Dealing with a legal issue can often be a daunting task. For the uninitiated, stepping into a court room with its strict mores and peculiar, Latin-heavy lexicon can be a very intimidating environment. While government and legal websites have made it easier for some processes to be handled by individuals without a law degree, local attorneys say ease and security live at opposite ends of the street and having a specialist to help guide a client through their process may be the ounce of prevention that saves a pound of pain.
“As a lawyer, I would say you need a lawyer every minute of every day, but candidly, the best answer to the question of ‘When do people need a lawyer?’ is when you get to the point regarding any issue or transaction, accident, when you start to wonder, ‘Do I need a lawyer?’ That’s the time you need a lawyer,” said David Sherman, one of the founding partners of Metairie-based law firm Chehardy Sherman Williams.
Devil in the Details
Once it is determined that a lawyer’s advice is needed, experts recommend finding an attorney with a specific area of focus who can properly handle the case.
“You still have a tremendous number of attorneys who try be general practitioners,” Sherman said. “I’ve always said I’m not smart enough to be all things to all people. We started with six lawyers. We now have between 40 and 50 who specialize. Every lawyer has an area of expertise.”
Covington-based attorney Brittany Carter compared finding the right lawyer to handle a specific legal issue to someone finding the right doctor for a medical issue. If you have a problem with your foot, you go to a podiatrist. If you got an issue with your knee, you go to an orthopedist,” she said. “It’s going to a professional for advice and help to get to a resolution. You want to go to someone who really focuses on the certain areas that you need, because they’re doing that every day, day in and day out. And like dealing with your health, it’s very important for clients to be truthful upfront – with the good and bad – so that we can prepare the best in our situation going forward.”
Technology has made some legal dealings a lot easier and faster to process, but local attorneys advise the service an online portal can provide might not include all of the protections an individual or organization needs.
“In the last 10 years, especially since the pandemic, it’s amazing how many people try to practice law themselves via the internet,” Sherman said.
He offered setting up a business as an example. “In Louisiana, the state has made it so easy to go online to set up a business entity, corporation or a Limited Liability Company (LLC) [with the secretary of state’s office], but they don’t think about the fact that you need bylaws, organizational structure, succession plans…. All they know is they can go online, set it up, and not pay a lawyer,” he said. “It’s given people a false sense of security when they think all they have to do is fill out the formation documents online and they’re home free, and they’re really neglecting dealing with so many details that have to be dealt with when establishing a business.”
One of the main deterrents when it comes to people hiring a lawyer is anticipated costs, but most attorneys are willing to work with clients on fees. With the shape of the economy following the pandemic, Sherman said his firm will adjust fees with individual and business clients and come up with creative ways of helping so that they are not a complete economic drain.
“Finances can be really tough,” he said. “But a lot of times they can end up worse on the back end if you don’t have a lawyer. If all the Is aren’t dotted and the Ts aren’t crossed, your whole case can fall apart.”
Sherman advises people to talk with lawyers about taking their case on a contingency fee before they hire one. “If they say no, then you probably don’t have much of a case, and it’s probably not worth spending the money to pursue it,” he said. “If they take it, it’s a sign they think you have a strong chance to win.”
According to Carter, attorneys get a bad rap when it comes to fees. “We’re looked at as raking people over the coals for their money, but really, we are trying to be advocates, as a whole, for people, and I think they forget that,” she said. “There’s some not so great ones out there.”
Louisiana has a multitude of things that set it apart from the other 49 states, arguably the most notable is its legal system. The Pelican State’s laws are derived from the Napoleonic Code and the civil law of the state’s French and Spanish colonial period. All of the other states’ base their legal systems on Great Britain’s common law.
Carter said the differences between the two can upend a case for a Louisianan who uses an online website or app, like Legal Zoom, which is based on common law. “People will try to represent themselves and use something online which may not conform to Louisiana law,” she said. “I’ve seen instances where cases have come undone for people – especially with wills – who thought they could take a supposed easier road compared to hiring an attorney. They thought they were protected, but the documents were invalid.”
Understanding terms and phrases used in a courtroom can make dealing with a legal situation much less intimidating. Here are a few important legal terms and their meanings.
A written or printed statement made under oath.
Alternative dispute resolution (ADR)
Settling a dispute outside the courtroom with a neutral party such as an arbitrator or mediator.
A proceeding in which an individual who is accused of committing a crime is brought into court, told of the charges, and asked to plead guilty or not guilty.
A lawsuit in which one or more members of a large group, or class, of individuals sue on behalf of the entire class.
Money a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).
Latin, meaning “in fact” or “actually.” Something that exists in fact but not as a matter of law.
An oral statement taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
In criminal law, the constitutional guarantee that a defendant will receive a fair and impartial trial. In civil law, the legal rights of someone who confronts an adverse action threatening liberty or property.
