The litigation Process and Litigation Attorneys
Litigation attorneys, also known as litigators, are critical if you are looking to file a legal claim in court or defend against one. As an alternative to a lawsuit in court certain claims are subject to arbitration pursuant to a contractual agreement. Those claims are heard by appointed arbitrators outside of the formal court system. Arbitrators often decide claims individually or as part of a panel of three arbitrators (usually for high value matters), subject to an agreed selection process. Arbitrators generally will be lawyers, judges or other professionals with particular expertise in a particular area, although anyone in theory could be appointed to arbitrate a particular dispute if not prohibited by law and agreed by the participants.
Some litigators call themselves “trial attorneys” or “trial lawyers.” These lawyers usually practice in personal injury law. There are no specific requirements for a lawyer calling himself or herself a trial lawyer. You should check out the individual lawyer’s qualifications. Some lawyers who call themselves trial lawyers actually go to trial frequently, while others may enter the courtroom infrequently if at all.
Lawsuits can be in state or federal court depending on various factors a litigator can discuss with you. Most cases will be in state court, unless there is “diversity of citizenship” between those bringing the case and defending the case, or if there is what is known as a federal question. Unless based on a federal question, federal courts handle disputes between diverse citizens where the amount in controversy is at least $75,000.
In 2020, the Florida courts increased Circuit Court jurisdiction to a minimum of $30,000. That is what is known as a jurisdictional threshold for bringing your case in Circuit Court. Previously the amount was $15,000. County Courts in Florida handle disputes with smaller amounts in dispute of less than $30,000 (the amount used to be $15,000). Where the amount in controversy does not exceed $8,000 a claim may be brought in Florida as a Small Claims matter, which has special rules, within the County Court’s jurisdiction. In small claims court, a corporate entity does not necessarily require a lawyer, but check the current rules and the requirements of the particular court pertaining to your particular matter.
Unlike transactional lawyers, a litigation attorney is the one who goes into a courtroom (actually or virtually) prosecuting or defending claims for clients. But there is nothing actually preventing litigation lawyers from practicing other areas such as in transactional areas of law. Many lawyers specialize but that is not required to be a practicing lawyer. Some lawyers take additional training and are subject to peer review to become board certified by The Florida Bar (or other certification organizations) in a particular practice area.
While attorneys who are not board certified may specialize or have particular expertise in the areas in which they practice, board certified lawyers have attained this additional credential, been subject to extensive testing, have taken significant additional continuing legal education in their area of certification, and been subjected to evaluation of their professionalism and ethics through peer review by other lawyers and judges, to determine their reputation in the area in which they practice.
Unlike the typically portrayal in the movies or television, only a small part of the litigation process occurs in the courthouse. Cases can take months or sometimes years to develop and bring to trial. Many cases are resolved outside of the courtroom, by dismissal or summary judgment, or for other technical reasons. While litigators are the type of lawyers one might associate with television or movies, the actual practice of a litigation lawyer is often not nearly as glamorous as sometimes portrayed. Litigation work involves investigating, prosecuting or defending cases. This can involve many documents, written pleadings and disclosures, depositions where witnesses are questioned before trial, and many other things that litigators do to investigate and prosecute or defend the particular case. A particular case may also be resolved outside of the courtroom by mediation (an informal negotiation process using an individual known as a mediator) or arbitration (which can be binding or non-binding).
Below are some considerations If you think you may need a litigation attorney.
What litigation Attorneys Should be Able to Do for You
Anytime you (individually or through an entity such as a corporation, limited partnership or LLC) consider filing a lawsuit, arbitration or settling a business dispute, or you are sued (or an arbitration claim is brought against you or your company) you should consider consulting with a litigation expert. You may not end up hiring the attorney, but these lawyers can advise you and walk you through the various legal details of your case.
Experienced litigators can advise you of the benefits and risks of proceeding and help you to evaluate the risks of litigation, which can be quite expensive. As previously mentioned, some lawyers are Board Certified in a particular area such as Civil Trail Law or Business Litigation, among others, which is an indication of a lawyer’s qualification. In Florida, Board Certified lawyers are “Evaluated for Professionalism and Tested for Expertise.”
If your case is subject to arbitration, keep in mind that arbitration also involves the additional factor of payments to the arbitrator (or a panel of three arbitrators usually in larger matters) which can be substantial depending on the complexity and difficulty of the matter. Arbitration usually occurs because the contract between the parties requires arbitration rather than litigation in court.
Sometimes, the court can refer the parties for non-binding arbitration which has certain requirements and ramifications under the applicable rules and statutes, or for a summary jury trial. Summary jury trials are miniature trials generally where each attorney presents its evidence informally to advisory juries under the supervision of the court, in order to give the parties an "idea" of what a "real" jury may do in the case. These proceedings are designed to help the parties assess the risks of proceeding and to foster resolution through mediation or a negotiated settlement outside of a more formal mediation session.
