How to Communicate With Your Lawyer

Lawyers are supposed to be masters of communication. That is what they, supposedly, learned in law school. They learn how to write, crisp, clear sentences and are supposed to shape those sentences into cogent, well orchestrated paragraphs which are later supposed to be formed into persuasive arguments.

Lawyers learn oration in law school, so they can present their arguments to a Court and sometimes even to a panel of judges. These are the people who become politicians and stand up on the floor of the political convention waxing on about the future of America. So, how come it is that these same people seem to have so much trouble communicating with you, the client, about your case or matter ? The answer is that, despite all of that wonderful training, most often, no one has taught your lawyer how to communicate with you, the client.

In that event, therefore, it is likely that you that will have to communicate with them. There is often no sense in sitting around waiting for your lawyer to call you with an update or send you an unsolicited status report letter. Chances are, it is not coming. Accordingly, in order for the client to ensure that they communicate with their lawyers, it is often incumbent upon the client to initiate the dialogue.

And, what is the best way to do that you ask ? Here are some suggestions.

  1. Be Persistent.

Often lawyers are separated from their clients by receptionists, paralegals, associates, vacation schedules, court appearances, meetings and the often omnipresent automatic email response which tells you that your lawyer is “out of town” and will be checking email only “intermittently.”

Let’s start with the basics. When you receive the boilerplate email message response from your lawyer, telling you that your lawyer is unavailable, don’t believe it. Your lawyer is seldom, if ever, totally unavailable. Rare is the lawyer who travels to the Antarctic, in the middle of Winter, where there is no cell phone reception and no access to email. Lawyers are not permitted such travel. Law firms generally frown on lawyers who disappear entirely and become unavailable to clients. In reality, your lawyer is likely lying on a beach somewhere, looking at his email and his cell phone, and ignoring you while sipping his or her pina colada.

Your lawyer is likely reading your email even if he or she is not responding. Therefore, when you email your lawyer, demand a timely answer. The only excuse that a lawyer should have for failing to timely respond to emails is – death. And, in that unfortunate event, you should expect a prompt email from his Secretary advising you of his demise and informing you as to who at the firm has inherited your matter.

Get your lawyer’s cell phone number and use it. The best time to do this is at the beginning of the representation before you establish yourself as a pest and he does not want to give it to you. Lawyers should return telephone calls. While lawyers do go to Court, and attend trials, the average Court appearance lasts less than one hour. Demand a return call, therefore, the same day. Rare is the trial that lasts beyond 5:30 p.m. And why is that ? That is because the Judge knows that the lawyer has to return phone calls – your phone call.

Tell the lawyer’s receptionist when you need to hear back from him or her. Use words, if appropriate, like “urgent”, “important” or “time sensitive.” Don’t use words like “emergency” unless you really mean it. Some Courts define the term “emergency” as the imminent threat of death or bodily injury. Your lawyer will like you better if you use that definition and do not refer to emergencies that are really not emergencies.

  1. What to Say to Your Lawyer

Ask your lawyer to speak English to you. Is this really so much to ask after how much you have paid him or her ? Why should you have to have your law dictionary open just to understand what the guy is talking about. If you don’t understand what they are talking about, say so. “Dude, thanks for that 20 minute ‘explanation’ but that actually makes no sense to me.” Some lawyers, the good ones, may actually appreciate that. The bad lawyers will explain it again saying essentially the same incomprehensible thing they said the first time.

Ask about timing. “How long will this take ?” is one of my favorites. The reason that it is one of my favorites is because it almost always takes longer than anticipated. The reason for this is two fold – first, your lawyer likely has other things to do and, second, so does the Judge. You should consider whether you can live with the likely time schedule and how you may feel when the estimated completion date actually passes and the resolution of your matter ends up taking longer than planned. Can you handle the wait ? If the answer is no, you may want to consider alternative forms of Justice such as those recommended by Don Corleone in The Godfather[1]

Ask about the Cost. This is one of your lawyer’s least favorite questions. Why ? Because he or she likely has no real way to answer it. That, of course, does not prevent the average lawyer from trying. The problem with the question of “how much will this cost” is that, in order to answer this question properly you will have to be able to accurately predict what the other side (your adversary) will do. Nonetheless, you, the client, are entitled to an answer to this question, even it if is only an estimate subject to caveats.

