Five Questions you MUST ask your attorney

Five Questions you MUST ask your attorney – Or Risk Losing Your Case:  Should you be satisfied with lawyer’s performance?

Okay.  I know what you are thinking; it is tempting to ask your attorney how good or bad their grades were in law school or if they have ever lost at trial (and they most likely have lost at some point unless they are a rookie and have only tried a very small number of cases).  However, these simple questions are focused on one particular goal—to maximize the value of your claim, or if you are a Defendant, to get out of hoc for the least amount possible, with minimal stress too.  If you can ask your attorney these simple questions, you will have the knowledge, insight, and power to take charge of your legal matter and ensure that you are well-represented.  Most importantly though, you will be able to rest assured that you get a fair shot at the legal process and avoid the numerous pitfalls litigants face on a day-to-day basis.

Litigation is complex, but you don’t have to hold a Juris Doctorate degree or be a certified paralegal to give your own case teeth.  Hiring a dependable attorney may not be enough depending on the facts of your case and the law that applies.  Outcomes are not always predictable, and reasonable minds can disagree about how justice should be applied in a variety of scenarios, including statute of limitations applications (the time allowed to file certain claims and the way those limits are applied) as well as what’s needed to form a valid, binding legal contract.  Also, reasonable judges and juries can disagree about their interpretation of legal precedent and determinations of fact, respectively.  The following principles, which are applicable in any jurisdiction, allow for you to take an intellectual, hands-on approach to any legal matter.  They will also likely impress, and possibly even annoy your attorney—so tread lightly with the knowledge you are about to receive.

  • 1. What type of written and oral discovery will be utilized in my case?

Discovery is possibly the most overlooked and underappreciated weapon in the arsenal of virtually every litigant in the Country.  Any lawsuit that is filed must undergo some degree of discovery to be properly handled.  First, you must know what discovery means.  Quite simply, it is the ability to fact-find and discover (hence “Discovery”) who and what will be used to detract from your claim.  In other words, for example, under most state and federal rules, if you do not actually issue a proper discovery request to your opposition, you will most likely waive the ability to object to evidence based upon lack of knowledge that it would be presented by the opponent at a judicial hearing.  I cannot overstate the importance of discovery.  Without doing it right, you will surely face trial by ambush.  You will be unprepared and that’s always a dangerous card to play in any lawsuit.

In the words of one Chinese philosopher, it is crucial to “Know thy enemy.”  You have the ability to depose (which is something like an interrogation with a court reporter present) any witnesses which may offer any testimony which may hurt your case that your opponent seeks to call on at trial.  This includes experts (or so-called experts) and fact witnesses alike.  Ask your lawyer who and what the other side intends to call and present at trial or any hearing on the merits and whether you are taking their deposition.  If your lawyer can’t give you a satisfactory explanation for why an opposing witness won’t be deposed before trial or if written discovery has been issued to the opposition, it may just be a serious red flag.  If written discovery hasn’t been issued at all, or a crucial witnesses deposition hasn’t been taken, ask your attorney if it is too late to do so.  If it is too late, this presents another potential red flag.

  • 2. Are there alternatives to going to trial?

Most modern lawsuits do not present a quick windfall on either side without some real effort.  The days of jackpot justice are all but gone with the rise of recent tort reform legislation, although substantial awards and settlements are still within reach for claimants who have legitimate and verifiable damage and loss.  In today’s age, you will often see arbitration agreements when purchasing anything from a flat-screen television to an automobile.  Also, mediation is more frequently ordered by judges who seek to unclog crowded court dockets.

What is arbitration and mediation?  What are the pros and cons of each?  And most importantly, how can I know whether they are available to me if I decide to go that route?  Arbitration is a binding, final hearing much like going to trial, except you will likely have the matter decided by a retired judge or practicing attorney who will render a final decision in the matter.  You cannot get up and walk out of an arbitration and not expect to suffer negative consequences—as in having a judgment likely rendered against you— like you can in a mediation, which is not binding or final unless an agreement is reached by the parties.  Arbitration is usually based upon a contract between the parties providing for same, whereas mediation is usually ordered by the court, or agreed to by the parties (although arbitration can be agreed to by the parties as well, it is less common because of its binding nature).  Mediations are also managed by retired judges or practicing attorneys, although their power is limited to essentially being a conduit for settlement of a claim.  They cannot force payment of a claim or issuance of a judgment much like the court’s or arbitrators may.