While often quite expensive, parties can conduct their own "jury research" and have the case heard privately before a group of selected individuals who agree to hear the case (as "mock jurors") as presented by one side. These types of pre-trial activities are usually reserved for "high stakes" litigation, but the ideas can be useful on a smaller scale as well.
A qualified litigation attorney will help you determine if their services are the best option for your situation before you hire them. Sometimes, other avenues of resolution, such as mediation (with or without the use of a lawyer) may be in your best interests. Mediation is an informal and non-binding process where a third-party (known as a mediator) seeks to help the parties resolve the dispute without a lawsuit or arbitration.
Sometimes, there are reasons not to pursue a particular matter at all that the potential client may not have considered. Other times, the type of relief the potential client needs is not what was thought about when the client first sought the input of the particular lawyer.
Client communications with the lawyer are confidential (with certain usually inapplicable very limited exceptions) whether or not you hire the lawyer or pursue the matter further. Most communications with a lawyer are protected by what is called the attorney-client privilege, recognized in all jurisdictions in the United States. There are other types of privileges that may be applicable in a particular case as well which you should discuss with your lawyer.
Litigation attorneys can explain the process and help you identify your possible claims (or defenses to claims made against you) and how you can prove those claims. Litigators can also inform you of potential pitfalls or defenses the other side may try to use.
Litigators are trained to identify causes of action (legal issues) and to prepare cases for trial or arbitration. If you are being sued, they help you understand if you have valid defenses, and what your best options are to evaluate, defend and resolve the matter.
A litigation attorney begins by developing your claims or defenses (sometimes both) to give you the best chance of getting the most compensation or relief for your situation or taking steps to help you defend against an action brought against you. These considerations can be complex and a particular lawyer is not necessarily the best choice for every case.
Most lawyers will be honest with you about their specific training, abilities, knowledge, and ability to handle the specific matter. However, you should find out the specific training and experience which makes a specific lawyer an appropriate choice for your case. A lawyer who has spent years prosecuting or defending foreclosures, handling real estate closings or landlord-tenant disputes, for instance, may not be the best choice for handling a complex business dispute between partners, the enforcement or defense of a non-competition agreement, or a construction dispute. Lawsuits with many parties also may require lawyers who have the experience, training and staffing to effectively handle the particular matter.
You should investigate the actual experience of the lawyer in your particular type of case. On the other hand, some lawyers are able to learn a particular area and are able to practice competently based on their skill, training, and ability to research and learn a particular area (or co-counsel with a more experienced lawyer). So depending on the parameters of what you are looking for, including your budget or seeking representation on contingency, a particular lawyer or law firm may be attractive to you. Lawyers may also be affiliated with another lawyer inside or outside their law firm, with more experience in a particular area.
Just be careful in your selection process and make sure your questions are adequately answered (not evasively). If a lawyer makes you feel foolish for trying to understand the process, that lawyer may not be the best fit for your situation.
Most lawyers will want you to be represented by someone who has experience in the particular area of law and will be willing to give you recommendations of other lawyers who may have more experience in the area or be a better fit for your matter.
But be careful, especially if the lawyer asks for a significant retainer. While that is not unusual depending on the particular matter, and many highly competent lawyers can seek significant retainers to begin working on your matter, try and be careful in your selection process. Do research about the lawyer through the Internet if you feel that additional information is required. You may have done this in advance or be relying on someone you trust for the referral. Most lawyers, meaning the vast majority, do very much take what they do very seriously and act quite professionally and ethically. But, as the saying goes, trust but verify.
When Should you Consult or Hire a Litigation Attorney?
If you are named as a defendant (the one being sued) in a lawsuit, you should speak to an attorney. You generally don’t want to try defending these claims on your own (with some very limited possible exceptions for small claims matters). Other than in small claims court, business entities, such as LLCs, LLPs and corporations, are required to be represented by an attorney in a court proceeding. Here are just a few examples of when to hire a litigation lawyer.
Professional disputes within a business can be cause for hiring legal help. If you are fired from your job due to discrimination or if an employee is suing your company for discrimination, you should consider hiring a litigation attorney. If your business needs to prevent a prior employee from violating a restrictive covenant or non-competition agreement the business may need a litigation lawyer. If a copyright or trademark has been improperly used a business may need the assistance of a litigation attorney. If you have been underpaid or a business is sued for violations of the wage and hour laws, a litigation lawyer should be consulted. You or your business may be a party to a contract or a business relationship that has been breached or has gone sour for some reason. You or your business may also require assistance with claims against an insurance company relating to personal or business, matters, or if you have been sued and there may be coverage or if coverage has been denied.
