There’s a common misconception out there in America that I find myself discussing with clients on an almost daily basis.  I thought it might be a good idea to write an article for anyone who might also be suffering from the same lack of information that many of my clients were suffering from before they came to Cowden Law.

Most people think that if you win a lawsuit, the loser automatically has to pay your attorney’s fees and costs. WRONG! Actually, usually the only time the “loser” in a lawsuit has to pay the other party’s fees and costs is when it’s either provided for by contract or by statute. 

So what exactly does that mean?  Well, if you’re suing for a breach of contract, or if you have a dispute that somehow relates to a relationship that has a contract that lays out the parties’ duties and obligations to each other, you need to check the language of the contract to see if it has an attorney’s fee and cost provision in it.  If the language is not there saying something to the effect that the prevailing party is entitled to reasonable attorney’s fees and costs, then the winning party won’t get their fees and costs paid back.  If the contract provides that only one of the parties can get fees and costs reimbursed, courts in Florida allow the other party to benefit from the same provision even though it’s not in the contract for them.

Sometimes you can sue someone because they violate a statute, or a law that was created by the legislature of the State.  Those statutes will deal with attorney’s fees and costs in one of a few ways.  They may specifically provide that attorney’s fees and costs may be awarded to the prevailing party, they may not mention them at all, or they they will specifically say that they are not provided for in the statute.  If they don’t specifically provide for those fees and costs or if they exclude them as remedies, they aren’t recoverable by the winning party.

In rare cases, the judge will award attorneys fees and/or costs to the winner of the lawsuit if the judge has the power to do so “in equity.”  Equity courts used to be separate courts, but now all courts have the power to enforce equitable remedies.  I look at equitable remedies as those given to enforce “fairness” in a case that has elements that make it difficult to calculate the injuries suffered in  exact dollar amounts.  Attorney’s will often appeal to the court’s equitable powers to award a remedy to their clients out of a general sense of fairness rather than according to a black and white rule in a statute.  These remedies are rare and limited to certain special situations and should never be considered a sure thing by any lawsuit participant.

So before you decide whether to pursue a lawsuit against someone, talk to your lawyer to see if attorney’s fees are available to the prevailing party.  Remember, even if you’re 100% correct about your right to be compensated by a wrongdoer, you may want to thing twice about enforcing your rights.

Almost everyone has been wronged by another person at some point in their lives. And as a result of this wrong, they’ve either been injured or lost money or both.  The law provides remedies to those who have been wronged in most cases. The question faced by anyone who finds himself in the position of having been hurt or taken advantage of is whether he should sue the responsible party or not. The purpose of this article is to give some basic guidelines to help the reader determine whether he or she should use the courts and/or an attorney to help right a wrong.

There are actually two questions that need to be answered by someone contemplating a lawsuit.  The first is whether the wronged party can sue and then if they can, whether they should.  I’ll address each issue separately.

Whether you can sue depends on what state you live in and the laws of that state. It might also depend on who the wrongdoer is. For example, if the wrongdoer is your spouse or your parent, they might not be liable to you for injuries that occur accidentally to you as a result of their negligence in some states. Also, some injuries are not recognized as recoverable by the law. For example, the inconvenience you incur and stress that may be created in your life as a result of someone else’s negligence may be injuries you just have to chalk up to things you have to forgive and forget. In other words, the courts will not make the wrongdoer pay you money to compensate you for your inconvenience or stress.

If you’ve determined that you can sue, you should next analyze whether you should sue. There are several variables that must go into this analysis.

First, you must figure out how you are going to pay for the attorney’s fees.  Attorneys charge, on average, between $150-$600 per hour when they are working for an hourly fee. If they are working on a contingency fee contract, then this hourly fee is not as much of a concern for the client; however, it could be a very important consideration if the law provides that the winner of the lawsuit can have his or her attorney’s fees and costs reimbursed by the loser of the lawsuit. I’ll discuss this in detail later in this article.

Costs are another factor that many don’t consider before entering into a lawsuit. Costs are separate from attorney’s fees and cover such things as investigator fees, expert fees, deposition and court reporter fees, postage, copies, long distance call charges, travel expenses for any attorneys, paralegals, experts, or others, and many other items too numerous to mention. Costs at their smallest amount are probably about $300 and can go up to the stratosphere from there.  It depends on the type of case and the complexity of the discovery or investigation involved. An attorney should be able to outline most of the expected costs in a case for a potential client so the client can draft a budget outline.

The length of a potential case has a large bearing on the fees and costs of a lawsuit. The longer the case takes to end in settlement, trial, or judgment, the more likely more money will be involved in both attorney’s fees and costs. If a case drags on its usually because more work is being done by people who must be paid.

The risks of losing could be the biggest factor in the decision of whether to sue. This is because one of the common risks is that the losing party must pay the winning party’s attorney’s fees and costs. So imagine, if you will, that you’ve filed a lawsuit and paid $50,000 in attorney’s fees and costs for your side of the suit, and then you lose and the court orders you to pay the winning party’s fees and costs.  Your final tally for bringing the lawsuit just went from $50,000 to $100,000 or probably more.  If the other party hired a more expensive lawyer and/or their lawyer did more work on the case, the bill could be a lot higher than your attorney’s bill for the same case.  Another risk of losing could be the outcome you have to live with. For example, you could bring a lawsuit against someone for breach of contract, and they could countersue you for breach of contract too; and you find that if you had left well enough alone, they wouldn’t have sued you. In other words, you opened up the proverbial can of worms when you sued them. Last but not least is the negativity you will have to live with while the lawsuit is in process and probably for some time after it’s over. Lawsuits almost never bring out the best in people and they tend to cause acrimonious feelings between the parties if those feelings weren’t already there (often they are, hence the lawsuit). Many times the parties you sue will be businesses or people you will see again and who will remain a part of your community or circle of influence for years to come. People who lose a lawsuit tend to keep those negative feelings against the winning party for a long time if not forever. Some people allow a lawsuit loss to overrule their better judgment, and they use it as an excuse to punish the winning party as much as they can in every future interaction. This can affect not only the winning and losing parties, but also their families, friends, and business associates.

