Smooth Transitions Law Blog
Addressing the legal issues arising from the departure of employees & business breakups

Trial and Pre-Trial Procedure

Dallas Bar Trial Skills Section – Friday the 13th!
September 11, 2013

 

                                

If you have some time, come on down to this Friday’s Dallas Bar Trial Skills Section meeting at noon in the Belo Mansion.  I will be moderating a panel on expert witness practice.  We have a great group including lawyers Alicia Curran, Don Swain, Jason Copling, and expert Karl Weisheit.

 

 

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Trial and Pre-Trial Procedure

We get our attorneys’ fees? Right?
January 9, 2013

 

Parties to lawsuits sometimes try to seek solace in the fact that the ongoing attorneys’ fees they are paying will be recoverable at the end of their case. The reality of the situation is that just because an attorneys’ fees claim is proper does not mean those fees will ultimately be recoverable. In most cases, whether the case is resolved by settlement (as most are) or by a judge or jury, the successful party is not going to recover all of their attorneys’ fees. The reason for this is because judges and juries have wide discretion in awarding fees and settlements don’t usually result in recovery of all fees.

The "American rule" for attorney’s fees is basically that each party is responsible for the fees that they incur as part of any lawsuit. State legislatures and Congress created exceptions to this doctrine and have created claims or laws that permit recovery. In Texas, the successful party to a breach of contract claim can recover their attorneys’ fees under Texas Civil Practice and Remedies Code Section 38.001. These are also recoverable under other statutes like the Texas Deceptive Trade Practices Act.

So how are fees awarded? As any other damages would be awarded. If it is a bench trial or summary of judgment, the judge will be called upon to make an award of attorneys’ fees. While int the context of a jury trial, the jury will actually consider the testimony of an attorney, and then write down on the jury charge what they believed reasonable and necessary attorneys’ fees are. Many times juries have a hard time awarding a party attorneys’ fees. Usually this is because attorneys’ fees are disproportionate to the controversy for relative merits of each party to the controversy. So, if the jury thinks that a party should win but it is a close call, they can potentially hedge on attorneys’ fees and award less than what is being sought. The same calculation could be made by a judge as well.

Courts can consider a number of factors:

 

  1. The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly;
  2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  3.  The fee customarily charged in the locality for similar legal services;
  4. The amount involved and the results obtained;
  5. The time limitations imposed by the client or by the circumstances;
  6. The nature and length of the professional relationship with the client; 
  7. The experience, reputation, and ability of the lawyer or lawyers performing the services; and
  8. Whether the fee is fixed or contingent.

 So what can a party do to ensure that they recover their fees? Other than trying to make sure that their lawyers bill is reasonable, not much. High-stakes litigation or litigation where injunctive relief is involved means high fees. Ultimately, each party evaluating the relative merits of the case has to understand that they may not be able to recover those fees that they are incurring. Recovery of 100% of fees like any other damage, is not likely and must be appropriately evaluated.  

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Trial and Pre-Trial Procedure

Depositions without Lawsuits in Texas
October 25, 2012

Potential litigants in Texas can always consider the pre-suit deposition under Texas Rules of Civil Procedure 202  as a precursor to the filing of a lawsuit. The 202 petition, which is available in Texas state court, permits a party to take a deposition to investigate either potential claims or in anticipation of a potential lawsuit.  The benefit is the party does not have to prepare a formal lawsuit with causes of action and generally gets the deposition in a short amount of time.

The mechanics of the rule require that the party seeking the deposition verify the basis for the deposition (swear under oath as to the facts) and identify any adverse party if suit is anticipated. The petition is filed, the deponent is then served, and the court conducts a hearing on the issue. Provided the party seeking the deposition has met all requirements under the rule, the Court will enter an order specifying the time and place for the deposition and make certain findings as required by the rule.

What is the purpose of such a procedure? There are many. In the non-compete or non-solicit situation, a former employer can use this 202 to explore whether or not the former employee is in fact competing or soliciting customers. The deposition could target the new employer or the former employee. When obtaining information about a potential lawsuit, it also provides for a dialogue between the former employer and the former employee/new employer meaning there is a chance of early resolution. A 202 petition allows you to skip the steps of filing a lawsuit and get testimony right away.  Generally, it is a good way to try and resolve disputes early on and avoid the costs of discovery and litigation.
 

