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Len Watkins
Joshua Genser
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Offices
in Point Richmond and Emeryville
125 Park Place, Suite 210
Point Richmond, CA 94801
Phone: 510-237-6916
Fax: 510-236-9851
2200 Powell Street, Suite 890
The Watergate Office Towers
Emeryville, CA 94608
Phone: 510-237-6916
Fax: 510-236-9851
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| Sue
the Bastards! |
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Do
you want to sue somebody? Think about it long and hard.
Litigation is expensive and rarely results in justice
for anyone. The best result is usually a compromise
with which no one is happy.
Lawyers usually charge by the hour. The partners at Genser & Watkins
charge $300 per hour. This is an awkward method of compensation,
for it rewards effort but not necessarily efficiency nor results.
However, no one has come up with any other method of compensation
that is much better. The problem is the tremendous uncertainty in
the amount of effort that will be involved in litigation. Sometimes
cases settle almost immediately, in which case the client benefits
from the hourly fee paid for few hours of work. Other times, cases
go on for years, requiring hundreds of hours of work.
Lawyers will sometimes work on a contingency fee basis. That is,
they will not charge the client anything, but will take a percentage
of the final recovery as their fee. This usually only applies to
cases where there is a high probability of winning the lawsuit, a
high probability of winning a lot of money, and a high probability
that the defendant can afford to pay any judgment. Lawyers take huge
risks when they take a case on a contingency fee. If the case is
lost, the lawyer loses thousands of dollars in expenses, as well
as the value of all the time invested. Even a victory, if less than
complete, may mean that the lawyer ends up losing money.
Personal injury cases are usually taken on a contingency fee, because
an experienced practitioner can prosecute such a case relatively
inexpensively, and the insurance company for the defendant can be
counted upon to pay any eventual judgment. Most contingency fees
for personal injury cases are one-third of any settlement or judgment,
but sometimes the percentage rises to forty percent if the case actually
goes to trial.
There is no "market rate" for
contingency fees in other types of cases. The levels of uncertainty
and risk are too high, so the attorney and the client negotiate the
rate for each individual case. If the risk is sufficiently great,
contingency fee rates in excess of fifty percent (50%) are not unreasonable.
Alternative fee arrangements can be negotiated, such as mixtures
of hourly fees and contingency fees. In such a case, the attorney
may charge only a portion of the normal hourly fee, then take a smaller
percentage of the eventual recovery. Sometimes a lawyer can be convinced
to take a case on a contingency fee basis if the client is willing
to pay for the attorney’s out-of-pocket expenses.
Can you get your attorneys’ fees back from the other side if you
win? Usually not. The losing side must pay attorneys' fees only where
there is a law that requires the loser to pay attorneys' fees in
a particular type of case or where there is a contract between the
parties that provides that the loser in a lawsuit between the two
must pay attorneys’ fees.
Litigation is expensive because it is time-consuming and risky. The
lawsuit starts with the filing of a "Complaint," which
sets forth the facts upon which you, the "plaintiff," base your claim. The drafting of the Complaint may be very simple if your case
is ordinary in type, but can be quite complex if your case is unusual
in any respect.
The "defendant," the
person you are suing, may respond by challenging the sufficiency
of the Complaint in a document called a "Demurrer." Your attorney will have to do research, draft opposition to the Demurrer, then
go to Court and argue the merits of the Demurrer. If the defendant
wins, your attorney will have to try to re-draft the Complaint to
cure whatever defects were in it.
Once the Complaint is free of defects, the defendant must file an "Answer." This
is usually a simple denial of everything that is in the Complaint.
Next comes the most expensive part of litigation, "Discovery." Discovery
is the process by which the plaintiff and the defendant try to learn
about each other’s case. There are, generally, three vehicles for
discovery: |
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Interrogatories,
which are questions that must be answered under
oath. Your attorney may expend considerable time
drafting interrogatories designed to elicit useful
answers. Similarly, it may require a lot of hours
to help you come up with answers to the defendant’s
interrogatories. |
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Document
Production. Each party may insist on seeing any
relevant documents in the possession of the other.
Making sure that you produce all of the relevant
documents and reviewing the other side’s documents
can take many hours. |
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Depositions,
which are interviews of parties and witnesses.
Such interviews are conducted while the witness
is sworn to tell the truth, and are recorded
stenographically as well as, sometimes, by videotape.
Each deposition lasts at least two hours, but
in a complicated case may take days. The Court
Reporter recording the deposition also must be
paid. |
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All
during this period, either party may make "Motions." Motions are requests that the Court intervene in the lawsuit in some manner,
usually by ordering the other side to do something.
Each time a motion is made, your attorney must research
the law, draft the motion or its opposition, and appear
before the judge to argue its merits.
After the Discovery process is complete, the Court will require that
the parties try a process called Alternative Dispute Resolution.
That is, the parties must make attempts to settle the case. Such
attempts may include mediation, in which a neutral person is brought
in to attempt to get the parties to agree on a settlement, and arbitration,
in which a neutral person is brought in to render an opinion as to
who should win and how much. Preparing for participating in Alternative
Dispute Resolution can be nearly as difficult as preparing for a
trial.
If the case doesn’t settle, then it must be tried. A trial can be
by jury or by judge. Jury trials are much more difficult to prepare
for and take much longer to try. Nevertheless, one of the parties
may believe that a jury would be better than a judge, because, for
example, that party’s case has more emotional appeal to which jurors
will respond better than will judges.
Litigation will take its toll on you in ways other than financial.
A lot of your time will be invested in answering interrogatories,
producing documents, strategizing with your attorney, and going to
court. Being deposed is a truly anxiety-causing experience. Waiting
for trial and sitting through a trial can be emotionally taxing.
Most of all, remember that you might lose! No matter how righteous
you feel, there is substantial risk that you might not win, or might
not win as much as you wanted. Even if you win, you might not be
able to collect your judgment.
If, after all of this, you’re still interested in suing, call Genser & Watkins
LLP. Call 510-237-6916 for an appointment. |
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