As you can see, there are many things a person or business should consider before deciding to file a lawsuit. An alternative to filing a lawsuit right off the bat could be to suggest a mediation between the affected parties before a neutral (and well trained) mediator, to see if a resolution can be negotiated sooner, less expensively, and with less bitterness as the end result for everyone.  This can be done through attorneys who are hired just for representation at the mediation. Talk to your attorney about your concerns and see if she or he has any suggestions for you. At Cowden Law, we discuss all of the risk factors involved in filing a lawsuit with our clients, prior to entering into the relationship with them. We find that informed clients are happy clients who appreciate knowing the potential downsides of a lawsuit. Everyone should do a risk-benefit analysis before making their final decision to sue someone so they can go into the situation with eyes wide open.

Law firms come in many sizes, from a solo attorney working alone to a worldwide firm with hundreds or maybe even thousands of lawyers with many more support staff and administrative personnel. Some firms have offices only in a certain region (the Southeast, for example) of the country and some have offices in every state. Some small firms have small satellite offices in other cities of the same state but only staff one office full time. If you have a legal issue and you need an attorney, which size firm is best for you? This article will help point you in the right direction.

Large firms typically have attorneys who specialize in many areas of the law. Sometimes they house teams of lawyers in certain cities because the demand for that specialty is great in that area of the country. For example, Condominium Law is in huge demand in south Florida, so you will find many large firms that have Condo Law experts working out of their Miami and Ft. Lauderdale branches, but they may not have any of these types of lawyers working out of their Boise, Idaho offices. Large firms represent individuals, but their largest book of business comes from corporations. Corporations hire them to do transactional work like draft contracts and documents needed for mergers and acquisitions, and to do litigation work like defend the corporations against lawsuits that have been filed or to protect their intellectual property from infringers.

Small law firms have attorneys who specialize in certain areas of the law, just like large firms do, but they usually don’t have the broad array of specialties as the larger firms, mainly because they just have less attorneys on staff than the large firms. It used to be that you could walk into a small law office and they would handle any legal issue you had. These were called General Practice firms. Nowadays these general practitioners are the exception, not the rule, as the laws have become more complex and require more continuing education and study for an attorney to remain current and proficient in their practice. Most attorneys specialize in single or a few areas of the law. You’ve probably seen commercials on television or advertisements on billboards or taxis for personal injury or criminal defense attorneys. These are usually smaller law firms (less than 50 lawyers) advertising in this manner. They specialize in that area they advertise and probably don’t do work in other areas of the law, or if they do, it’s usually limited to other specific areas.

You can see a large difference in costs between a small firm and a larger firm, particularly in the area of transactional work. It has been my experience that hourly fees in larger firms are greater than they are with smaller firms, but this may not be typical of other people’s experiences. Large firms do have greater overhead, so it makes sense that their fees would be greater. In contingency fee work, the percentages of the fees in large and small firms can be quite similar, and this may be because many States limit the maximum percentages that can be charged, or “suggest” reasonable fees.

To determine whether you would be better off using a small firm or a large firm, it’s important to evaluate your needs and expectations. Different legal problems may be better handled by one type of firm, and certain types of people are better off with certain types of firms as well.

Do you have a highly specialized or rare type of legal issue?

If you have a highly specialized or rare type of legal issue, most large law firms will have attorneys who can help you. They may not be located in your city, but they could do the work for you long distance using local staff and attorneys and email and telephone. Small firms could also help you, if there is one located near you that has an attorney who works in that specialty. Often small firms are started by attorneys who used to work at large firms and became specialists while they were there. You can find attorneys who specialize in certain areas by visiting their web sites or by visiting the State’s Bar website that usually lists attorneys by specialty. There are also third party vendors on the Internet that list attorneys, similar to the way the Yellow Pages does, by specialty and location.

Are you coming as an individual client or as a corporation?

The larger law firms are more likely to have corporations as clients rather than individuals. This is because corporations need legal services more frequently, they have larger legal services budgets, and they usually need firms that have more resources than smaller firms. Many corporations like to have “one stop shopping” with their legal services, so they use firms that have attorneys that do work in all areas of the law, in many if not all States and countries. Individuals don’t generally attract the interest or notice of larger law firms because their needs are frequently less complex and their budgets are generally smaller.

Do you require frequent contact and personal service from your attorney?

Large firms often have a lot of support staff and lower tier associate attorneys who manage a lot of client matters without involving the “partner” attorneys. If you bring a lot of revenue to a large law firm, you can expect more interaction with your attorneys and with the higher level attorneys at the firm. Small firms sometimes have large support staff, but sometimes do not. The smaller the firm, the more contact you will likely have with your attorney, since she or he is the one doing most of the work for you. Large firms tend to do more hourly fee work, and almost all of them require that attorneys bill a certain number of hours per year. In those firms, attorneys don’t waste much time doing things that don’t get billed to a client in some fashion. If you don’t mind paying for it (usually in 6 minute increments), you can speak to your attorney almost as much as you want. Many smaller firms are not as strict with their attorneys about how many hours they must bill per year. Depending on the firm’s policies, you could have unlimited access to your attorney or you may have to make it through staff gatekeepers to speak with the attorney if it’s not an emergency.

