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GENERAL LAW TOPICS
GENERAL LAW TOPICS
How To Be A Great Legal Client (And Save $$)
Check Your Email Regularly & Respond Promptly
We’ll keep you updated on the progress of your legal matter. In return, we ask that you check your email regularly and respond promptly to our messages or phone calls.
Respect Attorney-Client Privilege Boundaries
It’s essential for clients to feel free to share their full story, including potentially sensitive or damaging details. Your attorney-client privilege protects your communications, ensuring confidentiality. This privilege depends on keeping your conversations private. Including others in the room may violate the privilege, as they could later be questioned by opposing counsel. Additionally, avoid sharing your attorney’s advice with anyone outside the case. If an interpreter is needed, it should be the same person throughout the case, not just a friend for a particular meeting.
Don't Hold Back – Share Everything
Just like your doctor, we need complete and accurate information to provide the best legal advice and representation.
Provide a Timeline
Having a clear and complete timeline of the facts is critical in evaluating your case. If you can provide a written timeline, it will serve as an invaluable reference. If possible, type it up in a word-processing file for clarity.
Do Your "Homework" Promptly
There may be times when we need you to provide information or send documents. Responding quickly and accurately will help prevent additional charges for follow-up or clarification. One of the most important times for you to provide information is during the discovery phase of your case, when the opposing side may send written questions or requests for documents. To keep your costs down, make sure to provide thorough answers well before the response deadline. Your attorney will still need to review, add objections, and ensure the legal format is correct. Please avoid waiting until the last minute!
Scan Your Documents
Our office prefers digital documents over paper. Scanning and sending them is greatly appreciated. For larger uploads, we use Dropbox for easy file sharing.
Do the Legwork
While it might seem like you're being asked to run errands, if you can gather the necessary documents or complete specific tasks, it won't incur any charges from us. Plus, many of these tasks involve interacting with third parties who may require your authorization to speak with us and may be more cooperative with you than with an attorney.
Take Turns
Sometimes, a lawyer’s office can feel a bit like an emergency room, where we prioritize the most urgent matters first. Please be patient as we attend to pressing issues, but rest assured, we’ll give your case the same level of priority when it's your time of need.
Don’t Buy Into the Nonsense
You may hear many opinions from friends and family about how your case should proceed, or be tempted to set unrealistic expectations. Lawyers aren’t magicians—we work within the confines of the law and the facts of the case. Trust that we always aim for the best outcome and will keep you informed of the realistic options and potential results.
Value the Tough Love & Trust Us
Like a good friend who’s willing to tell you when you're wrong, be open to hearing our honest feedback. If the facts aren’t on your side or if a more conservative approach might yield better long-term results, trust that we have your best interests at heart.
Pick Your Times for Calls
Email is often the best way to ask questions, as we can respond at a time that doesn’t disrupt other work. For calls, please schedule them in advance or save them for urgent situations. We’re always happy to talk, but scheduled calls help ensure we’re giving you the time and attention you deserve.
Be Patient
Legal cases can sometimes feel like an emergency, but at other times, progress may seem as slow as watching grass grow. Be patient as we navigate the complexities of your case.
Let Us Know
Let us know when we’re doing something right! Kind words are always appreciated. If you have any concerns or areas of improvement, please share them with us. We can’t address what we don’t know.
How Are Attorneys Offices Like Going To The Doctor?
I often tell clients that there are many similarities between attorney offices and doctors offices.
You don't particularly want to be at either office but you need help.
We don't want you to leave feeling worse than when you arrived.
It's important for your attorney to know all the facts to arrive at the best outcome.
Sometimes you have to be patient when someone else's problem has to be addressed first because they're going to suffer significant harm. Your contract draft may get pushed out a few days when someone else's escrow is about to crash. Your patience at those times is really appreciated.
Coming Soon: How Do Attorney Retainers Work?
I'm often surprised that many potential clients don't understand attorney retainers. Most attorneys work off of a retainer. It's money put into an IOLTA (Interestt Only Lawyers Trust Account). It doesn't belong to the attorney until it's earned. The IOLTA is actually under a State of California Bar Association number rather than the attorney's EIN.
Trust money is basically a working fund. When money is earned (usually based on a monthly invoice), the attorney can write a check to pay an amount due from the client out of the trust funds. If the trust agreement indicates the retainer is refundable (all of mine are), the client receives a trust balance refund when the case closes if there's money left. If the case is still ongoing and the trust balance is getting low, the attorney can request that the balance be replenished by a specific amount. For my clients, I accompany this request by an explanation of what the next steps entail and why more money is required. A client always has a right to a trust accounting.
A retainer is NOT the most or the least the client's matter will cost. For the attorney, utilizing retainers ensures time is spent working on client files and not chasing delinquent bills. For clients, it helps to set reasonable expectations about the cost of legal proceedings.