Ask for your Bill. Smart clients ask to be billed at least every thirty days and, sometimes, even more often. The bill should tell you what is going on in your case. If it does not, don’t pay it. You should know and understand what you are paying for and why.

Ask for a case plan. Many lawyers really have no idea of how to resolve a case timely and efficiently. No, they did not learn that in law school. What we learned in law school was how to read cases and, then when were done reading cases, we read even more cases, and more cases, until it came time for the Bar Exam and we were then asked to regurgitate the “holdings” of those cases back at some invisible grader, in a far away city, that we never met before and will, in fact, never meet. That is how we become lawyers. Not one word about strategy. Not one class in case planning or billing or how to communicate with you.

The way lawyers learn these important tasks is on the job, when you, the client, ream us. And this, my dear client, is how we learn to be lawyers, not by reading the “holdings’ of piles of cases in law school.

One last thought. Lawyers are people too (I know that may seem hard to believe). We actually work better and harder for people that we like. So, be nice. It may benefit you in the long run.

 

 

 

 

[1] This is called satire and is not intended to be taken seriously so please do not tell my friends and relatives that I recommended that you take a “hit” out on your adversary.

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ARE YOUR CLIENT’S FLORIDA’S WAGES EXEMPT FROM INTERSTATE GARNISHMENT?

The Florida Litigator

Representing a debtor in a Florida collection action, in which your client is the head of his or her household, is usually fairly straightforward.  Your client resides in a debtor’s  haven.  In Florida, it is difficult for creditors to reach your client’s assets if she is the head of household.  In Florida, there is an exemption from garnishment statute that limits the ability of creditors to garnish the wages of someone who is determined to be a “head of household.”  F.S. §222.11 (2012).  In order to avoid the effect of this statute, a creditor must obtain from the debtor an explicit waiver.

Florida also frowns upon certain common collection devices used in other states known as “Confessions of Judgment.”   If you live in New York, for example, a creditor can have your client sign a Confession of Judgment and, in the event of a default on a loan, can march…

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PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

Source: PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

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PEACE THROUGH WAR – A SHORT PRIMER ON HOW TO ACHIEVE A COST EFFECTIVE AND RELATIVELY QUICK SETTLEMENT

  • “All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.”

Sun Tzu, The Art of War

Many business people that come to our office for a litigation consultation utter a similar refrain: “how long will a litigation take, how much will it cost and when will this case be settled ?” These are all good questions for which there are, most often, no easy answers.

Typically, prior to the initial consultation, we have not been involved in the underlying dispute and, therefore, cannot reliably predict what stimuli will bring the other side to the settlement table. However, there are several universal truths, that are, or should be, self-evident.

  1. Very Few Wars End on the First Day

In a perfect world, we would file and serve a complaint, and the other side, either through counsel or on their own, will plead for a settlement conference or make an offer to resolve a pending lawsuit. The problem is that, the receipt of a summons and complaint most often does not inspire the receiving party to become more conciliatory. Usually, the initial reaction is for the other side to “go to the mattresses,” a phrase made famous in the G-dfather, which means to get ready for a long and contentious fight.

So, if the client’s objective is to settle quickly, then it would be reasonable to conclude that, if the other side begins to gear up for a long fight, that is a bad thing.

Right ?

Wrong.

  1. Sometimes Wars Need to Be Fought

How many business people come into our office, after having tried unsuccessfully, to settle a dispute, despite multiple efforts, which occur over an extended period of time. The distressed business person walks into the conference room, lays the settlement correspondence out on the conference room table, and justifies what is sometimes an extensive delay in bringing suit by stating:

“Look at how many letter and emails I sent. Look at how many times I spoke to my adversary on the phone. We had lunch. We had dinner. I offered them everything. I got nothing.”

This somewhat sad scenario is a regular occurrence in business. A client who offers everything and who gets nothing. To the battle tested litigator, the problem should be obvious; to the average business person and the neophyte, it is likely not. Here are some suggestions which will help the client, a prospective combatant, move from the “I offered everything approach and got nothing” to a place where maybe he or she will get a lot, maybe everything.

