We are here today with Lee Tucker, a member of the law firm Davidson & Tucker, LLC.

Q: Most people only find an attorney when problems arise. What are some of the things that a family would need an attorney for?

Lee: A couple of things for families with children come to mind. First, do the parents have an estate plan? It is generally a good idea for families to speak with an expert about protecting assets for children in order, for among other reasons, to minimize tax consequences to the estate upon the passing away of a parent (the law in this area has been undergoing revisions over the last few years). Second, if you are a member of a step-family, it is not uncommon for custody and child support issues to arise. There are certainly a lot of attorneys who practice family law and can be helpful in this regard. With respect to small businesses, many such businesses are family owned and an attorney can help with business planning, organization and setup and contractual matters. Finally, people often find themselves in disputes with neighbors and/or home owners' associations or local governments about the enforcement of local ordinances and similar matters. Certainly an attorney could be helpful with in those areas as well.

Q: Do I need a will and can a will be done through software packages? Are they valid? Do they need to viewed by an attorney or notarized?

Lee: Generally speaking, the whole field of wills trusts and estate planning is a specialized practice. It is largely tax driven. Thus, I would recommend that people with an estate of any substance consult with an attorney who specializes in that area of the law rather than try to build a "do it yourself"-type estate plan. As a practical matter, I think it is a good idea to at least consult with an expert, be that an attorney or a tax planner or financial planner, etc., as to what that particular person's assets are, and what the scope of the estate would be (and thus, the degree to which such assets need succession and/or tax planning). In a typical situation between a husband and wife, if the husband were to die, generally, all of the assets of his estate would pass by law to his spouse. If you wanted to do something different from that -- for example, if you wanted some of your estate's assets to pass to someone other than your wife (i.e. you want your wife to obtain your interest in the marital home and you want your children receive your liquid assets), then you would need to provide for that distribution in some type of will or other type of documentation. Typically in Georgia, in order to be valid, a will needs to be witnessed and then signed and notarized, but an attorney does not have to sign off on it.

It would be my assumption that, again, speaking in general terms, a software package that may be used to create a will should be effective and lead to the production of a binding document if the directions for same and the governing law of the jurisdiction in which the will is to be operative are followed. Again, I would stress that with respect to estate planning, so many of the issues are tax driven that it is really important to speak with someone who specializes in this area. Another important issue is that the state of the law is somewhat in flux (for example, the phasing out and subsequent reinstatement of the "death" tax). The reason that the "death" tax is important is that if you have an estate which meets the applicable taxable threshold, then your estate would be taxable for estate and gift tax purposes. If your estate is less than the applicable threshold, then your estate would not be subject to the "death" tax.

Q: If a spouse dies and the next living relative is an offspring, do the assets pass to the child?

Lee: Generally, yes.

Q: Explain living wills?

Lee: A living will is something that would provide for a situation where a person is incapacitated (and usually confined to a hospital-type environment). It is a document which allows you to identify the manner in which you want certain things to be done with respect to your care (for example, if you do not want to be on life support systems while hospitalized, then a living will would provide authority for family members or the executor of the estate to act in accordance with your will), even though you are not of the capacity to attend to such matters personally.

Q: Are you allowed to challenge or contest a will?

Lee: Yes. You can contest a will. It is called a "caveat." For example, a potential heir alleges that the benefactor was not of sound mind when she made her will bequeathing all of her money to a charity. The heir caveats to the will based on the theory that undue influence was exerted over the benefactor and that she never would have donated the money to charity if she was of sound mind.

Q: What's a trust?

Lee: In simple terms, a trust is setup to benefit a person or an entity for a certain period of time, and is often tax driven (there are tax reasons to put money (or other assets) into a trust). Also, with respect to a trust, the contributor can identify guidelines to the distribution of trust assets. For example, it is not uncommon to hear of children who have assets left to them by parents in a trust and such assets are not available to the children until they reach a certain age. Generally, you can set guidelines for any trust within the context of what is legal.

