unique art form.
You want what is called a good “first chair” trial lawyer. In TV court dramas where three lawyers sit together, the first chair is the one speaking to the judge. The others, support and prep litigators, whisper in the first chair’s ear. Most of the best first chairs I’ve known were never, ever those other prep litigators. First chairs, in your case, likely appear in court alone. Great ones rarely work for large law firms.
Dispute resolution is supposed to be about facts and law. Rarely does it morph successfully into theatrics.
Good trial lawyers needn’t be subject matter experts to win. They learn what they need so they can do what is necessary. But they’re super experts in the art of trial combat.
Resources to find a lawyer
Still, prior subject expertise doesn’t hurt. If suing your broker, it’s handled via arbitration under the brokers’ self-regulatory organization, the misleadingly yet authoritatively sounding Financial Industry Regulatory Authority (also called FINRA). Your odds in FINRA arbitrations are good. They pay off often. Study FINRA’s website.
Your best bet here is a trial lawyer from the Public Arbitrators Bar Association (aka PIABA). You can find them online easily. All they do is sue investment firms. I’ve been watching them over decades, and they’re pretty good.
PIABA lawyers also sue mutual funds, hedge funds, and investment advisers. These may end up in court or arbitration, depending on the contracts you signed. I think arbitration favors you, usually, but opinions vary on that. Regardless, you want a first chair trial lawyer with a successful history.
How to find one? First, search online for, “How to find a good trial lawyer.” There’s super good information online — particularly at BadgerLawyer and Columbia Law School. Or you can contact the state bar in the major metropolis nearest you (easily found online). Ask for 10 names of attorneys who handle plaintiffs (aka … you). Always meet them. Ask each how they started, their first chair dispute history and examples of their experience.
Warning signs of bad lawyers
If your lawyer candidate doesn’t warn you on how suing can backfire, run. If they claim they are the best around, they aren’t. If their goal is extorting a pre-trial settlement go elsewhere and find a lawyer who is willing, if needed, to go all the way to a final judgement. Good ones will.
Finally, never lie. Judges really hate combatant lies. Your opposition is skilled at exposing lies. Disputes are part arguing law, part arguing facts, and part chemistry. Lies poison the chemistry, crippling your lawyer.
Ken Fisher is the founder and executive chairman of Fisher Investments, author of 11 books, four of which were New York Times bestsellers, and is No. 200 on the Forbes 400 list of richest Americans. Follow him on Twitter @KennethLFisher
The views and opinions expressed in this column are the author’s and do not necessarily reflect those of USA TODAY.
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