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LITIGATION

Litigation happens. And it can happen to anyone, although its more likely to happen to someone with assets or insurance coverage or both. If you are "judgment proof" you have nothing to worry about. For everyone else, it's a real possibility.

Whether you are a defendant or a plaintiff, litigation is not enjoyable. And although it may seem counter-intuitive, early legal advice could help you avoid litigation. Your first goal should be to try to avoid it. If you can settle your differences out of court, you should try to do that. In fact, it would be a good idea to seek legal advice in order to do just that. If you treat potential litigation seriously, so that you seek legal advice before you get into a lawsuit, you may actually lower your legal costs. If you wait until you get sued before seeking legal assistance, you will probably have upped the ante.

Ignoring a lawsuit makes no sense at all. If you are sued, you should immediately seek legal counsel. California courts operate under what is known as a "fast track" process. The purpose of the "fast track" approach is to encourage the expeditious resolution of law suits.Therefore, the court's "fast track" clock immediately starts ticking once the complaint is filed (even before the defendant is served). "Fast track" litigation is like getting on a runaway roller coaster. Once it's started, the parties have little power to stop it. Even if the plaintiff wants to give a defendant more time to answer, there are severe limitations to the length of any extension the plaintiff can give. This is another reason why the parties should do all they can to settle their differences first, before commencing litigation. Once litigation starts, its hard to stop.

Litigation is almost always expensive. Unless you have a contingency fee arrangement with your attorney, you will need to sign a retainer agreement and advance anywhere from $2,500.00 to $5,000.00 toward the payment of your legal fees. That amount will most likely only be the beginning. On top of that, in some cases, where the other party prevails, you will also have to pay your opponent's legal fees.

Most of the expense of litigation arises out of discovery. Discovery usually entails requesting and answering written interrogatories, requests for admissions and document productions. Additionally, both parties will likely take each other's depositions as well as the depositions of key witnesses. Each of these discovery devices requires much preparation and client interviewing. Even a full trial is not likely to exceed the expense of discovery.

Anyone unfortunate enough to get into litigation (either as a plaintiff or defendant) should have as the primary goal to get out of it as quickly as possible. Settling or compromising should never be viewed as wimpy, unmanly or cowardly. It's not just the monetary expense at stake. When parties are unwilling to consider settling, they are engaging in a war of attrition that may be more psychologically and emotionally damaging than economically damaging. This may be attractive to some people, but let's face it, so is sky-diving. And how many of us want to jump out of a plane?

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