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What should I expect from my attorney & what should my attorney expect from me?

To help clients understand how to work with their attorneys and know what their attorneys should be doing for them on any legal matter, New York attorneys are required to post in their offices a statement of clients’ rights and have also created a counterpart statement of clients’ responsibilities. The client and attorney and must be candid and truthful, regularly communicate, and cooperate with each other. Your lawyer is your representative. You are entitled to your lawyer’s independent professional judgment and undivided loyalty, within ethical boundaries. However, if the relationship sours, either side may end it (subject to legal and ethical rules). If you have a serious problem with an attorney, you should contact the local bar association (in the Buffalo area, the Bar Association of Erie County).

To find an attorney, talk to friends and associates who have used attorneys. A first meeting with an attorney to discuss your case or transaction should be free and last 30 to 45 minutes. At that point, you should expect to start paying the attorney for his or her time and effort. Your attorney should prepare a written agreement on how you will pay for his or her representing you. You should carefully review the agreement at home or in your office and sign it when you are comfortable with it.

How do I pay for my attorney?

Like all professionals and businesses, attorneys are usually paid directly by their clients. As a plaintiff the payment will sometimes come out of an amount paid by a defendant due to a judgment or a settlement, such as in a collection of an account or a personal injury action. Lawyers generally take those cases on a "contingency," meaning the lawyer will only get paid if money is paid by or collected from the defendant. Most other cases require that the client pay the attorney on an hourly basis or a fixed fee. Depending on the size of the law firm, its location (big city vs. small town) and experience of the attorney, hourly rates can range from $100 to $500, but are typically between $125 and $250. Transactional work is much more likely to be billed on a fixed fee than litigation, due to the difficulty in judging what an opponent will do and how far the case must go to get to settlement or trial. Most attorneys require that hourly clients pay an initial "retainer," which is a deposit to be applied toward future fees. If the fees do not exhaust the retainer before the case concludes, the balance is returned to the client.

Importantly, regardless of the fee arrangement (including contingency cases) the client is obligated to pay the "costs" of legal work, such as filing fees, deposition transcripts, overnight couriers, photocopying, expert consultants and travel expenses. For example, if you settle a case for $10,000 and your attorney’s fee is 30% ($3,000) and your costs were $500, you will net $6,500.

Attorneys’ fees – if I win my lawsuit, must the other side pay them?

Usually not. Except for certain cases governed by state or federal statutes, the "American Rule" is that each side pays its own attorneys’ fees. However, many contracts provide for attorneys’ fees to be paid by the losing party. For example, businesses which routinely grant credit to customers often require the customer to pay its attorneys’ fees for collection of delinquent accounts. Also, by statute an individual or company’s victory against a state agency may entitle the winner to fees if shown that the state had no reasonable basis for acting the way it did. Federal anti-discrimination law entitle winning plaintiffs to attorneys’ fees.

Note, the winning side normally is entitled to collect the "costs" of litigation, regardless of the type of lawsuit. These costs include filing fees and service of process, and may allow for transcript and copying costs, depending on the rules of the particular court.

What is "attorney-client privilege"?

Legally, the client has the right to prevent his or her attorney from revealing confidential communications between the attorney and client. Normally, the attorney invokes the privilege by objecting at a trial or deposition when a client is testifying and is asked for information that is privileged. The confidentiality of the communications, and thus the privilege, is generally broken if the client discusses the information with anyone beside his or her lawyer. Also, talking to any lawyer about a legal problem does not create privileged communication, unless the lawyer is "your" lawyer for that case or transaction. Of course, if the client is a company, then the officers of the company may discuss the communication without breaking the privilege. Also, a husband and wife meeting with an attorney about a case affecting only one of them will typically not break the privilege. Finally, facts that may be damaging to your case do not become privileged just because you discussed them with your attorney. The attorney may not reveal them, but if your deposition is taken or you are called as a trial witness, you must testify to the facts that you know as directed by the Judge.

What is civil litigation?

"Civil litigation" describes any dispute sued in court that does not involve a criminal prosecution. Civil cases are started by and brought against individuals, businesses and government agencies to enforce a right and achieve a remedy. In contrast, criminal cases are brought by a municipal, state or federal government representing its people, against individuals or organizations charged with a crime. Civil law was invented – it has been said – to keep citizens from taking their disputes outside the castle to fight with swords, by bringing them inside the castle to fight with words. Our legislatures and courts have created many rights and remedies since this nation was founded. Some of those rights date back to the Magna Carta of the 13th century. Like it or not, these rights and remedies have resulted in an ever-expanding range of disputes that individuals and businesses rely on lawyers to pursue and defend before judges, arbitrators and mediators.

The "parties" in a civil lawsuit are the plaintiffs who start the lawsuit and generally must prove their case against the defendants, whom the plaintiffs maintain are responsible or "liable" for doing wrong to them. Defendants can defend by laying back and seeing if the plaintiffs can establish their claims. Alternatively, defendants can assert "affirmative defenses," which are facts that defeat plaintiffs’ claims no matter what the plaintiff can prove. A "statute of limitation" is such an affirmative defense. Defendants can also bring other parties (called "third-party defendants") into the lawsuit who the defendants believe are also liable for the plaintiffs’ injuries or damages.

What is a "statute of limitation?" or How long can I wait to sue?

