LITIGATION: If I Hire A Lawyer and Bring a Lawsuit, What Will Happen?

Most people have never hired an attorney or gone to court for anything more serious than a traffic ticket. The process of litigation looks as mysterious to most people as fixing a car or coaching a chess team looks to me. Maybe this will help a little.

 

A civil case usually has six main stages: (1) pre-litigation negotiation; (2) the filing of initial pleadings; (3) disclosure and discovery; (4) dispositive motions; (5) trial; and (6) appeal. This process can be stopped if the parties settle which, statistically, happens more often than not.
Pre-litigation Negotiation
Because litigation is burdensome, not only financially but in other ways as well, most lawyers will attempt to negotiate a settlement before filing the lawsuit. In my experience, these attempts succeed well under 50% of the time, generally because both parties are still emotionally upset about what was “done to them”. I will sometimes forego this step in those instances where the other side seems to be a bully or a conman: those parties generally have to be punched with a lawsuit before they will take my client seriously.
Initial Pleadings
The plaintiff (the party which initiates the lawsuit) files a Complaint stating why the court has jurisdiction, alleging the key facts underlying the dispute, and the legal claims those facts give rise to.
The defendant (the other party) must then file an Answer which answers the statements made in plaintiff’s Complaint. The defendant may, at the same time, allege any claims he has against the plaintiff. Because you know the facts, you will have to work with your lawyer during the pleading period.
Disclosure and Discovery
A little over a month after the pleadings are completed, both sides have to file their mandatory disclosure. This is a process pretty much unique to Arizona. Both sides are required to state their legal claims, describe their factual position, state their position with respect to damages, identify their witnesses (lay and expert) and any witness statements, and produce all relevant documents. Again, you will have to work closely with your lawyer with respect to the disclosure.
Then, the parties enter the discovery period during which both sides use various discovery tools – interrogatories, requests for admission, requests for documents, request to inspect, depositions – to gain evidence for their own case and to force the other side to expose its case before trial. This period can be lengthy as the two sides fight over what they have to produce. This period can also get expensive if there are numerous depositions, especially if those depositions involve expert witnesses.
Dispositive Motions
In most cases that have gone this far, one or both sides will file a motion – usually a motion for summary judgment – which basically asks that Court to hold that the evidence so favors the moving party’s case that there is no point in letting the case go to the jury. This might be because the evidence is overwhelmingly one-sided or because some point of law prohibits the other side from winning under the facts that have surfaced during discovery. Many times, these motions end the case (except for appeal), even though most judges are reluctant to take a case away from the jury.
Trial
This is when you get to see the samurai in your lawyer. I have done trials as short as a few hours and as long as two months. By the time you get out of discovery, your lawyer will have a good idea how long trial will go, but it is impossible to tell now with any certainty. The keys to that trial will probably be your lawyer’s preparation (I find I spend 3-5 hours on preparation for every hour in trial) and the relationship you establish with the jury (do they like, trust, and believe you?).
Appeal
If you lose at trial or in summary judgment, your attorney will discuss with you your prospects on appeal. There are many bases for appeal, so we cannot generalize now. Depending on the case and the complexity of the issues, it could take quite a while before you get a ruling on your appeal.

Settlement
Increasingly, courts are ordering mandatory settlement conferences after a certain number of days have passed since the pleading stage. This is not bad: you are not forced to settle, and the settlement judges are often very experienced and qualified. Sometimes, the parties will on their own, especially early in the case, seek out mediation before an experienced lawyer or retired judge at which the mediator will take turns talking to the parties and their lawyers in an effort to settle the case. We have had a lot of good experience with mediation.

REAL ESTATE LAW: CAN YOU BEAT YOUR HOA?

 

“The darn HOA is downright Stone Age!”

HOAs are good.  Drive through a really nice neighborhood, especially one on the newer side, and there is probably an HOA on the job.  HOAs serve a valuable purpose or there would not be so many of them.  And yet many of the people living in the development are often hostile to the HOA.  Why is that?

