It’s Legal – Podcast Episode 2 Jul 18, 2023

It’s Legal – Podcast Episode 2 Jul 18, 2023

| Podcasts Blog Business Litigation News & Updates


Welcome to the second episode of its law presented by FR Law Group. This is Troy Froderman, your host for today, and we are honored to have as our guest one of our lawyers, Rita.

Gara. Hello, happy to be here.

So Rita, before we get started into what you’d like to discuss today. Tell us a little bit about your professional background.

Sure, so I was one of those people who decided to go to law school a little bit later in life. I had a distinguished career as a stay-at-home mom for nine years and then graduated Law School in 2009. After that, right after graduation, I ended up working at a small law firm where I practiced predominantly divorce, did some wills estate planning, and then eventually, after about two years, decided to switch over to criminal prosecution and started my career there in traffic court, where I prosecuted many a speeding ticket and then work my way through misdemeanor court I presented criminal indictments to the grand jury ended up in felony court for a couple of years where I prosecuted everything from aggravated batteries to the most serious cases like sexual assaults, and murders. And then ended up switching over to the first assistant role, where I helped manage the office and did some work on the civil side in the McHenry County State’s Attorney’s office, where I ended up and had a really wonderful career there for 10 years enjoyed my time there. And then, my husband and I decided to make the move to sunnier skies. So we came out here to Arizona. And that’s when I joined that for FR Law Group.

Is this your first or second summer in the heat? Here?

It is my second. My first full summer wasn’t too bad. But from what I understand, we’re having record-breaking highs, and I feel it. But I don’t regret the move.

Well, when we’re very happy, you made the move. So your career path is everybody has a different kind of story, and your career path is very unique compared to the rest of FR Law Group, where we all grew up as simply civil trial lawyers so we appreciate your experience and your insight into things. What did you want to talk about today?

So I thought one of one of the things I thought would be really helpful, especially coming from a background largely of criminal law, it was interesting to switch to predominantly Civil Law. And, you know, we are a world full of social media today, and it’s very interesting to me watching comments on Twitter or having a new client who’s never involved in litigation before, kind of the misperceptions or the things that people really aren’t clear about the legal process and it makes sense when you think about it, the average person if they’re lucky enough, they really don’t have to know the Ins and Outs of what happens in a courtroom. And so I thought it’d be really great topic to discuss kind of the basics kind of civil litigation one-on-one things that might be good to know if you were somebody who is in business, have an insurance contract, and all kinds of areas where you are either potentially considering litigation have some sort of legal issue or in the realm where you work or live, it is a possibility. So, I thought one of the things that we could start talking about was the idea of when do you want to get a lawyer. Nobody wants to expensive a lawyer, right? Nobody

even titled yours the basics, what to consider if you could be involved in civil litigation? Yes.

Yeah. And so I think the starting point is really, you know, well, I guess actually, we can go back even beforehand is things to do to protect a potential case. So you might not be at the point where you’re ready to hire a lawyer or where you think you need to hire a lawyer where you think a case might go to court. But sometimes, when you get to that point, there are already a number of things you could have done that would help make your case stronger. So maybe we can delve into some of those things. I think the first thing is how to pick an attorney. You have been an attorney for how many years now? 34, 34 years. So you have been an attorney for a long time and worked with all kinds of attorneys for many years. Right. And

I’m sure everyone has seen, especially on television, the commercials where the personal injury law firms will say it matters who you pick as your lawyer. And while you know, that might be a little bit of a dramatic flair. It really does matter. Yeah.

I think so too. And I think, you know, one of the things that I think is really helpful if you can, and it might be harder than you would think. But get a recommendation if you know somebody who has used an attorney before; you get to ask all kinds of questions that you might not be able to find on somebody’s website. So, I think that’s a really helpful idea. The problem is, you know, attorneys specialize typically in different areas. So my friends’ attorney, my friend might have needed an attorney for a divorce issue, they might not do something when I have a business contract issue. So if you can’t find one through a recommendation, what are other areas that you think are helpful?

