Legal Actions - Judgments
to know if you should file a lawsuit
lawsuit is generally the last option that should be chosen
in trying to resolve a dispute. This
question of whether to file the lawsuit enters the mind of many people who are upset with a bad
product or service, or breach of an agreement. In order to answer
this question and make a decision, one must consider the following
of expected recovery, if the lawsuit is won, is based on the best
case and worst case scenarios. Expectations may not be realized.
Not all damages may be recoverable.
of non-recoverable damages:
In case of breach of contract, the aggrieved party's
emotional distress is not compensated;
Loss of income, plus time spent, while involved with a
claim or suit is not compensated.
amount of actual recovery in a lawsuit is unpredictable. In case of a claim for
bodily injury, no one can exactly evaluate the amount of
compensation which will be awarded by a judge or a jury for the
injured party's pain and suffering, disability or disfigurement.
ATTORNEY FEES AND EXPENSES
fees may be based on an hourly rate or contingency fee basis. An
hourly rate depends on a lawyer's experience, relationship with a
client, desire to have repeat business, or volume of client's
business being given to that lawyer. Lawyers charge for each
minute of their time spent on the case.
of billable items:
telephone call to and from a client or any other party related
to the client's matter;
legal research, writing of letters and briefs, time in court
(which may be charged at a higher rate than for the office
work), preparing legal documents, travel time or depositions
(interrogations of parties and witnesses) are recorded and
then billed to clients.
connected with the case may reach such level that further
litigation may become counterproductive. Attorneys may advance
such expenses but the burden is on the client to promptly
reimburse the incurred expenses.
of typical file expenses or payments to:
the court for
filing a suit;
sheriff for serving a party with a complaint and
private process server or private investigator for finding a
defendant or ascertaining a party's criminal or
for translation of documents or interpreting the testimony of
a witness or a party speaking a foreign language;
for giving professional opinions;
of documents and photos, cameramen and photographers for video
taping and picture taking;
reporters for their attendance time and preparation of
transcripts of the proceedings; and
for transportation and lodging (for out of town meetings).
client must pay attorney fees and expenses each month pursuant to
the respective invoices. On the other hand, a client does not
incur such monthly charges if an attorney agrees to take the case
on a contingency fee basis. Contingency fee means that an attorney
is participating in the claim recovery, if any, on an agreed
a rule, such percentage fluctuates between 20 percent and 50
percent of the amount of recovery. An attorney may advance costs
and expenses of litigation to be repaid upon settlement or
adjudication or a claim. However, a client remains ultimately
responsible for expenses under any of the above-discussed methods
Europe, attorneys are not allowed to take cases on a contingency
fee basis but are allowed to request a bonus for good results or
performance. For poor people or those who cannot afford payment on
a systematic basis, a contingency fee method presents a viable
alternative to an hourly fee method.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
are many organizations and individuals who are willing to serve as
a mediator, counselor, ombudsman, or a judge in a private or
out-of-court proceeding. It is much cheaper and faster to resolve
any dispute through such intermediaries than to litigate in
of such alternative dispute resolution:
which is a reconciling and advising process;
mediation which results in a decision the parties must comply
which adjudicates the rights of and binds the parties.
involves a semi-formal or informal process of introducing evidence
by parties. Parties may bring witnesses or documents to support
their views and may hire attorneys to represent their interests at
may be accomplished through government or private organizations,
such as American Arbitration Association (AAA), JAMS, Endispute,
and many others. Former judges or experienced attorneys hear the
evidence and make binding decisions. The rules of the AAA or other
adjudicating bodies are different and less restrictive than the
rules of evidence adhered to by the courts.
friend, real estate agent or any expert in the area of the
disputed subject matter may become a conflict broker or counselor.
If the decision or advice of such a party is not acceptable, then
any other ADR method may be used.
COLLECTION ON JUDGMENT
a long and victorious litigation, a winning party secures a
judgment from an adjudicating tribunal. This piece of paper may or
may not materialize into actual funds being transferred to the
winner. Collection on a judgment is a separate legal process.
Sometimes one may never recover the award.
A judgment-debtor declares bankruptcy which would isolate
that party from claims of creditors, including the judgment-winner
An off-shore manufacturer of a counterfeit or defective
product dissolves its corporation and, adding insult to injury,
opens a new company under another name;
All assets of a judgment-debtor are under other parties'
names (relatives, friends, corporations, or business associates)
and, therefore, that party becomes judgment-proof.
LENGTH OF LITIGATION
is a slow moving process which may take months and, in most cases,
years before reaching the trial stage. After filing a complaint,
the court issues a summons which must be served on each of the
defendants by a sheriff deputy.
a defendant has moved or otherwise cannot be found, then the legal
juggernaut cannot proceed further. Courts inundated with lawsuits
cannot quickly digest the suits. Delays caused by the judicial
system frustrate the parties.
of reasons for the proceedings' delay:
attorney asks for continuance of a deposition or trial because
of the attorney's family emergencies or conflict of schedule
pool of potential jurors has been exhausted;
case has been transferred to another judge or court division;
party which has to be deposed or answer interrogatories is out
expert witness is unavailable on the scheduled deposition or
file was recently transferred to another attorney who had no
chance to prepare for trial;
suit was filed in a wrong venue (i.e. not where the defendant
resides or cause of action arose) and, thus, must be
transferred to another court;
on the defendant was improper and, thus, must be properly
judge assigned to handle the case has left for vacation, or is
sick, or temporarily transferred to another court, or is still
busy with the preceding trials;
new defendant has been added and, consequently, time is needed
to conduct written and oral discovery associated with that
opposing party's financial, intellectual and legal wherewithal may
affect a decision to initiate litigation. The opposing parties
ability to sustain a prolonged judicial process, the quality of
their attorneys, and
legal defenses may either encourage or stop the filing of suit.
