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What is Litigation?

Litigation is the legal process through which the plaintiff and defendant (litigants) argue their side in court to achieve a specific outcome (monetary award, injunction to stop use of patented invention, avoidance of paying a settlement, etc.).

Both businesses and individuals can file complaints with the court to start the process. In the end, the side that provides the best argument or demonstrates enough proof of their claim wins the suit. Typically a judge determines which side wins in litigation, but in some states, sides may request a trial by jury instead.

The Litigation Process

The party who initially files a complaint with the court is known as the Plaintiff. The party or parties named in the complaint are known as the Defendants. Once a complaint has been filed, defendants have a specific amount of time to file a response. From there, other documents providing evidence against the defendant or plaintiff may be filed along with compensation demands.

In many cases, these lawsuits never make it to a courtroom. Other means including mediation and arbitration may be used to help plaintiffs and defendants reach some sort of agreement (monetary compensation, injunction or other constraints, etc.). Mediation and arbitration typically cost less than a trial and help ensure that both parties feel satisfied with the end result – unlike a trial where a judge (or jury) rules either for the plaintiff or defendant.

If the case goes to trial, the party that doesn’t win the lawsuit may file an appeal. This may or may not lead to a retrial or the overturning of a ruling.

Mediation

The mediation process involves each side sitting down and negotiating the finer points of the lawsuit until an agreement is reached. A trained, professional mediator acts as a neutral third-party to help both sides reach a fair agreement. Agreements reached during mediation are non-binding, which means that neither party has to legally follow-through with the agreed upon settlement. In most cases, however, both parties involved really want resolution and try their best to adhere to the agreement. If a mutual agreement is not possible or is not upheld, the lawsuit may continue to trial.

Arbitration

Similar to mediation, the arbitration process helps both parties reach a fair agreement. The only real difference is that all agreements reached during the process are binding – meaning that both parties must adhere to the agreement or face further charges.

Types of Litigation

There are many types of litigation including:

  • business litigation
  • commercial litigation
  • civil litigation
  • securities litigation
  • personal injury litigation
  • intellectual property (IP) litigation

The type of litigation a particular lawsuit falls into depends on the nature of the suit.

Business Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to breach of contract, copyright or patent infringement, fraud, or unfair competition, commonly fall into this category.

Commercial Litigation

This type of litigation involves one or more businesses or individuals. Lawsuits pertaining to aspects of business include partnership disputes, business dissolution, employee disputes, licensing agreements, class action suits, and other related business matters may fall into this category.

Civil Litigation

Civil litigation typically involves one or more individuals seeking monetary damages rather than a legal ruling. Reasons to file a civil lawsuit include wrongful death, medical malpractice, anti-trust issues, employee safety issues, personal injury, and landlord/tenant disputes.

Securities Litigation

Securities litigation include lawsuits filed by employees, partners, shareholders, fund managers, pensioners, and others that pertain to potential violation to the Securities Act of 1933, breach of contract, or misuse of company or organizational funds.

Personal Injury Litigation

This type of litigation may also fall under civil litigation as most people that file personal injury lawsuits seek monetary damages for work-related, medical malpractice, slip and fall, or other types of personal injury that may inhibit their ability to earn a living or advance in their career.

Intellectual Property (IP) Litigation

This type of litigation may also fall under business or commercial litigation. IP litigation typically involves businesses or individuals that file a complaint for infringement of their ideas, recordings, or trade names. Typically, the plaintiff claims the defendant knowingly or unknowingly used their protected works or processes without permission.

The Lexero Law Firm Can Help

If you want to file a complaint for litigation or you’ve been named in a litigation complaint, contact Lexero Law Firm today. The firm offers an attorney roster that is can offer expert counsel, advice, and representation in court, mediation, and arbitration proceedings.

Mediation and Arbitration: Alternatives to Litigation

Litigation is not the only option when it comes to reaching a settlement with another party. Litigants can agree to other means such as mediation or arbitration to reach an agreement that’s fair for both sides. Unfortunately, once a complaint goes to trial, a judge or jury will have the final say in terms of damages paid, injunctions, and other rulings.

During a trial, both sides will be able to present evidence, but will not have any negotiating powers. And while an appeal may be filed after a ruling, there is no guarantee the appeal will be granted.

Reasons to Consider Mediation or Arbitration

In addition to being able to negotiate freely with another party, mediation and arbitration cost less than a trial. Depending on the complexities of the case, litigation can last a year or more. For many individuals and businesses, the time spent in building a case can cost money – the cost of legal fees can also cost a lot depending on the type of research and time needed to adequately prepare for a trial.