Also, be forewarned—Arbitration and Mediation will present some additional short-term expense because that retired judge/practicing attorney will be compensated by the parties.  Although fees are usually split, some arbitration agreements seek to force a filing party to pay expenses, presenting a multi-thousand dollar price of admission and a hurdle (which has been ruled against public policy in some jurisdictions).  However, sometimes that expense is well justified to expedite matters and avoid extended attorney fees, particularly if you are paying your attorney by the hour.  The American Arbitration
Association offers a standard set of rules for those who either agreed in contract to use their guidelines or those who later agree to do the same.  These general guidelines may offer an increased level of predictability in the handling of your legal matter when available.

  • 3. What damages can I reasonably expect to collect/avoid paying (if you are a defendant or counter-defendant)?

Most lawsuits present a close call for the decision maker (judge, jury, or arbitrator) especially if dismissal has not readily been obtained by the person/entity defending the suit.  Talking money isn’t always easy to do with your lawyer, even when his or her bill isn’t involved.  Come up with a short list of things you are seeking compensation for if you are a Plaintiff.   Ask your lawyer their candid advice about whether those items can afford you compensation (which is called being “compensable” by attorneys) and the likelihood of obtaining compensation for each single item or claim of damage.  For instance, ask your attorney if emotional or mental damages such as pain and suffering, or other non-economic damages such as inconvenience or loss of consortium (marital relations) or hedonic damages (loss of the enjoyment of life) are available.

Many legal matters are clear as to the liability of a Defendant, and settlement is prevented because either; 1.  The Plaintiff seeks damages far in excess of what the Defendant feels is reasonable or;  2.  The Defendant refuses to acknowledge that an item or matter is compensable at all, or denies that the amounts claimed are legitimate and verifiable.  Often defendants are totally blind as to what exactly the Plaintiff is seeking as compensation.  If this describes your legal matter, ask your attorney to request a written settlement demand from the Plaintiff’s attorney.  Conversely, he/she may also issue a written settlement demand and request a response from the opponent.  Ethical rules generally require that attorneys communicate all settlement demands and offers to their client(s).

The bottom line is this:  You must address these issues with your attorney or you are likely throwing money and/or time and waste into an effort with no way of knowing what to expect, so don’t be afraid to speak candidly.

  • 4. Who will be called as a witness on my behalf and what evidence will be presented to the Court to help my cause?

In some ways question No. 4 is the flipside of the same coin as the inquiry that is presented in No. 1.  Much like you need to know exactly what is going to be presented by your opposition to refute your legal claim, you also need to have a solid and often simple game plan as to what oral and written testimony can be introduced to the Court in the furtherance of your claim.

First, almost any lawsuit is going to require more than one witness.  No case that I can recite in seven plus years of practicing law did not require that a Plaintiff themself actually testify as to what occurred that caused them damage or other loss and led to their filing of a lawsuit.  Defense firms and Defense attorneys aren’t prone to make a Plaintiff’s job easy for them, nor should they.

Witnesses can generally be broken up into two categories: fact witnesses and expert witnesses.  Fact witnesses can testify to personal knowledge that they have about the events or circumstances that led up to a Plaintiff’s filing of a legal suit claiming loss, damage, or other injury.  The same can be said for a Defendant.  Fact witnesses would generally be used to refute claims of the Plaintiff as to either the existence or loss or injury, the extent of their loss or injury, or the general reputation or veracity of a Plaintiff.

On the other hand, expert witnesses will be required by a Court when a matter is not suitable for lay testimony.  In other words, to make this simple, some matters are outside of the realm of the knowledge of laymen and therefore would require that an expert witness establish a protocol, standards, or other information which would indicate that some sort of negligence or breach of duty has occurred which led to a Plaintiff’s damages.

