WARNING: Don't Call Any Litigation Lawyer Until You Have Read This!

A Special Report from
Andrew S. Baker, Attorney at Law

(The 6 Attorney Litigation Strategies You Must Know Before You Hire a Lawyer)

Let's face it, in today's litigious society, people, organizations, and businesses get sued all the time. Do you know what to do if you're sued? Choosing the right lawyer can be crucial to the success of your case. Selecting the wrong lawyer can make things worse. A lot worse. Communicating with your counsel is critical. Will your attorney share your point of view? Your concerns? Will you understand him? Is he condescending? Approachable? Responsive? Selecting the wrong counsel will often lead to a client changing attorneys in mid-stream. This creates substantial and unnecessary expense to you because your new attorney must review your case in depth to become conversant with it. Contrary to popular belief, what an attorney sells is not his expertise - it's his time.

The stakes are always high - your time, your money, perhaps your reputation is on the line. One mistake, particularly a major one, can wreck careers and lead to financial hardship, if not financial ruin. For instance, in a major construction case, losing the case can mean the difference between handsome profit - or bankruptcy. But how do you know how to choose a lawyer? Do you know if it's a legitimate lawsuit, or, is it one that is designed to produce a quick settlement - meritorious or not? All to often we have seen clients come to us for representation only after they have been disappointed by another lawyer.

This Special Report will direct you to the 6 Attorney Litigation Strategies applied by many lawyers, how you can avoid them and, come away empowered by the experience by making informed decisions regarding your legal matters, while receiving the highest quality legal services, on a timely basis, and at a competitive price.

A typical attorney follows many, if not all of these 6 Litigation Strategies:

1. Bill, BILL, B I L L ! To those of you who have been involved in litigation, this will come as no surprise. If the client has "deep pockets," expect to see a response challenging the sufficiency of the complaint; expect to see an abundance of motions, challenging anything and everything. Don't expect a great deal of positive results, but do expect to see a lot of legal bills.


2. Amend the pleadings. Add a party. Dismiss a party. Add a cause of action or two or three. Draw a Cross-Complaint. Amend the Cross-Complaint. Sometimes events warrant these courses of action. Sometimes not.


3. Bury the fees. How? By allocating time for legal activities in which it is difficult to ascertain how the time is actually spent. For instance, by conducting extensive written discovery - interrogatories, production requests, and the like. By conducting as many depositions as possible (as far away from the office as possible - remember, your attorney is entitled to bill for his travel time.) By now, in the year 2006, most clients insist that their lawyers limit their research - they assume you are knowledgeable in every facet of the law (more on this later).
   
   Having conducted extensive discovery . . . conduct MORE discovery! There is no end to the number of interrogatories you can ask the other party (there is supposed to be, but for all intents and purposes, there isn't), documents to be produced and analyzed, admissions from the other party to be requested, and of course, lest we forget - depositions!


4. Don't forget the motions. I sometimes think that some law firms employ a creative lawyer to do nothing all day but think up motions. Some motions are warranted - in fact, used correctly, motions can be very valuable tools. Some motions succeed. However, quite often they fail. But they're all billable.


5. Use a below-market billing rate. This is a perennial favorite. We're all familiar with the old adage, "you get what you pay for." I believe that's true - within reason. In some sectors, the billing rates are lower overall because all, or a majority of the practice is comprised of one type of law, say insurance defense. In exchange for a steady stream of cases, firms will substantially discount their billing rate. Sometimes it works and sometimes the results are less than satisfactory. Generally I believe that in specialized areas, for instance cases involving real estate or construction cases, you do indeed "get what you pay for."


6. Utilize a non-refundable retainer. Actually, this is a new one that I just came across. Typically, the lawyer will request a retainer deposit of $5,000 to $10,000 to take your case. Against that deposit, he'll bill his hourly rates, say $350 an hour. This new scheme makes the client pay money up front that is not refundable. Why? According to one lawyer I talked to, it's to secure the lawyer's services. But isn't that why the lawyer is being hired in the first place? Watch out for this one!

Now let's look at two of our recent cases for comparison with the 6 Attorney Litigation Strategies.

The first dealt with a complex construction case involving an addition and modernization for a local public entity. The plaintiff was a large general contractor, and the defendant (our client), was a local public school district. Millions of dollars were at stake for the parties. Due to the complexities of this case, including a construction manager, it lent itself to extensive discovery. But that was not our game plan - I chose a different tact. Instead of engaging in extensive, mind-numbing discovery that would have cost the client tens of thousands of dollars, I focused on the depositions.

Think about it - the purpose of a deposition is to discover the strengths of your opponent's case and the weaknesses of your own case. What better way to discover this information than at a question and answer session with the principals of the case. This strategy also affords us the benefit of significantly reducing the written discovery that is normally propounded, as I are able to question the deponent directly and, where necessary, review any pertinent documents with the deponent. Again, due to the complexities of this case, while it lent itself to multiple and lengthy depositions, I selected only those deponents on whose testimony I believe the case hinged.

In addition, when our clients were deposed, I utilized a tact that is, basically unheard of in litigation circles. Ask any lawyer how many questions he or she will ask when his own client is deposed - 99.9% of the lawyers will ask their client no questions at all, or, one or two questions at most if needed to bolster ("rehabilitate") the client's testimony. I, on the other hand, often freely question our client. Unthinkable you say! I beg to differ. Our client is a principal in the litigation. He or she has much to offer and, when properly prepared, produces dramatic results which often demoralizes our opposition.