Well, first of all, the State Bar is a good referral source. In frankly, doing a Google search can be helpful. And I say that you know, tongue in cheek, but everybody has a different specialization. So if you have, for example, at FR Law Group, we do a lot of construction types of litigation. So if you have something going on with your home or with a contractor, then if you Google, then the words Arizona construction lawyer, you’re gonna get a whole slew of results. And at least at that point, you can start doing your homework, match them up with the State Bar, first of all, see if that lawyer or the law firm have anything about them that’s positive or negative in that respect. But it’s also important, just like when you have a disease if you’re going to have surgery more often than not, I would hope you would get a second opinion. So don’t hire the first lawyer with whom you interview would be my suggestion.

Yeah, I think another important factor, which is some of that you need to either have a phone conversation with the attorney or a meet person consultation is, I guess, one of your chemistry with the attorney, depending on the type and the nature of litigation, if it’s not something that’s going to be settled quickly you’re going to be in and out of each other’s lives for a long time. And in some cases, there’s an emotional component if you are we have in this firm represented some people who have been the victims of some pretty bad behavior on the part of an insurance company, for example. This is more than a legal matter to them. It affects their emotional state, it affects their finances, it affects a lot of things, and so you want to have somebody that you’re comfortable with, obviously somebody that you feel that you trust in, somebody who is answering your questions to the point where you feel comfortable with the information you’re getting.

Right! And so, FR Law Group, we represent mostly corporations and small businesses as well. There are occasions when we represent individuals and like a disability insurance claim or bad faith claim. So you have the whole gamut of sophisticated purchasers of legal services to somebody who’s never had to hire a lawyer before. And one of the things that’s important when making that decision, whether you’re a large corporation or an individual, is setting expectations with that lawyer. Maybe you can talk about that.

Yeah, I think that’s really important. You know, one of the biggest issues I think clients have with their attorneys is a level of communication. So right at the top of my expectations list is an understanding of how I’m going to be communicated with, how often what decisions can my attorney make without consulting me, they will make any decisions without consulting me? You know, and that sounds kind of weird when you first think about it, but it’s in terms of whether they’re making a decision about legal strategy and emotion versus settlement which they’re obviously not going to do without communicating with you. I think communication is such a big issue. I think that’s where a lot of attorneys get in trouble, where they fail with a level of communication. So I think that’s, that would be a big one on the list.

Yeah. So once you’ve interviewed the lawyers, what’s the next step?

So I think, and kind of goes with that and could lead into the other thing, though, going back to your expectations, and comment as well would be, how are you paying for this attorney? That’s another thing that you really have to understand right up front. I think most people are familiar with the concept of a case might be a contingency fee basis, meaning you don’t pay anything unless there’s a successful verdict or settlement. And the attorney’s fees come out of that, or are you paying hourly? So that’s important to know.

Yeah. And so one of the things that we are aware of there are a number of years of practice is client expectations on legal invoices. So, large companies that are hiring lawyers a lot. They get it. But those people in companies that aren’t, you know, they’re relatively new to the process. So one of the things that we need to make certain that we do in our engagement letters is that if it’s hourly, we set forth our hourly rate. But we also have to let the client specifically know that there are going to be hard-cost expenses that most users of legal services are aware of. But people who don’t get involved in that arena will be surprised. So, for example, a deposition transcript, you may owe somebody for two hours, and the actual cost of the transcript can be up to $1,000. If it’s a videotaped deposition, that’s usually at least double that amount, and so that’s an expense that’s borne by the client. The law firm can, you know, front those expenses, but ultimately, it’s the client’s responsibility. So one of the things that we do in every single engagement is let the client know in writing that we will not spend anything over $500 in an expense without the client’s pre-approval because, ultimately, it’s coming out of the client’s pockets.

Nobody likes us, surprise belt. No, no.

And the other thing that to be aware of when you hire a lawyer is, generally speaking, and I don’t put FR Law Group in this category. But lawyers can be lazy when they send out their invoices. They can have typos in it. They can double charge, by accident, all sorts of errors that can be retold in the invoice. And that’s not acceptable in when you’re hiring a lawyer that shouldn’t be acceptable. When a lawyer files a pleading, a written document with the court, we make, you know, lawyers make absolutely certain that they don’t have typos, that it’s strong an argument is they can make, and then oftentimes that same lawyer sends out an invoice that’s basically in crayon, and that shouldn’t be the case.

