The following is an article I wrote for the OLD CONTI-FAIRBANKS board at Craig's request

The following is an article I wrote for the OLD CONTI-FAIRBANKS board at Craig's request. It never got posted though, as he "Made his deal" shortly thereafter. I am NOT a Lawyer. I have been involved in three lawsuits in my life for damages and settled all three in my favor. I am now in the starting phase of a suit against Fairbanks Capital Corp. As a result of the last of these suits and my experience with Fairbanks I decided to go back to school, after a 30-year break, and study Law. As of a week ago I started Law School and in 3 1/2 years hope to sit for the bar. The following has not been proofed or approved by any legal authority and is entirely of my own making. It explains my understanding of how things work and methods I personally followed in my very few experiences with the law.

LA_Bill

So You Want to Sue?

It must be understood that most attorneys are just like you and I. They work for a living and need a steady income to pay their bills and mortgage obligations. An attorney that works on a contingency basis has a special challenge. He does not get paid by the hour nor is he even guaranteed any payment for the work he does or monies he must advance for the client. A lawsuit is a lot of paperwork, in addition to research, court hearings, phone calls with frantic clients, etc. All this takes a lot of time. And, when a case is against a large company very often they stall and force even more work down the attorney's throat. Rather then cooperate at getting to the bottom of the issue Defendants with a bunch of money often attempt to make to a case so expensive and time consuming that the plaintiff (that's you) either runs out of money, or just plain gives up in frustration. This is done by delaying tactics in discovery (this is the period wherein both parties are supposed to provide each other needed and requested information), Demurs (this is when the other side goes before the Judge and complains about the wording and content of the complaint itself), additional motions that are often made before the Judge to force the other side to comply (follow the rules) with local rules and discovery time limits and lots of other methods. And, of course, the time and expense of a trial itself. All this being true, before a Contingency Attorney takes your case he must feel assured that:

1) The case can be won on its merit.

2) That the value of the case will provide him sufficient payment to compensate him for the time, effort, and funds he must expend on your behalf.

In the world of real estate the most important factors are Location, Location, and Location. Likewise, in the type of lawsuit contingency attorneys take, the most important issues are Damages, Damages, and Damages. Going to court is not about righting wrongs, or doing it for the principle of the thing. While these romantic notions may play well on the movie screen, in real life tort actions are about money; and money is dependant, for the most part on damages. When a Judge or Jury awards the plaintiff with a monetary amount the attorney will first take his actual expenses off the top of this award. These expenses can be actual filing fees, jury fees, the cost of duplication services (you wouldn't believe how much paper work there is and how many copies of each document are required), the cost of stenographers at depositions (these can run into thousands of dollars for each person your attorney deposes) as well as travel costs to these depositions if the defendant(s) are not local. Other costs may be "Expert Witness's" examination of documents, travel and testimony. Not to mention that your attorney will most likely have to pay the hourly rate of the other sides "Expert Witness's" should he wish to depose him/her as well as their travel costs if they are not local. All in all depending on the complexity of the issues and number of parties involved your attorney may have to advance from a few thousand dollars up to several tens of thousands of dollars. I'm not saying this is right or fair, just that this is the way our system works. After the attorney gets back their monetary investment he/she will most likely keep between 30% & 40% of the remaining balance depending upon what the two of you have negotiated prior to the Attorneys acceptance of the case. The balance of any award is, of course, yours. This is why damages are so important. If you are suing to recoup a few dollars you believe is rightfully yours there just won't be enough there to pay for the costs and attorney fees. If, on the other hand, you have lost tens or hundreds of thousands of dollars due to the wrongful acts of another then there may well be enough money to bring the suit. So the first thing you must do before going to an attorney to ask him/her to represent you is to write down your best estimate of actual damages. These can include money you have spent defending yourself against the proposed defendant, actual cash out of pocket, monies or items of value taken from you, time you had to take off work for which you were not paid, do to the acts of the defendant, etc. Additionally, damages can include non-monetary claims, e.g. Emotional distress, loss of credit worthiness (this means the acts of the "bad guys" have ruined your credit), defamation of yourself or your property (yes, not only can you sue because the other guys have said or caused to be published or printed untrue things about you but also about your property. For instance if your home is put into foreclosure without good legal grounds then the title to that home may be found to have been defamed.). You can also ask that the defendant pay for your own legal costs. Non-monetary damages are paid in real money, as there is no way of undoing their consequences. Don't attempt to put a dollar value on these items. Let your attorney and your Expert Witness's decide on these.

After assessing damages the next thing to consider is; can you win the case if it comes to trial? While most cases are settled out of court, there is no use pursuing a case if it does not have sufficient merit to convince a majority of the jury by the preponderance of evidence (this means that you have more stuff you can tell and show the jury than the defendant has and that the jury will believe you rather than your opposition) that you are in the right. Remember, the other guys are going to be trying real hard to do this too. Also keep in mind that just because you may be telling the truth doesn't mean that the other guys will. While we may have been brought up to think of lying under oath as a crime, and if I remember my bible a sin as well, others, with a financial stake, may not adhere to the same moral code. Remember that what the jury believes is what is important not whether or not it is the truth. Therefore the more documentary evidence you can provide your attorney to substantiate your claims the more he can use this evidence to convince a jury that you are telling the truth and the other guy may not be.

If you believe you have sufficient damages and that you stand a pretty good chance of winning the case it is time to find a lawyer. The best thing to do before hitting the phone book is to get your case together. If you follow the steps listed below your chance of getting an attorney to handle you suit will be much improved, especially if you are going against a big company with lots of money to spend on legal matters.

1) Write a clear and concise summary of what has happened to you stating dates, places, and people. Try not to be emotional, rather, be as factual as you can. Make sure to state exactly how you believe you have been wronged.