HOAs are governed by CC&Rs (Covenants, Codes & Restrictions, usually drafted by the developer and intended to maintain the quality of the development) and Architectural Committee Rules (the Architectural Committee is named by the HOA board to interpret the CC&Rs).  Because these were written at the time of initial development, it simply was not possible to anticipate all questions that would arise.  And HOA boards and architectural committees are made up of people, with their own idiosyncracies and biases about what “their” neighborhood should look like.

And on the other side is the belief of most American homeowners that their home is their castle and that, whatever is so for their neighbors, they should be able to do what they want with their property.  So rubs between the HOA and its homeowners are inevitable.

Most of the law firms which deal with HOA-homeowner disputes represent the HOAs.  That is only natural.  The HOAs represent a source of repeat and continuous business. The aggravated homeowner is likely to go to war with the HOA only once.

So, often, the homeowner chooses to represent himself.  Occasionally, that works out.  But for the most part it is true that “the man who represents himself has a fool for a lawyer.”  The courtroom is the lawyer’s turf, and the unrepresented litigant is at a tremendous disadvantage.

But a homeowner who is represented can often prevail.

Recently, we represented a homeowner who had bought a sculpture with a desert theme and national recognition, but with a comical bent.  Seeing that neighbors all around him had various objects in their yards without ever having to get pre-approval, our client had set his sculpture in the side yard.  No neighbor ever complained.  But someone on the HOA board decided the sculpture was inappropriate for that development.  The HOA dumped numerous warnings and fines on our client, and then finally sued him when he would not pay or move the sculpture.

The homeowner tried to defend himself for several months, but he found himself in an ever-deepening hole.  So he hired us.

We were able to establish two arguments.  First, because the CC&Rs and Architectural Committee Rules did not specifically prohibit sculptures and the sculpture was not per se offensive, it fell outside the CC&R prohibitions.  Second, because of the enormous power they wield and the potential for abuse, HOAs are under a duty to avoid being unreasonable or arbitrary.

This does not mean that you can expect to prevail against your HOA.  A reasonable application of the CC&Rs by an HOA will always be upheld.  But HOA’ are not always reasonable, and when they are not, the homeowner does have recourse.  See an Arizona contract lawyer or business litigation attorney.

 

 

WORKING WITH A LAWYER: WHO IS THE GREEDY ATTORNEY’S FAVORITE CLIENT?

Let me tell you about two of my past clients.

Romero was a legal immigrant who had pulled himself up by his bootstraps to a place where he was ready to buy his first apartment house.  But he had three problems.  First, he spoke a little English, but not a lot.  Second, because he had done well, he thought he was smarter than his problems and the people he was dealing with.  Third, as a result of number two, he negotiated the contract himself.  Three  months later, the deal fell through because the other side had defrauded him and the language of the contract had taken away his protection. Within another month, he was involved in litigation which lasted two years and forced him to pay the firm I worked at over $200,000.

 

George was an astute businessman and a veteran of past litigation. He wanted to buy a struggling company and turn it around, but he had to deal with an ornery seller who, it seemed, would rather see the company go down than make a deal which would fill his pockets. George did not try to handle the problem himself.  He knew he needed an Arizona Business Litigation lawyer, so he came to us.  We developed a number of strategies to determine just how difficult the seller would be. We found out that there could be no deal without George making sacrifices that destroyed the attraction of the company.  So he walked away, probably saving himself hundreds of thousands of dollars chasing after the company, and paying us less than $10,000.

The first scenario brought the firm a lot of money. The second was far more satisfying for the client and for us.

The message is clear. When you sense a problem ahead, see an Arizona Contract Lawyer or Business Litigation Lawyer. You don’t have to commit. You can take the time to decide what is best for you . But at least you will know your options and, perhaps, avoid a much larger problem.