Questions to Ask Before Hiring Commercial Litigation Counsel

Why the hiring decision deserves more than one phone call

Hiring a litigator is a purchasing decision made under pressure. A demand letter has arrived, a partner has stopped answering, a customer has stopped paying. The temptation is to take the first confident voice. The better approach is to treat the first meeting as an interview in both directions, with a short list of questions that expose how the lawyer thinks and works.

The questions below are grouped by what they reveal. None of them is a trick. A prepared litigator will have answered most of them many times and will welcome the chance to answer them for you.

Questions about experience with your kind of dispute

• What disputes like mine have you handled, on which side? Commercial litigation is a broad field. A partnership fight, a construction payment claim and a trade secret case run on different statutes and different timelines. You want a lawyer who has seen your type of case from both the plaintiff's and the defendant's chair, because that is how the other side's moves become predictable.
• Which courts would this case be in, and have you appeared there? A Dallas business dispute may land in a Dallas County civil district court, the Texas Business Court, or the federal court for the Northern District of Texas. Each has its own rules, judges and habits. What to expect in Dallas County civil district courts describes the local practice.
• Do you try cases, or do your cases settle before trial? Most business cases resolve before a verdict, but the other side prices your claim partly on whether your lawyer is willing and able to try it. Ask about recent trials and arbitration hearings, not about outcomes.

Be wary of answers built on results. Texas lawyers may not promise an outcome, and a lawyer who leads with a win record is selling, not analyzing. Past results tell you little about your facts, your contract and your opponent.

Questions about who will do the work

• Who will be the day-to-day lawyer on my matter? In many firms the person you meet is not the person who drafts the pleadings, takes the depositions or answers your calls. That can be efficient, but you should know who the team is and how experienced each member is.
• Who will appear at hearings and depositions? The answer matters most for the hearings that decide cases early: temporary injunctions, motions to dismiss, summary judgment.
• How many active matters are you handling now? There is no right number, but the answer shows whether the lawyer has room for yours.

Questions about fees, budgets and the rules behind them

Texas Disciplinary Rule of Professional Conduct 1.04 governs fees. It prohibits an illegal or unconscionable fee, lists the factors that make a fee reasonable (time and labor, difficulty, the skill required, the amount involved and results obtained, time limits, the lawyer's experience, and whether the fee is fixed or contingent), and requires a contingent fee agreement to be in writing and to state how the fee will be calculated. The rule also says the basis or rate of the fee should be communicated to a new client, preferably in writing, before or within a reasonable time after the representation begins.

With that as the floor, ask:

• How will you charge, and why is that structure right for this case? Hourly, flat, contingent and hybrid arrangements each fit different disputes. How litigation fees are structured explains each one and the trade-offs.
• Can you give me a budget by phase, with the assumptions stated? A single total offered before anyone has read the documents is a guess. A phase budget (pleadings and early motions, discovery, mediation, summary judgment, trial) admits what is not yet known and tells you where the decision points are.
• What costs will I pay beyond your fees? Filing fees, court reporters, experts, electronic discovery vendors, mediators and any bond required for an injunction are separate from attorney time.
• Could I recover my fees if I win, and could I owe the other side's fees if I lose? Texas follows the American rule with statutory and contractual exceptions. The answer depends on your claims and your contract, and a litigator should be able to say which exceptions might apply on your facts.
• How often will I be billed, and in how much detail? Monthly invoices that show who did what, for how long, are the norm you should expect.

Questions about how the case would unfold

• What are the two or three ways this case could end? Early settlement after a demand letter, a dispositive motion, mediation after discovery, trial. Each has a different cost and timeline, and the lawyer should be able to say which is most likely on your facts and why.
• What is the strongest argument against us? This is the most useful question on the list. A litigator who has already found the weak points in your case is the one who can prepare for them. One who says there are none has not looked.
• Which discovery level will this case be in, and what does that mean for cost? Texas Rule of Civil Procedure 190 places every case in a discovery level that caps depositions and written discovery. The level is set largely by what is pleaded, so this is a strategic choice as well as a procedural one.
• Is there a deadline we are close to? Limitations periods, contractual notice requirements, lien deadlines and response dates on a petition that has already been served all run whether or not a lawyer has been hired.
• Is there anything I should stop doing today? Deleting emails, contacting the other side directly, posting about the dispute, or paying an invoice that could be read as an admission are the usual answers.

Questions about communication and decisions

• How will you keep me informed, and how quickly do you return calls and emails? Rule 1.03 requires a lawyer to keep a client reasonably informed and to explain matters enough for the client to make informed decisions. Ask what that looks like in practice.
• Which decisions are mine, and which are yours? Whether to sue, whether to settle and for how much, and whether to accept or reject an offer are the client's decisions. Procedural and tactical choices are usually the lawyer's. Knowing the line avoids surprises.
• Who else at the firm can step in if you are unavailable? Trials and hearings collide. A firm with depth can cover; a sole practitioner should have a plan.

Signs that deserve a second thought

Some answers should slow you down, not because they prove anything but because they shift the burden back onto you to ask more.

• A promise or near-promise about the outcome.
• A total fee quoted before the documents have been read.
• Reluctance to say who will do the work.
• No questions back to you about the contract, the money, the other side and what you want.
• A plan that moves straight to filing suit without discussing a demand letter, insurance, collectability or the cost of winning.

Equally, do not hold hesitation against a lawyer who says a question cannot be answered until the documents are reviewed. That is usually the honest answer. What matters is whether the lawyer tells you what review is needed and when you will have the answer.

After the meeting

Confirm the lawyer is licensed and in good standing through the State Bar of Texas lawyer directory, which also shows public disciplinary history. Ask for the engagement letter and read it: scope of the work, the fee basis, what is excluded, who the client is (you, the company, or both), and how the relationship ends. If you are the company and also an individual owner, make sure the letter says whose interests the lawyer represents, because in partnership and shareholder disputes those can diverge.

Then prepare for the working meeting that follows. Preparing for your first meeting with a litigator lists what to bring so the evaluation can begin on day one. Tina Wysk represents Dallas businesses and their owners in state and federal court and in arbitration, and starts every new matter by answering these questions before asking the client to commit.