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Trial and Pre-Trial Procedure

Trial Skills Presentation this Friday in Dallas
October 10, 2012

If you can make it please attend – 

REMINDER TRIAL SKILLS CLE THIS FRIDAY
The DBA Trial Skills Section Invites You to its
Friday, October 12th Presentation at noon at the Belo:

It’s My First Trial – What Do I Do Now?
featuring
Shelly Greco of Eberstein & Witherite LLP,
Brian Lauten of Sawicki & Lauten LLP, and
Rob Radcliff of Langley Weinstein LLP

If you have your first trial coming up or ever wondered whether you are doing it right, this is the CLE for you. THIS FRIDAY, October 12, trial lawyers Shelly Greco of Eberstein & Witherite LLP, Brian Lauten of Sawicki & Lauten LLP, and Rob Radcliff of Langley Weinstein LLP will discuss trial organization, voir dire, and expert witness examinations.

 

A 1998 graduate of Texas Tech School of Law, Shelly Greco represented hospitals and physicians against medical malpractice claims before handling personal injury trial law including trucking accidents, car wrecks, medical malpractice, pharmaceutical cases, premises cases and work-place injuries with Eberstein & Witherite, LLP, where she showcases her courtroom experience, commitment, and support for victims and families. Greco was named a Rising Star by Texas Monthly in 2007 and in April of 2011 by Thomson Reuters as well as One of the Best Lawyers in Dallas according to D magazine in 2011. Greco received the 2009 John Howie Award for the Courageous Pursuit of Justice in the Face of Adversity, presented by Dallas Trial Lawyers Association.

Brian Lauten is a JD/MBA who has three separate board certifications: in Civil Trial Law by the Texas Board of Legal Specialization, in Civil Trial Law Advocacy by the National Board of Trial Advocacy, and in Civil Pretrial Practice Advocacy by the National Board of Legal Specialty Certification. Lauten practices with Sawicki & Lauten L.L.P. in the areas of commercial litigation, business litigation, legal malpractice, trade secrets, non-competition agreements, contract and real estate disputes, fiduciary litigation, partnership disputes as well as high stakes “bet the company” litigation and wrongful death. Recognized as a “Super Lawyer” by Texas Monthly magazine every year since 2003, Lauten is a member of the invitation-only Million Dollar Advocates forum, an organization consisting only of attorneys who have received multi-million dollar jury verdicts. Lauten is a member of the National Trial Lawyers Association, an organization that comprises the Top 100 plaintiff’s attorneys in each state. Lauten received the 2010 John Howie Award for the Courageous Pursuit of Justice in the Face of Adversity from the Dallas Trial Lawyers Association.

A 2000 graduate from SMU School of Law, Rob Radcliff represents businesses and individuals throughout the State of Texas from trial through appeal. With first chair trial experience, Rob has represented businesses in a wide variety of litigation matters including commercial matters, labor/employment matters, construction matters, and personal injury matters. Rob frequently writes about employment transition issues including non-compete agreements at www.smoothtransitionslawblog.com. Radcliff has been named a Rising Star by Texas Monthly from 2006 to 2012.

We hope that you can attend and bring a friend or colleague this Friday, October 12th at noon at the Belo Mansion! 

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Trial and Pre-Trial Procedure

The Upside of a Trial?
February 3, 2012

          

 

Last week we talked about the considerations, frankly negative considerations, employers and business owners should consider before they go to trial. That post raises the following question: What, if any benefit is there to a trial for a company?

Frankly, I am not sure there are any, unless demands made by the Plaintiff are so extreme that settlement is simply not an option. Even when a company wins, it may lose, in terms of the attorneys’ fees incurred. Winning a trial or case is all relative.

If the Plaintiff offers to settle a case for $500 and you win the case, but end up spending $1,000 in attorneys’ fees, that may be a win in principle but not financially. Likewise, if a Plaintiff makes a settlement demand of $500 and the jury awards $100 and you’ve incurred attorneys’ fees of an additional $200, that is technically a win. Whether a case is ultimately a win or a loss is in the eye of the beholder. Principle is a wonderful thing. I have had many clients tell me that they would rather spend the money with me than pay the Plaintiff any money whatsoever. Unfortunately, that story never usually turns out that well.

The reality is, trials are few and far between in our system. It is usually very bad cases that are tried or cases where one side misevaluates their exposure or chance for success making a trial necessary. Whether to settle or try a case should at all times be a business decision based on the financial ramifications and the advice of attorneys. Keep the emotion out of it.

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Trial and Pre-Trial Procedure

Picking a Jury: The Jury Questionnaire
February 13, 2009

The Jury BoxDuring today’s Dallas Bar Association Trial Skills Section meeting Lisa Blue gave a great presentation on picking a jury.  Here is the questionnaire (.pdf) she provided for potential jurors. 

Picking a jury is challenging for any lawyer.  Being armed with more information about your prospective jury could make voire dire (jury questioning) more focused.

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Trial and Pre-Trial Procedure



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