Transcript:

Hello. My name is Scott Berry, your co-host for Immigration Nation podcast. And we have a special guest from LloydWinter. They are civil litigators. And today we have Jennifer Panicker. Welcome. Thank you so much. Happy to be here. Jenni, start us off with because those are kind of big different words. Civil litigation. Talk to us in kind of layman’s terms about what that means. Sure. So there are multiple areas of the law. Everybody’s familiar with criminal law. You know, you’ve got family. And then civil litigation is kind of just the giant catchall net that refers to any time we’re in the civil as opposed to criminal venue, where we have individuals or businesses filing lawsuits against one another. And so technically, all family law, all personal injury, everything, that’s not a criminal action where the state is bringing charges against a person falls into that civil litigation category. And so when you talk to civil litigation attorneys, you’re going to get them on a broad range of subjects. Some firms specialize in narrow areas. Others practice what’s known as general civil litigation, well they’ll kind of jump in and tackle anything. So what – to kind of help people understand a little bit more what would be some scenarios in which someone could engage you? Sure. So the most common type of case that we see is where we’ve got two parties with the dispute. And that sounds really simple and basic, but the idea is just that if we have two individuals or families or oftentimes businesses where there’s any kind of a dispute, it might be over a contract or a deal gone wrong. Oftentimes we see somebody who’s got ownership of a parcel of real estate. For example, you’ve got a tenant in your property and you’ve got a dispute with them. So anytime you have kind of that dispute that hasn’t been resolved through the just chit chat or trying to work things out casually, it’s a good time to call in a civil litigator to help try to resolve things. Very nice. That helps a great deal, thank you. So if they were to call in and speak to someone, let’s start off with when should they do that? At what point would it be wise to engage a civil litigation? Sure. So I oftentimes compare the practice of law to the practice of medicine. So if you’ve got a little bit of a scratch in your throat, for example, you’re not going to wait until you’re just nearly on your deathbed and can’t move to call in a doctor. You’re probably going to schedule, sooner rather than later. And with the law, it’s a similar concept. So if you wait until you’re at the point where you need to file suit or you wait until somebody has sued you, it’s not too late to get things resolved, but you’ve often passed up a big window of opportunity for what we call pre litigation negotiations. So pre litigation encompasses any time up to the point of filing that lawsuit or having the lawsuit filed against you. And actually a lot of cases resolve pre litigation for lots of reasons. Litigation can be expensive. It’s risky and it takes a lot of time because courts are set in cases sometimes two years out. You’ll have a case set multiple years out for trial. And so if we can get the parties into a room or engage with casual discussions before we get to the point of filing a lawsuit, oftentimes we can get that dispute resolved. That’s fantastic. That’s really good advice. Let’s talk about if they did call you, do most civil litigation attorneys offer consultations? A lot of civil litigation attorneys do offer consultations. Some of them limit those consultations to parties that have a referral network. So, for example, there are a lot of private or third party sort of legal insurance providers where you can sign up for a monthly program and maybe you get some information or some assistance. And part of the services they offer are free consultation. Aside from that though, many law firms will offer a free consultation. It may not be with the lead attorney to start with. It’s free. Yeah. Again, similar to the medical scenario. If you’ve got a cut and you go into urgent care, you’re not going to see the neurosurgeon. You might see somebody lower down. So oftentimes your intake or your initial consultation will be with a trained intake member, maybe a paralegal or legal assistant. Which is still a good place to start. Absolutely. And they’ll tell you, if your scenario or case fits what they specialize in. Exactly, it’s a better place to start in fact. Because if you wait to get onto the roster of one of the higher up senior attorneys, you might be waiting for a while, whereas a trained intake specialist knows exactly the questions to ask to help direct you. Can our firm help you? Can we not? What’s the best way to proceed? So if someone thought it was a significant enough event that they wanted that consultation, whether it’s free or paid and we’re big supporters of a consultation. If you have a really serious issue in any law, it can get out of hand financially in a hurry and it’s much better to invest in the beginning to get to someone who really knows what they’re talking about very early on. And this could be an example of that. If there’s not someone in your area that offers free consultations, don’t hesitate to talk to someone that can help you for a small fee. Exactly. You’ve heard the phrase penny wise and pound foolish. It’s kind of along those lines. It’s better to spend a little money upfront to get some sound professional guidance than to let something fester or to be put on a list and wait forever to try to get an answer. Really good advice. So there’s a consultation, paid or not. What should someone expect to happen in that first consultation? You actually do consultations for LloydWinter, right? I do. I spend about a quarter of my week, every week doing consultations with, we call them PNCs or potential new clients. It’s a really special time because I get to chat