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J. Bennett White, P.C.

 

Frequently Asked Questions

General

WARNING: THE QUESTIONS AND ANSWERS PROVIDED BELOW ARE NOT INTENDED TO, AND DO NOT, CONSTITUTE LEGAL ADVICE. THEY ARE PROVIDED FOR GENERAL INFORMATIONAL PURPOSES. DUE TO THE UNIQUE NATURE OF EACH SITUATION WHERE LEGAL SERVICES ARE PROVIDED, FACTORS MAY BE PRESENT THAT WOULD DICTATE DIFFERENT ANSWERS FROM THOSE PROVIDED HERE TO THE QUESTIONS PRESENTED.

OVERALL OBSERVATION: Whenever legal services are involved, the initial answer to virtually any general question is "It depends". We understand that dealing with attorneys is often frustrating. We understand that clients would like simple, clear answers to their questions. We realize it is often annoying that there is no clear-cut solution. The dilemma is this: clients want good counsel, on which they can rely, and we want to provide good counsel, on which our clients can rely; yet, the factors that affect legal services are so vast, both in number and in severity, that meaningful predictions cannot be made until those factors particular to each situation are identified and contemplated. If all this is particularly irritating, then it is likely that everything about the legal system will prove irritating, as well.

How much will it cost?

Short Answer: It depends.

Long Answer: An answer to this question depends on many, many factors, the first of which is to identify the practice area involved (ie. litigation, probate, estate planning, family law, etc.) and the nature of the legal services sought (ie. pursuing a claim, defending against a claim, etc.). Further, there is no way to predict if a case will settle prior to trial.

Why does it cost so much?

Lawyers essentially sell two things: information and a skill set for using that information. Lawyers devote extensive study to acquiring the information and skills they sell. Technological advances like the internet provide access to ever-increasing amounts of information, including information that historically would have required hiring a lawyer. As a result, the lawyers most in demand are those with information and skills that are not easily replicated. As those lawyers become more and more scarce, the market rate for their services increases.

Do you charge me for every phone call, email, etc.?

Billing practices will generally vary from firm to firm, and often from lawyer to lawyer. Although a law firm operates under certain rules that make it unique from most other businesses, at the end of the day, it's still a business, nonetheless. Just like any other small business, the law firm needs to collect enough money to pay its operating expenses and to compensate its employees. People with the skills and training essential to the effective delivery of legal services – whether law office staff or attorney -- are in high demand and expect to be well-compensated. The nature of the legal system often imposes specialized requirements. Typically, vendors that provide the necessary goods and services are expensive. As a result, even with dedicated efforts to manage costs, law firm overhead is generally higher than overhead might be at other similarly-sized businesses.

On the revenue side, every law firm decides for itself the best way to charge for its services. Some firms will make specific itemized charges for things like copying and long distance. Most often, those firms are being forced by their clients to charge below-market hourly rates. We prefer to avoid billing these types of "nickel and dime" charges. However, even if we don't itemize those charges on the bill, we still incur those expenses. Rather than directly passing on those costs, we intend for those things to be included within the applicable hourly rate.

Another area where law firms differ is in the billing for law office staff. Some law firms bill little, or even none, for the work performed by legal assistants. Often, that policy is due to the perception that the firm's legal assistants are not providing clients with valuable services. We feel as though the experience and expertise of our legal assistants add significant value to the legal services we offer. Our legal assistants, while always operating under an attorney's supervision, can perform many tasks, at a much lower hourly rate, that would otherwise be charged by an attorney.

One way law firms often attempt to avoid billing scrutiny is to simply lump a lengthy description of services together, often covering an extended period of time, and then charging some arbitrary amount. On any work billed on an hourly-basis, we are going to provide a complete itemization of all services charged. The billing details will include for each billing entry, the date of the service, a description of the work performed, identification of the staff member providing the service, the time charged, the hourly rate charged, and the amount billed.

If we win, can I recover my attorneys' fees from the other side?

Short Ansewer: It depends.