A body of 16-23 citizens who listen to evidence of criminal allegations, which is presented by the prosecutors, and determine whether there is probable cause to believe an individual committed an offense.
The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial.
Information (Bill of)
A formal accusation by a government attorney that the defendant committed a crime.
A court order preventing one or more named parties from taking some action.
An invalid trial caused by fundamental error. When a mistrial is declared, the trial must start again with the selection of a new jury.
Serving as one’s own lawyer.
short for “pro bono publico,” Latin for “for the public good,” refers to professional services provided at no or very low cost.
Petit jury (or trial jury)
A group of citizens who hear the evidence presented by both sides at trial and determine the facts in dispute.
Plea deal (bargain)
Agreement between the defendant and prosecutor where the defendant pleads guilty in exchange for a concession by the prosecutor. It may include lesser charges, a dismissal of charges, or the prosecutor’s recommendation to the judge of a more lenient sentence.
An amount of suspicion leading one to believe certain facts are probably true. The Fourth Amendment requires probable cause for the issuance of an arrest or search warrant.
Standard of proof
In criminal cases, prosecutors must prove a defendant’s guilt “beyond a reasonable doubt.” The majority of civil lawsuits require proof “by a preponderance of the evidence” (50 percent plus), but in some the standard is higher and requires “clear and convincing” proof.
Statute of limitations
The time within which a lawsuit must be filed or a criminal prosecution begun.
A command to a witness to appear, give testimony and/or produce documents.
Orders that a specific location be searched for items, which if found, can be used in court as evidence. Search warrants require probable cause in order to be issued by a judge.
A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.
Unlawful detainer action
A lawsuit brought by a landlord against a tenant to evict the tenant from rental property – usually for nonpayment of rent.
The process by which judges and lawyers select a petit jury from among those eligible to serve by questioning them to determine knowledge of the facts of the case and a willingness to decide the case only on the evidence presented in court. “Voir dire” is a phrase meaning “to speak the truth.”
The “Law & Order” Effect
The proliferation of courtroom dramas in film and television has also had an impact on how potential clients anticipate their cases to play out potentially. While the shows are very entertaining and wrap up a story very neatly in 60 minutes, a lot of what is presented is inaccurate, lawyers say.
“Clients have misconceptions from watching shows like ‘Law & Order’ or even ‘Judge Judy,’” Carter said. “They see a very limited setting and go in thinking that things are going to be a certain way and that their attorney can pull a rabbit out of a hat sometimes, and we only can work with what we’re given.”
Most legal dramas are based in New York or in California, states that have very different laws and statutes than Louisiana. What people see on TV or in a movie may not be applicable everywhere.
“There is no way that people would be able to get away with these monologues that they get away with in court (on television) without people objecting,” Carter said. “The things that are really allowed in court, it’s nowhere near what you see in a TV show’s criminal trial. You’re not allowed to do a lot of what is portrayed and have to stick to a specific set of evidence.
“Additionally, every state has its own laws, and people need to understand that,” she said. “What’s being portrayed in one place may not be applicable everywhere.”
Combined with legal dramas, online and social media commentary, especially anonymous posts, that play fast and loose with the truth have altered peoples’ understanding of the law as well as their expectations of how a case may unfold in reality, according to Sherman,
“So much of it is completely untrue,” he said.
Criminal v. Civil law
Legal representation for criminal defendants is constitutionally guaranteed by the Sixth Amendment. Those who cannot afford an attorney are assigned a public defender. While there is no right to counsel for civil matters, there are options available, in some circumstances, for people to work with attorneys who offer their services for free.
In Louisiana, 70 percent of cases in civil court have one or more parties that is self-represented, according to C.C. Kahr, executive director of The Pro Bono Project, a New Orleans-based organization that provides free civil legal services across southeast Louisiana.
“People are going to civil court and representing themselves. Experiencing those proceedings and trying to follow and understand the legal language can be incredibly daunting,” Kahr said. “The impact of these cases can have a profound effect on people’s lives. It’s almost always economics, money that dictates that decision. And, certainly, there are some legal issues where we can help the self-represented litigant. For example, in making a change that doesn’t require complicated forms or proceedings. But the goal should be for everyone who has a legal need, who can’t afford an attorney, to have access to counsel. When they do, they do better. They’re going to have a more successful outcome.”
The Pro Bono Project is a non-profit, tax-exempt, 501(c) (3) legal entity that draws on the local legal community to provide the underserved free legal services in civil cases, including people who need help navigating their divorce, adopting a child, writing a will, challenging an insurance claim, declaring bankruptcy or communicating with creditors, or working on a succession on a family home, and additional matters.
“All of these are civil matters where the public doesn’t have a right to representation, but that’s where we step in and help,” Kahr said.
Attorneys, paralegals, law students, and others give their time to help people who would not otherwise have any legal advice to help them with their case. Last year, the Pro Bono Project’s nearly 2,000 volunteers worked on about 5,000 cases.