These are just some examples of the types of situations where a business litigator may be needed. There are many more. But remember, even if you are sued, that does not necessary mean the matter necessarily has merit. The facts may be untrue, the law inapplicable to you, or the case barred by a statute of limitations or other defense, among many other reasons. On the other hand, if you are going to bring a lawsuit, make sure you are truthful with your lawyer so that the applicable facts and law can be analyzed before the lawyer undertakes the representation. In some limited circumstances, where the facts and law is highly complex you may hire a lawyer just to give you an analysis of the facts and the applicable law, together with their thoughts on a potential outcome, and risks of proceeding, among other considerations. Knowledge gives you power to make the best possible decision for your particular situation.
You may simply want to contact a litigation attorney for their opinion on a particular situation as it develops. Speaking to a litigator does not mean that you are immediately going to file a complaint and go to trial. Litigation attorneys have several tools available to get a settlement and avoid the stress and expense of the litigation process and trial. Negotiated settlements, mediation, and arbitration can all help you get a fair outcome. Mediation may also occur when you are well into the lawsuit but not all cases can be settled at mediation at the outset. These are indeed issues to discuss with your lawyer.
Litigation attorneys generally charge their clients either on a contingency basis or billable hours at an hourly rate, based on such factors as the lawyers skill training and experience. Some matters may be handled on a flat fee. In general, plaintiff attorneys, particularly those who sue on behalf of a client in personal injury, wrongful death, medical malpractice and nursing home matters, bill on contingency and defense attorneys bill hourly. Lawyers who handle probate matters are generally compensated pursuant to a statutory formula, or hourly. Litigation attorneys who focus on cases pertaining to businesses generally but not always are compensated based on hourly rates for their services. Different lawyers and paralegals in the same firm will bill at different rates. In a business dispute, the parties may be either side of a case (as a plaintiff or a defendant) and may file what is known as a counterclaim asserting claims against the adversary even where they have sued you first and you are the defendant in the case. It is always best to ask financial questions before hiring an attorney. Hourly rates are generally tied to the level of experience, sophistication and reputation of a particular lawyer, but that does not mean that certain lawyers charge more or less than what might be considered reasonable in their community. Board Certified Lawyers can generally charge at higher rates, and Court's are in general more willing to grant them higher rates in recovery of fees from the other side in the event of a fee award.
Contingency billing means the attorney will represent you for the duration of litigation and collect their fee as part of the settlement you receive. Costs may be advanced by the lawyers or you may be required to pay them. In personal injury lawsuits the lawyers generally pay the costs in advance. In business disputes, the client may have to pay costs in advance or as incurred, unless a different arrangement is negotiated. Some plaintiff attorneys will collect a percentage of any potential judgment. However, if they don’t win, they usually don’t charge you anything, including costs. Contingency fees can (but not always) incentivize plaintiff attorneys to press for the best possible case because they usually depend on winning or favorably resolving the case.
Some lawyers do handle selected business litigation matters on partial or full contingency, with the client being responsible for all costs of the matter as it progresses. Depending on the situation this may or may not be in the client's best interests; sometimes that determination is very difficult to make at the outset, and requires at a minimum an evaluation of the expected outcome as well as the time and expenses expected in the matter. These determinations can be very difficult, and sometimes almost impossible (outside of a "guestimate") at the outset. Most lawyers will not even give the prospective client this type of evaluation because clients tend to rely upon these types of statements, which may lack reliability due to lack of information, analysis and investigation and discovery in the actual lawsuit or arbitration.
Defense and business litigation attorneys typically charge hourly rates. If you visit a firm, they should explain the rate for each attorney, paralegal, and assistant involved. Some defense attorneys also may offer flat rates for certain matters or for certain aspects of a case.
Also, it bears mentioning that different types of compensation arrangements are available from different lawyers and law firms and in different areas of law and depending on the circumstances and scope of a particular matter. As mentioned, a fee arrangement can range from a flat fee, to hourly arrangements to contingency agreements, to combinations of two or all three. Less frequent is a success fee and how that will be determined. Some limited types of fee arrangements are prohibited.
Most often, the fee arrangement is within the determination of what is reasonable, ethical, professional and agreed between the lawyer and client. Fee arrangements with a lawyer or law firm, although not required (except in some circumstances such as contingency fees for personal injury or property damage claims) should be set forth in a written agreement.
Our firm handles very few cases on a contingency fee basis. However, modified fee schedules and partial contingency fee agreements are possible in selected matters.
Questions to Ask
You should find out if the members of the firm are Board Certified in their respective area, the level of experience they have, their ability to handle your matter from inception, mediation, arbitration or trial and their ability to see the case through from beginning to end, and their ability to handle an appeal if needed. (Note that arbitrations are generally not subject to appeal or other court attack (with very limited exceptions) although the result (award) can be confirmed by a court and converted to a final judgment).