Long Answer:Many requirements must be met in order to recover attorneys' fees from the other side. First, there's a big difference between getting attorneys' fees for asserting a claim against an alleged wrongdoer and getting attorneys' fees for defending a claim where you have been accused of wrongdoing. Attorneys fees incurred in defending against a claim of wrongdoing are sometimes referred to as "defense costs" (although the phrase "defense costs" is also used to refer to other things, as well).

Getting attorneys' fees in conjunction with asserting a claim against a wrongdoer depends on the kind of claim asserted. For instance, in most cases, a claim for breach of contract will allow for attorneys' fees to be recovered if the claim is successful while a claim that the wrongdoer was negligent will not include attorneys' fees. In cases where multiple claims are asserted, attorneys' fees may be recoverable for some claims and not recoverable for others. In those situations, the attorneys may be required to apportion their fees between the various claims, in which event the only fees potentially recoverable are those allocated to claims that permit recovery of attorneys' fees. Also, recovery of fees is not automatic simply because the claim permits the recovery of fees. In most situations, the judge or jury will be given evidence of the attorneys' time spent, hourly rates, services provided, and a number of other applicable factors. From an evaluation of that evidence, only the amount determined to be reasonable and necessary will be awarded. In practice, in the vast majority of cases where attorneys' fees are recovered, the amount awarded is less than the full amount sought.

Recovering defense costs is an entirely different matter. In most situations, defense costs are not recoverable. Many people are critical of this practice (called the "American Rule"); however, there are many reasons why it is believed to be a good policy. Since the basic rule is to deny recovery of defense costs, at the outset, there must be some legitimate legal basis for the claim. The two primary sources for recovery of defense costs are (a) statute and (b) contract. There are some statutes where attorneys' fees may be awarded to the "prevailing" party. Sometimes contracts are written that way also. When that terminology is used, a successful defense should allow for a claim for defense costs. Bear in mind that there is usually a difference between a prevailing "party" and a prevailing "claimant." Where a statute or contract permits a prevailing "claimant" to recover attorneys' fees, that language is typically interpreted to exclude recovery of defense costs.

In situations where defense costs are recoverable, the amount awarded is still subject to determination by the judge or jury upon consideration of the applicable factors. Also, collectability is not assured. The unsuccessful claimant against whom defense costs are awarded may have no ability to pay and no assets from which the award can be collected.

Most people who have been sued are unhappy to hear that defense costs are not likely to be recovered. Once they are informed that fees are more likely to be recovered in conjunction with the assertion of an affirmative claim, there is great temptation to bring a counterclaim – even if for no purpose other than to provide a means by which some defense costs may be recovered. Experience teaches that this temptation is best resisted. First, just as with multiple claims (discussed above), the attorneys' fees will likely need to be apportioned between the defense (not recoverable) and the counterclaim (potentially recoverable). Second, the counterclaim must be one for which attorneys' fees may be recovered. Far too often, people that have been sued are so desperate they resort to a counterclaim under the Declaratory Judgments Act. They do this because the Declaratory Judgments Act gives the court the discretion to award fees as it deems just. Third, these efforts virtually always end up increasing the overall attorneys' fees by an amount greater than the fees potentially recoverable. Once the extra factor of potential uncollectibility is taken into account, in the large majority of cases, the desire to seek recovery of defense costs is best ignored.

Legal and political commentators often create false expectations about recovering attorneys' fees for "frivolous" litigation. People have a tendency to regard any accusation of wrongdoing they consider false as "frivolous." For cases in Texas courts, there are presently at least five (5) different rules or statutes that are available to address frivolous (aka baseless) claims. These avenues might even be increased by the type of claim brought. Fundamentally, the problem for the person wrongfully sued is that to label the other side's claim as frivolous is to turn the defendant into a claimant. The most basic and fundamental concepts of the legal system may be described as this: in order to have a claim, one must have an injury; in order to recover for an injury, one must assert a claim; in order to prevail on a claim, one must carry a burden of proof. The failure to carry the burden of proof means that the claimant takes nothing; it does not make the claim baseless. Only by carrying a burden of proof is one entitled to any form of affirmative findings by the court. What this means is that for a person sued to label the claims brought against them as frivolous means to take on the burden of proof to prove the claim not just lacks merit, but that it is wholly baseless. The irony this presents is that the person righteously offended at having been sued on a marginal claim risks being as guilty as the claimant by counterclaiming on the basis that the claim is frivolous.

