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Understanding the Process

Frequently Asked Questions
 

FAQs

Attorney's Fees and Costs

What is a lawsuit going to cost me?


It depends. This is not the answer anyone wants to hear, but nevertheless it is the best descriptor for what you can expect with litigation. Going to Court is an adversarial process, and what occurs therein depends largely on what your opponent decides to do in response to us, and vice versa. For example, if we file a lawsuit and your opponent decides to ignore it, the cost to you will be minimal because the Firm can seek a judgment against your opponent by default without a Court appearance, which is a relatively quick and easy process. On the other hand, if your opponent is evasive, files numerous paper motions with the Court, acts aggressively throughout discovery, and/or insists upon appearing at trial, this can require substantial attorney time to respond, which proportionately increases the costs to you (but likely also for your opponent if they are using an attorney). Additionally, some Courts may order the parties to engage in a good-faith mediation before trial, which means the parties will need to pay their attorneys and a mediator for the time spent preparing for and attending a mediation. Though most cases settle before trial, if the case does not settle and an appeal becomes necessary, the time spent preparing or defending the appeal can also become a significant source of attorney fees. Ultimately, the circumstances of each case are different, and the Firm can give you a better rough estimate of cost after reviewing the facts of your case and discussing the issue with you. You should keep in mind that while a "total" estimate of cost is obviously desirable and important information, the more useful inquiry for you will likely be the estimate of monthly cost to you and whether any of it can be reimbursed by your opponent (or the probate estate) at the end of a case.




What is the difference between "expenses" and "attorney fees"?


In litigation the difference between "expenses" (sometimes referred to as "costs") and "attorney fees" is important when determining what expenditures can be reimbursed. Expenses are those expenditures that are necessary to effectively litigate that the Firm may advance on your behalf or that you must pay directly. Examples of expenses may include (but are not limited to) such things as court filing costs, process server costs, legal research subscription costs, money paid to expert witnesses, transcription costs, attorney travel costs, etc. Attorney fees are what you pay the Firm for the time spent working on your case. A relatable comparison is in the construction context: attorney fees are like "labor" charges and expenses are like "material" costs.




Can I get my attorney's fees and expenses reimbursed by my opponent?


Generally speaking, if you are the prevailing party in litigation, there is a very good chance that you will be able to recover most--if not all--of the "expenses" incurred in litigation. The question of whether you can recover your attorney fees is trickier. In the context of commercial litigation, you are not entitled to recover your attorney fees by default, which is known as the "American Rule" where each party pays their own lawyer. Instead, you must typically prove an exception to the American Rule, which in practice means that there must be an "attorney's fees clause" in the contract at issue. If there is not a contractual term providing that the loser in litigation must pay the winner's attorney's fees, it is not likely that you will be able to recover your attorneys fees from your opponent unless you have sued under a legal statute that specifically calls for the prevailing party to be awarded attorney's fees. It is important to note, however, that if the parties have contractually agreed to override the American Rule or if the applicable legal statute awards attorney's fees, there is a risk that you may need to pay your opponent's attorney's fees if you lose. This issue of who pays attorney fees can be a significant motivation to induce a settlement if one party is clearly establishing a better case during litigation. In the context of probate litigation, depending on the issues that are raised, a party who is successful in having an issue decided that is beneficial for the estate may apply to have their attorney's fees reimbursed by the estate. Ultimately, it is up to the Court to decide whether your efforts resulted in a benefit to the estate. In all events, if attorney's fees are awarded, a Court will need to make a specific determination about how much attorney's fees are awarded, which may or may not be all of the fees you have paid.




Will your firm take my case for a contingency fee or on a "no-win, no-fee" basis?


Unfortunately, the Firm is no longer taking matters on pure contingency (also known as a "no-win, no-fee") basis unless the potential recovery is substantial with a reasonable chance of success. The Firm may be willing to offer a modified contingency arrangement depending on the circumstances. In a modified contingency arrangement the Firm agrees to charge a lesser hourly fee in exchange for a success fee owed only if you prevail in litigation that is based on a percentage of recovery or based on hours worked. If you would like to discuss a contingency or modified contingency, please inquire during your consultation.




Does your firm accept payment in cryptocurrency?