A statute of limitation is a law that requires a plaintiff to bring a claim within a specific time from the date the injury or wrong occurred. For example, in New York when someone breaks or "breaches" a contract and then gets sued, if the plaintiff has waited more than six years to sue, the defendant can assert the statute of limitation as an "affirmative defense" and normally win the case no matter how clearly the defendant was at fault. Statutes of limitation and other rules requiring timely legal action range from a few months to ten years. Each state has its own set of time limits as do federal claims.

For example, discrimination plaintiffs usually must file a claim with a state or federal agency within a few months, depending on the type of discrimination and the state where the discrimination occurred. Bankruptcy courts impose time limits on creditors who want to make claims against the bankrupt debtor by sending notices to known creditors. The court sets those deadlines after the debtor has filed for bankruptcy protection.

If you think you have a legal claim, consult an attorney immediately, if only to find out how long you have before you have to start a lawsuit or make a claim. Missing a deadline almost certainly dooms any chance you have of succeeding, no matter how good your attorney is or how much time you and your attorney put into the case. Finally, when you talk to a lawyer about your claim, get a definite date by which legal action must be taken and be sure your attorney gets the paperwork ready, filed and served on your opponent well before the deadline

How long do I have to file a mechanic’s lien?

A lawyer familiar with "mechanic’s liens" should be promptly consulted when you are owed money for labor and/or materials provided for building a structure, repairing a vehicle, etc. Mechanic’s liens and other liens on real or personal property are not lawsuits, but like lawsuits they also have time limitations ranging from 30 days to eight months in New York State. For mechanic’s liens on real property (houses and commercial buildings), the time limit starts when the work is last performed or material is last delivered. On public building projects, the clock starts ticking when the project is completed, which can be and often is in dispute. The lien shows that you have added value to property and have not been paid. Depending on the circumstances, especially how quickly your lien is put in place, the property may not legally be sold before you are paid.

To collect the debt connected to the lien, a lien "foreclosure" lawsuit may need to be started, usually as part of a lawsuit against the defendant for breaching your contract or failing to pay your invoice. In addition to filing liens, on most large commercial and virtually all government construction projects, subcontractors, laborers and "materialmen" (suppliers) can make claims and sue on "labor and material payment bonds."

What is commercial litigation?

"Commercial litigation" describes a large subset of civil litigation, covering all kinds of disputes involving business matters: from collections to contract disputes, from bankruptcy to surety bonds, from copyright licensing to dealer franchising, from employment discrimination to antitrust price discrimination. Civil litigation "remedies" are usually money "damages" to compensate for a loss or wrong, but also often involve "injunctions" that order a party to stop doing something or to begin doing something.

How long will it take to have my case decided?

It depends largely on the complexity of the case and the amount of money or property involved. Simple cases, such as trying to collect from someone who owes money based on an invoice for the sale of goods or services, can proceed fairly quickly to a judgment or settlement, unless a defense such as defective goods is interposed. Complicated cases such as construction disputes involving large sums will often be defended more vigorously, and necessarily take much longer. Although many cases are settled shortly after the plaintiff sues, many others take several years to be resolved, and some last five years or longer, involving extensive discovery, motions for summary judgment, appeals and trials. 

Will my case go to trial?

Not likely. Excluding criminal cases, approximately 95% of all cases actually sued result in a settlement sometime before trial actually begins, and many of those will settle during trial. Most cases going to trial involve personal injuries. Probably less than five percent (5%) involve a contract or dispute over money or property. Cases settle because parties and their lawyers eventually take a reasonable look at all the relevant facts, good and bad, weigh the risks of success or failure at trial, and often work out problems that caused the dispute in the first instance. Other cases do not settle because one or both sides sincerely want their "day in court," which they are entitled to have, or because they simply cannot accept a resolution/settlement proposed by the other side, the court, an arbitrator or mediator. In such cases, you and your attorney must prepare thoroughly and diligently – usually at great personal and financial expense – to try your case. Trials can last a few days or a few months and may be decided by a jury or a judge, depending on the parties’ preference and the type of case.

What is Discovery?

Discovery or "disclosure" (as it is called in New York practice) is the process by which a party in a lawsuit tries to learn relevant information from the other parties. Discovery rules allow you to find out basic information such as names and addresses of witnesses, review documents that were generated about the dispute (contracts, letters, notes), look at photographs and videotapes of individuals, sites and objects, demand answers to written questions (called "interrogatories"), examine computer records (e-mail, databases), and inspect physical evidence (machinery, buildings, work sites). Most cases require depositions (called "Examinations Before Trial" or "EBTs" in New York practice), which are essentially interviews by attorneys of parties and witnesses, under oath, that are transcribed by a court reporter so the testimony can be used as evidence.

What is ADR?

"ADR" is short for Alternative Dispute Resolution. ADR offers alternatives to litigation in court, with the goal of simplifying, shortening and lessening the expense of civil litigation. ADR primarily includes arbitration and mediation. Arbitration allows an arbitrator – who is often chosen by the parties – to hear the case and make the same decision that a judge would. The parties can and usually do agree to be legally bound by the decision. Some courts have "mandatory" arbitration that is "non-binding," which allows the losing party to keep going if unwilling to accept the decision, but which usually results in a voluntary, binding settlement. Mediation involves a mediator who listens to the parties in an effort to get them to agree on a compromise to their dispute. Many business agreements and employment contracts require arbitration or mediation of disputes, limiting the parties’ ability to even start a lawsuit. Regardless of the type of dispute you are involved in, your lawyer should discuss with you whether using some type of ADR would be a better means of getting it resolved, regardless of whether you are already a plaintiff or defendant in a lawsuit. ADR can be used at any time, before, during or after a lawsuit.

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