  1. Learn to Love the War

If you can accept the proposition that there is likely to be a war, you might as well win it. In order to do this, you must reconcile yourself to the fact that you might be involved in a prolonged conflict most often against your wishes. This happens when you have an adversary who simply will not cooperate. As we all know, there are people like this whom we encounter in business and in life. The trick is to learn how to convince them to move their position. The only way to effectively do this is to convince them that they will lose more by fighting than by settling.

When you learn to love the war, and see it as a means to an end, there is a greater likelihood that you will be able to convince your adversary that you will defeat him.   Therefore, rather than dreading the many hearings which are part of litigation, or the depositions, a business person would be wise to look forward to, and indeed, embrace those occasions.

Each circumstance, in which you and your lawyer are in the presence of your adversary, provides an opportunity for you to convince your adversary that he will lose more by fighting. This is often accomplished by persuasive and competent advocacy. This objective is also assisted by the demeanor of the client. It is the client who must be able to convince the adversary that he or she has the stamina, the will power and the funds to take the case to trial. If both the client and the lawyer or able to convince the adversary of this fact, whether true or not, it often causes the adversary to look at their checking account balance, assess the likelihood of prevailing, and take stock of their stomach for conflict.

Does your adversary really plan to take the case to trial? It is only by convincing your adversary that you plan to do this that you will ever know.

  1. Judges and Mediators Don’t Love War

Judges and mediators have a sentimental love for settlement. This is laudable. This sentiment exists because judges and mediators know that the court system can be unfair and, in some instances, a settlement which the parties negotiate on their own is often better than a trial decided by a Judge or a Jury.

Litigators most often welcome a Judge who encourages the parties to talk to one another, after a court hearing, or a mediator who tries valiantly to bridge the gap between the parties at mediation. The problem is that judges, and sometimes mediators, understandably have no idea of the prior efforts which have been made to settle the case and the timing of their request.

  1. Every Battle Presents an Opportunity

In any lawsuit, the concept of settlement never completely disappears. It can often be seen lurking, silently, beneath the surface. Depositions and court hearings often provide opportunities for the parties to reassess their settlement position.

Court hearings sometimes provide insight into what the Judge may think of the case. Reading the Judge’s mind is often a business that is fraught with peril; nonetheless, a concrete decision by the Court can often provide an excellent forecast for the long term outcome of the dispute.

Depositions are also wonderful tools for inspiring settlement. They can be far more effective than the client’s letter writing campaign or invitations to dinner. A deposition often reveals how a person’s testimony will play at trial. Will the adversary be a good witness or a bad witness ? Is the witness likely telling the truth ? Does either side’s story cohere ? Will it stand up to scrutiny and cross-examination ?

Unless you are willing to wage war, you and your client are likely to never know the answers to these and other questions about the long term prospects for success.

 

 

  1. In Litigation, as in War, Timing is Everything.

 

The person who wishes to win the war on the first day, and believes that he or she can do so, will surely lose. The reason that “scorched earth” litigators are often successful is because they are able to convince the opposing parties that, before a settlement can be achieved, he or she will burn down the village.

 

Will they actually burn down the village?

 

Who knows?

 

However, the old adage that perception is reality is useful in this context since it is only when your adversary believes that you will pursue the case to conclusion that you will be able to favorably resolve it.

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Top EIght Reasons to LItigate – By Larry Slade

Litigation sucks.

Literally.

Pursuing legal action sucks time, money, and often it may seem, the very life out of you.

Am I telling you something you don’t know? I’m pretty sure the answer is no, as everyone knows that getting into a legal battle is not a small deal.

More difficult is how to tell the difference between those times when you absolutely must throw the first punch and swing a situation toward litigation, and those conflicts that are best solved before it goes that far.

When I was little, my father taught me a lesson that sticks with me to this day and informs this blog post.

He told me to “do everything that you can to avoid a fight. Negotiate, apologize, and even run if you must.”

But if you are cornered, he advised, “Clench your fist, throw the first punch, and make it count.”