with a wide variety of people and try to help guide them for their legal concerns. One thing I always tell people who call is, “I am an expert in the law, but you are an expert in the facts.” And so these people have lived this situation. I’m coming in cold. So any attorney you call and talk to doesn’t know all the grisly details and background. So as far as what to expect, that attorney is going to be able to give you legal guidance. But the more you can come prepared with a timeline or casual statement of facts. If there’s a document that’s at issue that attorneys not seen that document and we’re not mind readers, I wish we were. We’d all make so much money. But if you can send those important documents ahead of time. For example, if there’s a contract that’s at in dispute. If you can send a copy of that contract ahead of your consultation so the attorney can go over it with you on the phone or even take a few minutes ahead of time, then you’re going to really get more value in that consultation. You know, the worst thing that can happen is you call and we say we can’t help you. But you know what? Our intake specialists can maybe guide you to somebody who can. We have a long list of referrals. And so, we always tell people if our firm is not the right fit, I bet we know somebody who is, we can at least guide you on to the next step toward dispute resolution. And if I can say, I think a lot of times when people call attorneys because we work with a lot of attorneys, it’s kind of a scary moment. Lawyers can be scary if you don’t know them. People think they are. And it’s a scary moment in your life. And then you’re calling someone that’s a lawyer and you don’t know what their personality is going to be like. Love yours. I mean, if you are taking consultations, I would love to share the facts of my case with you. You’re so easy to talk to and I think would be really helpful. People should be optimistic about a consultation actually being helpful. Absolutely. And most attorneys know that somebody is calling them at their worst moment. Nobody calls a lawyer for funsies. Nobody wants to call just to chat. They’re not calling unless they’ve got a situation. And so, lawyers like other people, have different personalities and strengths. And some might be a little grumpier than others, but they understand when you call that you’ve got a serious issue. And their goal is always going to be to help you resolve that. Super, can we talk a little bit about the frequently asked questions? Because I’m betting you get a lot of the same questions during these consultations. And so, some of our listeners are going to have some of the same questions. Sure. So a lot of times people want to know how long is this going to take? And I always have to give a really obnoxious attorney answer, which is it depends. And you say it takes two to tango. Well, in the law, it takes three. We can control how quickly and efficiently and reasonably we operate. So we can guide our client and we can operate above board and try to move things through as quickly as possible. But in the law, you’re dealing with your opposing party. So that’s whoever you have the dispute with, be it an individual or business. And we’re dealing with the courts. And courts can get backlogged. Judges have trials and vacations just like everybody else. They’ve got things on their calendar. And so while we’ll push things through as quickly as possible, we can’t make the party opposite you be reasonable or quick or discuss things. We can’t make the courts go quickly. And so the only thing we can offer is that we’re going to be as efficient as possible and we’ll advise you along the way where potential pitfalls or time wasters might be. So it’s a good idea to kind of brace yourself for a longer process than maybe you were thinking. This isn’t going to get resolved this week. Correct. So, for example, oftentimes we’ll file a complaint. That’s the initiating document. If we get to the point of filing litigation, we filed the complaint document. Once that is served, the other side typically has 30 days to file a response. So a lot of times we’ll have people call and say, “Okay, great, you’ll file that next week. And then 30 days later I’ll have a resolution.” And it just doesn’t go that quickly. There can be delays in the filing process. The court has got to stamp it. We’ve got to get it served. And then even after the person files a response or fails to do so, there are many steps that need to occur before a matter is going to be resolved. You mentioned disputes and two sides. And there’s obviously conflict and emotion behind that. Do you ever run into people that say I want to hire you? I want you to crush them. Like I’m so angry. I want you. Are you going to be mean and brutal? Does anybody ever come in with that kind of attitude and how do you handle that? Yes, absolutely. So we get a lot of that. I want a bulldog attorney. I want you to go after them and take them for all they’ve got and hold up every process and be unreasonable. And some attorneys do operate that way. I’m not going to lie. There are attorneys we come across on the other side. That’s their MO. That’s how they operate. That’s a valid way of doing law. That’s not something we ever recommend. Litigation is stressful, expensive, and time consuming enough. And if we have the parties that are supposed to be working toward resolution, which is the attorneys, our job is to mediate on your behalf, represent zealously your point of view to the other side and try to work towards resolving those disputes. If I’m holding up every process trying to be a bulldog and being a jerk and being aggressive, that’s just going to make things go longer. The other side’s not going to cooperate as soon as they see that I’m being overly aggressive and unreasonable, they’re going to do the same thing. So all the bulldog attorneys going to do is line the