How big is your budget?

Most clients don’t walk into their attorney’s office with a set budget, but when fees are discussed (as they should be, in the first meeting), they typically come up with a budget pretty quickly. If you’re hiring an attorney on an hourly fee basis, you might see a variation in fees charged by large law firms versus small firms. In large firms, there are often several levels of attorneys that have separate rates. For instance, new associates may be hired for $195 per hour, 3-5 year associates at $265 per hour, and a partner for $450 per hour or more. Depending on your legal issue, some or most of your legal work may be handled by just one of these levels of attorneys. Small firms may have a similar structure unless it is a solo firm with only one lawyer, or a firm with attorneys who all charge the same rates. Some large and small firms are open to charging fixed fees for certain legal work (see the article on www.cowdenlawfirm.com about Fixed Fees). Generally speaking, smaller firms have more flexibility in their billing procedures and their ability to negotiate different terms than what might be typical for the firm.

Are you more comfortable being the big fish in a little pond or the small fish in a big ocean?

This probably doesn’t need too much explanation, but it is a reality in the legal world. If you are a client of a small firm, it’s likely everyone in the office will know you and will have a hand in working your case at some point along the way. If you are a client of a big firm, it’s most likely most of the firm will never know who you are. You may have definite ideas about how you feel in these situations, and only you can decide which feels more comfortable for you.

Conflicts- You may not have a choice.

One last item, and that deals with conflicts. All law firms and their attorneys owe a duty of loyalty to their clients. This means they cannot represent someone whose interests conflict with their clients’ interests, and that includes past clients as well as current ones. For example, if you are looking for a lawyer to sue the manufacturer of the laundry soap that made you break out in hives and end up in the hospital, and you go to Big Law Firm, Inc. who has represented that manufacturer in the past in a totally unrelated case, they cannot represent you and sue that manufacturer. They owe their loyalty to that manufacturer, and can only breach this loyalty in rare situations that probably won’t apply to you. Big Law has a conflict, and this conflict means you must look elsewhere for an attorney for this case. Generally speaking, larger law firms have more conflicts because they have more clients. Smaller firms do have them, but they are fewer and farther between.

Deciding whether to go with a large firm or small firm is usually a matter of personal choice. You should be able to find small and large firms that work in just about any area of law you might need in your local area. Today, even firms out of your area can help you if you are comfortable dealing over the phone and through email with your attorney. If you’re not sure which way to go, interview attorneys in a couple of different firms and ask them about their policies and fees. Make sure that they do a conflicts check before you go to their office so you don’t waste your time in an interview, only to find out later there’s a conflict and they can’t help you. Voice your expectations with these potential attorneys and make sure they can and are willing to meet them, before you commit to using their services. A little bit of time invested up front before signing a contract with a firm will go a long way towards ensuring a successful attorney/client relationship.

I have read many times that the number one complaint filed with the Florida Bar concerns attorneys not returning the phone calls of their clients. I assume if this is the number one complaint filed with the Bar, it means that it happens a lot and it happens with lawyers in all kinds of firms, large and small. Being an attorney myself, I felt I might be in a position to take a close look at this phenomenon and offer some advice to clients who find themselves in the frustrating position of needing to speak with their attorney and not being able to contact them for whatever reason. To do this properly, I must first differentiate the attorney who is busy and cannot return phone calls, from the attorney who is negligent and doesn’t return phone calls but could.

An attorney’s day can take many forms. It can be an office day, a court day, a deposition day, a mediation day, a combination of these days all in one, or about one hundred other variations on this theme. Being an attorney requires that one be able to multi-task and work a calendar with precision to ensure everything is getting done and is coordinated with the many other parties who are involved in each part of the process of managing the legal affairs of others. I don’t know many attorneys who work less than 10 hours a day. Most carry PDAs (electronic calendar and email gadgets) and work on the road in between appointments and on weekends.

That being said, it is possible to return phone calls in a reasonable time. Admittedly, there is such a thing as over-scheduling an attorney’s day and there is also such a thing as an attorney taking on more work than he or she can handle. Attorneys are human after all, and not all of them are the most efficient time managers.

So what is a “reasonable” time within which a client should expect a return phone call from his or her attorney? The short answer is, “It depends,” because a reasonable time is different depending on what the attorney has on the agenda, i.e., if an attorney is in trial or preparing for a trial, in heavy discovery on a case, on vacation, or just working on her or his typical caseload at the office.

If an attorney is in trial, a client should expect that the attorney will return calls a day or two after the trial has concluded. Trials take up all of an attorney’s and her or his staff’s time. There are so many details and items of evidence and issues that must be managed and resolved before, during, and immediately after the trial, it’s nearly impossible to manage anything else without damaging the case at hand; however, if it is a trial lasting longer than three or four days, or if the call is a true emergency, the client should expect that the attorney can return a quick phone call, send a short email to the client, or have a staff person call and act as intermediary between the client and attorney. If the client has one of these true emergencies, the attorney should be able to have a representative (another attorney or staff person) step in and handle the issue as best they can until the attorney is free to take over.