2) Assemble whatever documentation you may have as regards the incident or actions. This means copies of canceled checks (if these played a part in the dispute), correspondence, notes you may have taken while on the phone, contracts that may be involved (like a copy of all your mortgage documents if your problem is with a mortgage lender, broker or servicer).

3) Gather whatever information you can about the other party. Newspaper stories, financial information if it is publicly available, and especially any public documents that may indicate that the problems you have had were similar to those that others have had with this person or company. If you have any knowledge of other lawsuits involving this party or of any local or national actions against this party for similar causes this will help your case in assuring the attorney that the story you have told him is true.

4) Make sure to include the detailed list of damages you worked on earlier. Be clear and concise explaining all listed damage values so it is understood how the number was arrived at. Do not list dollar amounts for non-monetary damages as discussed before.

5) Check your contract (if there is one involved in your action), as many will allow for legal fees and all costs associated with enforcing that contract to the prevailing party if lawsuits are filed. This can give you attorney a greater assurance that he may actually be paid for his efforts. Keep in mind that if certain laws and regulations are broken by the other party there may be statutory penalties and attorneys fees charged against him/it that will also go towards paying your Attorney if your case is successful. These can help defray part of the percentage paid your attorney and increase your share of the award, if arranged in advance with your attorney. If collection of attorneys fees and costs are included in your case make sure to write this up and cite where in the contract this is listed as well as what laws you believe were broken that call for your attorney to be paid by your opponent if you prevail.

Now that you have all your stuff in one place, arrange it in an orderly fashion. Better yet, put it into a loose-leaf notebook with a table of contents and dividers for each listed item in that table. Be sure to make several copies of everything and several notebooks as you will most likely need to interview several lawyers, and may need to leave a copy of the notebook with each for them to review.

The next step is to select a list of attorneys to interview. You may already know or know of an attorney that has expertise in the area of your complaint. If so great, give him/her a call and ask for an appointment to discuss the possibility of the attorney representing you in an action against XYZ, Inc. If this is not the case there are several sources you can use to find attorneys with the needed expertise to pursue your grievance. If your complaint is against a company or companies engaged in dealing with the general public, the chance is that what you believe they have wrongfully done to you, they have done to others as well. Hence, if your personal damages are small you may consider being a named plaintiff in a class action suit. In this type of case you sue not only for yourself but also for others similarly situated (with the same difficulties). A good place to start our search for an attorney with this type of expertise is the National Association of Consumer Advocates. They have a listing of over 800 consumer attorneys from all over the United States covering virtually all areas of Consumer Law. They can be reached on the web at http://www.naca.net or by phone at (202) 452-1989. If your action would best be served by a specialist who deals with your type of individual case there are several easy ways to find a list of attorneys. Assuming you have web access go to your favorite web search engine (like Google, Dogpile, Yahoo, etc.) and type in "Law" "Your City Name" "Your State Name" "Type of case" (personal injury, real estate, etc). Make sure that if any specific entry is greater than one word to enclose it in quote marks, e.g. "Los Angeles". This should provide you with an extensive list of attorneys. Among this list you may see your local association of attorneys within the given specialty. This can be a great first place to call as they will ask you some questions and refer you to several members whose practice meets the needs you expressed to the party who asked you the questions. One can also call their State Bar Association's referral service. They will, as well, ask a few questions and refer you to an attorney or attorneys specializing in your area of concern. Once you have a list of Attorneys it is time to start your calls.

When you phone the office the likelihood is that you will speak with a receptionist or secretary. Explain that you had been referred by the bar, NACA, or whomever, and would like to make an appointment to discuss your case and see if the attorney would like to represent you. Most likely you will be asked a few questions and told the attorney will call you back. Don't be discouraged this can take a few days. It is my personal belief that in order to pass most state bar examinations you must promise NEVER to return a client call within 48 hours and only after that if you are really, really, bored. When you get the call you will be asked to tell your story in brief. Do so without embellishment. Make sure the attorney knows you have all your documents in order and say you would like to come in and speak with him/her in person. If the answer is, "send me your stuff instead," politely take a pass. If you are not good enough to speak with face to face, find another Lawyer. Remember you will be spending considerable time together over the next year or so and if there is not mutual respect at the beginning of the relationship, there is little chance it will develop over time. Also, you are interviewing the attorney as much as he/she is interviewing you. Take your time at the interview. Bring with you a list of questions you wish to ask, as you may otherwise forget them. If all goes well and you both agree to terms you are on your way. If not, call the next attorney on your list and repeat the above steps. One important thing to remember, despite what you may be told, "ALL THINGS ARE NEGOTIABLE!" Percentages are not set in stone. Negotiate!

If you follow these simple steps the chances are good that you will find an attorney to represent you in accordance with terms you can live with. This brief set of suggestions has been aimed at dealing with Attorneys who take cases on a contingency basis. There are other ways to hire an attorney as well. If you believe your damages are great, and you have the financial wear with all, you might consider paying for your attorney on an hourly basis, and paying, out of pocket, the direct expenses as they accumulate. The down side of this is that it could cost you a bunch of money up front. The upside is that if your case is successful you will most likely get to keep a greater percentage of the judgment. Additionally, most attorneys are very happy to work this way with clients as they are guaranteed payment no matter which way the case turns out. A variant of this is a Hybrid arrangement whereby you and the attorney agree in advance on what you will pay and what he or his firm will pay. In exchange for your taking on some of the actual financial risk you should be able to negotiate a lower percentage payment should the case be successful. Whatever your choice in how the Attorney will be paid remember the advice above and negotiate. You have nothing to loose and everything to gain.

May 2003