As a kid, I paid attention to what went on in the schoolyard. Coming from New York City, it was a foregone conclusion that there’d be a fight at lunchtime or after school (or both!) nearly every day. First two people would stand off against each other and argue, and then someone would start chanting “Fight… fight… fight… fight!” and it was ON.

Sometimes the jeers and cheers were the fuel for the brawl, and in those cases, it was never clear whether or not there was any reason to be fighting in the first place.

If you’re getting fired up because OTHER PEOPLE are egging you on, I have three words for you: forget about it. (Or, depending on where you’re from, it could actually be one word: fugedaboutit.)

Smart people who want to keep their teeth (as a kid), or their savings (as an adult) and will back down at that point.

But if you’re the person standing there and you know there is something non-negotiable on the line BEYOND your pride, and it’s not about starting a fight – it’s about finishing one – then it’s GO TIME.

The same thing applies to litigation.

As a former schoolyard scrapper, and also someone who’s made his living for the last twenty years in litigation, I always counsel clients to turn to pursue legal action ONLY when there is no other recourse. But then it’s time to come out swinging.

Here are the top 8 reasons that say you must litigate:

1) When there’s enough at stake

I once had a client who owned a shopping center worth millions of dollars that was facing allegations that were both untrue and also potentially financially devastating. The cost of pursuing legal action versus what was financially at stake made the decision to litigate a no-brainer – he had far more to lose had he chose a path of inaction or even settlement.

Deciding if there’s enough at stake is 100% defined by the economics of the conflict. Your decision to pursue legal action should never be emotional or principally driven. When calculating the monetary implications, you have to factor in the cost of suing someone and going to trial. For example, you wouldn’t want to spend $50,000.00 to litigate a case worth $45,000.00 to you.

Other aspects of economic impact that aren’t as simple to calculate but that are easy to see include when:

  • Someone is attempting to steal your brand or your trademark.
  • Your copyright is being infringed upon.
  • Your entire business is impacted by the conducted of some third party; you’ve tried to make them cease their behavior, and they’ve refused.
  • The cost of the litigation pales in comparison to what is at stake if you don’t take legal action.

2) When the other side is non-responsive

In any conflict you should always make an informal attempt at settlement. I know that I must be able to look my client in the eye before we litigate and advise him or her that we have done everything possible to avoid this outcome, but we have been left with no choice. So in the pre-litigation attempt to resolve the conflict, if the other side does not respond to your or your lawyer’s overtures, phone calls, emails, letters, etc. AND it’s clear that they won’t engage in a constructive discussion with you aimed at resolving the dispute, then it is indeed GO TIME.

3) When the other side’s expectations surpass your worst-case scenarios

If someone is threatening to sue you, and you’re done all you can to resolve it to no avail, then you have to take a close look at what they think the dispute is worth. For example, if the other side says they’ll settle for $1.5 million, but your lawyer and you calculate what the most the other side would get out of going all the way to trial, which they win… and it’s not more than $500,000, then the other side is not giving you any incentive to settle. They are asking for a fight, and in my experience, sticking to your guns to, wearing them down and introducing reality into their absurd expectations will usually pay off in a much more modest settlement.

4) When you need immediate relief

The classic case that perfectly illustrates this point is the story of an owner-landlord that leases a farm full of fruit trees to a tenant that is supposed to be caring for them and harvesting the produce. The tenant breaches the lease not only by not paying his rent, but also by refusing to harvest the fruit or to tender control of the property back to the owner. In this case, the owner-landlord has no choice but to go into court and ask for an injunction, which is what lawyers call “equitable relief.” This action is not so much about money as much as it’s about the court directing someone to do something or, conversely, ordering him or her to refrain from doing something.

Other instances that are related to immediate relief include:

  • Someone stealing your trade secrets (e.g. customer lists, market research or strategy, manufacturing techniques, to name just a few)
  • Trespassing
  • Stalking and other ongoing threatening actions
  • Domestic violence
  • Someone cutting down your trees or otherwise impinging on your property
  • In all of the above situations, time is essential, and any delay could have grave results. The court is the only option with the power and authority to effectively provide for immediate relief.

