LET US NOW PRAISE….OPPOSING
COUNSEL
Law Offices of Donald W. Hudspeth, P.C. |
By Donald W. Hudspeth,
ESQ.
Let us now praise
opposing counsel. The good they do can live after them.[1]
Roughly,
seven out of ten cases the firm receives are in the conflict stage. The client is being victimized by a partner,
ex-employee or contract party who is acting unlawfully; that is, creating legal
claims. Often the offending parties (i) do not realize the conduct is unlawful,
(ii) the extent to which legal damages can be assessed against them and/or
(iii) how incredibly expensive civil litigation can be.
The firm’s
counsel and reaction to this is to advise a “complete case work up,” which
includes a chronology and extensive knowledge of the facts, analysis is of the
legal issues, research as necessary on the current case law, drawing legal
conclusions as to the possible outcome of litigation, and drafting of the
“demand letter from Hell.” The demand
letter contains all of the above and can run from four to six pages or more.
The above
process takes time and money, but has value in at least two ways:
One, it makes it less
likely the recipient party will throw the letter away. While it is easy to
throw away or ignore a one page demand letter stating only general facts and
conclusions, it is much more difficult to ignore a letter tailored to the facts
and case at hand and stating as its conclusion that the recipient is, or could
be liable, on a number of legal claims, some of them with punitive damages,
which add up to a large sum of money. If
nothing else our letter may trigger a tremendous urge in the other side to
respond and tell us how wrong we are.
Second, it makes it more
likely that the recipient will take the letter to an attorney, who becomes the
“opposing counsel” alluded to above. While it may
seem counter-intuitive to want opposing counsel involved, not only is it
typically a good thing to have opposing counsel involved, but also,
paradoxically perhaps, often the “better,” i.e. knowledgeable and well-informed
in business law, opposing counsel is,
the better it is for all concerned. Opposing counsel who has extensive
knowledge and experience in the area can advise the client as to the
unlawfulness and legal consequences of the offending client’s conduct. The
attorney can tell the client that, at minimum, the legal consequences can be a
lawsuit and the attendant horrific costs of litigation; at most the case could
result in a large judgment being awarded against the party. So, again perhaps
ironically, it is often opposing counsel who gets the wayward party under
control, which goes back to the earlier point that frequently the offending
party is acting out of ignorance or willful blindness. Once the opposing client
is educated as to the nature and consequences of the conduct the case can go
through what I call the “Process.”
The “Process” is the clash
of paradigms between how my client sees the case and wants to happen and how
the other side sees the case and what it wants to happen. Typically, the
clashing clients (mine and theirs) start with one thing in common: Each
believes that he is right, in fact self-evidently so; thus, the other side
should just concede that point, accept the client’s position, and surrender.
Sometimes, the client will even state “I am so obviously right that I should
not have to spend one dollar on this case.” Well, maybe the client should not have to spend money to
resolve the matter but the fact is the client does or will have to spend money
on the matter unless he or she wants to concede the matter to the other side
and conceding in this case would mean major loss to my client. If my client
were not facing significant harm, he/she/it probably would not be in my
office.
So, back to the
“Process.” The Process may be likened to
the parties sitting on the opposite end of a conference table. Unless the
matter goes all the way to trial the matter most likely will be resolved with
the parties reaching agreement somewhere more or less in the middle one-third
of the “table.” But this does not happen overnight, even in reaction to and as
a result of a well-crafted “demand letter from Hell.” A response letter is written, telling us our
claims are weak and wrong-headed. The
attorneys state their clients’ positions as logically, and sometimes forcefully
(what has been called “bull walrusing”) as they can. Eventually, the claims and
defenses can reach equilibrium and a settlement can be reached. This is the
Process.
Unfortunately the Process can often cost $10,000 per side – and this
can be without litigation, i.e. a lawsuit. Again, this outcome is reached
because the offending, misbehaving party is advised on the unlawful nature of
the conduct, learns the dollar amount of damages the court can award against
him, pays substantial attorneys fees and faces the prospect of paying a whole
lot more: to his attorney and to this firm if we prevail in the legal action.
But the Process can go a
whole lot smoother and faster if the opposing counsel knows the area well
enough to tell and advise the client as to the reality of the situation and
reject spurious arguments that just waste time and money. B.S. can be
eliminated and the parties can go to the heart of the matter. For example this
firm just negotiated a severance package for an owner and engineer of a
start-up semi-conductor company. The employer wanted to set up the client for
“cause” termination to avoid paying the severance package. But, that claim was
not sustainable under the existing case law or even the factual allegations
made. Thus, in return for our firm’s client agreeing to look at a pending third
party buy out of the company for his payment for his shares, the severance
agreement was quickly reached. This is a good example of where the stature, knowledge
and experience of the attorneys served each client well.
Bottom line, I like it
when a misbehaving party has legal representation. And, I like it even better
where the opposing attorney is well versed in the area of business law. So, let
us now praise opposing counsel; the good they do can last through the
generations.
The Law Offices of Donald
W. Hudspeth, P.C.
| www.AZBUSLAW.com |
Business Law | Commercial
Litigation | International Business
For
more information about business law topics and the Hudspeth Law Firm please
visit our website at azbuslaw.com or call us at 602-265-7997.
Donald W. Hudspeth is
president of the
Law Offices of Donald W.
Hudspeth, P.C. in Phoenix, AZ, where he is the senior attorney in the firm’s
transaction group. Don can be reached at DWH@azbuslaw.com.
© Copyright 2012 Law Offices of Donald W. Hudspeth,
P.C.
This
article is not intended to provide legal advice. Always consult an attorney for
legal advice for your particular situation.
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