The other fundamental problem for the defendant confronted by a baseless claim is that our legal system does not have any meaningful way of deciding whether a claim is or is not baseless until both sides' evidence is presented in a trial. The problem this presents is that when the claims are baseless, there is no way to avoid the costs required to take the case to trial. Many times, where multiple claims have been brought, the claimant will abandon its more borderline claims shortly before trial. If the claimant chooses the abandon the claim, the defendant would then be compelled to insist on having a trial anyway over whether the abandoned claims were baseless. This is almost never productive.

In recent years, the Texas legislature attempted to address this problem through a new procedure implemented in the court rules. Now, a person who is sued can file a motion as soon as they have been sued alleging that the claims brought are baseless. The court is to read the petition and decide, solely from the allegations made by the claimant, whether the claim is baseless. In doing so, every allegation made by the claimant must be regarded as a true fact. What this means is that if the claimant has made claims so that even if everything alleged in the petition happened exactly in the manner alleged, there would still be no basis for a recovery against the defendant, then the court can dismiss the claims. Under this new rule, if that type of a motion is filed, then the court must award attorneys' fees to which side wins on the motion. Thus, for the defendant to try to get a claim dismissed and to recover fees against the claimant, the defendant has to take the chance that the motion will be denied and that it will have to pay attorneys' fees to the claimant for opposing the motion. Since the claimant can defeat or prevent that type of motion simply by making allegations of a meritorious claim, there are few instances where those motions offer any meaningful relief for the person unjustly sued.

If you think we have such a good case, why won't you agree to collect your fee from the other side?

First, and most importantly, we prefer to avoid the conflict of interest this creates. For instance, at some point the other side may offer to settle the case by paying something less than the full amount sought. If we are worried about collecting our fee, we might not be as objective as we should be in making our recommendation about whether we think you should take the settlement offer. Other reasons are: second, the other side might not have any ability to pay the fees. Third, the legal system is extremely unpredictable. Fourth, at the time we enter into our fee agreement, it is likely that neither of us can fully anticipate the nature of the defense that will be raised by the other side. Fifth, people who are not having to pay anything for their representation often find no incentive to be realistic about their expectation or the demands imposed on their attorneys.

I thought/heard that Texas had adopted "loser pays" for civil lawsuit?

Short Answer: No.

Long Answer: Legal and political commentators often create false expectations about recovering attorneys' fees for "frivolous" litigation. People have a tendency to regard any accusation of wrongdoing they consider false as "frivolous." For cases in Texas courts, there are presently at least five (5) different rules or statutes that are available to address frivolous (aka baseless) claims. These avenues might even be increased by the type of claim brought. Fundamentally, the problem for the person wrongfully sued is that to label the other side's claim as frivolous is to turn the defendant into a claimant. The most basic and fundamental concepts of the legal system may be described as this: in order to have a claim, one must have an injury; in order to recover for an injury, one must assert a claim; in order to prevail on a claim, one must carry a burden of proof. The failure to carry the burden of proof means that the claimant takes nothing; it does not make the claim baseless. Only by carrying a burden of proof is one entitled to any form of affirmative findings by the court. What this means is that for a person sued to label the claims brought against them as frivolous means to take on the burden of proof to prove the claim not just lacks merit, but that it is wholly baseless. The irony this presents is that the person righteously offended at having been sued on a marginal claim risks being as guilty as the claimant by counterclaiming on the basis that the claim is frivolous.