Another reason why those involved in litigation should consider mediation or arbitration is the amount of time it will take to reach an agreement both parties can be satisfied with. In most cases, it may only take a day or a week to reach an agreement. A courtroom trial can take a month or more depending on the scope of the suit (on top of months of pre-trial preparation). For businesses and individuals that want quick resolution, mediation or arbitration may be the best course of action.

Mediation vs. Arbitration

Though similar in approach, agreements reached through mediation are usually non-binding. This means that either party may reconsider the agreement at a later date and reschedule another session or continue with a trial. Arbitration, on the other hand, is usually binding. This means that both parties are legally responsible for holding up their end of the agreement. If not, then the suit will go to trial and those that did not adhere to the agreement reached may suffer additional penalties.

The Mediation Process

The mediation process is fairly simple. Both parties meet (with or without their attorneys present – this depends on the wishes of both parties) with a professional mediator who has no stake in the outcome of the process. Using a third-party to negotiate an agreement helps ensure fairness for everyone throughout the process.

During the session(s), the mediatorwill ask both sides to describe the issue and potential resolutions. The mediatorwill then guide both parties to reach a ‘middle-ground’ through further negotiations. If no agreement can be reached after a certain amount of time, the mediator will continue to work with the parties or may recommend pursuing the litigation process.

If an agreement is reached, both parties will sign a non-binding or binding contract drawn up by the mediator/arbitrator. Contracts typically include all points reached in agreement, payment deadlines, and other details agreed upon by both parties.

The Arbitration Process

Arbitration is quite similar to going to court. However, arbitration is generally more streamlined and moves faster than traditional litigation. In an arbitration proceeding, the parties agree to have a neutral third party, called an arbitrator, to decide their claims. Arbitrators are usually former judges or established practicing attorneys and are often retained via organizations such as the American Arbitration Association.

Once an arbitrator is selected, both parties present their case to the arbitrator. Usually, there will be written materials, but there may be no oral argument at all. The arbitrator makes a decision based on the pleadings alone in many cases. Arbitration may be binding or non-binding, as the parties may agree in advance. Non-binding arbitration is often used when one or both parties wants to “test” their case and how it may play in a formal courtroom. Binding arbitration is usually employed when the parties can’t agree on a settlement, but can agree to have a third party make a final decision about their dispute.

Most formal courts strongly prefer that any agreements about binding arbitration stand. Accordingly, parties should usually not agree to a binding arbitration arrangement unless they are comfortable with the dispute being fully resolved via the arbitration process.

The Lexero Law Firm

Mediation and arbitration can be rigorous processes that require the ability to carefully negotiate each detail of a lawsuit. It also requires the know-how to “give and take” with other parties involved. If you want to avoid a trial, contact Lexero Law Firm today to learn more about the alternatives to litigation. My firm can help you negotiate the best deal possible to save time and money compared to a lengthy and costly lawsuit.

Washington DC Attorney Eric Menhart Quoted on Online Sales Tax

 

Recently introduced legislation entitled “The Main Street Fairness Act” seeks to require online retailers to collect sales tax for the benefit of states on most online purchases. Internet Retailer recently examined the bill in some detail. CyberLaw PC attorney Eric Menhart is quoted in the piece, entitled “Online sales tax proposed in Congress.” Eric was asked if the recently proposed legislation, introduced by Rep. Bill Delahunt (D, MA) had a decent chance of success: “You need a decent majority of states as members of the SST,” he says. “Until you have that, it will be very difficult to get enough Congressional attention and support for this legislation.”

 

Eric is the author Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue. Published in 2007 by the Journal of State Taxation, the article is an in-depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions. Eric also spoke on similar topics at the 2010 Internet Retailer Conference and Exhibition in Chicago, IL.

[Read more...]

Understanding Attorney Hourly Billing and Tips for Saving Money

 

Everyone wants great value when they spend money. The same is true when it comes to law firms and legal services.

Occasionally, clients have questions about hourly billing and want to know how to keep their costs as low as possible without sacrificing the quality professional services to which they are accustomed. This short article is intended to answer some of those questions and offers tips to clients to assist in keeping their costs as low as possible. Remember, this memo is intended to be general information. The retainer agreement with your attorney or law firm sets out the particular terms of your legal or business services agreement with your lawyer.

Hourly Billing

Lawyers and staff often bill by the amount of time spent working on your legal or business matters. This is called “hourly billing” or “timed billing.” The tasks for which attorneys and staff will bill on an hourly basis are included in your individual retainer agreement. Generally, attorneys and staff will bill at their prevailing hourly rate for any time that they spend working on your matter. The prevailing hourly rate for your matter is usually contained in your retainer agreement with your lawyer.