If an attorney is not in trial or other complicated preparation phase of a case, a client should be able to expect a return phone call within 48 hours of leaving a message. This is a general rule of thumb, and my personal opinion, not a formal rule of which I am aware. At Cowden Law, our rule is to return phone calls the same day, even if they occur in the evening or on weekends. If the attorney at Cowden Law is unable to return the phone call the same day, a staff member will return the call and do his or her best to take care of the client and coordinate with the attorney as needed and possible.

Some firms have a policy of screening all calls through staff to ensure the attorney is left alone to handle all the cases they have, without the interruptions caused by client phone calls. I have heard that a lot of clients don’t like this policy because they want to speak directly with their attorneys when they have questions or problems. The firms who have these policies generally institute them because they work with a lot of contingency fee or fixed fee cases, and those clients tend to call much more frequently with non-critical issues than hourly fee clients do. For my explanation as to this phenomenon, check out my earlier article on this web site “The Difference Between Fees and Costs.”

Of course, there are always bad apples out there, and the law field is no exception. There are lawyers who neglect their clients and their cases and who have no good reason for not returning phone calls in a reasonable time. I read about these attorneys in my Bar Journal newspaper, where they list all the attorneys who have been disciplined by the Florida Bar for not adequately managing their client’s cases or their clients themselves.

Whether you are the client of a very busy attorney or an attorney who is being negligent, I can offer you some advice for getting return phone calls in a reasonable amount of time. The first step is to realize that your attorney may be involved in one of the situations that I mentioned earlier that makes it impossible for her or him to return your phone call in the same day. Feel free to ask the staff member who answers the phone if the attorney is in trial or in some other involved process that precludes the attorney from handling your issue. You may want to consider leaving a type of deadline for the attorney to call you back in a non-emergency situation, wording it for example as,

“This is [insert your name]. I’m calling you because [insert your reason]. This is not an emergency, so if you are busy, I won’t expect a call back until [insert a day and date 4 days from today]. If you are not busy, of course I’d appreciate a call back as soon as possible. Thanks very much.” 

If you feel your situation is more urgent, a message might sound something more like,

“This is [insert your name]. I’m calling you because I have a very urgent situation that needs your immediate attention. It is [insert your reason]. This is what I consider an emergency situation, so I would appreciate a call back from either you or a staff person by [insert what you consider a reasonable time]. Thanks very much for your understanding. I apologize for any inconvenience this may cause you.”  [Note: This suggested phraseology is a nod to my personal credo: “you catch more flies with honey than vinegar”. The apology shows you respect your attorney’s and the staff’s time.]

The key to using the “emergency situation call” is to never use it unless it’s absolutely necessary. If a client calls with them all the time, he is going to be just like the Boy Who Cried Wolf, and will suffer the same consequences as the boy in that fable. It’s only human nature to treat a person with the same respect that person has given others. Calling with frequent false emergencies is a sign to some attorneys that the client does not respect his or the staff’s time. It will also have some bearing on what the “reasonable time” is within which a call must be returned to this client; the more a client Cries Wolf, the more an attorney feels he is justified in returning that client’s calls within a longer period of time. While it may not be fair in the client’s mind, it is human nature to react this way.

A last resort, for the client who has used the above techniques to no avail, is to send a letter. To make it have the most force, sending it via registered mail is certain to get the attorney’s attention. Again, I must emphasize that this is a last resort method, and should only be used once. If it doesn’t work, it’s probably time to find a new lawyer who has more time or interest in handling your case. At Cowden Law, we have inherited many cases from attorneys who didn’t return phone calls of their clients. We emphasize what we call “VIP Service” with our clients, and it’s appealing to our clients that we focus so much of our attention on timely and convenient communications with them. Talk to your lawyer before you hire her or him to find out what their policies are with regard to client communications. Do they use email? If they do, you might have found an easier avenue to use to contact them. Do they use instant messaging? If you both do, and your attorney is comfortable with this platform, you have another means to use for communication.  Just remember, you want to also talk to your attorney about maintaining confidentiality in your case, because not all of these avenues of communication may be appropriate for your situation.

The key to effective and timely communications between attorney and client is to have a dialog about the issue at the beginning of the relationship. Attorneys should set expectations for their clients in their first meeting together so the client knows what to expect. Clients need to be aware of and understanding of the attorney’s responsibilities to all of their clients and firm itself, so they don’t have unrealistic expectations of what an attorney can and can’t do to communicate with them. Lastly, if clients find they are unhappy with how promptly their attorney is returning calls, they should take the bull by the horns and deal with it. Use the techniques outlined in this article, and as a last resort, send the registered letter mentioned. Sometimes, finding a new lawyer is the only option left, but it can turn out to be a very good option for many who find their new lawyer is a good communicator.

To find out more about Cowden Law’s VIP Service, browse our web site and read the articles on various subjects. They’ve all been written for the non-lawyer and hopefully you’ll find them interesting and informative. www.cowdenlawfirm.com

Depending on the type of legal case you have or the circumstances of your case, you might have to make a decision about whether to settle your case or not at some point along the way. This point can come right at the beginning of the case, the middle of the case, or even during trial. It can come up more than once during the process. When it does come up, every attorney hears the same question from her or his client: “Should I settle?”

That three word question is simply loaded with ramifications. It’s no wonder the client asks for his attorney’s advice. After all, an attorney sees these situations all the time right? Well, yes and no. Yes, attorneys see settlements come up during cases frequently, and attorneys regularly negotiate settlements if they are litigation attorneys. But attorneys never see the exact same set of circumstances more than once. That’s because there are many factors that go into whether a client should settle or not.