Q: We are in a society that is sometimes characterized as "litigious." What are some of the challenges that most people are going to face over the next few years?

Lee: One of the things that we are seeing is that people are getting in a lot of debt. It seems like people are more amenable to taking on debt and being highly leveraged, and that manifests itself in personal relationships, business relationships, and relationships with creditors. Thus, people are, in some cases, getting in over their head, or are trying to work things out with business associates when things have not gone the way that the parties thought that things were going to.

Another issue that we see is the whole debate over tort reform and whether or not people who are legitimately injured should be able to recover against the persons or entities who committed the tort. There are many pieces of different tort reform legislation pending in the federal government and the states (the United States Congress has considered several pieces of tort reform legislation this year and the Georgia legislature looked very hard at tort reform earlier this year). As someone who practices primarily on the plaintiff's side, this issue gives us great concern, because, for example, by capping damages, the government is saying to someone, who may have been injured through no fault of his own, that your injury is only worth X dollars. And the reason that is a problem is because, in my view, it takes the enlightened conscience of the jurors -- your peers -- out of the equation of the value of damages. So we think that tort reform is a major issue for consumers and one that people should be very aware of.

You hear all the stories about the McDonald's cup of coffee. Suffice it to say that the facts in such stories are generally misrepresented and/or taken out of context. The whole story is never given with those types of stories - the consumer only sees the headline "customer sues Burger King for hamburgers with too much fat content." Since this is a consumer site I would say to people that we should all be careful what we wish for in the tort reform debate, because we see people everyday that have been injured or have had terrible things happen to them, and we believe its most appropriate for the jury and/or a judge and the legal system to address those issues within the context of the laws that are on the books as opposed to some arbitrary number implemented by the legislative branch of government that may not compensate people for actual injuries.

Q: Are you seeing a lot of bankruptcies? I think that people think it's easier than it really is and it will be a quick fix.

Lee: I think a lot of people are resorting to bankruptcy. People look at bankruptcy as being a way to avoid their obligations or minimize such obligations on someone else's dollar. We have several clients who are in situations were they are creditors to an entity which is in bankruptcy. Obviously, there are ramifications from the debtor-side down the road with respect to access to capital or new debt at reasonable rates.

Q: When I speak with doctors they often mention that some small issues can be addressed at home before seeing the doctor. Are there issues or situations that people should not use an attorney?

Lee: I think the middle ground with respect to doctors and medical malpractice and things of that nature, is that there probably are some frivolous cases. A lot of times situations could be handled one way but people want to rush to sue and hope they get the big pay off. Based on the research that I am familiar with, the reality of medical malpractice is that a very, very small percentage of doctors are the ones who cause the majority of problems. Similarly, the number of cases for which you see big verdicts are a small minority of the cases that are actually brought, and those folks are being compensated for legitimate medical error. In order to succeed with a legitimate medical malpractice case, you have to have a doctor who is willing to swear under oath that another doctor committed medical negligence. So (similarly to the tort reform debate), with respect to medical malpractice, you cannot always believe the headlines. With respect to people who are legitimately injured, in my view most doctors would want to make sure that people are rehabilitated from such injury and/or compensated appropriately.

With respect to whether people rely on lawyers too much, that is a tough question to answer since every situation should be considered on an individual basis. For me, if someone comes to me and says "I have a dispute that's worth X amount of dollars," then, depending on the circumstances, I might tell them that the legal fees it would cost to collect do not justify hiring me. A lot of cases we handle on contingency (i.e. where we front the money and fees) and if successful, we take a percentage of the recovery after reimbursement of expenses. There are several factors to consider but generally speaking, I think it is always prudent to ask an attorney to review your particular issue. Most attorneys I know are willing to assess the case and give you guidance as to whether it is worth your time and money to hire an attorney to proceed on your behalf.