You know, that brings up before we kind of move on to the next area. It does bring up another thing, though, in terms of when you’re looking for what type of lawyer is going to fit your needs. And I know you talked about this in an earlier podcast, but you know, one of the things that make up our Law Group special is the size of the firm being a smaller firm and the ability that we have here in terms of how much time we’re able to spend on a case it’s another huge factor you want to consider when you’re looking for an attorney is what’s the caseload light, you know, sometimes people get attracted by you know, the large firm that has able of attorneys. But how overburdened are those attorneys, and how much time and attention are they going to give to really develop your case? And I think that’s one of the things we really have a wonderful ability to do is spend quality time to get a quality result.

That’s an excellent point! When interviewing a lawyer, you need to make certain that that lawyer has the time and the resources to devote to your matter. And I practiced for over 27 years with large international law firms, and they had a stable of lawyers that they can throw on to matter. Small Law Firms can’t do that. And so they have to be judicious and the cases that they accept to represent, and then they have to give it 100% of their effort. And if that lawyer or that firm can’t give 100%, then you should consider going somewhere else for your representation. Yeah,

really important point. So we’ve kind of touched on things to look at or look for when you’re when you’re interviewing for an attorney or firm to hire. But one of the things I wanted to touch on, which I kind of mentioned earlier, is the timing. When do you want to hire an attorney? What is that right time. And of course, I think a lot of people shy away from getting somebody involved early on they everyone, you know, attorneys have gotten a name as far as being expensive. But I think that one of the things that are so helpful in getting an attorney in early is the advice you can give that will affect potential litigation down the road. And so, from my perspective, the earlier, the better in terms of expense, you know, you can work something out, but if they’re not doing any work, then they’re not incurring any fees. So it’s not necessarily overwhelmingly expensive. But you also need to weigh the expense of not having protected something early on that is going to come and bite you later. So maybe we can get into that and give some examples of what that might be.

Yeah. And to that point, depending on the nature of your potential claim, different statutes of limitations can apply. Also, if a Government entity is involved, then they have notice of claims provisions which are much shorter in duration than statute of limitations. Meaning, that just as an example, let’s say you have a claim against the state. Well, you have before you can sue the state you have to file what’s called a “Notice of Claim”. And the notice of claim provision has a specific expiration date if you do not make that expiration date, you do not have a viable judicial claim. And so that’s one additional reason to consult a lawyer to make sure that you’re not losing out on anything.

And that’s before lawsuits even fight you’ve been fired. You’ve lost the ability to file that lawsuit. Correct, Forever. Yeah. I think you mentioned, you know, statutory timeframes, I think it’s important to kind of go over the fact that there are statutory limitations, meaning limitations on how long you have to bring a suit set forth by Arizona statutes. But we also see in our insurance cases contractual limitations, which may shock some people, but an insurance company can limit the time you have to bring a claim to a limitation period that is shorter than what is allowed by Law. And I think that’s kind of a surprising fact that could catch you on aware.

Right. And the thing is, and this is a different episode altogether, but the insurance policy, oftentimes it’s issued, and the policyholder never receives the policy, or if they receive the policy, they don’t read it until a claim has arisen. And that’s the worst time to be reading your policy for the first time.

You have already potentially forfeited your rights. Right. Different episodes. Yes, we can go on and on about that. But yeah, so I think that’s, you know, so one of the one of the positives is making sure you don’t miss the opportunity to pursue some of your claims. I think one of the other things we could talk about in terms of the benefits of talking to somebody earlier is the leader, the value of the case, having an honest assessment from an attorney of the value of the case, and whether or not it’s worth pursuing.