First, there are the facts of the cases themselves. Sometimes the facts of a case are heavily in favor of the plaintiff (generally, the person who initiated the law suit) and so that gives the plaintiff power in the negotiations. Having power often means you don’t have to accept the first offer made. Sometimes the facts are not so favorable to the plaintiff. A single change in a factual scenario can make all the difference in the world with regard to the strength of a case. A defendant’s insurance company will usually “lowball” the plaintiff to see if they can get away with ending a case for little money. Remember, insurance companies don’t make money by paying out claims; they make money by not paying out claims.

Another variable to consider is the individual risk tolerance of the client. Some clients cannot afford to risk walking away from what is being offered. They may need the settlement to pay immediate bills, or they may not be able to handle the stress of a long, drawn out trial preparation situation. The client may be ill and may be concerned that he or she won’t be in a position to support themselves through the trial to help the attorney get the best result. Sometimes, family members’ situations must be taken into consideration when making these decisions. Some people are only comfortable following that old adage: “A bird in the hand is worth two in the bush.”

Another factor to consider is other settlements that were reached in similar cases. An attorney who works in a certain area of the law (personal injury law, for example) will get a general feel from working on certain cases, about the type of settlement that can be reached based on the facts of the case. For instance, a personal injury attorney knows that if a surgery is required, particularly a surgery that results in a permanent disability to the client, the settlement will be larger than if there is just soft tissue damage requiring little medical intervention. If the defendant’s insurance company is offering one of those lowball offers, this attorney should be able to recognize it and point out that there may be a higher offer available with some negotiation.

Recent jury verdicts and damages awarded in similar cases in your jurisdiction may have some bearing on whether a particular settlement is reasonable or not. Attorneys and insurance companies track the latest developments in jury verdicts, to see what dollar figures they may be dealing with if a certain type of case goes to trial. If they see that juries are becoming more sympathetic to, say, semi-tractor trailer accident victims, the insurance companies who represent these types of trucker defendants may be more motivated to settle claims rather than allow them to go to trial in front of these sympathetic jurors.

Unfortunately, there is another variable that must be considered. All insurance companies are not created equal. Some of the biggest and oldest companies around are considered the worst when it comes to paying on claims. At first blush, a person who doesn’t understand how the legal system benefits our society might say, “Good! I don’t want my insurance company paying out claims! It makes my premiums go up!” But the reality is that if the insurance company doesn’t pay a claim for you, your case is more likely to go to trial; and if you lose at trial, you could lose a LOT of money. If a verdict comes back against you, and you are found liable for a very large amount of money, your insurance will pay out your coverage, and you will be forced to pay the difference with whatever assets you have (excluding some protected assets like your residence or pension, depending on where you live.) If you’re ever sued and you have insurance, it’s better to have an insurance company that’s known for being reasonable in their claim payout practices.

Whether you should settle your case or not is an impossible question for me to answer in this article due to the all the complicated variables that must be considered. However, if you are faced with the situation of whether you should settle your case or not, I would highly recommend that you discuss with your attorney all of the issues raised by this article so that you can make an educated decision. Remember, it’s always the CLIENT’S decision whether to settle or not. The attorney cannot make the call for you, she or he can only advise you of your options and make recommendations. This is still the case, even if your lawsuit has been taken on a contingency fee basis by your attorney.

At Cowden Law, when we are faced with a settlement offer, we take all the above factors into consideration and help our client make a decision that makes sense for the client, not our firm. Never be afraid to discuss your concerns with your attorney, and always make sure you are making decisions that make sense for you. You don’t want to look back on your case some day in the future and regret decisions you made that were hasty or uninformed.

The Truth, The Whole Truth, and Nothing But the Truth  -  Otherwise Known As: Tell Your Lawyer Everything

Dr. Gregory House of the popular television show House says, “Everyone lies.” In his show, he’s always right, the patients always withhold some key piece of information that keeps the doctors from properly diagnosing them, and it always results in them being brought to death’s doorstep until the mystery of the lie is uncovered. Some lawyers would agree with Dr. House about the clients they see in their practices. It seems as though no matter how many times they tell their clients to give them all the information, there’s always some important fact that gets left out of their stories that threatens to change the way a case will go, sometimes significantly.

There can be many reasons why some clients don’t tell their attorneys everything the attorney needs to know. It could be because the attorney just didn’t ask the right questions. It could be that it was something that happened a long time ago and the client forgot about it or didn’t think it was significant. It could be that the client is embarrassed about the attorney knowing something that the client isn’t proud of, or that makes him ashamed. Some clients might be concerned about other people hearing their personal information that they don’t want out in the public domain. In rare cases, the client knows full well about the importance of the fact and withholds it on purpose, thinking no one will discover it.

It’s never a good idea to withhold facts from your attorney, regardless of the reasons or motivations. Even the slightest change in a person’s story can have major effects. For example, it can change whether there is even a case at all. Sometimes the laws are very specific and all the ducks must be in a row; if one duck is different or is missing, the case can’t exist anymore.  It can also change the dollar amount of damages than can be claimed which is a significant variable an attorney must assess before taking on a case or spending money to prosecute the case.  Last but maybe most importantly, when a client is caught lying by the other party to the lawsuit, the client’s credibility goes down the drain, and the attorney for the other party will be able to exploit that to hurt the client’s case, or even destroy it entirely. There is one thing that the judiciary values above all else, and that is the truth. If it can be shown that a party to a lawsuit withheld information on purpose, or misstated facts, he will lose all credibility with the court and the jury. You can imagine how this ends up when it’s time for the verdict. No one likes a liar, and juries often use their power to punish those they feel did not do the right thing in a case.

