MISCONCEPTIONS ABOUT LITIGATION
When clients approach us with a wrong, they often want to jump right into filing a lawsuit against the person who wronged them. Litigation is often the right choice, but it comes with inherent risks. It is important to discuss and understand litigation before assuming those risks. Some common misconceptions about litigation are as follows:
1. The other guy harmed me, so I’ll win my case
Filing a lawsuit is not a guarantee that you will win the lawsuit. You may have a misunderstanding about the law that governs your case. For example, if someone harmed you many years ago, there may be statutes of limitation that prevent you from winning a lawsuit. Or, a certain clause in your contract may prevent you from being allowed to present evidence of side emails/discussions about the contract at trial. Even if the law permits the claim to go forward, the trier of fact (judge or jury) will have the ultimate privilege of hearing your facts and also the other side’s facts and deciding who should prevail in the case. Judges and juries often get things wrong. So, even if you have a rock-solid fact pattern and clear damage, a win in litigation is never a sure bet.
2. The process will be quick
Forget “it takes two to tango.” In a lawsuit, it takes at least three – we can control how quickly we move in the matter, but we have no control over the opposing party or the court. Once a lawsuit is filed, for example, we must wait for the court clerk to issue a summons. That summons then has to be served on the opposing party. If there is a backlog at the court or the opposing party hides from the process server, your case will take longer. This pattern (waiting on the court/waiting on the opposing party) will repeat throughout the process. Trials are usually set one and a half to two years from when the case is filed. And while most cases are resolved prior to trial (either in mediation or through settlement negotiations), litigation is rarely a quick process.
3. I don’t have to pay my attorney if I lose/the case takes too long/etc.
Unless you have arranged a contingency payment plan (in other words, your attorney receives a portion of any recovery you get in the case and no other compensation), you have to pay your attorney. They are providing a valuable service to you that must be compensated, regardless of the outcome of the case. The terms of payment (hourly, monthly, etc.) will be set out in your attorney-client agreement. Be sure you understand the terms of payment and the consequences of falling behind on payment. It is a common misconception that the money you pay is being pocketed by the attorney, or that the attorney is being overpaid. While there are certainly fancy attorneys with private jets in the world, most attorneys run a modest business. Your client fee pays for the attorney’s time, but also for his staff salary/benefits, malpractice insurance, rent on the office building, etc. Just as you would not refuse to pay a doctor because you don’t like her diagnosis, it is unreasonable to assume you are permitted to withhold attorney pay because you do not like your case results. Certainly, if there has been malpractice you should seek relief through the appropriate channels. But, judges will let attorneys withdraw from representation for non-payment and there are mechanisms in place for attorneys to place liens on your recovery and collect the fees owed them.
4. The other side will be reasonable
Defendants often hide from process servers. They often lie. They may threaten to (or actually) file a cross-complaint in response to your complaint, asserting YOU harmed THEM. They may play games in litigation and engage in delay tactics. Even if the other side is honest, they may have a very different understanding of the facts than you do, and they may be unwilling to just hand over the money you want. There are mechanisms in place to hold the other side responsible for bad faith actions in litigation (for example, you can file a discovery motion asking the judge to compel the other side to hand over a certain document) but those mechanisms are not foolproof and they take time.
5. My attorney will handle everything
Attorneys are not mind readers (which is a real bummer, because that would make our jobs much easier!). While attorneys will handle the vast majority of the work in litigation, they will depend on you to provide them with documents, evidence, and facts. During the discovery phase of litigation, in particular, you will be called upon to provide written responses to questions, sit for depositions, and produce documents. Your attorney cannot win your case with the argument, “this happened because my client says it did.” Evidence is needed to prove your case, and the better you are with producing it, the more efficiently your case will run. To the greatest extent possible, gather all relevant documents (including social media posts, emails, texts, letters, voicemails, etc.) related to your case, organize them, and provide them to your attorney at the outset of the matter. If you’re able to write out a case timeline/fact pattern, that will be a useful tool as well.
6. I will get my attorneys’ fees back if I win my case
Attorneys’ fees are only recoverable under certain circumstances. If you have a clause in your contract allowing fees, for example. Or if a statute allows you to recover fees. Otherwise, each party is expected to bear its own fees. The possibility of having to pay the other side’s fees – or the possibility of not recovering your own – must be considered before litigation begins. For example, if you have to pay $50,000 in attorneys’ fees to win a $40,000 judgment, the case is not efficient.
Even if attorneys’ fees are recoverable, the judge will set the amount of fee recovery she deems reasonable. The amount of fees you owe your attorney is the amount agreed upon in your client fee agreement. That amount will not change, even if the judge orders the other side to pay a fee amount that is less. If the attorney tells the judge that $50,000 in attorneys’ fees were incurred and the judge decides the case should have only taken $40,000 worth of attorney time to resolve, then the other side will only be ordered to pay $40,000 and you will bear the burden of paying the difference out of pocket. Judges are notorious for underestimating fees, and will frequently reduce fee requests.
7. I will collect my judgment
You went through trial and won. Congratulations! Now the money just shows up, right? Nope. You have to collect on your judgment. Defendants generally do not willingly show up to pay what they’re owed. Which means that you will need your attorney (or a judgment collection service) to engage in fee collection efforts. This includes placing liens on the other party’s real property, seeking wage garnishments, and the like. If you win a million-dollar judgment against a defendant that does not have a million dollars, then you’re not going to take home a million dollars. Judgments are good for ten years and can be renewed. So, if there is a chance the defendant will acquire assets over time that you could lien to collect on your judgment, it is a worthwhile exercise. But before beginning litigation, you must consider whether the defendant in question is, for practical purposes, judgment proof. If they own nothing and have no gainful employment, it may not be worth the time and effort to obtain a judgment against them.