The Litigation Process

Podcast episode by Art Macomber

What is involved in the litigation process and what are the potential ramifications. Art Macomber presents information about the litigation preparation that goes into a case and some strategies for best preparing for the case. Also what you should do to prepare for litigation.

Today’s episode is brought to you by TimelyContract.com, real estate property lawyers providing better information for real estate transactions. TimelyContract.com delivers transactional real estate legal services through a network of online experienced real estate attorneys. TimelyContract.com arms you with the best information to make real estate decisions. Welcome to the new world of transactional real estate.

Today, we’re gonna hit a pretty interesting topic. For those of you that are following the Timely Contract series, what you’ll notice is that we do the proper research and then we give you the opinion in writing, and we devise the contracts that you want to use. And we look at the calendars of the contract, we look at the terms, and we we try to do things in such a way so that the transaction is smooth, which means that it starts and people fulfill their promises. And then it ends. Sometimes it doesn’t work smoothly. And sometimes parties are dissatisfied. Or sometimes they didn’t do the calendar right and things just get bollixed up. And then, of course, life happens. And things come in that are not envisioned in the contract. And so people need to adjust course.

But once we get the Timely Contract piece done, there’s always the opportunity for life to come in and make changes. That’s why we’ve memorialized contracts. That’s the reason for a written contract. And sometimes these things end up in litigation. Litigation is a scary word for a lot of people. And rightly so. Litigation is very expensive, it takes time, and all along the way there are many opportunities to frankly lose perspective, become too emotional, start to get caught up in minor side issues that that really don’t matter.

So at Macomber Law, we do a lot of litigation. People bring lawsuits to us. Sometimes we actually need to sue people on behalf of clients, which is many times avoidable. Most of the time, it should be avoidable. But sometimes on one side or the other there’s a person that just gets something in their craw and they have to chase it down. And they’d like to use the law to do it. I’d like to talk today a little bit about what we call the litigation process. Because no matter how much you plan, or no matter how much you you try to do your darndest to catch all the details, sometimes a lawsuit just pops up. Sometimes you might get sued, sometimes you might want to sue someone else.

So let’s talk about that a little bit because the clients that come to Macomber Law, the clients that look at the Timely Contract suite of services are the planners. So right out of the chute, we usually know we’re dealing with people that own a piece of dirt or want to own a piece of dirt. They want to do with their parcel what’s right. And these types of people, landowners I would say generall and quite frankly, I’m heartened to be able to say this, are people that will look to the future. They’re looking to their children and their grandchildren, and they’re looking to plan ahead. Do I need to split this parcel? Am I going to build on it? And where does that creek run through it? And where am I going to graze the cows? Or where am I gonna, you know, whatever I’m going to do! These are the planners that really walk into our office and look for the Timely Ccontract services to help.

And so the same is with litigation. When we look at litigation, what we do is we say, first of all, why are we going to court? What is the point of this? And part of what your attorney should be doing for you? And what we always try to do is wrap our arms around the whole equation, what are the potential issues? What are the potential problems that might arise? Why did we do what we did? And why would we like to use the litigation process to to reach a solution? One of the keys of litigation is therefore that the planners need to sit down and plan.

Now, from your legal counsel’s perspective, that means they should be giving you a rough calendar of events, they should be giving you a rough calendar of subject matter that gets addressed within the calendar, and they should be preparing you financially for some of the potential costs that you’re running into. For example, some lawsuits are merely based on documents in the public record, a deed maybe a CC&R, maybe an old easement document of some sort. Sometimes these can simply be read for their plain language and we can we can come to a resolution. Other times they are more difficult issues that require expert witnesses to be brought in. Say there’s a perhaps complicated legal description and nobody, nobody can actually figure out where the property is when they go out on the ground. It’s just difficult or maybe even impossible to measure. And so we might bring in an expert witness. But you know, expert witnesses are very, very pricey. Some may cost as much per hour or more than your legal counsel. Expert witnesses have to write reports, they have to do research, they have to be able to, in effect, be prepared to sit on the witness stand and instruct the court, and the parties, and their attorneys, and the jury, in many cases, what the facts are related to the subject at hand.

For example, in my prior example, where’s the property located? Well, there’s a sketch. A surveyor says here’s a sketch of the ground, I went out, I measured it, I checked other surveys, I looked at other things. Those processes can be very expensive. Now, if one is in Idaho, for example, most Idaho courts have a timeframe for land-related lawsuits. And they’ll ask, is it is it a simple case? And the judge will say if it’s a simple case. Then, if the attorneys agree that it’s relatively straightforward, maybe there’s one or two documents at issue, then we’ll give this a year for the court calendar. Now, if it’s a little more complex, maybe there’s 10 or 20 documents, maybe there’s even a witness here, they’re an expert witness, there’s going to be depositions. Maybe the neighbor knows why that fence was put in there, maybe other parties know things that need to be brought in. Well, that might be a year-and-a-half, it might be a two-year case.

Now, most civil cases, and again, this is back to the planners, if they’ve planned properly, you should be able to resolve these within two years. Now, with land issues, we’re generally not talking about multimillion dollar office buildings that get built and there’s two general contractors over time and 20 or 30 subcontractors that come in with concrete and rebar and a five-year bill. Those types of lawsuits are pretty rare. But for a boundary dispute or an easement dispute, or a dispute over a restriction in a deed, something like this, you may take a year-and-a-half, or two years.