Good attorneys can take negative information and find a silver lining or project it in its most positive light. They can keep the damages to a minimum if they are apprised of all the facts up front or as soon as they happen. If the facts change, the attorney must know about it from her or his client, before the other side finds out about it. The last thing an attorney wants to have happen is to walk into a mediation and see a video of his client painting his house when he’s been telling his attorney that he can barely walk due to injuries claimed in the case, against a defendant who hired a private investigator to run surveillance.  Clients should not have to worry about their confidential information being shared with the public. It it’s private information protected by the law, the court will protect it from eyes that have no right to see it. And all attorneys are required to hold their clients’ confidences, and they are also required to keep private the information they learn in a case that belongs to the other parties as well. It is your attorney’s job to protect you and your confidential information.

The only way attorneys can do their very best job for their clients, is if they know the truth, the whole truth, and nothing but the truth. Forewarned is forearmed, especially when strong claims are being made against another party that add up to lots of damage dollars. If you’ve done your homework and hired a sharp attorney, you must trust that she or he will take all the information you have to give and make the best case of it possible.

At Cowden Law, we like to say that the facts are what they are.  We can’t change them, but we can decide how we are going to use them to bolster our case, and project our client in the best light. We’re not just orators, advocates, counselors, and officers of the court; we are spin doctors for our clients. We cannot spin the facts if we don’t have them all.

If you ever have to hire an attorney to manage a case for you, remember to tell  her or him everything you know that might possibly have any bearing on the case. Your attorney should guide you with questions designed to elicit the important information from you. Make sure you answer each question fully, and if you remember other facts later, contact your attorney and pass on the information as soon as possible. A good outcome is in your hands and in your ability to tell the truth, the whole truth, and nothing but the truth. 

When the market in Florida was going gangbusters, a lot of people decided to invest in real estate and signed contracts for condos or homes in subdivisions that weren’t going to be completed for two years or in some cases longer. Now that the market has had a steep decline, there are many buyers seeking to get out of their contracts and get their deposits back. Do they have any luck?  You betcha they do. And here are some of the reasons why…

The Federal Government with the Department of Housing and Urban Development (HUD) came together over a concern for everyday folks who were buying homes and condos from unscrupulous developers and being harmed financially as a result. A lot of it was attributable to their lack of knowledge and the developers drafting contracts which were extremely one-sided and chock full of discretionary provisions that gave them the right to back out of unprofitable deals and use purchasers’ down payments for long periods of time without accounting to them for interest or the loss of the benefit of their money while waiting for a home to be built. Out of the marked increase in real estate development in the form of condos and planned subdivisions, and the problems that arose with these contracts in the hands of certain unprincipled developers, was born the Interstate Land Sales Full Disclosure Act. (15 U.S.C. § 1701-1711 et al)  In this article, I will refer to it as “ILSFDA”.

The ILSFDA has created a situation in the real estate legal world, where a developer must adhere to certain provisions, depending on the size of the development and the time within which the developer has determined it can build the homes or condos in its development. Larger communities over 100 homes or condos have more difficulty qualifying for certain exemptions. Those under 100 and those under 25 get increasing exemptions, respectively. The exemptions actually give the developer safe harbors from various requirements. For example, a developer who promises unconditionally to build the home or condo within two years of the buyer signing the purchase contract, is exempt from having to provide that buyer with a Property Report (a very detailed document disclosing just about every detail about a project and the surrounding area to the buyer). The developer is also exempt from having to put certain rights for the buyer into the purchase contract. For example, the developer does not have to provide the buyer a “second chance closing” in the event the buyer breaches the contract by not attending the first closing.

The problem for developers, and one of the most common loopholes available to buyers who are in these contracts, is that the attorneys for the developers worked way too hard at trying to have their cake and eat it too. They drafted contracts that tried to keep the same benefits and protections for the developer that the old contracts had, while also putting in certain promises to the buyer so that they could qualify for the exemptions or safe harbors from ILSFDA. Unfortunately, a lot of those provisions cannot be reconciled with one another.

Here’s an example of what I’m talking about…the developer has a purchase contract with a buyer that says something to the effect of, “the developer will complete construction of the unit no later than two (2) years from the signing of the contract,” and then in another paragraph it will allow the developer to not deliver the completed unit in two years if there are delays from labor and material shortages, weather, market changes, or other reasons that interfere with the developer’s ability to complete construction. The promise to build in 2 years qualifies the development under an exemption from ILSFDA. It means that the developer doesn’t have to provide a Property Report or all those other rights to the buyer; however, part and parcel with this exemption is the requirement that the developer make an unconditional promise to build in two years. In Florida, it is not a valid excuse to not complete construction of a home or condo for just any old reason. There are very few excuses, in fact, that will hold up in court. So in this case, the developer finds itself in the position of having tried to qualify for an exemption, but because of some poor contract drafting by its attorneys, it now not only doesn’t qualify for the exemption, but it has failed to provide the Property Report and the other rights the buyer was entitled to have.

The ILSFDA gives the buyer  a clear remedy at law. It states that in the case where a developer, whose property is not exempt from the ILSFDA, does not provide a Property Report and does not provide these certain other rights to the buyer in the contract, the buyer may rescind (cancel) the contract and get his deposits back with interest within two years of signing. This is only one scenario in a group of many that have gotten developers in trouble with buyers wanting their deposits back.

These cases are getting more popular as the months wear on and the courts rule consistently in favor of the buyers. Even the Florida Supreme Court has weighed in on this exact issue in favor of the buyers. This is not to say that all cases have gone in favor of the buyers. There are many variables that go into an assessment of this type of case, and it helps to use an attorney who is familiar with the federal statutes, Florida Administrative Codes, CFRs, Florida Statutes and case law.