Do you have morre questions about retainers and attorney trust accounts? Email me at cathy@attorneycathycowin.com.
LITIGATION topics
LITIGATION topics
LITIGATION / GENERAL: What happens in the litigation process?
What are pleadings?
"Pleadings" refers to a complaint, cross-complaint, or answer filed with the court. A complaint starts a lawsuit. If you're filing the complaint, you're the plaintiff. If you're responding, you're the defendant.
I've just been served with a complaint - Now what?
Don't wait to seek legal counsel! Leave time for us to fully analyze your case before the response deadline. In California, you have thirty (30) days after you've been served with a complaint to respond. If you don't, the opposing party can file a default and then a default judgment. Time to respond can be extended by agreement between the attorneys on both sides but only by mutual agreement.
What is a response to a complaint?
There are several ways to respond to a complaint. Usually, a general denial is filed to dispute the truth of everything in the complaint. Affirmative Defenses must also be filed. If the complaint is "verified" then each paragraph of the complaint must be admitted or denied. Your attorney can also file specialized motions such as a Demurrer or Motion to Strike to challenge the legal sufficiency of the complaint. If you have a counterclaim, you have to file it at the same time that you answer.
What happens between the response and trial?
Various motions can be filed at any time during the case. These are written requests asking the court to enter an order about something. Discovery, an investigative process, is also undertaken.
What happens in the discovery phase?
After a case is filed, the parties generally both engage in the Discovery Process to investigate their cases. Discovery can take place through several methods: (1) Interrogatories (written questions requiring a written response); (2) Production of Documents (written requests to exchange copies of categories of documents); (3) Request for Admissions (statements that require the other party to admit or deny the truthfulness of facts or documents); Depositions (questions asked in front of a court reporter who takes down everything said and creates a transcript that can later be used to impeach a witness at trial if his/her answers change); (4) Subpoenas (a court order to produce a document or witness).
How long before we go to trial?
It can take a considerable time for a case to get to trial. Once a case is "at issue" (the pleadings are settled and answers have been filed), the court will have a trial setting conference. (Fresno County is currently scheduling larger cases about a year out.)
That's a long time! Will it really take that long?
Every case is different. Statistically, around 90% of cases settle before trial. Also, some cases are resolved earlier on a summary judgment motion.
LITIGATION / GENERAL: Why does legal representation for a lawsuit cost so much?
Why do attorney retainers for litigation seem high?
A substantial retainer is charged for litigation cases for several reasons: (1) There are initial costs at the beginning of the case such as a nearly $500 set up fee with the court plus service of process if you're the plaintiff, and the attorney fees to prepare the complaint or answer. (2) We don't know what the other side is going to do and how soon. Discovery and motions can be expensive. (3) Being the attorney of record is a serious commitment. (4) It sets good expectations with the client that litigation can be a costly venture.
How do trust retainers work?
Your retainer (or retainer refresher) is deposited into an attorney trust account. That money is held in trust for you and is not the attorney's money until it's earned. You'll get monthly billing statements indicating how much is being taken from the trust account to pay the attorney. When the balance is low, you'll be asked to deposit additional funds. You have a right to know what the next steps are and anticipated costs. If all of the trust funds aren't used, you will receive a refund check.
If all the money isn't used, do I get a refund?
Yes.
How do I keep my litigation expenses reasonable?
You can keep your legal fees reasonable by keeping phone calls to the point and/or emailing questions, being helpful providing discovery answers timely, and doing whatever "homework" requested of you.
What if I don't want to keep going in the case?
If you're the plaintiff, you can generally dismiss your case at any time; however, if you're the defendant, you must defend to avoid a judgment. Settlements can be made at any time until trial. Mediation can also be a way to resolve a case earlier than trial.
LITIGATION / DEPOSITIONS: What is a deposition?
A deposition is an opportunity for attorneys to question a witness under oath prior to trial. A court reporter takes down everything that's said and creates a book. This helps the attorneys know what a particular witness will say at trial. It can also be used against that witness if they later change their answers.
If your deposition is being taken, it's important to be prepared. This means understanding the process and the weak and strong points of your case.
After the deposition is completed, the court reporter will send a copy of the transcript to the attorneys. The witness has a chance to review the transcript and correct any errors. Look everything over very carefully.
LITIGATION / DEPOSITIONS: Preparing for your deposition
A deposition can be stressful, particularly if you'r unfamiliar with the process. Here are a few tips!
If Documents Are Requested:
In some cases, the deposition notice will also request that you bring particular documents to the deposition. If so, bring the documents to your attorney well in advance to allow time for review and copying.
Answering Questions:
WAIT until the attorney finishes the question before answering.
