How Big or Small is Your Lawsuit?
Jeff Regan: Sometimes we’ve had cases walk into the door where we thought it was a relatively minor, in litigation sense, $50,000 case only to get further involved in it and find out that there were many more problems. A case in point: Right now we’re working on a very large, approximately $50 million construction defect case. And when that first came in the door the client insisted that that case was not going to be very big, but they wanted to get some recovery from some sureties on some deficiencies in the construction.
Extensive Construction Litigation Background
Gene with his construction background, and mine with my extensive construction litigation background, brought in the proper consults to take a look at this building and found out that there were serious, serious deficiencies and building code violations. And ultimately we are now planning on going to trial early next year in that case, and we’ll be seeking recovery of over $50 million.
Interpreting What the Client Needs
Gene Atwood: That’s where diligence comes in. It’s our job to play interpreter between what the client is saying when they first come in the door, the story they have to tell, and how it’s going to look in the eventual litigation. That can lead to a number of different problems. It could be that you’re looking at it and you’re just not going to have the witnesses that you need to present the case. Or it could be that you’re making a judgment on how much of this is going to be a he said, she said, dispute. But there can be a number of reasons other than just the money, but when you look at it and you think that the client needs to be cautious here.
What I’m fond of telling a client is if we have a case, it’s because the other side believes just as strongly that they were right when you say that you are right. And you have to understand you’re going to be hearing the other side of the story. And how that affects a client is always an interesting moment.
Evaluating the Need for a Lawsuit
Jeff: One of the things we try to evaluate when a client comes in the door, as to whether or not the case is proper for litigation, is what’s the client’s mindset? How angry are they? How emotional are they? How vested do they feel in the matter? Because one thing we can say to our clients, which are always business people, whether they’re individuals or large corporations or small corporations, is that they’re running some type of a business. And if they get too emotionally involved, they leave their business objectives behind them.
How Do You Want to Resolve the Problem?
And so, one of the first things we’ll ask those clients when they come in is, what’s your endgame? What are you trying to get out of this? If you’re trying to bring the suit, if you’ve had a suit brought against you, how would you like this ultimately to get resolved? Because they’re in the business of making money in their business, not in the business of making money in the courtroom. We make money in the courtroom, but we get repeat work from people because we counsel them to avoid it when it’s unnecessary.
Gene: And counsel them, what is the reasonable expectation of how this litigation may turn out? Managing expectations is a big portion of what the lawyer does during a case. In order to be able to know whether there’s something that’s being offered to you is an acceptable proposition, you have to know what your reasonable opportunity for recovery at trial may be. I believe that’s where our trial experience really comes into play.
What is the Cost of Litigation?
Jeff: No question about that. One of the things we do find with clients when they come in, is they have a little bit of a misunderstanding as to the cost of litigation.
It can be very expensive. I mean, we’ve had cases that have been $50,000 to go to trial, we’ve had cases that been in excess of two and a half million. It can be very, very expensive. The clients don’t often understand that they don’t automatically get their attorney’s fees if they go to trial and win.
That’s the British rule. And in the United States, and Florida in particular, but most U.S. states, you don’t get your attorney’s fees unless they’re provided by a statute, or they were provided for in your contract.
And so we find in many instances when we explain to clients, you don’t have an attorney fee recovery here, and your fees could outstrip your recovery. We find a way to resolve the problem with an offer through alternative dispute resolution so that it works out for their business in the long run, the way that it should.