Tag Archives: trials

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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Summary Judgment

     Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one.   In some Courts, obtaining a Summary Judgment is difficult, if not impossible.   Other Courts love Summary Judgment and use it as a mechanism to reduce case load.   This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.

1.            Where Summary Judgment Works and Where it Does Not.

     There are certain cases which do not lend themselves to Summary Judgment.   Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony.   Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal.   Remember that State and Federal trial Judges have someone looking over their shoulders at all times – – the District Courts of Appeal or the Eleventh Circuit.   Accordingly, most Judges carefully scrutinize whether the case at issue is really a Summary Judgment case.

     Cases in which you are more likely to receive a Summary Judgment include uncontested foreclosure cases, cases involving the interpretation of a contract which is unambiguous, garden variety business disputes and collection matters.   Summary Judgment in these types of cases are more often granted because the Court perceives that the Defendant really has no defense and would not have anything substantive to testify to at trial which would alter the outcome of the Court’s Summary Judgment decision. 

      Summary Judgment can be granted in these types of cases if a Plaintiff can show that there is no genuine issue of material fact.   Summary Judgment should also be granted in a case in which the Plaintiff has not been able to articulate an issue showing that he or she is entitled to relief.   In other words, Summary Judgments can be granted in a case in which, after discovery, a Defendant can demonstrate that a Plaintiff cannot prove a state of facts upon which the case can be won.  

2.         Partial Summary Judgment.

     Partial Summary Judgment is a terrific way to narrow the issues before trial.   Defense lawyers love to plead affirmative defenses.  Some defendants will plead as many as twenty affirmative defenses.   Plaintiff’s counsel would be well advised to make an effort to “summary out” some of these affirmative defenses in order to narrow the issues before trial.   If you are successful at this, you will be able to streamline your case, eliminate the testimony of otherwise irrelevant witnesses and save your client money.   Thus, even if you have a case which cannot be won on Summary Judgment it would be wise to use the Summary Judgment mechanism to narrow the issues and focus the trial.

3.         Requirements for Summary Judgment.

     There are a few basic requirements that must be met before a Court will grant Summary Judgment.   You must be able to submit factual testimony in admissible form.   This means that you are required to either submit a client affidavit, a sworn statement or deposition transcript excerpts to support your motion.  If you do not provide this type of information, your adversary will be able to legitimately claim that your motion is based on “hearsay.”   Thus, the party moving for Summary Judgment must carefully document all of the facts which support the motion.  Remember that lawyers cannot testify and what the lawyer says during the Summary Judgment argument is not evidence.

4.         Keep it Simple.

     One rule of thumb when it comes to Summary Judgment is the thicker the motion the more likely it is to be denied.   In order to grant Summary Judgment, the typical trial court judge wants to be able to quickly understand the facts and see that those facts are supported by relevant documents, affidavits or testimony.   If the package you submit to the Court, before the Summary Judgment hearing, is three feet thick, there is a greater likelihood that your motion will be denied.   Imagine that you are a Judge with 5,000 cases and a lawyer submits to you 2,000 pages of reading material in connection with a Summary Judgment Motion.   It would certainly be easier for the Court to simply deny the motion rather than read  all that material.  

    And what is the effect of a denial of Summary Judgment?   The impact will be that you will have to either settle the case or go to trial. In most circumstances there is no interlocutory   appeal and, accordingly, the trial court’s decision will likely not be reviewed at least for a substantial period of time.   Most lawyers and their clients, after losing Summary Judgment, will likely settle and the Court is aware of this.  Thus, even if your motion is well taken, after submitting a mountain of paper it is likely that the trial court’s decision to deny the Summary Judgment Motion will not be subject to immediate review.  

5.         Watch the Deadlines.

     In state court practice, the Florida Rules of Civil Procedure have set out a series of deadlines for Summary Judgment practice.   Generally, you are required to give the non-moving party at least 25 days notice prior to a hearing on your Motion for Summary Judgment.  Fla. R. Civ. P. 1.510.  Conversely, the party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax.   The lesson here is simple – – you should have a clear understanding of when the hearing on Summary Judgment has been scheduled, regardless of whether you are a moving party or non-moving party, since there are important deadlines which apply to you.   If you miss the deadline by having your motion heard prematurely, or by filing your opposition late, you run the risk of losing the motion.  

     Federal Court deadlines are different and follow the Local Rules which require a briefing scheduling in connection with the filing of the motion, opposition and, ultimately, a reply.   U.S.D.C. S.D. Fla. Local Rule 7.1 The Federal Court briefing schedule is, generally, a better and more efficient system which some State Court judges have adopted.   Do not be afraid to make this suggestion to a State Court judge after you have filed your Motion for Summary Judgment and file a Motion for a Briefing Schedule.   Often the Court will comply with your request, particularly if it is agreed to by opposing counsel.

6.         Opposing a Motion for Summary Judgment.

     In State Court, it is a relatively simple process to oppose a Motion for Summary Judgment.   Usually, all it requires is the filing of an affidavit or some relevant deposition testimony.   However, counsel would be well advised to file a memorandum of law in opposition.   One time worn tactic for opposing Summary Judgment is actually the reverse of the advice given in this column for filing a Motion for Summary Judgment – – make it as long as possible.   Thus, counsel opposing a Motion for Summary Judgment may easily choose to paper the court file with a mountain of papers in opposition.   Sometimes the Court sees through this but some Judges make it clear that if the case is too complicated, or intricate, Summary Judgment will not be granted.

     Our state court judges sometimes appear reluctant to grant Summary Judgment and will do so in only the clearest of cases.   The Federal Courts, however, with their burgeoning dockets and the outside pressure to reduce caseload, appear more willing to summary out non-meritorious claims.     While lawyers who are passionate about their work look for opportunities to try cases, the plain fact is that it is likely that there are too many trials clogging the court system.   If counsel were more diligent about Summary Judgment, many trials could be shortened or eliminated altogether.  Summary Judgment is a vehicle which should be carefully analyzed in each case since most clients would prefer to have their cases adjudicated summarily rather than fund a full scale trial.

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