Allow your attorney time to object to the question and instruct you to answer or not answer.
THINK before answering. A pause will not show up in the transcript.
LIMIT your answer to the question that was asked. Don't volunteer additional information.
CONFIRM that you understand the question. If you don't, ask the attorney to restate it.
BE TRUTHFUL.
Remain calm.
Don't guess.
Don't bring notes or documents.
"I don't know" is a perfectly acceptable answer.
The asking attorney is entitled to your best estimate for an answer, but don't offer guesses.
Memories and Mistakes:
If you find that you answered a question incorrectly, make your attorney aware of it before the deposition concludes and correct your testimony.
Handling Difficult Questions:
If you're uncomfortable with a question, ask the attorney to restate it. They will seldom ask it exactly the same way the second time.
During a deposition, it's always okay to ask for a "personal necessity" break. You can break up a difficult line of questioning by asking for a break. Take that opportunity to gather your thoughts.
You can also ask for a break to consult with your attorney; however, that may be reflected on the record (or the other attorney may indicate a break will only be given AFTER the question is answered).
You can sometimes pepper an answer with information adverse to the other side's case, but be cautious about this strategy as the best option is usually to only answer the question as succinctly as possible.
Be calm and try not to appear defensive.
LITIGATION / DEPOSITIONS: How to be polite to the court reporter
The court reporter has the difficult task of taking down everything that is said by everyone at the deposition.
Be polite by:
Always saying "yes" or "no" rather than "un-huh" and "uh-uh" which are hard to distinguish in a written record.
Speak loud enough to be easily heard.
Don't step on anyone else's words. Wait until they are done speaking before you speak.
Help with any odd spellings as requested.
Refrain from gestures such as nodding or hand movements that can't be recorded in a transcript.
Try not to talk too fast.
More Coming Soon
BUSINESS LAW topics
BUSINESS LAW topics
Coming Soon: Protecting Yourself Against Individual Liability; Maintaining The Corporate Shield
Coming Soon: How to decide between a corporation, limited liability company, or partnership
real estate topics
real estate topics
COMING SOON: Why can't you just transfer that deed for me?
COMING SOON: Can I save money by having an attorney handle the escrow instead of a broker?
More Coming Soon
MEDIATION topics
MEDIATION topics
What is mediation and how does it vary from other dispute resolution strategies?
There are four primary ways people resolve disputes:
1. The Strongest Wins:
This approach is simple but undesirable: take it to the back alley, and the last person standing wins. While straightforward, it’s obviously not the ideal method for resolving conflicts.
2. Negotiation:
This is the first step in resolving a dispute—talking it out. If individuals struggle to navigate this process on their own, an attorney can step in to help. Sometimes a firm demand letter is necessary, while in other cases, the conflict may need to be de-escalated or clarified in order to reach a negotiated resolution.
3. Mediation:
Mediation shares some similarities with a courtroom setting. In some cases, a retired judge might serve as the mediator, and each party’s attorney will submit a written brief outlining the facts and the legal arguments. The key difference is that, in mediation, the parties retain full control over the outcome. The mediator's role is purely to facilitate, and they have no authority to render a decision. Mediation is always voluntary, meaning either party can walk away at any time. Despite this, it is an incredibly successful process, with around 86% of cases (on average) reaching a resolution. Additionally, mediation can be scheduled much more quickly than court cases, which helps avoid the significant costs and stresses associated with litigation.
4. Litigation/Arbitration:
Litigation and arbitration both involve handing decision-making authority to a third party—either a judge or an arbitrator. Unlike mediation, litigation often leads to a high level of dissatisfaction, even for the winning party. Furthermore, the litigation process can be slow, especially for larger cases, where a trial may not be scheduled for over a year.
Are There Differences Between Litigation and Arbitration?
Yes, there are key differences. While both processes involve a third party determining the outcome, arbitration is generally faster, often taking months instead of years. However, arbitration is governed by specific rules. For example, if your arbitration agreement does not allow for extensive discovery, the investigative stage may be limited. Additionally, there are certain types of relief that arbitrators are not authorized to grant.
Should I Include an Arbitration Clause in My Contract?
Often, the choice between arbitration and litigation is made when you enter into a contract. If your agreement contains a binding arbitration clause, it is enforceable, meaning you can move the dispute to arbitration even if the other party attempts to sue in court. Arbitration is typically faster and more cost-effective, but it may not be ideal if you want to prolong the process. Litigation, on the other hand, may provide more opportunities for discovery, motions, and time for settlement. Nearly 90% of cases settle before trial.
What's Best for Me?
My philosophy is to start with negotiation and, if needed, move to mediation. Litigation should be a last resort, as it is expensive and time-consuming. However, litigation may be necessary if other strategies fail.
More Coming Soon
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