Yes! In fact, the Firm is offering a 10% discount for all attorney's fees paid with certain cryptocurrencies. Presently, the Firm is accepting payments in Bitcoin (BTC), XRP, and Cardano (ADA). If you wish to pay with BTC, XRP, ADA, or another cryptocurrency, please inquire so proper arrangements can be made.




What is a retainer and does your firm require one?


A retainer is typically a sum of money you provide to the Firm in advance that is held in the Firm's trust account and is used as security for the payment of invoices. The Firm's standard policy is to require an "evergreen" retainer, which means that you are required to replenish the retainer to its set amount after the payment of each invoice. For example, if your retainer is $3,000, and your invoice for the month is $1,800, the Firm will transfer $1,800 from its trust account to pay your invoice and will request that you deposit $1,800 in the Firm's trust account to replenish the retainer.




How will I be invoiced?


Once you engage the Firm, the Firm will invoice you monthly for services rendered in the previous month. The Firm will deduct the amount of the invoice from your retainer. The Firm will then ask you to pay any outstanding amount and/or replenish the retainer. It is expected that you will replenish the retainer promptly upon receipt of an invoice.




I've never hired a lawyer--how does hourly billing work exactly?


In an hourly billing arrangement the Firm's attorneys and staff will record the time they spend working on your case to the nearest tenth of an hour using an electronic stopwatch and describe the tasks performed. These time entries are recorded for each day that work was performed on your case. Each time entry by each attorney or staff member is multiplied by that person's specific billing rate to come up with a charge for the day. At the end of the month all time entries are compiled into an invoice.





Litigation Questions

Does your firm guarantee a victory?


No. Judges and juries are unpredictable. Even under the perfect set of facts, it is impossible for any law firm to guarantee a victory. When a law appears clear on its face, a judge or a jury may decide the circumstances warrant the creation of an exception. There is always a risk you will lose.




What is the basic commercial litigation process?


Most people are familiar with the concept of a trial, but what many do not realize is that the trial is simply the culimination of months of smaller legal battles, fact-finding, and planning. Litigation begins with initiating documents known as "pleadings" that explain the controversy, identify the claims, and define the scope of the issues to be determined at trial. Pleadings are often subject to legal challenges on a variety of grounds, such as improper venue, lack of jurisdiction, or failure to state a proper legal claim. Once all pleading issues have been determined and all parties have submitted their pleadings, the trial is scheduled and the case proceeds into a phase known as "discovery," which allows the parties to attempt to obtain missing facts from their opponents using a number of different discovery mechanisms and to exchange expert witness reports, if necessary. When discovery is complete, there are a number of pre-trial matters that may be need to be addressed, such as motions for summary judgment, motions in limine, wording of jury instructions, etc. Finally, if the case is not otherwise resolved, the trial proceeds either as a trial to a judge or a trial to a jury, depending on the cirucmstances. After the trial is concluded, a judgment is rendered and parties have the opportunity to request a re-trial if significant trial abnormalities warrant it, but generally a new trial is not permitted. A party then can initiate an appeal of outcome of trial to be heard by the Court of Appeals.




What is a motion?


A motion is a formal request for an order from the Court on a particular issue. Motions can be made orally while in a Court hearing, or they may be made in writing through the submission of a legal "brief" at the appropriate time. Most motions are made in writing because the legal and factual issues involved are complex or need lengthy explanation to orient the judge. When a motion is made, whether orally or in writing, the opposing party has an opportunity to respond to the motion, and the party making the motion can make a final reply to the opponent's argument. Once the argumentation on a motion is complete, the Court decides whether to grant or deny the motion. Motions made orally at a hearing are usually decided at the hearing itself, but motions made in writing often take one or more months before a decision is issued.




What is a motion for summary judgment? I thought I was entitled to a trial?!


Trials, like the ones you see on TV or in movies, are for deciding disputed facts. For example, if one party claims a traffic light was green, but the opposing party claims the traffic light was red, the trial serves as a way to determine with finality what color the traffic light was at the time. However, if what the relevant facts are is undisputed, one or more parties may request the judge go ahead and determine the legal issues without a trial. This request is known as a motion for summary judgment, and it is a way of having a mini-trial using documents, affidavits, and legal briefs. Oftentimes the parties do not agree that the facts are undisputed. When one party does not want to have the case determined on summary judgment, they must prove that there is indeed an important fact that must be decided at trial before judgment can be granted. Summary judgment is usually one of the most critical pre-trial legal battles that occur in a case because it decides whether a full-blown trial will occur or not.




