Business and real estate deals and partnerships can often create conflict. Sometimes these disputes may culminate into litigation.
Here are five steps to follow to make sure you make informed and educated decisions.
- RULE OUT ALL ALTERNATIVES TO LITIGATION
Disputes between parties, whether individuals or businesses, may give rise to the need for hiring a Civil Lawyer (for cases between individuals) or Commercial Lawyer (for cases involving a business, including a franchise). The need to Sue and enter into a Lawsuit involves disputes that have not been resolved on their own between the parties in a disagreement, including by other legal means that are simpler, cheaper, and faster, such as business meetings between the parties, Mediation or Arbitration. It is best that you hire an Attorney (Lawyer) experienced in the field of the legal matter early on when entering into transactions that have significant value, obligations, and complexity to avoid or lessen the causes that can give rise to stressful, time-consuming, and costly disputes.
Litigation may be necessary when all other means to resolve a dispute or disagreement are exhausted. This involves entering into a Lawsuit and hiring an experienced Trial Lawyer (Trial Attorney) to take you through the standardized legal process that may involve a courtroom trial before a Judge, and possibly a Jury, unless the matter reaches a mutually agreeable Settlement prior to the verdict with a binding decision by the court to resolve the disagreement.
- BEGIN RESEARCHING LITIGATION ATTORNEYS TO DISCUSS YOUR CASE
Hiring a lawyer that has experience and a track record of success in your type of case is paramount! In fact, in many cases, your case is only as good as your attorney! A good Referral from a trusted source is a great place to start. There are also some trusted online organizations to help in your research. The State Bar Association of your State can inform you whether an Attorney’s license has a clean record without violations. Certain professional organizations award lawyers whether or not they pay a fee, and those are the most trusted honors as a source of referral, often with links to the attorney’s websites; a few listed by legal Practice Area include FindLaw, Best Lawyers of America, Super Lawyers, Litigation Council of America, and Chambers USA. Visit the website of a few Attorneys that stand out, and read through their Practice Areas to determine whether to request call or email for a brief initial consultation, possibly free in many cases.
- INTERVIEW LAWYER(S) & ASK QUESTIONS
You should feel confident and comfortable with your attorney, and trust that his/her experience, record of success, work ethic, staff support, and integrity are satisfactory. The area of Litigation is very broad, and it is often best to find a litigation lawyer who specializes in the area of law particularly relevant to your legal case. Some important questions during the interview may include:
- Does your existing case-load allow sufficient resources for my case, and who would be handling it?
- What strengths and weaknesses do you anticipate, and what strategies might you consider?
- Are you licensed in the appropriate court or district?
- Will you be seeking admission Pro Hac Vice for out of state cases?
- Do you know the Judge and other party’s attorney?
- What is the process of litigation?
- What will it cost, and can we go over that in detail?
- EDUCATE YOURSELF ON THE PROCESS & RISKS OF LITIGATION
The process of Litigation, usually taking longer than one year and often longer, depends on the complexity of the case, the number of parties involved in the dispute, whether and in which State or Federal Court whose dockets and resources may vary greatly. Litigation is a dynamic versus a continuous process with lapses in between periods of heavy activity. Throughout the process and up until the Verdict is prepared, the possibility for the conflicting parties in the case to Settle amongst themselves by written agreement exists prior to reading the final binding Verdict by the Arbitrator, Judge, or Jury. This dispute resolution process begins with filing a lawsuit and usually includes 5 general steps in the following order:
- Pleadings – this 1st step involves the Plaintiff submitting a Complaint to the court that explains the court’s Jurisdiction, the Plaintiff’s Claims against the Defendant, and the Damages being requested. This complaint will request a Jury Trial if the Plaintiff requests a Jury over a Judge to decide the outcome of the dispute, unless an Arbitration provision exists in your contracts.
- Discovery – during this longest phase, attorneys representing the parties in the case, Plaintiff(s) and Defendant(s), request information from each other through Depositions as well as document production that will strengthen their arguments in the case, and which must be shared without concealment.
- Motions – allow the parties to file a request for specific actions from the court. Motions fall under the categories of a Dispositive Motion which could result in the court’s dismissal of the Complaint or lawsuit, or Non-Dispositive Motion which allows the court’s ruling to address a particular pre-trial procedure or issue.
- Settlement Negotiation – the risk of uncertainty in the outcomes of the case by the court, combined with the expensive costs for a Trial, and the great interruption in people’s lives compels good litigation attorneys to avoid a Trial and work to achieve a settlement, or compromise between the parties.
- Trial – Trials can be very intense, disruptive, and expensive, involving fairly standard elements that include:
- Jury Selection
- Opening Statements
- Witness Testimony and Cross-Examination
- Closing Arguments
- Jury Instruction
- Jury Deliberation and Verdict
- Post-Trial Practice
- DISCUSS ATTORNEY COSTS AND FEES
Litigators who represent the Plaintiff in a civil action frequently work on a Contingency basis. Contingency is a success-based method of compensation that pays nothing to the attorney if there is no money rewarded in the dispute by the court, and yet shares a percentage of any monies (settlement or damages) recovered with the attorney as a resolution of the dispute. Contingency puts all the risk of the cost of litigation onto the attorney without the client coming out of pocket, except for any agreed out-of-pocket expenses which should be discussed and in writing.
Litigators who represent the Defendant are usually paid on an hourly fee, plus an upfront Retainer, as well as Expenses such as filing fees, court reporters, travel, lodging, interpreter, and expert witness fees, for example. The legal rate for hourly fees really vary greatly based on attorney experience, geographic location, and more.
Some creative law firms may even charge a blended rate including a reduced hourly plus contingency when representing Plaintiff or Defendant to share the cost and risk associated with litigation. Clients are always advised to get informed, understand clearly, negotiate, get things in writing, and read all agreements! In law and litigation, your case is usually only as good as your lawyer, so pick wisely and decide accordingly!
DISCLAIMER: This article (and links herein) is for informational purposes only and not intended to give legal advice. Use of and access to the article does not create any attorney-client relationship between the author and anyone with access to its contents. Please contact and retain your attorney for guidance on your particular issues and circumstances.