Q: What should someone expect to pay an attorney? Of course, different attorneys have different amounts of experience and qualifications. As far as contingency and hourly what is average or fair?

Lee: I will address the hourly rate first. I think you have correctly identified that the level of expertise a particular attorney has affects that lawyer's hourly rate. You should consider a person's experience, visibility and overall ability, and value added things that maybe you do not think about such as his or her ability to work outside of the legal system to effect a change. So, the bottom line is that hourly rates depend on the attorney.

Certainly a consumer can inquire with several different attorneys to find out what the market rate in a particular are is, but a market rate does not necessarily equate with value. If I were in the market for an attorney, I would hire someone with whom I felt comfortable (both with his or her capabilities and responsiveness). With respect to an hourly fee, what I do in my practice (and what a lot of attorneys do) is that I usually collect a retainer on the front end of the engagement which is based on any number of factors. For example, I will estimate that this matter will take X amount of time and I want to collect some percentage of that in advance to offset my exposure if the bill does not get paid. Obviously, the amount of the retainer varies based on an attorney's relationship with the client and familiarity with him or her, etc. If a new matter came to me from someone that I did not know or did not have an established relationship with, my retainer would probably be different than that which I would expect to collect from a regular client. Generally speaking with respect to the retainer, I try and collect a reasonable dollar amount that works for me and works for the client. Again, from the consumer perspective, you should know that the amount of a retainer is a negotiable number. If you are comfortable with an attorney and such attorney wants to collect a larger retainer than you are willing to pay (and depending on whether or not the attorney wants to do the work), then negotiations between attorney and client may work the amount out.

With respect to my personal practice, I am certainly willing to consider alternative payment structures, although, in my experience, most times the client expects the attorney to set terms of payment. A consumer should go into any business relationship with his or her eyes open and if there is no previous relationship, then he or she should expect to pay some type of retainer.

With respect to contingency fees, such fees are all over the map. In Georgia, you have to have a contract between the attorney and client agreeing to the contingency fee. Generally, contingency fees in our practice range anywhere from a 33% to 40% depending on the status of the dispute at the time money is recovered. Obviously, with a contingency fee if there is no recovery, then the attorney does not get paid (other than reimbursement of expenses which may have been advanced on the client's behalf in some cases). Contingency fees are very prevalent in personal injury and medical malpractice types of cases. In business disputes and other cases of that nature, sometimes you will see a contingency, sometimes you will see an hourly fee, and sometimes you will see a blended rate (and a blended rate is something that consumers should be willing to consider). For example, an attorney is going to charge $300 an hour to take your case on a straight hourly basis; however, that attorney might be willing to accept a blended rate, (i.e. 20% of the recovery and a corresponding 1/3 hourly rate reduction). A blended rate is something that consumers can offer to an attorney as an alternative to paying a straight hourly fee.

Q: Would you as an attorney recommend Title Insurance?

Lee: Generally, yes. I have title insurance for my personal home. The issue is whether the consumer who purchases the house wants to be on the hook if there is a defect in title and someone comes back and says that it is not really your property. Personally, I think a person would be foolish to not get title insurance because it is not that expensive -- why risk it?

Q: So a company or person is not responsible for selling land that turns out not to be theirs?

Lee: Well, such person can be if liable if he or she knew about it. The real estate company is just the middle man; there is a buyer and a seller. So the buyer wants to find out if there are any liens or clouds on the title of the property owned by the seller of property. The buyer does this by hiring a title search company. Such company (or title attorney) checks the relevant property records and if there is a problem with the title, then the buyer's due diligence will discover the problem. If the title search does not reveal any exceptions and you have a problem later, then (again, generally) the title insurance company is responsible for defending you or taking care of any losses.

Q: So things can sneak in later that weren't found initially?

Lee: Definitely. In my experience, this does not happen often but why risk it?