Should my case be in federal court or state court?


Not all cases can be heard in federal court, but most cases can be heard in state court. Federal court cases are restricted largely to two types: big-dollar cases involving residents of different states and cases of any dollar amount involving issues of federal law. Whether you can and want to have your case heard in federal or state court depends on the facts and circumstances of your particular case, but generally federal court cases proceed more formally and with more defined procedures than state court cases. This may or may not be to your advantage. Cases in federal court have the opportunity (albeit a small opporunity) to ultimately be heard one day by the Supreme Court of the United States whereas cases in state court may be heard by the highest appellate court in that state.




What is arbitration, and how does that differ from mediation?


The terms "arbitration" and "mediation" are often misunderstood, which can become confusing. Arbitration is a type of relatively informal private court proceeding that replaces the ordinary public judicial process that you may be familiar with. Usually a contract between the parties provides that disputes must be arbitrated through a particular arbitration company. In arbitration there is no "court" and no "judge." Instead, the parties agree to hire a neutral third-party known as an "arbitrator" to decide the issues in the same way that a judge would. Though different arbitration companies have different procedures, usually arbitrators are retired judges or practicing or retired attorneys, and the parties are provided a list of potential arbitrators and their resumes from which to select the arbitrator. The parties are allowed to conduct limited discovery, and instead of a trial in a courtroom, the arbitrator conducts a final hearing, usually in a conference room. Sometimes the parties can agree to dispense with a hearing altogether and to simply have the case decided through document submission to the arbitrator. The arbitrator does charge for their time, and parties must typically share the cost of hiring the arbitrator equally. Mediation, on the other hand, is a different process entirely. Mediation involves hiring a person skilled in the art of conflict resolution ( i.e. the "mediator") to attempt to have the parties reach a compromise settlement of their dispute on one specified date or over the course of several days. The typical mediation begins with the parties providing to the mediator their own confidential factual summaries and assessments of the case. Mediators have different styles based on their personalities and abilities; however, on the date of the mediation the mediator may or may not have the parties appear in the same room (or videoconference room) to attempt to hash out a compromise. If the parties are placed in separate breakout rooms, the mediator will travel back and forth between the rooms attempting to broker a settlement. Good mediators do more than simply convey settlement offer numbers between the parties; they will be engaged in the facts and legal issues and will discuss the relative strengths and weaknesses of your case from a third-party perspective. If a settlement is reached, the mediator helps prepare a binding memorandum of understanding of the terms of a settlement that the parties sign and that is later used as the basis for drafting a more formal settlement agreement. Mediators do charge for their time, and the parties must typically share the cost of hiring a mediator equally.




Does your firm handle appeals?


The Firm handles civil appeals in state and federal courts, but not criminal appeals.




Can your firm help me in a state other than Colorado and California?


Presently, the firm is only licensed to practice regularly in Colorado and California; however, the Firm can represent you in other states if certain criteria apply. The target state must have a procedure to allow "foreign" attorneys not licensed in that state to apply for temporary admission (this procedure is known as "pro hac vice admission"). For states that do allow pro hac vice, typically the state will only allow it if the attorney has not previously been admitted pro hac vice too many times in the recent past and only if the foreign attorney also hires a local attorney who is licensed in that state.




What is a deposition, and why is it important?


A deposition is a formal interview of a witness or party on the record. This means that the interview will be conducted under oath, be recorded via audio and/or visual means, and likely be transcribed in writing. Depositions are an important trial preparation tool because they force a person to take a position on their story before they give their actual testimony at trial. Whatever responses the person being deposed gives to certain questions will need to mirror the responses they give at trial. If not, that person may have their credibility questioned (and destroyed) at trial by comparison of their present testimony with their deposition testimony. Additionally, because deposition testimony is given under oath, the transcript can also be used as the basis for a motion for summary judgment.