Usually, attorneys and staff bill their time in 1/10 of an hour increments which computes to billing in six minute increments. Alternatively, your lawyer may bill his or her time in 1/4 of an hour increments, which computes to 15 minute increments. By billing in such small increments, attorneys are able to keep costs as low as possible for the client, while still using an accurate and readable record keeping system.

Hourly billing is fair to both the attorney and the client because the attorney only bills the client for the actual time assisting the client and the client is not billed for more than the reasonable amount of time spent by the attorney or staff member. Every court and bar association in the United States approves of hourly billing as a fair way to record the value of an attorney or staff person’s services for most matters.

Clients, especially clients that are not used to working with an attorney or law firm, occasionally express concern about hourly billing, especially when the client is used to receiving a tangible object, such as a piece of furniture, a new computer, or a new pair of shoes when spending money.

It is important to remember that attorneys and support staff do provide a great deal of value by virtue of performing work necessary to assist you with your legal or business problem. Attorneys are licensed professionals because they spend substantial time learning about the law, maintaining professional integrity and earning experience that can help you achieve the best possible result for your legal or business matter. While you will occasionally receive tangible goods as a result of your attorney’s work, such as a contract, legal pleading, or memorandum, it is also important to understand that advice provided over the phone, via e-mail or in a client meeting is also valuable use of the attorney’s time.

Because an attorney only has his or her time and expertise to “sell,” the attorney must bill for time spent on a matter, even when it may only be a short period of time spent on the matter. This is because any time spent on your matter could have been spent earning fees helping another client or other valuable use of the attorney’s time.

Attorneys are professionally obligated to accurately report their fees and time spent to the client. Attorneys will only bill you for the reasonable time spent on your matter.

Keeping Client Costs Low

Attorneys are always willing to assist their clients in a diligent and professional manner. However, clients can make changes in their behavior that will help to keep their costs low. Here are some general tips for keeping your hourly billing invoices as low as reasonably possible:

Consolidate Questions: Many clients will call their attorney anytime a question comes up. While most attorneys are more than happy to take your calls as their schedules allow, many “quick questions” via phone, e-mail, or personal visit can lead to higher costs for the client, because the attorney needs to divert her attention from one matter to another. Instead, consider writing down any non-emergency questions and call when you have several questions at once. This will allow the attorney to focus on your matter and likely answer the questions more efficiently than if the questions were asked via several separate phone calls or visits.

Communicate via E-Mail: E-mail has several advantages over phone or letters. First, e-mail is easier for the attorney to file and record, which assists the attorney in efficiently answering your present and future questions. Second, the attorney can be sure to have the answer by the time he or she responds, compared to a phone call where the client may catch the attorney when the client’s file is not immediately available to the attorney. Like telephone calls, try to save multiple questions and put them all into one e-mail, so your attorney can answer all your questions at once.

Respond to Questions and Inquiries in a Timely Manner: Your attorney will likely have questions for you throughout his or her work on your legal matter. Just as your attorneys will do for you, it is important that you respond to any requests as quickly as possible. Forcing a lawyer to make several attempts to get in touch with a client increases costs.

Review Materials from Your Attorney Carefully: Your attorney will typically provide copies of the important documents in your matter, such as your retainer agreement, your invoices, and other important documents such as pleadings or contracts. Reviewing your copies carefully costs you nothing and can often assist you in answering your questions without having to contact your attorney.

Remember that you are always free to contact your attorney, whether you have one question or many, and he or she will respond within a reasonable amount of time.

Conclusion

While costs can be controlled to some extent with the tips above, remember that your attorney’s primary interest and duty is in protecting your legal interests. He or she must take all the procedural steps necessary to fully represent you. Implementing the practices recommended in this article allows a client to reduce the costs within his or her control, but you should always be wary of “going too far” and restricting an attorney’s ability to fully represent your legal interests.

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Menhart Quoted on Internet Taxation

 



CyberLaw P.C. attorney Eric Menhart was recently quoted in a Forbes.com article entitled “Web Sales Tax Looms.” The article discusses the potential for additional sales taxes on online transactions, particularly in light of dwindling state budgets.

Menhart is the author of the article “Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue,” published in 2007 by the Journal of State Taxation, which was an in depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions.

[Read more...]

Update on Verizon Blackberry 8830 Case

 

Not much has happened in the proposed class action lawsuit against
Verizon for it’s disabling of the built-in GPS in the Blackberry 8830.

 

The parties have primarily been engaging in some preliminary
procedural matters. The biggest issue so far addressed was whether an
arbitration provision in the Customer Agreement could be enforced. The Court
issued an order on May 13, 2008 denying Verizon’s attempt to have the case
submitted to arbitration. Even Verizon admitted that the arbitration clause
would not be enforceable under California
law, but Verizon had to make certain procedural arguments to ensure a
sufficient record if an appeal were filed.