Q: An attorney once told me that many people will expect a large reward from jury's in insurance cases, but that he pushes for his clients to accept a settlement. His reasoning was that most juries are not dealing out large sums of money, because they've seen their premiums rise in recent years. If someone is in a dispute and they've hired an attorney, how does a person know when its time to except a settlement?

Lee: Before I answer that let me say one thing. It is our position (and I do not want this to seem as propaganda), that insurance premium increases are more about insurance company losses in the stock market than they are about big judgments. Trying to negotiate with an insurance company from a plaintiff's stand point can, at times, be very, very difficult. Insurance companies typically have deep pockets; however, these companies do not generally want to pay the "true" value of a claim. Thus, one of the things that I ask my clients with respect to settlement is that if the insurance company makes a reasonable offer, do you want to put this situation behind you and move on? Do you feel like you have been compensated, have all your other subrogation issues and all your other insurance issues been resolved? The consumer should engage in a pseudo risk/benefit analysis (i.e. what is the risk of carrying the claim further and litigating versus what is the benefit going to be if I reach a successful settlement prior to trial). Sometimes, it is worth a monetary discount to settle in advance of litigation, from a plaintiff's perspective. Again, it depends on the case and it depends of the insurance company. There are insurance companies that are notorious for not paying and not paying what a claim is worth (and they get sued regularly), while some others are more reasonable.

Q: Once you decide to go to court, its takes on a new time line.

Lee: Sure, but a lot of times that helps drive settlement. Just because there is a law suit filed does not mean you are ultimately going to trial. But once a case is in the court system, it takes on a life of its own. I would say that the threat of litigation for a legitimate claim is leverage that should be used with respect to negotiating with any company (insurance or otherwise). Because a lot of time that is the only way to get the value that an injured person is deserving of or rightly entitled to by virtue of the injury. Whether or not to settle a particular case is a decision which should be made in consultation with your attorney based on the facts of the case and your interests in the matter.

Q: Is it practical to ask an attorney to show in writing what time has been spent and what it was spent on?

Lee: Absolutely, without a doubt. We send out itemized bills that identify by date, by matter, and by task what we have been working on. Certainly, if I am the client or the purchaser of legal services, then I would expect to see that level of detail. The way in which particular attorneys itemize bills may vary, but an attorney should not be put off by a client's desire to see an itemized bill that references the tasks that were completed and the amount of time it took to complete those particular tasks. Such a request is certainly not unreasonable and most attorneys I know do itemized billing as a matter of course.

Q: How important is it to hire an attorney in the area of which you're filing a lawsuit? For instance is going to sue someone who is 100 miles away…

Lee: I would answer that a couple of different ways. One, I think local counsel is very important. Someone who knows the legal system, knows the players in it, knows how to get things done at the court house is very important in my view. We serve quite frequently as local counsel for out of jurisdiction attorneys. Similarly, we reciprocate that. We know other attorneys in other jurisdictions that we refer business to. So my personal opinion is its definitely worth while to have someone who is familiar with the local system and the local court rules, because those can vary depending on what jurisdiction you are in. With respect to general business and day to day corporate counseling, I do not think the location of the attorney matters as much.

Q: If someone comes to you and says I think Met Life wronged me. Met Life is in New York, do I have to go to New York to sue them?

Lee: It would depend. Let's say you have a tort and it occurred here in Atlanta, Georgia. More likely than not, you could bring suit against the tortfeasor here in Atlanta. However, there are certainly circumstances where you would have to go to another jurisdiction to sue the defendant, but typically (for the little guy) you do not have to go to New York to sue an insurance company if the tort occurred somewhere else.

Q: How does someone check out an attorney?

Lee: You can contact the state bar and find out if the attorney is in good standing. The Supreme Court of Georgia actually publishes disciplinary notices. It is public record if an attorney has been disciplined or disbarred.

THE FOLLOWING MATERIAL IS OFFERED FOR INFORMATIONAL PURPOSES ONLY AND
DOES NOT CONSTITUTE LEGAL ADVICE