So one piece is the general calendar. And then there’s the financial piece. But before we look at the money part of it, we have to look at the subject matter piece of it, what fits into that calendar. And we have three general things that come in: one is written discovery; the second is oral discovery; and the third is generally a time for everyone to evaluate the facts and attempt to mediate. Maybe attempt not to go all the way to trial, maybe attempt to settle it early. But in the first part, the initial thing that your legal counsel should do is based on, for example, one of the Timely Contract products, we will already have in writing much of what we’re looking for related to the issue, the issues are narrowed, the issues are specified, the issues are quantified in a way that allows us to say to a client, here is your legal issue, here’s what might affect it, and here’s what we think you should do.

Now, if a lawsuit crops up, we’ve already got our basic research done. And the only question in the lawsuit becomes, Is there anything else we might need? Is there supporting evidence? is there is there evidence that may undermine what we think happened? Or what did happen? Or what should happen? We look for for defenses. Maybe someone might come against our client and say, well, no, I don’t think the fence should be there. I think it should be over there. And then they want to fight about that. What information do they have? And so once the initial lawsuit is kicked off, one party writes the complaint, the other party answers, and then you go into this period of discovery. But before we leave the complaint — in the answer, you know, the complaint makes certain allegations, ABCD. And the answer comes back and says, we agree with A or we deny A or we agree with B. The answer is really simple. It’s either admit it or deny it or just say you don’t really admit or deny it because you don’t have enough information. If you don’t have enough information, then that just equals a denial. Now everything that it admitted to does not have to be litigated. For example, if it says Jill Jones lives in Rathdrum, Idaho, and the other party says, well, we know Jones lives in rRathdrum, Idaho, they’re just going to say, we admit that, and it’s done. So this is taken off the table, the parties do not have to litigate that. But then if it says, Jill Jones came onto my property and tore down my fence, and Jill comes back, she says, no, I deny that I took down your fence, because Jill thinks it was her fence. So there’s an issue in the case, whose fence was it? And then we need to think about what types of information we’ll support. Whose fence it was? How do we know that their old deeds were old? We’ve even found diaries in the library downtown where somebody said, well, I put up that fence in 1948. You know, my wife cooked me dinner, and I got sick for three days, you know, and you’ve read this whole diary to everybody. They’re chopping wood, they’re doing all North Idaho things, Eastern Washington, we shoveled snow for three days. That’s all there in the diary. How do you get that diary? And how do you use it? So basically, the process can take, sometimes a year to two years. There is a discovery process where we try to figure out what happened. But because the discovery is done under oath, generally. And the documents just say what they say, once the discovery is done, there is an opportunity for mediation where everyone says, well, none of these facts are really disputed, we might have this little thing or that little thing, but it may not be worth 30 to $50,000 to go to trial.

So then the parties can go settle. And that’s where a good mediator comes in. Most most people don’t like litigation. Sometimes litigation is necessary. If there are clouds on the title of ownership, if we look at a deed and we say, well, we really can’t tell what happened to this owner or this mortgage is hanging out there in the Recorder’s office. And we don’t know if it was ever paid or not. Some of these things require us to litigate or go to court to settle a quiet title. Let’s find out who owns what. So all these processes can be very expensive. We usually quote, you know, how much does a lawsuit cost? Well, you know, it’s tough to tell. Some lawsuits can go $20, $30 or $40,000 to get through some discovery, do some work on that, and settle the case. Other cases, they get much more contentious. If there are multiple parties, you could be into $100,000 or $150,000. And, and it also depends somewhat on the amount of issue because, if you have a two or $3 million lawsuit, you might not want to settle it for $10,000. You might say no, I think we should pursue this a little further. But again, the planning aspect is critical.

And so what we request our clients do is keep a calendar of events, just write down what happened on or about this date, during this month, or during the spring of this year. This happened, just keep a record. First of all, it frees you up. You don’t have to think about that anymore. It’s already on the paper. And it’s in the file and you’ve got it. So capture what happened shortly after it happens so that you have a good record. The second thing is ask your attorney if there’s anything that looks like might be missed, or what kinds of questions when you give that journal to your attorney, what does the attorney say about it? How does it affect the case?

We recommend always that you try to pre-plan as much as possible and that you stay as close to your legal counsel as possible through the law suit so that they can advise you because, let’s face it, this is your lawsuit. This is not the attorney’s, it’s yours. And you’re paying good hard-earned money to get the resolution. And so your attorney needs to be able to tell you in plain English whether you have a case, whether your case is strong, whether you’re missing key facts, when they need to just give up the ship, and say okay, we’re done. You need to be realistic. That’s one reason you pay an attorney is to is to keep you realistic, because for many people, it’s just too darn emotional. You could lose sleep, you don’t want to eat, you just don’t know what’s going to happen. And so you come and pay us and we’re the objective ones. We’ll try to keep you calm about the whole thing.

So ,once the Timely Contract work is done, if you ever do have to go to litigation, talk to your attorney about planning so, if it happens, and then it’s over, that you don’t look back. Thank you.

This episode is sponsored by Timely Contract. Buying real estate is the most complex and important financial transaction most people’s lives. It’s estimated that over 60% of American wealth resides in the family home. For small- to medium-sized businesses, a commercial building may be the biggest asset on the company’s balance sheet. With so much on the line, don’t make a mistake on buy. Know what you’re buying before you sign your sign. If you’ve already signed, find out exactly what you’ve signed.

At Timely Contract, our primary legal services include: real estate contract review, real estate contract drafting, legal opinions for title insurance exceptions, and research, due diligence, and legal opinions for properties.

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