True, you may have a claim, and it may be viable, but the ends don’t justify the effort. If you have a claim that’s worth just coming up with numbers $10,000, but it’s going to cost you $15,000 to present the claim, why is no one gonna do that? And so it’s best to get that advice immediately upon consultation with a lawyer because not all law firms are as transparent as others. And we all like to think that the Law has with it a high degree of ethical conscripts, which it does! But there are some lawyers who don’t really value correctly for the client’s perspective. And I think that FR Law Group, we pride ourselves on if, when we meet with a prospective client, we don’t always take the claim because the claim may not be worth the client’s effort.

Yeah, yeah. And it gives you an opportunity to point out what the other side is going to pick on that you may not have spent very much time thinking about. You’re just thinking about the injustice to you versus what defenses they may have.

Well, and every client, whether they’re a large corporation or an individual, when they have a potential claim, there’s some degree of lack of objectivity because they’re the ones who have been harmed. And even if it’s a corporation, you get egos and personalities involved.

I think, you know, another area that is ripe for mistakes if you don’t have that legal advice early on, I could talk about it, we’ll talk about first, you’d mentioned some claims, we had to file a notice to claim some of the cases we handle with discrimination claims, employment discrimination claims. So, for example, in employment discrimination claims, oftentimes, if you haven’t been fired, you are still working in that environment, as discrimination is ongoing. Many employers have internal policies or procedures that require you to report discrimination and participate in interviews. It’s really helpful. Now, your attorney may not always be able to go with you to those meetings, depending on the rules, but they can certainly make sure you understand your company’s policies. So you know what you have to participate in what you don’t. And also, sometimes these meetings are supposed to be oftentimes run by unbiased people who are just collecting information, but as experience has shown us, they’re collecting information for their employer, and you’re giving statements that potentially affect your legal rights, and you’re not doing it armed with a

set of legal rights. The foxes guarding the henhouse. Exactly, Exactly. Then

the other area, you know, in the construction arena, are the business contracts that we take a look at? How many times have there been contracts that have contract provisions that are either poorly written or absent that really affect your rights and or potential for resolution? And if somebody had put eyes on that contract before you signed, could you have gotten better advice? Yeah.

And again, this applies to a variety of clients. When presenting your claim or viable claim with a prospective lawyer. Don’t leave anything out. And if you have a paper file, bring the paper file if it’s electronic, somehow make it, you know, to the ability of that lawyer to review it, because giving advice means that you have given your best advice, you can’t give your best advice if you don’t have the full amount of information.

That’s absolutely true. And I was going to talk about, with respect to what you know, we were talking about what is yours in terms of the benefits of pursuing litigation or not. What is it going to cost you? I think another area that is worth getting advice on is what kind of damages are available to you. Are you just getting compensable damages? When do punitive damages come into play? Because that could affect whether or not it’s worth proceeding with the litigation. Another area I think that is really important to know is whether or not you have the option to get your attorney’s fees covered. In some lawsuits, a few particular cases, if you win, you get to recover reasonable attorneys fees. There will be a fight about that probably what reasonable attorneys fees are, but if you’re on the losing side, so if you have that advice kind of going in and you’ve got some trouble here. It’s important to know you could be on the hook for paying the other side’s legal fees. Yeah,

I think you can say generally. Then a client or prospective client, first meeting with the lawyer, has three questions. Do I have a case? How much is it worth? And how much is it going to cost me? I like it, and so do you have a case? You know, that’s something that a lawyer, at least from the facts, should be able to say, “Here are the potential claims that you have against company A?” How much is it worth? That becomes somewhat nebulous? Because you may have a breach of contract case, and they have you delivered the goods, and the other side owes you a million dollars? Well, they didn’t pay you the million dollars, and you did everything you were supposed to do under the contract; you’re entitled to a million dollars. Are there any other damages that you could assert? Well, you might be able to serve in the example. I just raised a claim for breach of the duty of good faith and fair dealing. So every contract in Arizona has with it an implied covenant, meaning that it’s not written expressly into the contract. But the law implies that contract. A duty that you operate with the other side, in good faith, that you’re both mutually trying to work towards the benefit of what the contract requires. And if the company, AMI example, decided that after receiving your services, it wasn’t gonna pay you and somehow did it with a degree to try to harm you, then you might be entitled to what’s called Extra-Contractual Damages. But then that becomes really from the experience of a lawyer. What is that really worth? And no one really knows. You have to make your best case in front of the court or in front of the jury. And that’s when you hire expert witnesses, which are expensive. So then that calls into question the third issue, how much is it going to cost me? Well, that’s when you should not take a lawyer to give you the answer. I don’t know. That’s their job. They have to; if they can’t tell you how much a case is going to be worth to try, then you’re interviewing the law, the wrong lawyer in trouble. You’re in trouble from the big from the get-go. Now, can they give you absolute 100%? certainty? No. But based on their experience, they can tell you how many depositions they expect? How many other sides will likely do? How many motions are going to be filed? They can give you at least a ballpark figure on how much it’s going to cost. And you raised a very good point when, so, generally speaking, if it’s a contractual dispute, the contract typically will say that the prevailing party to any dispute is entitled to their attorney’s fees. If it doesn’t say that, then it’s up to the discretion of the court. If it’s a breach of contract, if it’s not a breach of contract if there’s an assault or wrongful death or something of that effect. That’s not a contractual claim. But what we call a “Tort Claim” then they follow the old English rule, which is neither side gets their attorney’s fees. Yeah.