people desire to punish an opposing party or change the law and,
therefore, want no recovery. There are political, moral or social
causes which prompt such a decision. On a private party level,
such a fight may even be detrimental to every party. During
litigation, many unsavory deeds and past criminal or immoral
activity of an accuser may come to light.
spouse wants to leave no assets in order to financially hurt
another spouse in a divorce matter. This causes both parties' to
employ respective sets of attorneys, spend money and time in
connection with the court proceedings, and to stretch the
frustration and schism within the family. Also, spouses may be
dissatisfied with the court's decision after spending years in
court. An ADR method is an option if all parties agree to the ADR.
LOSS OF OWN TIME
is time consuming for the participants. A party must appear at
depositions (own and, optionally, of another party) and at a
trial. The trial may continue for at least a few days or even
weeks. Preparation for a deposition and the deposition itself can
take one or more business days.
arbitration, which in some states is part of a court-based
judicial system, also will take about a day. Consultations and
meetings with attorneys, as well as answering interrogatories
(opposing party's questions) and requests for production of
documents, take many hours of business time.
of business time is translated into a loss of income.
court appearances and testifying under oath at depositions,
arbitration and trial, each participant is thinking and worrying
about the case outcome at all times. Such incessant consumption of
energy and emotional involvement may increase the daily stress of
a person. Such psychological and mental drain takes a toll over
the course of time.
attorneys usually employ a legal counsel to represent their
interest in court. There are lawyers who do not litigate, such as
transaction-oriented attorneys who handle real estate closings,
acquisitions and mergers, sale of business, etc.
are a separate breed because besides knowledge of the subject
matter they have to know the court rules and rules of
lawyers have an additional license allowing them to practice in
the United States Patent and Trademark Office.
in the attorney's abilities and rapport with that attorney are
essential for cooperation, decision making and communication
efforts. Experience in litigation of the matters at issue is
may present his own case in any court but the judges usually
resent this "pro se" representation because "pro
se" litigants are not familiar with the court and evidence
small claims courts where the amount of recovery does not exceed a
statutory limit set up by the legislature, for example $2,500 or
$5,000, a plaintiff may not need an attorney. Attorneys help to
negotiate a settlement or work out a deal.
complaint filed in court may trigger a counterclaim by a defendant
against the plaintiff for another act related to the complaint.
complaint by a professional against a client demanding payment for
services rendered may trigger a client's counterclaim or defense
of malpractice. That
is why a review of one's own vulnerable points and background is
needed in order to ascertain the level of risk in that regard. Any
past wrongdoing may come to light in the court proceedings.
LOSS OF SUIT
case a lawsuit is lost, the losing party will pay legal fees to
his own legal counsel, unless there was a contingency fee
agreement, plus file expenses, and the court costs of the opposing
a contract provides for payment of attorney's fees of the
prevailing party, then these fees also must be paid by the losing
party. Name, reputation and prestige may also be affected by that
legal loss. Disclosure of trade secrets may be forced upon a party
by the court.
the court system, there are many other tribunals which may help an
aggrieved party. In general, any problem may be addressed to the
governmental agency responsible for or regulating that area of
Office of Attorney General may help victims of violent crimes,
antitrust violations, consumer fraud by businesses and
Department of Insurance may be asked to secure payment from
insurance companies vexatiously and frivolously delaying car
Department of Labor may impose sanctions on employers in their
disputes with employees.
party may appeal the trial court's judgment to the Court of
Appeals which may affirm, remand (meaning to return the case to
the trial court for further proceedings)) or reverse that
judgment. An appeal process may take a few years. In case of
reversal with remand, the trial is repeated. Costs will be
case the trial court decision or judgment is affirmed, a losing
party may try to appeal to the State or the U.S. Supreme Court but
the chances of being heard by the Supreme Court are very low. A
prevailing party is accumulating interest on the trial court
interest is set by a state statute. In Illinois, for example, a
post-judgment annual interest is nine percent. The losing party
must post a bond to secure payment of the judgment while the
appeal is pending.
all the deficiencies and advantages of the judicial system and
practical aspects of the litigation process should help any person
or legal entity to make a decision to settle, arbitrate, or
adjudicate any claim. Sometimes a letter from an attorney or third
party mediator may bring the parties to an amicable resolution of
a dispute. It is not justice, but the fair compromise of the
parties' positions, that is the goal of such resolution.
Parad, the firm's founder, has more than 25 years of legal
experience in corporate and private practice. As a patent
counsel, he represented major corporations in technology
transfer, corporate law and intellectual property protection
Parad is a member of the Association Internationale pour la
Protection de le Propriete Industrielle, U.S. Federal Trial
Attorneys Bar and International Association for Protection
of Industrial Property. His business protection guides have
been published in Europe and the United States. He has been
listed in Who's Who in American Law.
Parad's engineering experience in Europe and the Unites
States, combined with his corporate and patent law practice
at the foremost U.S. companies, provides Parad Firm with
unique tools to lead complex trials of corporate fraud,
breach of contract and RICO cases.
Parad's engineering experience is beneficial to our clients
in machinery and automotive accident injury litigation.
technical background helped the firm to win product
liability, pedestrian knockdown, child dart-out, bicyclist,
and vehicle collision lawsuits. Boris Parad is the lead
trial attorney in all of the firmís federal court cases.
Kim T. Sanders