Cowden Law is currently representing clients who are seeking the return of their deposits against developers of condo and subdivision homes. If you have questions or would like a complimentary case review, please call us today. And keep in mind that there are strict limitations on the time within which you must bring a lawsuit, so if you have questions, call as soon as possible so that you don’t miss an opportunity to seek the courts’ help.  (561) 882-6500 or email us at LCowden@cowdenlawfirm.com .

The initial interview is an opportunity for an attorney to hear the basic facts of a case and make a determination whether there is a case she or he can take on for the client. It’s an opportunity for the client to get a feel for the attorney, the attorney’s personality, the resources of the firm, and other variables that are important to him or her.

I have heard from both attorneys and clients, time and again, that a problem arises in the context of these first interviews. And I believe the problem is there because there is a fundamental disconnect between the attorney and client that can be cured with the sharing of some pretty simple information, so I felt it would be a good idea to write this article in an effort to educate clients (and attorneys) everywhere, so that these interviews can be effective and satisfying for all participants.

While I was still a law student, I was involved in a case where I was a potential plaintiff in an employment law case. I got a referral to an attorney who had years of experience, and made an appointment for a one hour consultation, for which I paid about $265 (if memory serves me correctly). After we sat down in her conference room, I began to tell her the facts of my situation and found that she was constantly interrupting me, asking me questions about things that I thought were either minor or had nothing to do with what I wanted to tell her. I’d answer her questions and then go back to the story I was telling. At one point I remember her saying she didn’t need to hear about that particular part of my story that I had been recounting to her, and it made me angry because I was getting the impression that she either wasn’t listening to me or she wasn’t a very good lawyer because she was ignoring very important information that I felt sure was relevant to my case. Almost every interaction that I had with her was a frustrating experience for basically the same reasons. I got the distinct impression that she wasn’t listening to me at all or was missing half of my story.

Now that I am an attorney myself, I am able to view that situation from a different perspective. In law school, the most important skills you learn are how to think, read, and analyze facts like a lawyer; and it turns out, doing those things like a lawyer is a lot different than doing them like a non-lawyer.

What I learned in law school, practically speaking, is that every “cause of action”, meaning “everything you can sue a person for” is actually like a puzzle, a puzzle that has a certain number of pieces and that number almost never varies from case to case (it will vary from State to State, but that’s a different article!) Those pieces are called “elements”. To put it all together then, my last two sentences together read: Every cause of action has a certain number of elements that must be present in the facts of the case for there to be a case at all. For example, the cause of action that falls under the heading “negligence” has 4 elements; they are (1) a duty owed to a person by another, (2) a breach of that duty, (3) causation (the person with the duty’s actions directly or proximately caused the harm suffered by the other person and there was no other separate cause that made the harm come about), and (4) damages (physical, emotional, and/or financial injury flowing from the actions of the person with the duty).

Now, in addition to causes of action, there are defenses to just about every cause of action, which the other party can use to throw the blame for the injury back on the person suing them. For example, in negligence, it is a defense if the person suing was partly or more than halfway to blame for the accident or injury. If you were going to use a layman’s term for that, you might say, “by doing ‘X’, that person asked for it.”

If you understand how this “cause of action=elements” system works, it is easier to see how a client interview can go the way mine went years ago. My attorney was listening to my problem. As she was listening, she was deducing what my cause or causes of action might be. Knowing what those causes of action were, she also knew the elements to those causes of action. What she needed to hear from me was whether any facts occurred that fit the elements of the causes of action. She was also listening to see if any of the facts of my case fit into a defense to those causes of action. She was simultaneously figuring out if I had a case and whether I had a strong case or a weak case due to the other side having a defense to their actions. Let’s jump back to the negligence cause of action and a hypothetical fact pattern, to see how this all works.

Let’s say a person was involved in a car accident. He had stopped at a red light and was hit from behind. He suffered severe back injuries and facial injuries that required surgery and resulted in permanent disability. He also was not wearing his seatbelt. As he’s telling me about his case, I’m listening for the negligence cause of action puzzle pieces, the elements. I know that other drivers on the road have a duty to obey the laws and drive safely. I will ask him if he saw or heard anything from the other driver at the scene, and what the weather was like. I’m trying to fit facts to the elements “duty” and “breach of duty”. If it was raining, the driver had a duty to drive appropriate to the conditions (to slow down), and if he was driving too fast, he breached that duty to the other drivers on the road (people like my client). That’s another arrow in my quiver for the elements of duty and breach. When my client tells me he wasn’t wearing his seatbelt, my radar goes off because it’s a defense to the causation element for the guy who hit him. In Florida, you are partially to blame for (partially the cause of) your own injuries when you fail to wear a seatbelt. So right there, I know my client will not get fully compensated for his injuries because the State considers him partially at fault. In essence, “he asked for (some of) his injuries.”

This goes on until the attorney has all the facts she or he thinks are relevant to the case, i.e., all the elements to the causes of action and potential defenses to those causes of action. The breakdown in the interview occurs when the client doesn’t understand the relationship between the causes of action and elements that guide the attorney’s thought process. The client feels it’s important to talk about many other facts, for example, how the other person at the scene said they would pay for the medical bills. The client assumes this can prove the other guy was admitting he was at fault, and that this fact should sew up the whole case. What he doesn’t realize is that Florida law is clear; you cannot use these offers to pay medical bills as evidence against the party who made the offer. It’s either considered not relevant or too likely to prejudice a jury against someone who was just making a kind offer out of concern; or worse, if the courts let that type of evidence in, people would stop offering to pay medical bills for other people who they hurt because they’re afraid they’ll get sued, and as a society we don’t want that effect.