Important, important stuff on the bottom line. You know, another thing I think we see with the cases that involve some of the, you know, larger corporations or insurance companies, we see choice of Law provisions. And I think that’s something interesting to talk about in terms of if you’re a business operating somewhere and your insurance company operates in multiple states, how important is it to understand if there’s litigation on your matter whose law will apply?

It makes all the difference in the world. So, if you have a contract, and let’s say that the choice of Law that the parties agreed to is New York, and it’s not Arizona, well, you may have the application in under Arizona Law that favors you in your dispute with the other party. But New York may have a completely different principle and outcome where that shifts from you having the advantage to the other side having the advantage, and without knowing that going into potential litigation, you’re setting yourself up for failure, and it can be significant.

And so just because you’re an Arizona corporation does not necessarily mean you’re litigating as with Arizona Law.

No. And typically, you know, the person who drafts the contract wins the day, if you will, because it’s unless it’s negotiated terms and conditions. In many, many contracts, they’re not. They’re what we call “Boilerplate.” And so the corporation that drafted the contract, they will insert their preferred choice of Law, they also may insert arbitration requirements, it’s going to bring that up, which means you can’t try your case in front of the jury, you have to arbitrate it in front of some lawyer who is retained through either an arbitration service or Aman agreement of the parties. Who, you know, it’s you’re giving up your right to have your case right in front of the jury in that instance. And in some

cases, that jury may be very helpful if there’s some sort of emotional plug or plea or some kind of outrageous behavior on the part of, you know, kind of a bad actor.

Right, I give you an example; most of the Telecommunication Companies with their consumer contracts have arbitration provisions that you have to arbitrate in front of the triple at the American Arbitration Association. It’s, and it limits what damages are available to you. If the Telecommunications Company breached, it’s their agreement with you. So the hand is already stacked, right? So you’re limited in your damages, and you have to arbitrate it, which is not the ideal setting, especially if you have a good fit if you have a good claim.

And I think the other thing that is interesting with arbitration versus regular litigation, and I think sometimes this can be positive, sometimes this can be negative, is they are able to limit the amount of discovery that’s done on a case, and if you’ve got a company where you really want to do a deep dig in their files, and they’re saying, you know, we’re going to limit the amount we’re going to limit the number of witnesses you have access to for depositions that could really hurt your ability to learn things that could be important or favorable in your case.

Yeah. And that’s probably worth another episode to just talk about the way that things operate today in litigation versus 30 or 40 years ago; it’s completely different.

So, in going along with kind of the concept of getting an attorney before you’re at the doorsteps of a lawsuit, why don’t we talk about some of the other things you can do to protect your case, in terms of documenting what you have? Have you seen instances where somebody’s lack of? Well, there’s a word for it; I guess we’ll talk about spoliation. And how that can affect the case.

