There are times when a client will walk into an attorney’s office with a case so obviously strong that the question of victory seems to be a foregone conclusion. These cases usually involve some type of obvious injury to the client through no fault of his own, and the potential defendant(s) has little to no defense and lots of insurance. I believe the Latin term used in law school for this situation is the “slammus dunkus.”
Then there are clients who will stomp into an attorney’s office complaining about how he was the victim of discrimination when he was passed over for a promotion just because of the result of some stupid random drug test -- again! This is the type of case, commonly referred to as el perro feo or, “the ugly dog,” and will likely have no chance of being pursued by an attorney without some serious arm twisting and a substantial retainer.
The other 90% of cases are usually a little harder to call. Whether they involve a claim for breach of contract, defamation, negligence or some other tort, in most cases the defense will put forth some plausible (at least on the surface) defense. To determine whether or not the defense has merit will require the parties to participate in what is called “discovery.” Discovery is the process through which the parties exchange whatever evidence they have (i.e. documents, photos, answers to specific questions called “interrogatories”, etc.) and take deposition testimony of witnesses. The length of the discovery period will depend upon the type of case being litigated (i.e. contract, tort, malpractice, book account, etc.), and is governed by the New Jersey Rules of Court. Oftentimes, it can be upwards of a year or more.
Throughout the discovery process, costs are being incurred by the clients, both plaintiff and defendant. While depending, in part, upon the structure of the client’s retainer agreement with his attorney, these costs will usually include filing fees, attorney’s fees, expert fees, witness appearance fees, legal research costs, court reporter fees, transcript and copying costs, postage, travel reimbursement, etc., etc. Usually, the more complicated the facts and circumstances underlying the dispute, the more discovery is necessary and the more expensive it will be for the plaintiff to establish its case. Likewise, the type and strength of the defense will, in most cases, impact the duration and cost of the litigation.
This is because either party can file a “motion for summary judgment”, usually after discovery has concluded. Essentially they are asking the Judge to rule in their favor because there is no “genuine issue of material facts” for which the Judge needs to conduct a trial in order to make credibility determinations.
For example, under New Jersey law, a home improvement contractor is required, “as a matter of law”, to provide a homeowner/client with a written contract for services to be rendered. The contract is required to contain very specific information. If it does not, the contractor will most likely lose in any judicial proceeding involving the terms of the contract by way of motion practice. If, however, the contract contains the required provisions and the dispute between the contractor and the homeowner involves the “workmanship” of the services provided, the case will likely turn on the testimony of experts and other witnesses as to what the generally acceptable standards by which such workmanship is measured. In this situation, the litigation will be prolonged and may require a trial on the merits, thereby increasing the cost of litigation.
In sum, many lawsuits are decided by motion, or the results of motion practice will impact a party’s settlement posture. Notwithstanding, litigation of any sort requires a commitment of both time and money. Evaluating the merits of your case, including the adversary’s likely response, is critical to understanding not only the challenges and likelihood of success, but how much it will cost you to get there. If at all possible, this analysis should be done prior to filing a lawsuit because, sometimes, the risk is not worth the reward. Kelly Law, P.C., has significant experience in both litigation and litigation avoidance. Call today to schedule an appointment.