Lawsuit Process and Basics of Litigation

Lawsuit Process and Basics of Litigation

No Contingency Work, Please.

Firstly, we do no contingency work. This means we do not take a piece of the winnings. The amounts you win, you keep, but we must be paid by the hour, by cash retainers paid in advance, while we work for you. Bear in mind that we get paid whether you ultimately win or lose. In the event you are not satisfied with the outcome of your case or matter, you receive NO REFUND. We are not 'performance' or 'percentage' lawyers. We are paid by the hour, regardless of outcome. Why? Because the types of cases we handle are often not about money so much as achieving non-monetary goals of our clients, such as obtaining a cease and desist order. Can you imagine how we could asses a 'percentage' to a client for whom we have simply gotten their adversary to cease an unlawful activity, for instance? As you think through this example, you will realize that there is no way a lawyer can charge a contingency fee for this or many other types of business law cases. Accidents and injuries are a different matter. They lend themselves to contingency work, but we do not handle this kind of law. We are business lawyers who work in areas where contingencies rarely make sense. Please do not ask us for a contingency arrangement.

Avoid Litigation.

The litigation process is expensive, so you should avoid litigation if at all possible. Almost anything is better than winding up in court. Consider all manner of private settlement before resorting to litigation. If you want so sue for the "principle of the thing", be forewarned. We have never had a client who was happy about doing that after $75,000 in billings to us. They usually realize that a new Porsche would have been a better expenditure.

How Much Will It Cost? Nobody Knows.

The costs are never predictable. There is no norm or standard, and even if your matter is identical to somebody else's, the judge's actions may be very different, and the opposition will rarely do exactly what happened in some other case. The costs and expenses of your matter depend on things essentially beyond our control, like whether a judge permits extra discovery, requires mediation in the middle of a case, rules wrongly on something which requires appeal, and on and on and on. It is not predictable, so don't ask. It is similar to asking how many calories it will take Lance Armstrong to compete in the Tour De France next year. It could be 100 calories (he decides not to race) or 140,000,000 calories (he is injured on the final day, doesn't finish and has to participate in months of rehab). Therefore, we say it again; you cannot predict in advance the costs of litigation. We hope you understand, lawsuits are not a controllable thing because the opposition and the judge exercise a great amount of influence on the timing and expense of each phase. One client insisted that we should know the cost of litigation in advance, if we were really professionals, since even car mechanics know the cost of this or that repair. We laughed, "Yea, but the car doesn't fight back." We hope you understand and appreciate our extreme candor in this regard.

How many cases have you won, tied and lost?

We always chuckle when someone asks this, but we patiently explain that winning is hard to define in litigation. Its not like football. One of our clients was sued for 15 million dollars and we end up settling with the other side for around ten thousand. Our client was delighted with this 'loss'. On paper, we lost, it is true. But we were all smiles that day. On the other hand, once we won over a million dollars for clients who unreasonably believed that they should have gotten even more. They felt as if they had lost, although by anyone's measure, they won. In many cases, a client doesn't mind losing because they are interested in making a specific point and has paid us to litigate even though the loss is expected. As you can see, its hard to define winning and losing. And then, there are the losses which our clients forced upon us, by lying to us about the real facts, refusing to testify, failing to return our phone calls, refusing to pay for necessary experts, refusing to provide discovery documents, running low on money or concealing critical information from us. Adding to the confusion are the times when we won simply because the other side did not show up. Does that kind of 'win' indicate anything about our skill? Probably not. So although it is tempting to ask a about an attorney's won-tied-and lost record, remember, this is not football. It is commercial litigation, and winning or losing can have a very personal definition.

Can We Quit? Yes*

We are paid by the hour in advance for all litigation and arbitration matters. If you find yourself halfway through a litigation matter and run out of money, WE WILL RESIGN and motion the court to be released as your attorney. As in all matters, the court has the final say, and opposition counsel can, and often does, ask the court to try and keep us from withdrawing as a strategic ploy. Courts have been known sometimes to order an attorney to stay on the case, even if a client stops paying. However, withdrawal motions are usually and routinely granted.* So keep in mind, if you run out of money, we will certainly motion for withdrawal and resign as your lawyers, as described in our fee agreement. If you cannot afford to litigate a matter through to the end, think again about getting involved in litigation. We hope you appreciate our bluntness in this regard. Few attorneys or law firms will tell you this.

Be sure to look at our Firm Policies and Retainer Provisions page for additional information relating to our firm, practice areas, policies, and our locations.

* Courts let attorneys resign in most cases, but may order an attorney to stay on if the withdrawal request is made during trial or when trial is extremely close, for example, or if the adversaries can prove that permitting the attorney to resign creates an intolerable imposition upon them."