Yeah, we had a case where we represented a general contractor, and it was in dispute with the subcontractor; the subcontractor had essentially destroyed all of its work files. And so when push came to shove, and the owner was pushing back against the general contractor, then the general contractor started pushing back on the sub, there were no records, no files. So as part of the lawsuit between the general and the sub, we were able to get a spoliation instruction from the court, which essentially is telling the jury that Mr. Subcontractor had these documents. Mr. Subcontractor destroyed these documents, or Mr. Subcontractor failed to maintain and keep preserve these documents. You jury, as a result of those actions, are able to infer, assume, that those documents were damning to the subconscious, huge,

it is huge. And so on the inverse of that, your client who has a potential claim, your advice to that client is going to be don’t throw anything out, or you’re going to be the subject of that instructional. Yeah,

that’s yes, absolutely! And it’s commonplace now to send out what’s called preservation letters or hold letters. So if we know that there’s going to be a dispute between the general on various subcontractors, we’ll send out the subcontractor’s preservation letters because, at the end of the day, typically, there are some parties that are sloppy in their record keeping in that will either benefit your client or be a detriment to your client, but at no point do you ever want. The very first meeting with your client is where all the documents How’d you get these?

You know, another thing I know we’ve run into in an insurance claim case is, you know, sometimes a claim will take a while to get to the point of a lawsuit. And the lawsuit can take a while through discovery, depending on all kinds of things that impact a case. But when you’re dealing with corporations and employees who are witnesses, we’ve had the instance where there are Internal Policies that when some, you know, employees come and go, not everybody is going to potentially still work for this company at the point where you’re taking depositions and we’ve had the instance where, you know, it’s kind of their human resources, standard policy to delete emails after, you know, 30 days, 60 days, and some of those emails might have been good or bad, but you’re opening yourself up to loss of evidence and somebody else’s spoliation claim.

Correct! It’s so a delicate balance; you don’t want to keep emails forever. But by the same token, if you’re aware that there’s a claim or a potential claim, preserve your evidence.

We are quickly cut, you know, see this is I think we’re going to need this was basic civil litigation one on one, we’re gonna need a 102. So we’ll just kind of maybe close it down with some last thoughts, and maybe it will save for a second. We’ll do this as a teaser. Two of the other I think big areas that we can discuss later are you do you really want your day in court? What does a day in court feel like? I think people have a lot of ideas about that. And then, you know, probably could do a whole episode on it. But should I settle? And what does it feel like to settle the benefits? And, you know, somebody said at some point, you know, a good settlement is a settlement where neither party is fabulous. Is that true? But I think all things that if you have those discussions well in advance, that gets you in the right mindset, you have cases protected as best as it can be, and sets you up for the best chance to succeed.

So a Law Firm doing a poor job is rah-rah, from the beginning of the engagement, up until the day of mediation, in then they’re not so rah-rah, and they’re pushing their client to sell. That’s a recipe for disaster because you’ve set such false expectations that you’re now pulling the rug underneath the feet of the of the client when it matters most. So what I hope we do at FR Law Group with every engagement is from day one, we talked about if approached, you need to think about settlement. And you need to think about you need to put your personal feelings to the side, your desire for vindication and justice. The wheels of justice turn very slowly. I haven’t seen a recent statistic or survey. But in Maricopa County, to take a case from filing a lawsuit to train the case in front of the jury is probably at least a minimum of two years. That doesn’t include all the appeals. And we represent which we do a lot of policyholders I’d say a third of all appellate cases are filed by Insurance Companies. They’re large. They’re not as friendly as they make you want to think from their television commercials. They’re large, faceless corporate entities who are there to make it but for their shareholders. And so they have all the money. They have all the time on their side to appeal in the, you know, the two year trial track. And to that, eight to 12 months for the first layer of appeal, another six to eight months to the next layer of appeal. All the while. You’re sitting there as the plaintiff with a judgment, but it’s not worth anything. Yeah. So, yes, all of this is probably fodder for another episode. I appreciate you engaging with us, and we will certainly have you back and we thank all of you for listening and FR Law Group. You can reach us anytime by email by going through our website, and we do Initial Free Consultations. We don’t do any personal injury. It’s all construction insurance and with a smattering of large commercial litigation matters.

Thanks for having me. It’s been a pleasure, thank you.