Incidentally, following our limited discovery, I proceeded to Alternative Dispute Resolution ("ADR" - see below for more on this topic), where I fashioned a reasonable settlement, one which both sides felt was fair.

In another case involving a private party real estate mortgage broker, I settled the case for our client. He, along with 5 other defendants, was sued for running an advertisement that was not in conformity with the Truth-In-Lending laws. I immediately ascertained the situation and candidly told our client that, in our opinion, this lawsuit was designed for one purpose - to produce a quick settlement under the theory that our client would rather pay his dollars for settlement than for attorneys' fees. I specifically minimized our time on the case; I produced a short Answer and conducted only minimal discovery with no depositions, all the while aiming for a settlement. The case settled, as expected, for exactly the amount I predicted. To the penny. And at minimal cost to the client. Needless to say, he was quite pleased. One caveat - I did conduct some research.

Contrary to what most clients think, we lawyers do not know everything there is to know about all facets of the law. Let's take an example. The California Code of Civil Procedure is the "how-to" rules that govern the practice of law. (Currently, the section on depositions alone consists of 22 (!) subparts (a-v), in print so small you need a microscope to view it!) It's a daunting task for even the most seasoned attorney. I have developed an expertise in conducting legal research in the most expeditious way possible. It's not always a short process - in fact, that's the exception, not the rule. The client may not want to pay for research, but all clients appreciate a thorough job done right.

I also did one other thing that is highly unusual in the legal field. As is our firm policy, I kept the client informed. I called him frequently, but not excessively so as to "run up the bill." I sent him copies of all pertinent documents. In short, I kept the client involved in the entire litigation process.

Our Firm motto is patterned after an old hotel advertisement: "The Best Surprise is No Surprise." I tell the client as much as I know, as soon as I know.

Another useful legal strategy which I seldom see executed well is the use of ADR. Most attorneys think this means either Arbitration (a neutral third party such as a retired judge or a lawyer hears both sides of the case and renders a ruling) or Mediation (a neutral works with both sides, individually and together, to fashion a settlement). ADR may consist of either of these two methods - but it also includes other avenues, such as the use of a private (retired) judge who is knowledgeable in the area(s) of the pending litigation.

Law often involves distinctive strategy. I don't merely look to "stretch the envelope," I look beyond the envelope. Utilizing cutting-edge legal strategy and tactics, I repeat our favorite adage: "Whereas most attorneys play checkers, I play chess."

All of our techniques, both legal and psychological, are designed to shorten, not lengthen the litigation process. After all, time is money - your money. Wouldn't you rather have those funds for your needs? Wouldn't you rather have an attorney who puts your interests ahead of his own?

Therefore, please be aware of the above 6 Attorney Litigation Strategies before you retain an attorney and ask these 7 groups of questions:

No. 1: Will your Lawyer be honest and friendly with you, tough with your adversaries, and 100% ethical?

No. 2: Will your Lawyer respect you, the client, enough to tell you the absolute truth about your case, whether it is good or bad news? Will he communicate with you on a regular basis? Will he take your telephone calls?

No. 3: Ask your Lawyer how may years of experience he has litigating cases. How many has he filed? How many has he resolved? How quickly? What is his success rate?

No. 4: Ask your Lawyer about the discovery process - how does he conduct discovery?

No. 5: Ask your Lawyer about the trial process and what is involved. Attorneys don't like to talk about this for two reasons. First, well over 95% of all cases settle. Second, cases are very expensive to try, what with all the preparation of the client's testimony, interviewing witnesses, retaining experts, preparing and responding to motions, conducting legal research and analysis, and more. During an initial interview with a prospective client, just informing you of the pitfalls of the litigation process may leave you gasping for air. That's why most attorneys mention trials only in passing.

No. 6: Give your Lawyer a hypothetical fact situation to see if he would favor a quick settlement versus a protracted lawsuit.

No. 7: Finally, ask your Lawyer if he prefers ADR, Mediation, or Arbitration, and why. After reading this Report, you will have gained an insight into these areas, such as to impress any prospective counsel you may retain.

After you have familiarized yourself with these 6 Attorney Litigation Strategies, and the 7 groups of questions to ask your prospective attorney, you will be in charge when selecting appropriate counsel, not the other way around. You will:

• a. Have an accurate gauge by which to measure your prospective legal counsel;
• b. Know if you will be comfortable working with your lawyer and if you trust what he says; and
• c. Be as prepared on your side as you expect your counsel to be for you.

Remember, from your vantage point, "The Best Surprise is No Surprise."

Attorney Andy Baker specializes in the following areas:

• Real Estate & Construction - helping avoid costly mistakes, resolving legal disputes, arranging successful transactions, and ensuring that projects and deals close on time.
• Contracts - preparing, interpreting, and enforcing all types of contracts.
• CGL Insurance Coverage - I assist Business Owners focus in on the problems at hand - and potential problems, so as to avoid pitfalls, legal and otherwise. I help insure smooth operations and a profitable enterprise. [This includes employment issues, contract concerns, real estate matters, and insurance problems.]

I also associate with several attorneys, each a sole practitioner, and each of whom specializes in only a few selected areas of law. This way, I know that all of my clients' diverse needs will be covered by individuals I know to be both excellent lawyers, and quality people who are dedicated to my client's best interests. They're lawyers I trust.

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Established in 1999, Windrich Group, Inc. is a proud member of the Better Business Bureau.