pocket of the attorney. It’s not in the best interests of the client. Exactly. So they’re talking about the whole process. And this thing may be taken a little bit longer and than immediately. Can a lawsuit like this be stopped at any time? Like, what if one party says I’m done, I give, is that a possibility? Sure. So about 98% of cases settle before trial. That’s just a rough estimate for my personal practice. I don’t know exactly where the national numbers lie, but a vast majority will settle before you actually get to trial. Because trial, as we mentioned, is set so far out. A trial can be expensive and it’s a huge risk point. You’ve got a jury of strangers or a judge deciding your fate. And so oftentimes, even after a lawsuit has been filed, the parties will naturally reach a resolution through informal settlement negotiations or mediation. But also, it’s important to realize that if you are the party that files the complaint, so you’re the plaintiff in the case, you started the action essentially by filing that complaint. You can dismiss it at any time. You can dismiss it with prejudice, which means you can never bring it again, or you can dismiss it without prejudice, which means you’re free to bring it up again. Keep in mind, there are certain statutes of limitation or time limits for when you can bring a case. And when you have filed suit. There’s always the risk that the part of your suing is going to file a cross complaint. So if I sue you, for example, claiming you breached a contract, I can dismiss my case against you any time. Certain risks and considerations to that. But if part of that process involves you filing a counterclaim or a cross complaint against me, then I’m playing defense on that portion of the case and I can’t force you to dismiss it. And so before you file suit, you should discuss with your attorney the risk of a cross complaint and the risks that you may get into the process and not be able to get out. Because you can’t get out of that one. Exactly. If you’re playing offense, you can take your ball and go home any time. But when you’re defensive, you have been sued. Even in a cross complaint situation, you can’t make the case go away. So, I mean, this is for an average person. It’s a complicated process. There are complaints. There’s two sides to every story. Make sure you’ve got a professional protecting your family and your finances. Someone like LloydWinter would be a great solution if you’re in Texas and California. Absolutely. Can someone come to the office to meet with you guys, for example? Or can things be done over the phone? Sure. So, our office is super unique. We are not the traditional law firm with a big, fancy building and a secretary waiting to greet you. Those law firms are great. We’ve done things a little bit differently. We work remotely first. We do that for many reasons. One of which is our employees tend to be happier when they’ve got a little bit of flexibility in their schedule. They can pick up their kids from school and attend doctor’s appointments without having to constantly check in. So that work life balance that we create for our employees is very high. But also it helps our clients because we’re not paying the overhead to have somebody sit at a desk or to pay rent at an expensive building. So we do have office buildings and we do have clients that really want to come in for a personal one on one, and we can certainly arrange that if that needs to happen. But otherwise, all of our files are kept on a digital platform, so anyone in our office has access to the file at any time. It’s not a physical file that’s being transferred around. So if you’re attorney or point paralegal is sick or on vacation, you’re not going to worry that your case just sits there. There’s always somebody who can hop on to your file and help push things along. So, I mean these days, I mean, there’s a fit for that. Absolutely. There are people who would rather talk on the phone or on Zoom and you can accommodate them and if they want to meet in person, could be accommodated. Absolutely. Yeah. We can accommodate that. So, give us one more example of something that you might get asked in a consultation and then we’ll go from there. Give us one more. Sure. Because, I mean people are funny. So, hearing kind of their viewpoints and what their fears are, it’s kind of interesting and it helps us learn. Absolutely. So I would say, I would bet money on almost every consultation, I’m going to get asked, “Okay. So if you sue this person and I win the case, I get my attorney’s fees back, right? Or the other gal has got to pay you because they’re the one who wronged me. So when I win, at the end of the day, they pay you, correct?” Unfortunately, the answer is no. So in the US, we utilize what’s known as the American system. And the American system presumes that each party to a legal dispute is going to carry the burden of paying their attorney’s fees. And so win or lose, the presumption or the baseline standard is that you are on the hook for every dollar you spend for fees. Now, costs are separate, for example, a filing fee, those sorts of things which tend to be negligible. So people aren’t as worried about them anyway. But those often can be recouped as part of a judgment. But the presumption is that you’re going to have to pay your fees. Now, there are many ways to shift that presumption. There are certain statutes that allow for fee shifting, so the prevailing party is entitled to fees. So if one of those statutes is available for sure, we’re going to throw that into your complaint and try to get you your fees. Also, if you have a written contract that’s at issue and there’s a fee provision in there. So something along the lines of if there’s a dispute or need for interpretation or enforcement of this agreement, the prevailing party will be entitled to recover fees. If we’ve got something like that in a