Running an effective attorney/client interview is a two way street. Each party needs to understand the goal of the process and the way the process works. When a client comes in, he wants to know the attorney cares and is listening. He needs to be prepared to tell it all, but allow the attorney to guide him in what the attorney needs to hear. The attorney wants to know the client is being forthright and honest and not holding anything back that might be helpful, but the attorney is also very focused on honing right in on the most important facts, the facts that can make or break the case. So she or he might have to stop the client from speaking about certain things the attorney does not feel are relevant (do not address elements of the cause of action) and ask questions about topics the client might not feel are important (but do address elements of the cause of action or defenses to the cause of action).

Every legal issue is charged with emotion. Every case has come about as a result of someone being hurt, emotionally, physically, or financially. Below my name on my business card it says, “Attorney and Counselor at Law”. That’s because I do counsel people. I hear their stories, I hear their pain, and I give them advice. Not just legal advice but all other kinds as well. An effective relationship between attorney and client is entirely dependent on their ability to communicate effectively, and this first interview between them is the first step in that journey together. Every attorney should consider giving the client a quick introduction to how the interview will work best, and guide the client towards making it an effective meeting. Every client feel comfortable asking for this guidance and understanding how the process works, so they can assist their attorneys, and ensure their best representation.

I have seen it happen a lot. A client comes to me and says they have a legal issue that has come up in another state, often connected to a will or probate situation or a property issue, and they need a lawyer’s help. What many clients don’t realize is that the laws of other States can be completely, 180 degrees different than they are here in Florida. They also don’t realize that an attorney must be licensed in a particular state to practice law there, and it is considered practicing the law of a state to give advice on that state’s laws, regardless of where you are physically when you do it. So what’s a person to do in this situation? Well, there are two good avenues to follow.

First, you can ask your attorney if she or he knows anyone who practices law in that state. Even if they know someone who practices a different type of law than the one you need, it’s a good starting point to get a referral from that distant attorney to someone who practices in the area you need in their same local area.Second, you can go online to that state’s bar website. The bar is an organization that all attorneys should belong to in the state where they are licensed (membership is required in Florida, but I’m not sure whether it’s required in all states.) The Florida Bar website has a lawyer referral service that is free to potential clients (the referral is free, the legal services are not). Each attorney who takes part in the service agrees to give a $25 half hour consultation to anyone who comes to them through the service. www.flabar.orgCowden Law is always available to people who have legal issues, even those in other states. If we can’t help you with your problem, we will do our best to point you towards someone who can.  

So what is a retainer anyway? 

You may have heard the term “retainer” used different ways. That’s because it can mean different things. Actually, it typically means one of two things. I’ll call these two things or types of retainers the retainer in trust and the true retainer (otherwise known as the “classic retainer”). 

Retainer in Trust

A retainer in trust is a sum of money that a lawyer requires from the client prior to expending time on a case or legal matter. It is calculated in whatever way the attorney or the law firm has determined is an accurate measure to ensure that there is always money to draw from for work done for a client. Retainers are held in the firm’s trust account at a bank or other financial institution for the benefit of the client until it is earned by the attorney. Once it is earned, it is transferred to the law firm’s operating account and is no longer held in the client’s name. The funds in a firm’s trust account should never ever be commingled with funds from the operating account of the firm. Additionally, trust funds cannot be used for purposes other than for what they are intended without permission from the client. Many firms require that a client replenish his retainer account when it declines to a certain level, to ensure that there are always funds in trust to pay billed fees and costs as they come due. Clients who do not pay retainers as agreed can find that the services of their attorney are discontinued temporarily or permanently, depending on the situation. 

True or Classic Retainer

A true retainer is a sum of money that is paid to an attorney to “reserve” that attorney’s services in the event they are needed. It ensures that attorney or that firm will not do legal work for a client that has conflicting interests of the person who paid the retainer. It is separate from and on top of any hourly or fixed fees the attorney will bill for doing the actual legal work. The following excerpt was taken from the California Bar web site, and is a good explanation in my opinion:  

A true retainer is earned upon receipt (and is therefore non-refundable) because it takes the attorney out of the marketplace and precludes him or her from undertaking other legal work (e.g., work that may be in conflict with that client). It also requires that the attorney generally be available for consultation and legal services to the client. Sometimes a true retainer will take the form of a single payment to guarantee the attorney’s future availability for a specified period of time and other times as payments made on a recurring basis, such as a monthly retainer, to assure the attorney’s availability to represent the client for that month. Sometimes this is referred to as having the attorney “on retainer.”  [http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=11337&id=6493]  

The Florida Bar explains, 

In essence, a “true retainer” is akin to an option contract: the client pays the attorney a fee for the right to employ the attorney. The “true retainer” is therefore earned upon receipt and should not be deposited in the trust account.

[http://www.floridabar.org/tfb/TFBETOpin.nsf/basic+view/912B17D68B28B41885256B2F006CA7DB?OpenDocument]   

Chances are these days, when asked to give your attorney a retainer, you are being asked for a retainer in trust. It used to be that true retainers were more popular, but with the larger pool of talented attorneys and the more comprehensive codes of ethics of each state requiring “client loyalty”, it’s not quite as important to reserve the talents of one particular lawyer for your potential future legal work as it once was.