The other fundamental problem for the defendant confronted by a baseless claim is that our legal system does not have any meaningful way of deciding whether a claim is or is not baseless until both sides' evidence is presented in a trial. The problem this presents is that when the claims are baseless, there is no way to avoid the costs required to take the case to trial. Many times, where multiple claims have been brought, the claimant will abandon its more borderline claims shortly before trial. If the claimant chooses the abandon the claim, the defendant would then be compelled to insist on having a trial anyway over whether the abandoned claims were baseless. This is almost never productive.

In recent years, the Texas legislature attempted to address this problem through a new procedure implemented in the court rules. Now, a person who is sued can file a motion as soon as they have been sued alleging that the claims brought are baseless. The court is to read the petition and decide, solely from the allegations made by the claimant, whether the claim is baseless. In doing so, every allegation made by the claimant must be regarded as a true fact. What this means is that if the claimant has made claims so that even if everything alleged in the petition happened exactly in the manner alleged, there would still be no basis for a recovery against the defendant, then the court can dismiss the claims. Under this new rule, if that type of a motion is filed, then the court must award attorneys' fees to which side wins on the motion. Thus, for the defendant to try to get a claim dismissed and to recover fees against the claimant, the defendant has to take the chance that the motion will be denied and that it will have to pay attorneys' fees to the claimant for opposing the motion. Since the claimant can defeat or prevent that type of motion simply by making allegations of a meritorious claim, there are few instances where those motions offer any meaningful relief for the person unjustly sued.

Can we sue the other side's lawyer?

Short Answer: Not likely.

Long Answer: Lawyers are considered agents for their clients. Clients are entitled to lawyers that will be zealous in representing the client's lawful objectives. If lawyers are worried about being sued, then they are more likely to look out for their own interest instead of their client's. Therefore, in order for clients to have the proper measure of devotion and loyalty from their attorneys, attorneys are given immunity against any claims of wrongdoing while legitimately pursuing the client's lawful objectives. There are some exceptions for situations such as where the lawyer personally conspires to participate in a wrongful scheme or where the lawyer personally engages in fraudulent behavior, but those exceptions are narrow and few.

Can't we object to the other side's lawyer not looking out for its client's best interest?

Short Answer: No.

Long Answer: No matter how frustrating, the other side's representation is up to the other side. We don't get to dictate their strategy and they don't get to dictate ours.

What happens if I get caught not telling the truth?

Short Answer: It depends.

Long Answer: It depends on whether you knew (or should have known) you were being untruthful. For instance, there's a big difference between accidentally misstating the year your mother was born and claiming the events in the lawsuit happened in a way you know to be untrue. Lying under oath can lead to perjury charges being brought against you. In the context of a deposition, you are usually given a chance to review your testimony and to make corrections in order to avoid accidental misstatements. In many situations, where one side relies on information from the other side that turns out to be untrue, the court will require the party that provided the falsehood to absorb all the expenses incurred by the other side in redoing whatever has to be redone due to reliance on the untrue information.

Attorney-client privilege means I can tell you anything, right?

Short Answer: Yes, but there may be consequences.

Long Answer: The ethical rules concerning attorney-client confidentiality have a few exceptions. The exceptions fall into two categories: (a) those where the attorney is required to disclose confidential information; and (b) those where the attorney is permitted, but not required, to disclose confidential information.

An attorney is supposed to disclose confidential information: (1) when the client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer must reveal confidential information to the extent necessary to prevent the client from committing the criminal or fraudulent act; (2) when the failure to disclose facts would result in the lawyer assisting in a criminal or fraudulent act; (3) when the lawyer learns that false, material evidence has been offered to a tribunal, the lawyer is obligated to take remedial measures to correct the false evidence, which may include disclosure of the true facts; and (4) when otherwise required by law, such as a lawyer's duty to report child abuse or neglect.

