By Bill Yanger
You've been served with a lawsuit in Florida. Or you have finally come to the conclusion that your company has no choice but to file a lawsuit in Florida against another company, an ex-employee or a vendor. If you've been there, you know the drill. If you haven't then it may be prudent to take note of some inescapable realities you will face over the coming weeks and months and, yes, maybe years.
1. Even stupid lawsuits cannot be ignored.
A few years ago a long-time client called me in a panicked frenzy because his company's operating account had been garnished for a large sum of money, meaning the bank essentially put a lasso around the amount sought in the garnishment and informed him he had no access to it and had twenty days to fix the problem or the money would be sent to the garnishing company, let's call them WAMI ("We Are Mean, Inc."). Not good.
"How did this happen? Did you get sued?" I asked him.
"Yes!" he sputtered.
"Like a year ago."
"And why didn't you call me then?"
"Because it's a bunch of bullsh--!"
And actually, when we finally got a look at the WAMI lawsuit, it was a frivolous unsupportable mess. But the time to address that mess was immediately, when he was served, not a year, a judgment and a painful garnishment later. Sure, there are mechanisms by which we can (and did) attempt to undo what's been done but they are expensive and difficult and often unsuccessful so long after the fact.
Inescapable reality: If you ignore a lawsuit, even that smelly mess created from someone's vivid and twisted imagination, you will lose.
2. Not all lawyers are alike.
So let's say you decide you have no choice but to sue WAMI. Hey, in business it happens and as we said HERE, sometimes it has to happen. You call a lawyer, talk about the case, retain them and buckle in for the ride ahead. Several months later, after incessant emails and calls from your lawyer's office about documents and questions and motions, and then hearings about documents and questions and motions, your lawyer reports to you, "Judge Pureheart signed the order today. WAMI has to answer the lawsuit in 20 days." Yay.
You say to yourself "what the...?" Your lawsuit is now old enough to get married and have children and the bad guys have not even answered your allegations yet? Are you kidding me?
Nope, not kidding. Delay and diversion may not be the preferred method of dispute resolution but it is a strategy. Some lawyers are resolution driven ("Yanger, my client doesn't have the time or the money for this crap. What's he want and let me see if I can get something close"). Some believe it is their obligation to wring every drop from the sponge ("Hope your client understands that her first-grader will be in grad school before my client pays her a dime"). As long as everyone stays in their own ethical lane (not a given unfortunately, but let's assume the best of the lawyers for now), neither approach is necessarily right or wrong and the choice sometimes is case and client driven. Abuses happen, but that's another topic for another time.
Inescapable reality: You get to choose your lawyer, not theirs. And you get what they pay for.
3. Yes, you do have to answer those questions.
Litigation is intended to be a fact-finding exercise, an investigation by both parties controlled by rules and overseen by a judge. Granted, your facts and the way you view them may not look much like WAMI's facts and how they interpret them. No surprise there, right? If you agreed on the facts, why the lawsuit?
But since there are these competing investigations, naturally questions must be asked and evidence must be gathered. In Florida, with exceptions, pretty much everything that may be even tangentially relevant to why you think WAMI done you wrong is fair game. And that works both ways. You may think having to tell the lawyer across the table where you worked in college is a stupid waste-my-time line of questioning, but she doesn't. And I likely don't either. If I did, she'd hear about it and we'd do the lawyer thing and then move on to the next question.
Inescapable reality: You'll be asked a lot of "stupid" questions and you'll have to answer them. But so will the other side.
4. Lawsuits are icebergs, in slow motion.
As we touched on above, sometimes one or both of the lawyers play a part in how quickly a case snakes its way through the dark shadows and bright lights of the judicial system. But they only play a part in a much larger drama and many factors determine how old you become waiting for Lady Justice to call your case.
Florida's judges in particular have battled insane numbers of cases on their dockets due to the foreclosure crisis the last few years. One told me, with a sigh of resignation, that he was looking at 3400 foreclosures in his office alone and that the number was growing. Special divisions and recruiting retired jurists to ease the pressure have helped but scheduling a significant period of time to conduct a hearing is still daunting.
We do our best to work with opposing parties and the kind over-worked judicial assistants to find a time slot as reasonably soon as possible. But that may be for weeks for uncontested matters and months for significant evidentiary hearings or those that may affect the merits of the claims or defenses.
So, think of your lawsuit as an iceberg. An iceberg you are watching on your DVR. In slow motion. We'll eventually get you to the end.