An arbitration is like a private trial before a judge (not a jury). The parties present their witnesses and evidence just like in a regular trial, and the arbitrator makes a decision. The decision is binding on the parties, except for one exception. If the arbitration was ordered by the court (judicial arbitration), the losing party may ask for a trial before a judge or jury.
If the decision is binding, the decision of the arbitrator may be submitted to the court by the prevailing party and receive a court judgment. The prevailing party may then proceed to collect the judgment amount from the losing party as in any other type of civil case.
Mediation is a process by which the parties and their counsel meet with a professional mediator in an attempt to negotiate a settlement.
The lawyers for the parties usually submit a mediation brief to the mediator, setting forth the background for the case, and discussing their party’s legal position. By reviewing the briefs before the mediation, the mediator is already familiar with the facts of the case as well as the positions of the parties before the mediation begins.
If the mediation is successful, a settlement agreement will be drafted by one of the lawyers and approved by the other side. Once the settlement agreement is signed, the lawsuit is either suspended until the terms of the agreement are completed, or dismissed altogether.
Discovery is the phase of litigation in which the parties gather information about the case. It is a generic term that includes:
The cost of litigation is very difficult to estimate in advance with any degree of accuracy. The reason is that the cost is not determined by our actions alone. To a great extent, it depends upon the actions of the parties to the lawsuit.
Our philosophy is to do everything we can to resolve the matter as quickly and economically as possible. To do that, immediately after the lawsuit begins, we contact opposing counsel to discuss the possibility of an early settlement conference or mediation. In many cases, the other party is equally interested in an early resolution to the problem.
In some cases, however, the other party — or their attorney — may subscribe to a “scorched earth” philosophy. They will decline to attempt to enter into settlement negotiations or mediate the matter at an early stage of the dispute. Instead, they will begin immediately to prepare for trial, which starts with the very time-consuming and expensive discovery process. Even if the case later settles, this philosophy will multiply the cost exponentially.
For two reasons. First, California law requires a written fee agreement for any matter that is expected to require more than $1,000 in fees.
But even more importantly, you need to understand exactly what you can expect of your lawyer and what he or she will expect of you. You should read your fee agreement carefully before signing it, preferably at home. You should sign the agreement only when you understand every clause in it.
Fee agreements are negotiable. Thus you should not hesitate to ask the prospective attorney to change, delete, or add to the agreement until you are completely satisfied with it.
The cost for a transactional matter depends upon the type of transaction. For estate planning and some real estate transactions, we can quote a flat fee that is based upon the services desired. In addition, certain construction law transactions are payable on a flat fee. For these types of transactions, there is no charge for an initial consultation. After we have reviewed the matter with you during our meeting we can quote you a figure for the project. The quote does not normally include costs that are incurred on your behalf by us. Typical costs include filing fees, recording fees, photocopies and postage.
Some transactions do not lend themselves to a flat fee. In those cases, our normal hourly rates apply, depending on the category of services.
Except in a few limited situations, we work only on an hourly basis. That means that you pay the hourly rate for attorneys, research attorneys, paralegals, law clerks and clerical staff.
In addition to the hourly fees, you will be responsible for costs incurred on your behalf by us. Typical costs include filing fees, recording fees, court reporter fees, photocopies and postage.
Your working relationship with your attorney is extremely important. You should have utmost confidence in your attorney, and feel free to discuss anything with him or her.
Begin by asking your friends, neighbors and business acquaintances for referrals. In addition, the Yellow Pages can be a starting point to identify which lawyers specialize in the area of law that concerns you.
It might be helpful to look up the prospective attorney in the California State Bar records online, located at www.calbar.ca.gov. Click on the words “Attorney Search” and enter the attorney’s name. You will be able to find out how long he or she has been in practice in California, as well as whether there are any disciplinary records concerning this attorney.
When you call for your initial appointment, notice whether the staff is courteous and helpful. If you leave a message, beware of an attorney who takes longer than 24 hours to return your call.
The lawyer should be willing to meet with you briefly to get acquainted and discuss your case with you. You should ask him or her lots of questions, including the following:
If after a half hour you don’t feel comfortable with him or her, move on to the next attorney. Of course, if you hire this attorney, the entire time is chargeable, because he or she has used this time to learn about your case.