In court proceedings, even if you win a case, the result may be appealed. Cases can go on for a long time or be settled promptly. It all depends. There are many considerations, and a skilled litigator can effectively guide you through the process. Even so, some cases resolve quickly and some take more than a year or sometimes considerably more time than that. Sometimes it is almost impossible to determine if a case will resolve quickly or will be highly contested, although experienced litigators generally can give you a good idea based on their experiences. Even so, those opinions are simply that and what actually happens can be something else, unrelated to what seemed to be the well-founded opinion of the lawyer. That is why many lawyers are reluctant to give these sorts of opinions on "how long" a case will take. This may cause frustration for the client, simply because of the uncertainties which are often beyond your control and are usually (but not always) just part of the ongoing process that litigation involves. You may still want to discuss in detail the possibilities about how the case may proceed, and what may happen.
Becoming a skilled litigator can take many years, and there is no shortcut for experience. Because of the legal market, many less experienced lawyers are hungry for business that they are not particularly well-equipped to handle effectively. That does not mean they will not handle your case well and competently. But the chance of that happening may well decreases with less experienced counsel. But whoever you hire, take steps to make sure that the have the knowledge and experience that is required for your particular matter. In some circumstances that can take a significant effort.
You should not feel your questions are avoided or remain unanswered or are not really answered to your satisfaction. But you should also keep in mind that litigation can be complicated, and it is often difficult to determine how a matter will proceed following the initial steps. Lawyers are often very busy professionals and will not always be able to focus on your matter exactly when you ask them to do so. But make sure they give your case the attention it deserves, keeping in mind that the time they are giving to someone else’s problem may well be the type of effort they give to you when the appropriate time comes to provide that level of focus.
In asking about initial and follow up steps in the litigation process, also find out the lawyer’s perception of the alternatives and potential ways the case may proceed. The lawyer may not be able to tell you if the matter will take a few months or a year or more. Complex cases can take much longer. But you should know and understand what may happen, your options and have a good general idea of the potential costs and fees involved if the case progresses.
While you may want your lawyer to have a crystal ball in her or his analysis, that is not always possible, although, experience can assist with making predictions and evaluating the probabilities of certain outcomes. Even then, doing this can be guesswork and speculative to some extent, so listen carefully and evaluate options at all times.
What you should expect from Your Attorney
A litigation attorney should keep you informed of the progress of your case. If your attorney bills hourly, you should receive an invoice that details everything they did for you or your company on a regular basis. In general, your attorney should keep you in the loop, communicate settlement offers, and advise you of settlement or court options. You should, in our opinion, generally be copied consistently on pleadings and documents in your case and important communications between counsel should usually be sent to you. Unless you advise otherwise, you should get the paperwork filed and received on your case and ask that the documents be sent to you regularly by email. Most lawyers today insist that their clients use email, unless they are unable to do so for a compelling reason. In those circumstances other arrangements should be made to keep the client or their designated representative informed.
Small Business Issues
Small businesses are often on a limited budget, so if you operate a smaller company, you probably focus on minimizing costs. However, there are a few issues in which you should seek legal counsel because they could affect the survival of your business. First, if a current or former partner is suing you or the business, you should speak with a litigation attorney. Second, if your business is being investigated by a government entity, a lawyer can help. Third, environmental issues are another problem that can quickly spiral out of control and drown your business in compliance costs without an attorney’s help. You may have a claim threatened against you for trademark or copyright infringement, or violation of a restrictive covenant or interference with the business of another company. You may need to bring a claim against an insurance company that has denied a claim for various reasons. You may simply have a breach of contract claim against another company or not been paid as agreed. On the other hand, you may have a claim brought asserting that you breached a contract with another or are in violation of the terms of what was agreed verbally. Finally (but not exhaustively), if you are engaged in negotiations to sell or purchase a business, a litigation attorney can help you avoid future issues.
If you believe you need a litigation attorney, you may wish to contact Osherow, PLLC. We have experience in a wide range of business-related and individual litigation needs and have helped clients in Florida and in other states in which we may practice from time to time. You can call us at (561) 257-0880 or contact us by email at firstname.lastname@example.org to find out more about our practice areas and how we can help you.
If you would like to discuss your case in person, you can visit us, by appointment at Osherow, PLLC, 2101 N.W. Corporate Blvd., Suite 410, Boca Raton, Florida 33431. We are available by Zoom or Microsoft Teams to discuss your situation. We also are able to meet with potential clients in West Palm Beach, Ft. Lauderdale and Miami. Should the need arise, please contact us to schedule an appointment.