 

The trial date for the case has been set for September 14,
2009, approximately fifteen months away as of this writing. While still
unlikely to go to trial, the Blackberry 8830 would probably be approaching
technology extinction by the time the suit went to trial and any appeal were
resolved.

 

CyberLaw will update continue to update this case as further
events transpire.

[Read more...]

Presidential Candidate Views on Technology

 

Technology Review has a nice tool that allows visitors to
see the remaining presidential candidates’ positions on various technology
issues, including net neutrality, broadband, privacy, stem-cell research,
global warning and biofuels. You can also see some of the applicable
legislation each introduced or handled in their time in the Senate. Overall,
this is a nice resource for “at a glance” analysis of the various candidates’
points of view on emerging technology and some of the resulting political
issues that come along with the various technologies.

[Read more...]

Menhart Appears in Privacy Articles

 

Attorney Eric Menhart recently commented in two articles in
The Daily Tar Heel,” the newspaper serving the University
of North Carolina at Chapel
Hill community.

 

The first article, entitled “Facing Scrutiny,” examines information
on social networking sites as it is used to investigate and screen college
students. The second article, entitled “Google Puts Chapel Hill Streets on
View,” examines the privacy implication of Google Maps’ Street View service.

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Happy MLK Day

 

Working for protection of individual rights, whether for civil
rights, privacy rights or IP rights, requires leadership. The holiday is a good
opportunity to be reminded that Martin Luther King Jr.’s non-violent style of
leadership, which relies on truth, justice, and belief in force of law, is an effective
method of resolving disputes and bringing about change in a variety of arenas.

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Of CyberLaw and CyberLawg

 

Unfortunately, there have been some blog postings and other communications regarding this firm’s application for the use of the mark “CyberLaw” with the United States Patent and Trademark Office. Because many of these communications are lacking in providing complete and accurate information, the firm issues the following statement.

 

A blog post issued by EFF’s Corynne McSherry criticizes the firm’s application. “Corynne McSherry is Staff Attorney at EFF, specializing in intellectual property and contract issues.” There are important facts and statements deserving of further review that Ms. McSherry fails to disclose. Virtually all the facts that are relevant to this issue are publicly available.

 

Ms. McSherry claims the firm is “threatening other lawyers with legal action based on this silly ‘mark.’” First, no legal “threats” have ever been made, to anyone. The firm issued one informal notice to one attorney, Michael Grossman, about a potential dilution of the name of the firm’s blog, CyberLawg™. Mr. Grossman thereafter hired Mr. Martin Schwimmer to represent him. After one e-mail communication that included both Mr. Grossman and Mr. Schwimmer, the previously private discussions were publicly disclosed by either Michael Grossman or Martin Schwimmer.

 

Corynne McSherry then “presumes,” without any factual basis, that this firm has other firms in its “sights.” Unsurprisingly, Ms. McSherry shows no evidence for this comment because there is absolutely no factual ground for such a statement.

 

Ms. McSherry goes on to state: “an IP lawyer should know that courts (and trademark examiners . . .) don’t look kindly on efforts to abuse trademark law to control everyday language.”

 

This statement is misleading for a myriad of reasons. First, the suggestion that the application is an “attempt to control everyday language,” is overbroad and inaccurate. As in most trademark applications, the firm’s application is for only one “class” of protection. In this case the class is #45, defined by the USPTO as “services rendered by lawyers to individuals, groups of individuals, organizations and enterprises.” Services that fall outside that class would be wholly unaffected. Ms. McSherry’s concern that “Stanford’s Center for Internet and Society, with its Cyberlaw Clinic” or “Berkman’s Center for Internet and Society” would somehow be affected is simply false. Those academic organizations clearly do not fall within the class of goods for which CyberLaw PC applied for trademark protection.

 

Finally, Corynne McSherry’s statement that “trademark examiners . . . don’t look kindly” on such applications is easily dispelled with recent history. Not only has the USPTO previously granted rights in the term “CyberLaw,” it has done so as recently as 1996. The mark was granted to Attorney Jonathan Rosenoer of Greenbrae, California in 1996. Mr. Rosenoer let his protection expire in 2000. All such information is publicly available to Ms. McSherry or anyone else at the USPTO web site.

 

While the firm appreciates free speech, it also believes that speech that ignores relevant facts is not appropriate, particularly when such statements are harmful to professional reputation. The firm stands by its application, which was lawfully filed with the USPTO, seeks to protect only those services that this firm provides, and which seeks protection of a term that the USPTO itself has previously found to be protectable.

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Attorney Eric Menhart has been seen in: