Frequently Asked Questions
When should I contact you?
Clients sometimes contact their lawyer too late; clients never contact their lawyer too early. Mr. Antrim often receives calls from clients about general business or other matters in their preliminary stages. If he cannot provide particular and specific assistance to the client at that time, he provides a framework to the client to recontact him at a later time. He seldom charges for these services. On the other hand, there have been dozens of occasions over his career when clients have contacted Mr. Antrim too late. Some clients still try to draft contracts themselves, and the results vary greatly. On many occasions, Mr. Antrim is brought into the situation after the relationship between the parties has broken down and litigation is about to be commenced. He frequently tells his business clients, "Pay me now or pay me later." By that he means that it is much cheaper to get good legal advice in the early stages of a transaction than to wait until everything has fallen apart. One main objective of good business legal services is to avoid disputes and the expense of the courtroom. When you have a legal question, call your attorney as soon as possible.
Do I have to start a lawsuit?
No. Before starting a lawsuit, you can send a demand to the other side. This demand sets forth the facts upon which you base your claim. It is also important that you make a realistic dollar amount demand which you would accept in lieu of starting a lawsuit. A deadline is usually imposed, leaving enough time for the other side to evaluate your demand, and providing a period of time within which you will not sue. If the deadline passes with no response, you are free to sue the other side. I make it a practice never to make a demand unless my client is willing to follow it up with a lawsuit. Therefore, although you can start with a demand, you must be prepared to start a lawsuit if early attempts at amicable resolution fail.
Where do we start the lawsuit?
We will not be able to determine where to start the lawsuit until certain facts are gathered and the law is researched. As a general rule, the law favors suing the other side where it does business. You are almost always safe commencing a lawsuit against a person or business entity where they reside or have their principal place of business. For this reason, we often receive cases from all over the country, and even other places in the World, when the other side resides in Minnesota. If you have a contract dispute, the contract itself will usually provide for the forum within which a lawsuit involving a dispute about the contract must be litigated. The contract may also contain a mandatory arbitration clause (please refer to the next question). Basically, the law in the United States provides that in order for the other side to be sued in the proper place, the other side must have "minimum contacts" with that place. For example, if a business is not located in Minnesota and has never done business within the State of Minnesota, it is unlikely that Minnesota would be the proper place to sue that business. Jurisdiction refers to whether or not a place has power over a given defendant. Venue refers to whether or not that place is the best or most convenient forum within which to litigate the dispute. In summary, each case must be looked at individually before a determination can be made with the proper jurisdiction and venue, or place to sue the other side.
What is arbitration?
Arbitration is an alternative to the government funded court systems throughout the United States. Arbitration provides a private forum within which to settle disputes. If you have a written contract with the other side, it may provide for mandatory arbitration. Arbitration can be provided by the American Arbitration Association or many other private providers. Many times arbitration is confidential and the dispute will not become public. Arbitration is also thought to be quicker, less expensive, and less time consuming than governmental court systems. If you do not have an agreement to arbitrate, you can enter into one with the other side if both sides would prefer arbitration. Although some cases need to be litigated in the courts run by our governmental systems, arbitration is very often an alternative to consider before commencing litigation.
What is mediation?
Unlike arbitration, mediation can be utilized in any context. It is a settlement device only. If the parties cannot reach an agreement through mediation, the end result is as if the mediation never occurred. Many courts order the parties to mediation in an effort to get cases settled. Very often, the success or failure of mediation depends upon who the parties select as the mediator. An effective mediator goes back and forth between the parties in a Henry Kissinger style diplomacy to explore the many avenues possible to resolve a dispute without the need to resort to arbitration or the courts. Good lawyers very often are in a position to help you select good mediators.
Will you require a retainer before you represent us?
Yes. In order to avoid most attorney/client misunderstandings, a written retainer and fee agreement should be entered into prior to the commencement of representation in all cases. Exceptions to this rule include clients who have used a particular lawyer for many years. Sometimes, this written retainer and fee agreement must also be accompanied by a down payment of money to the lawyer. Typically, this is provided for within the retainer and fee agreement itself. These items should be discussed at length and, if necessary, negotiated between the attorney and client. Good communication from the outset is essential to a healthy attorney/client relationship. The retainer is first, and sometimes most important part of this process. Can we work together?
Can I recover my attorney's fees from the other side if I win?
Yes, but do not count on it. The American Rule provides that each party pay for its own costs and attorney's fees. Certain costs, like filing fees, deposition transcripts used at trial, subpoena costs, certain expert witness fees, and the like, are usually shifted to the losing side no matter what. This is generally not true with respect to attorney's fees. The English Rule provides for more shifting to the prevailing (victorious) party. There are exceptions to these rules. First, if your contract provides for the losing party to pay the winning party's attorney's fees, that provision will usually be honored, but not always. Certain statutes, like mortgage foreclosure statutes and mechanic's lien statutes here in Minnesota, provide for one side to pay the other side's attorney's fees. Each case must be examined for the possibility of having the other side pay for your attorney's fees. However, you need to be prepared to pay your own attorney's fees from the outset, and shifting attorney's fees is the exception to the generally rule.
Will you consider handling our case on a contingency fee?
Yes. If you have a case where liability is clear, or even uncontested, a contingency fee may be appropriate. This is often more true in an injury or employment lawsuit as opposed to a business dispute. You also need to have suffered damages sufficient enough to warrant an attorney taking your case on a contingency basis. Again, it depends on your case and needs to be evaluated with your facts and the applicable law in mind.
What if the other side fails to respond to a demand for arbitration or a lawsuit?
In most circumstances, the other party will be in default. In governmental court systems, you can usually ask the court to enter a default judgment against the other side within a month or two of filing the lawsuit. In arbitration, the other side is usually given an opportunity to have a hearing, and only after the other side fails to appear at the hearing will an arbitration award be issued. Arbitration awards can almost always be enforced by the governmental court system if necessary. This is accomplished by obtaining a judgment based upon the arbitration award.
How do I collect my judgment?
Unfortunately, collecting a judgment is sometimes difficult. If your judgment is against a major corporation or big business, it is likely that it will be paid. On the other hand, judgments against individuals or smaller businesses are sometimes difficult, or impossible, to collect. You are responsible for collecting on your judgment. Any information about where the other side holds assets or does its banking is very helpful. You must work with your attorney closely if you are to collect your judgment. The collectability of a judgment is a factor which should be considered before starting a lawsuit or even making a demand on the other side. You may have an excellent case on liability and damages, but if the other side is judgment proof, you will be unable to collect on it. All potential insurance alternatives must be examined carefully from the outset. Only a realistic assessment of your case from the beginning will assure that you are making the correct decision by going forward. A candid and complete assessment by you and your attorney is required.