written contract that’s in dispute, then for sure that’s a basis to ask for those fees. But I always tell people, go into this, presuming you’re not going to get them. Go in, assuming the worst, assume that the judge is not going to give them to you or you’re not going to prevail on that statute that gets you the fees and budget accordingly, because we don’t want somebody to get six months into a case and be broke and frustrated and it wasn’t worth it for them. Those efficiency concerns are always there. And so we want clients to go in kind of eyes wide open and understand those risks. Speaking about legal fees, how does civil litigators get paid? Like what’s that like? Because it can be different if you’re doing estate planning or if it’s personal injury. Share with us how a civil litigator will get paid. Absolutely. So there are certain areas of law where there are statutorily mandated fee provisions. Probate is a great example. That’s not something that our firm handles a lot of on that transactional side. But in probate, in most states, the fees for the probate will be built in. Same with bankruptcy. Those fees are going to be built in because those are the types of cases where there’s not somebody around think somebody who’s passed or somebody who’s bankrupt, who’s got a big pot of money that can handle an attorney. And so as a society, it’s not beneficial for those cases to never be adjudicated. And so, the parties are the powers that be have put statutes in place so that attorneys can get paid. When we’re talking your sort of general civil litigation, you breach the contract, your tenant needs to leave, you damaged my property. These types of more optional cases versus, a probate or bankruptcy situation. And typically an attorney will be paid in one of three ways. There are contingency payments. This is where you pay the attorney nothing upfront except for expenses. And then at the end of the case, if you are the prevailing party, whatever you made, the attorney is going to take a percentage. Now, it’s a big percentage because that’s a risky fee structure for the attorneys, because if they don’t win or the case settles and resolves early in a way that’s not as favorable, they get nothing. And so they may take 40% of your pot at the end of the day. But if you have no cash to start with and the situation’s dire, that’s a great approach. That’s not a fee structure that our firm practices. But a lot of attorneys do. And it’s a great option, if you’re a little cash poor at the start of your case. Now, the traditional billing method is an hourly billing method, and this is where each person at the law firm will be assigned a value for their hourly time. So, for example, a senior attorney will be set at a higher rate, could be $300, $400 or $500 an hour. Usually your paralegals or legal assistance, lower $100-$200 an hour and billing is in 0.25 increments. So every time I touch your file or talk to a paralegal about your case, we’re going to bill you 0.25 of an hour, up to 15 minutes spent right and then 0.5 up to 30 minutes and then log your time hourly. A lot of people like this billing structure because they’re paying for only exactly what’s done. They’re not getting charged for anything extra. If I spent an hour on your case, I’m paying an hour of attorney time. The risk of that billing structure, of course, is that bills can be whatever they are. A busy month could be a five figure bill and oh, shoot, now I’m stuck with this and I’ve got to get it paid. It also opens the door for a lot of restrictions on what your attorney can do. So maybe a research project or a motion or a bit of discovery might be helpful to work toward resolution. But if we’re concerned about if that’s going to take 5 or 6 hours, maybe we shouldn’t do that. It can restrict the attorney and create conflict between the attorney and the client. Our firm almost exclusively offers flat rate monthly billing. This is a fairly unique billing structure. Not a lot of attorneys do this, but we offer it because we think it’s better for the clients. Part of our mission is to provide access to justice. And so one of the big ways that we do that at our firm is this flat monthly billing. And so, for example, if you have a specific type of case, we’ll bill, let’s say $3,000 a month and then for the duration of your case, you’re billed that much each month, plus expenses so postage stamp, that kind of a thing. It’s great because you know exactly what your bill is going to be. It’s also great because that means you can call me every day if you want a status update and you’re not getting billed for 0.25 of my time for that status update. We can do as much research as we need to. I often compare it to a Netflix membership or a gym membership, what people call. It sort of an unlimited access. It’s there if you never turn on your TV and never watch Netflix, you still pay the $1,499 a month or whatever it is. And with our flat rate monthly legal services, it’s similar in that we’re going to do work each month and then you should feel free to call, utilize us follow up as much as you want to help your case progress. That’s very creative, but not everyone’s going to be going to offer that? Right. It’s a fairly unique billing structure. It’s one that we sort of stumbled upon trying to find a balance between those pros and cons of contingency versus hourly billing structures Jenni, thank you so much. I mean, that is really shined a professional light on something that a lot of people have fear about. No one wants to get into dispute. And need to get legal, but this is, I think, something that our listeners can really latch onto and help them understand and to dispel some of the myths and some of the fear that they might incur. And so I hope you guys really enjoyed this. I hope you don’t get in a dispute, and it turn legal. But if it does, you’re much better prepared now to do well.