One aspect of the attorney-client privilege that a client may not anticipate is that while the attorney is obligated to protect client confidences, that obligation is secondary to the lawyer's obligation not to present false evidence. Since an attorney cannot ethically offer false evidence, a problem is presented if a client privately confesses to one set of facts with the lawyer but wants to testify differently. If the attorney is made aware that the client wants to testify untruthfully before doing so, the attorney has an opportunity to explain the consequences in the hope that the client will be dissuaded from committing perjury. If the client insists on testifying in a manner inconsistent with what was privately conveyed as the truth, the attorney would be obligated to withdraw from continuing to represent the client. The problem gets magnified, however, if the lawyer is unaware of the client's intent, only to be surprised when the client testifies inconsistently with what was privately confided in the lawyer as the truth. Once this happens, the lawyer must attempt to persuade the client to correct the testimony. If the client refuses, the attorney will be forced to withdraw.

Won't somebody (i.e. the judge) look at the other side's claims and throw them out for being absurd?

Short Answer: No.

Long Answer: In recent years, the Texas legislature attempted to address this problem through a new procedure implemented in the court rules. Now, a person who is sued can file a motion as soon as they have been sued alleging that the claims brought are baseless. The court is to read the petition and decide, solely from the allegations made by the claimant, whether the claim is baseless. In doing so, every allegation made by the claimant must be regarded as a true fact. What this means is that if the claimant has made claims so that even if everything alleged in the petition happened exactly in the manner alleged, there would still be no basis for a recovery against the defendant, then the court can dismiss the claims. Under this new rule, if that type of a motion is filed, then the court must award attorneys' fees to which side wins on the motion. Thus, for the defendant to try to get a claim dismissed and to recover fees against the claimant, the defendant has to take the chance that the motion will be denied and that it will have to pay attorneys' fees to the claimant for opposing the motion. Since the claimant can defeat or prevent that type of motion simply by making allegations of a meritorious claim, there are few instances where those motions offer any meaningful relief for the person unjustly sued.

Can't you just call and tell the judge that it didn't happen the way the other side claims?

Short Answer: No.

Long Answer: There are ethical rules against what is called ex parte contact with the court. Under those rules, lawyers are prohibited from discussing a case with the judge without the other side participating. Although there are a few exceptions, none of those would permit one lawyer to contact the judge just to talk about the other side's case. Once both sides are in court together, it is quite common for the judge to be told that the other side's claims are untrue. Usually, as soon as one side makes that claim, the other side replies in kind, and the judge responds that there's no way to know who is right until there's a trial.

Will you take my case on a contingency?

Short Answer: Probably not.

Long Answer: Our main reason for avoiding contingency work is that we prefer to avoid the conflict of interest that a contingency fee creates. We don't like to be in the situation where our desire to get paid might conflict with the outcome you seek. Contingency fee arrangements also involve challenging economic evaluations. Conceptually, for a contingency fee to be justifiable, the claim must be large enough that the fee percentage will provide compensation at a premium rate for the time expended, if measured on an hourly basis. In most cases, that means the claim must be, at a minimum, well in excess of $100,000. Most of the time, attorneys' fees to be recovered from the other side are calculated on an hourly basis, which typically will not fully reimburse the client for the amount of the contingency fee. Contingency fees are also not attractive without a high confidence level that the person sued has sufficient resources to pay the claim.

Also, this law firm is designed to function on the basis of monthly cash flow. Contingency work often requires an investment of legal services over an extended period of time with any cash flow deferred until the matter is completed. For a case anticipated to require a substantial time commitment, we simply cannot afford the disruption in cash flow that occurs when payment for a significant amount of legal services is delayed.

What happens if I can't afford an attorney?

Short Answer: It depends.

Long Answer: For certain types of cases, court-appointed attorneys are a possibility. In some circumstances, a private attorney might agree to handle your case pro bono, which means "for free." You could try to represent yourself. You could do nothing and simply be prepared to accept the consequences.

Bennett White

Bennett White

Attorney - (Administrative Law, Banking Law, Bankruptcy, Business & Corporate Law, Collections, Construction Law, Employment Law, Intellectual Property Litigation, Litigation Management, Mediation & Arbitrtation, Outside General Counsel, Trial & Appellate Law)

 

Laura Severt

Laura Severt

Attorney - (Administrative Law, Collections, Construction Law, Estate Planning Wills & Probate Law, Elder Law, Family Law, Guardianship, Special Education Law)

 

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