5) When you’re out of time

Let’s say you loan someone money, and that person never pays you back. Hopefully you have a contract, but even if you don’t, you may still technically have two years from the date of the last payment received or from the date of your oral agreement in order to bring a lawsuit. This is call the statue of limitations, which has a built-in expiration date: most claims against third parties or civil claims have two years until the ticking clock runs out. When you run out of time thanks to a statute of limitations, then you are also out of luck. In this case, you must litigate before you lose the right to recourse.

Note: Statute of limitations varies from state to state and claim to claim.  If this scenario rings a bell to you, and you are wondering about what the statute of limitations is for a resolution that you may want to pursue in a legal capacity, please contact me, and I’ll be happy to fill you in based on where you live.

6) When not suing would harm someone else and give rise to a whole new dispute

If you have a duty or an obligation to a third party, and you have subbed out some of the work and now your subcontractor is breaching his or her obligation to you, then you are in the unenviable position of having to assert a claim against your colleagues in order to fulfill your obligations. This situation gets complicated if it drags on too long and then you are the one that is facing a lawsuit from the third party. So dealing swiftly and decisively with your deadbeat subcontractor is the only way to prevail. In fact, the law imposes a duty on people in this situation to “mitigate their damages.”  In other words, you will make the matter worse by not addressing it proactively.

7) When you are trying to resolve the dispute but you cannot get to the decision makers on the other side

Sometimes the only way to get the attention of the person with the authority to rectify a serious issue is to sue the company or other responsible party. A perfect example of this is a bank. Often banks are unresponsive behemoths that could care less about customer service. Many people find themselves on the receiving end of a lender who blatantly violates the terms of the loan (e.g. sending you into default when you are current on your obligations) and then refuses to respond in any way to your overtures to fix it. Calls, emails and letters go without response. When you file a lawsuit you quickly get the matter turned over to the decision makers. And believe it or not, the institution’s lawyers often encourage them resolve the matter (especially when the bank is dead wrong).

8) When the other side is going to file a lawsuit first if you don’t

Back to the schoolyard, where sometimes being the first one to take a swing is what saves you from sure devastation. This is a tough position to be in, because you are taking a calculated risk that says not only do you believe the time for negotiation has passed, but also that if you don’t file quickly, your opponent certainly will.

And if that happens, then they’re the plaintiff and will have the advantage of asserting the original claim, and moreover they will then be characterized as the aggrieved party for the balance of the litigation. So beating the other side to the punch is your only real option.

When you’re considering “the Litigate 8” – the top situations when you MUST come out swinging – the one thing they have in common is the necessity of being swift and decisive.  You can’t afford to sit on your hands, or sit on your rights.

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Know Thine Enemy

The Florida Litigator

“Keep your friends close and your enemies closer.” Sun Tzu

      We have spent a substantial period of time in this column discussing the importance of understanding your own client, the law and relevant Court procedure. What we have not focused on, however, is the need to understand your adversary. Ignoring your adversary, or underestimating him or her, can have drastic consequences for the fate of your case.

       By adversary, I do not mean opposing counsel; I mean the opposing party. Whether you are plaintiff or defendant, it is only the foolish lawyer who ignores who is on the other side of the case. The good news is that there are plenty of opportunities to learn as much as possible about your adversary without spending a lot of your client’s money on a trained investigator. Here are a few suggestions.

  1. Google Search

   …

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Contesting Judgments From Abroad

The Florida Litigator

Imagine that your long time international business client calls you one day, in a panic, to tell you that a foreign court has entered a judgment against his company.  Now, some local lawyer is attempting to “domesticate” that judgment and enforce it against your client in the United States.  The judgment is for a large dollar amount and the stakes are high.  But the case is already over, isn’t it?  Your client has already lost, hasn’t it?

Of course not.

This is because foreign legal systems do not always comport with our notions of “due process” and substantial justice.  Look carefully at the foreign judgment and the proceedings and circumstances which gave rise to it.  There may be ample reason/opportunity for you to poke holes in it and, ultimately, defeat the entry of the judgment.

Foreign country judgments in Florida are governed by F.S. § 55.605.  That Statute provides several reasons…

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