Business Dispute Resolution Lawyer – Quickly Providing Advice
Lewis Page resolves business disputes with the goal of accomplishing client objectives quickly, cost-effectively, and prior to trial. Lewis’s approach in the initial interview is to use his many years of experience to make quick, affordable and realistic early assessments of a case.
The initial interview is very important to Lewis and his client. In every playbook for business dispute resolution, the process of resolution must start somewhere and it always starts with an initial interview to make a mutual early assessment of the case to set the stage for thinking about how the dispute could be resolved.
Lewis’s goals in that initial interview, which may take from 15 minutes to several hours, include:
- Determine realistic objectives.
- Determine a reasonable budget for the objectives, including possible fee agreements.
- Get the critical facts.
- Apply the law to the facts.
- Predict the likely outcomes if litigated to a conclusion.
- Make a plan to obtain objectives based upon a budget.
- Allow the client to decide whether the dispute is “worth it”.
Set Realistic Objectives
Lawyers represent clients to obtain the clients’ objectives. The client sets the objective. Muddled objectives are bad for the client and the lawyer. Lewis presses clients for clearly expressed realistic objectives. Usually there are competing objectives, such as keeping costs to a minimum but at the same time obtaining a business objective. Identifying the balance between costs and the risk of failing to obtain the objective is at the heart of the advice that good lawyers provide.
Determine a Reasonable Budget
Budgets cannot be unilaterally determined. The other side of any business dispute has an objective even if our side does not completely understand it. The other side also has a budget, perhaps not well considered, but at least some conception of what costs they will suffer to obtain their objective. One obstacle to assessing competing dispute resolution budgets is whether one side or the other has a lawyer working on a contingency basis, flat-fee basis, or some other results-based fee. Lewis will consider a fixed fee or phased fee for any work. He will consider contingency or results-based fees for some cases.
Get the Critical Facts
Gathering facts is important because both sides of a dispute will evaluate their positions based upon the facts then known. Sometimes gathering the facts is as simple as an owner of a business talking to his or her employees and finding the pertinent documents. Sometimes it is as difficult as identifying and reaching out to far-flung people whose lives and interests have moved far beyond the present dispute. Gathering and verifying facts costs money whether the client does it or the lawyer does it. Gathering more facts is a risk management issue. The more the facts are known, then the greater the opportunity to reduce the risk of making an uninformed decision. Perhaps gathering new facts will improve the negotiating or litigating position of the client. Assessing whether to take a passive position in investigating facts or to turn over every stone to find new facts is a judgment of good lawyers. They prioritize expenditures based upon actions that appear to have the most favorable cost-benefit comparison.
It is not necessary to agree to the facts in voluntary negotiations, either with or without a mediator. This is a great advantage for resolving a dispute since all sides can maintain contrary positions on the facts, but still settle the dispute without deciding who is right. In trials, someone — judge, arbitrator or jury — decides the facts. In jury trials, the judge instructs the jurors that they are the sole judges of the facts. However, they may or may not decide specific factual issues. Sometimes the jury only finds for or against a party without explanation. In a bench trial with only a judge, or in an arbitration before an arbitrator, the judge or arbitrator decides the facts and applies the law. Depending on circumstances, they may or may not have to explain what facts they found.
Apply the Law to the Facts
The law is complex, specialized, and highly fact-specific and subject to change or reinterpretation. Abstract rules are often easy to state, but applying those abstractions to the real world may be unclear. Law is always debatable as shown by the number of 5-4 decisions of the U.S. Supreme Court. Convincing a court to apply one rule as opposed to another rule is the ordinary job of a litigator. However, all lawyers predict how legal rules will be applied to the facts of a matter, such as non-litigator business lawyers predicting how to best draft a contract. To quote Yogi Berra, “It’s tough to make predictions, especially about the future.” In some areas of the law, application is relatively easy to predict with some certainty. In other areas, it is difficult to predict with any certainty. Good lawyers do predict but often make clear that the prediction cannot be certain, particularly where facts are hazy or disputed. Lewis offers a long career of predicting how the law will apply to business disputes as adviser, planner, tactician, litigator and arbitrator.
Predict the Likely Outcomes if Litigated to a Conclusion.
A claim may be litigated to a conclusion in several different ways.
First, an early defense motion to dismiss or for judgment on the pleadings may succeed. This motion rests on what is alleged in the complaint, as opposed to facts not alleged.
Second, a motion for summary judgment, usually filed after discovery is complete, may succeed for either side. Summary judgment must be based upon undisputed facts. Many successful summary judgment motions are based upon narrow affirmative defenses such as statute of limitations, statute of frauds, release or similar defenses that do not judge the overall merits of a case, but focus on one narrow legal or factual issue that will dispose of the entire case. Comparatively, summary judgments for the plaintiff on a claim are less likely than summary judgments for the defendant. A suit on a note would be a good candidate for a summary judgment for plaintiff because it’s highly documented and not suited to factual dispute. But a suit for negligence in operating a motor vehicle is not a good candidate for a summary judgment by the plaintiff because of the high likelihood of disputes about the cause of the accident.
Sometimes because of the lack of knowledge about a case, the most that Lewis can safely predict is that, unless additional facts are uncovered, the case will have to be tried to find out what the likely result is. That does not mean that it cannot settle, but the risk of a resolution after trial must be clearly understood and be a part of the calculus of any settlement value.
Make a Plan to Obtain Objectives Based Upon a Budget
A budget, of whatever degree of specificity, is important to both lawyer and client. Often the greatest cost of litigation to the client is the diversion of attention, effort and focus to the litigation instead cranking profits out of the business. So, not only must the client assess the costs of legal representation, the client must assess the non-lawyer costs of being involved in litigation or arbitration. While the costs on an hourly basis of getting to a final decision by a judge or arbitrator may be estimated, it is difficult to get the estimate right. One big reason is that the other side has the option to run up its expenses and our side’s expenses by trying to make a mountain out of every molehill. Such scorched-earth tactics may involve enormous expense to both sides. Courts and judges profess a constant awareness that litigation is becoming increasing prohibitively expensive. Many observers would say the many efforts to decrease costs of litigation are having little practical effect.
Decide Whether the Dispute is “Worth it”
Sooner rather than later, a client needs to decide whether any dispute is worth pursuing or should just be dropped. Lewis believes that one of the most valuable services that he can render to a client is to advise whether, based upon the client’s objectives and circumstances, a dispute should be pressed. If it’s a claim against the client, should the client attempt to settle now so as to avoid the risk of an expensive defense that is not likely to quickly or with certainty resolve the matter? If it’s a claim by the client, should the client just drop it, and return to making the business a better business? Sometimes, even without the intervention of lawyers, simple changes in business practices may unilaterally resolve or mitigate a dispute, such that the other side might decide it is not worth it. Lewis will work with his client to make a good decision and survey the many possible ways that business disputes can go away without the active intervention of lawyers.