Every state has its standards that impose a minimum threshold upon an expert witness before they’re able to testify as an expert in any given lawsuit.  The general theme of these state standards and the standard employed in the federal system is: No. 1 the expert’s testimony must be relevant and No. 2 that the expected testimony be reliable.  Although these two requirements for the meeting of the threshold seem to be simple, they can often present difficult questions upon a challenge to the admission of the expert witnesses’ testimony.  Relevance can be attacked from multiple angels including the general premise that an expert’s testimony must speak directly to the facts or circumstances in each particular legal matter.  Reliability is often challenged for other reasons such as the lack of credibility of an expert, the fact that he or she has testified to different facts or circumstances or divergent opinions in other lawsuits, or the application of their opinion thereto, or any other matter that would tend to make their testimony unreliable.

The judge serves as the gatekeeper in determining whether or not to admit expert testimony, as they well should.  Ask your lawyer, “Do I need an expert witness?  Do I have a claim that presents any issue that may be bolstered by expert testimony?”  And thirdly, “What are the costs of an expert and the benefits I will seek by obtaining one?”  Often times an expert will not be helpful or necessary in a legal matter and can further complicate matters that can be better decided without their presence.  However, when dealing with a medical malpractice claim, a legal malpractice claim, claims against engineers or architects for defective construction, claims against an accountant for breach of a duty, or any other claim involving professional malpractice or breach of fiduciary duty, an expert will likely be necessary. Any other claim for standard negligence generally does not require the presence of an expert; although, matters that deal with issues of adequacy of security on premises, the existence of dangerous conditions that cause a Plaintiff’s injury, or complex accident reconstruction will often require that an expert testify as to whether or not a duty was breached by a Defendant.

Next, you need to make clear to your attorney every single person that can testify to personal knowledge related to your claim. If you fail to do this and someone with relevant knowledge is not called as a witness, you will likely not have an opportunity to go back later and have them offer supplementary information to the Court.  A Court’s final judgment is binding and final and absent exigent circumstances, which are rare and very difficult to prove, it is more likely than not that you will be stuck with whatever final decision a Court has made in your matter.  Just remember it is easier to do it right the first time than to go back later and try to get it fixed.

  • 5. I was named as a Defendant in a lawsuit—should I file a counterclaim or claim against a third party?

Last but not least, every litigant who has been served with process should consider filing a counterclaim against the opposition that’s suing them, or a cross-claim against a third party.  By definition, a counterclaim is a claim for relief asserted against an opposing party after an original claim has been made; especially, after a Defendant’s claim in opposition to or as a setoff against the Plaintiff’s claim.  In some instances, counterclaims can be compulsory (that is it must be asserted to be cognizable because it relates to the opposing party’s claim and it arises out of the same subject matter) or permissive (a counterclaim that need not be asserted to be cognizable because it does not arise out of the same subject matter as the opposing party’s claim or involves third parties over which the court does not have jurisdiction.) By definition, a cross-claim is a claim asserted between codefendants or coplaintiffs in a case that relates to the subject of the original claim or counterclaim; this is also termed a cross-action.  See Black’s Law Dictionary 7th edition.

In short, a wise old attorney that served as my Of Counsel for several years once told me, “Never let them have a free shot at your client.” Granted there are scenarios which present no possibility of filing a good faith action against someone who has filed a lawsuit against you.  However, ask your attorney “Is it possible to file a counterclaim against the party who has filed this law suit?  Is it possible to file a cross-claim?” If they do not have a clear answer as to why or why not these possibilities should be explored, you may want to seek alternate advice.

 

About the author

Matthew Poole is a practicing attorney with offices in Jackson, Mississippi.  He is licensed to practice in all Mississippi courts as well as the Northern and Southern Federal Districts of Mississippi and the Federal Fifth Circuit Court of Appeals.  He was named Finalist in the Steen, Reynolds, and Dalehite Trial Competition at the University of Mississippi School of Law in 2003.  He is a former Associate at Wilkins, Stephens, and Tipton, a medical malpractice defense firm which represents many of the largest private and government funded hospitals and medical clinics in the Southeast.  Wilkins, Stephens and Tipton maintains offices in Jackson Mississippi, Greenville Mississippi, and Nashville Tennessee.   Matthew opened his own office in April, 2005 and represents numerous in and out of state real-estate firms as well as small to medium-sized businesses and domestic clients alike.  His contact information is available at his office website, www.mspoole.com.