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BRIDGING the GAP Presented by KCBA Young Lawyers Division

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BRIDGING the GAP Presented by KCBA Young Lawyers Division BRIDGING THE GAP Presented by KCBA Young Lawyers Division March 7, 2014 Table of Contents Chapter 5 1:45-2:45pm Litigating For Small Business Clients—Realities & Strategies Aric Bomsztyk, Barokas Martin & Tomlinson PowerPoint distributed at the program and also available for download in electronic format: 1. Litigating For Small Business Clients—Realities & Strategies Electronic format only: 1. Example – Confession of Judgment 2. Example – Judicial Subpoena Duces Tecum 2/27/2014 Litigating For Small Business Clients “Realities & Strategies” Aric Bomsztyk March 7, 2014 Barokas Martin & Tomlinson (206) 621‐1871 – [email protected] Small Business Litigation Realities •You know the owners, not an institution •Tangible personal risk •Not necessarily sophisticated legal consumer •Size of dispute •Size of budget •Emotions Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] 1 2/27/2014 Small Business Litigation Realities •Every action: • Is it economical? • Will it be effective? •People Skills‐Building Trust & Rapport • Understanding • Explanation • Responsiveness • Communication • Advocacy Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] Two Parables •The Boiler‐Efficiency •The Surgery‐Economy Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] 2 2/27/2014 Can Client Recoup Attorney Fees? • By Contract‐RCW 4.84.330 • “In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorneys' fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he or she is the party specified in the contract or lease or not, shall be entitled to reasonable attorneys' fees in addition to costs and necessary disbursements.” • Under $10,000‐RCW 4.84.250 • “Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys' fees. After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars.” • Specific Causes Of Action‐Review RCW 18, 19 & 60 • Trade Secrets‐RCW 19.108.040 • Business Opportunity Fraud Act‐RCW 19.110.130 • Liens‐RCW Title 60 Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] Can Client Recoup Attorney Fees? • Consumer Protection Act‐RCW 19.86 • Can be used by businesses: Sign‐O‐Lite Signs Inc. v. DeLaurenti Florists Inc. , 64 Wash. App. 553, 825 P. 2d 714 (1992) • Prevailing Plaintiff Only: Sato v. Century 21 Ocean Shores Real Estate, 101 Wash. 2d 599, 681 P. 2d 242 (1984) • Keep In Mind Other Prevailing Party Only Statutes • Wage Claims‐RCW 49.52.070 • Discrimination Claims • Insurance • Property damage • Business interruption/lost profits • Harassment/discrimination • Indemnity Relationships Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] 3 2/27/2014 Before You Draft The Complaint •How much negotiation has occurred? •How unreasonable is the other side being? •Does the other side have an attorney? •Timing •Picking up the phone •Clients thankful for solving without a suit Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] What Venue…District Court? • Expedited Discovery‐CRLJ 26 • Limits on amounts of Interrogatories • Far Less RFP’s (8) & RFA’s (15) • Depositions • (1) A party may take the deposition of any other party, unless the court orders otherwise. • (2) Each party may take the deposition of two additional persons without prior permission of the court. The deposition shall conform to the provisions of CR 30. • Time for Discovery‐CRLJ 26(g) • Twenty‐one days after the service of the summons and complaint, or counterclaim, or cross‐complaint, the served party may demand the discovery set forth in sections (a)‐‐(d) of this rule, or request additional discovery pursuant to section (e) of this rule. Unless agreed by the parties and with the permission of the court, all discovery shall be completed within 60 days of the demand, or 90 days of service of the summons and complaint, or counterclaim, or cross complaint, whichever is longer. • How Discovery to Be Conducted‐CRLJ 26(f) • Any discovery authorized pursuant to this rule shall be conducted in accordance with Superior Court Civil Rules 26 through 37, as governed by CRLJ 26. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] 4 2/27/2014 What Venue…District Court? •Jurisdictional Limitations ‐‐ RCW 3.66.020 • $75,000 • Not clear if they can issue declaratory judgments • Other statues require claims to be brought in Superior Court •Summons Is Different •Don’t have technology or resources of Superior Ct Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] What Venue…Superior Court <$50K? • The Heart of MAR 5.3 • (c) Rules of Evidence, Generally. The extent to which the Rules of Evidence will be applied shall be determined in the exercise of discretion of the arbitrator. The Rules of Evidence, to the extent determined by the arbitrator to be applicable, should be liberally construed in order to promote justice. The parties should stipulate to the admission of evidence when there is no genuine issue as to its relevance or authenticity. • (d) Certain Documents Presumed Admissible. The documents listed below, if relevant, are presumed admissible at an arbitration hearing, but only if (1) the party offering the document serves on all parties a notice, accompanied by a copy of the document and the name, address and telephone number of its author or maker, at least 14 days prior to the hearing in accordance with MAR 5.2; and (2) the party offering the document similarly furnishes all other related documents from the same author or maker. This rule does not restrict argument or proof relating to the weight of the evidence admitted, nor does it restrict the arbitrator's authority to determine the weight of the evidence after hearing all of the evidence and the arguments of opposing parties. The documents presumed admissible under this rule are: • (1) A bill, report, chart, or record of a hospital, doctor, dentist, registered nurse, licensed practical nurse, physical therapist, psychologist or other health care provider, on a letterhead or billhead; • (2) A bill for drugs, medical appliances or other related expenses on a letterhead or billhead; • (3) A bill for, or an estimate of, property damage on a letterhead or billhead. In the case of an estimate, the party intending to offer the estimate shall forward with the notice to the adverse party a statement indicating whether or not the property was repaired, and if it was, whether the estimated repairs were made in full or in part, attaching a copy of the receipted bill showing the items of repair and the amount paid; • (4) A police, weather, wage loss, or traffic signal report, or standard United States government life expectancy table to the extent it is admissible under the Rules of Evidence, but without the need for formal proof of authentication or identification; • (5) A photograph, videotape, x‐ray, drawing, map, blueprint or similar documentary evidence, to the extent it is admissible under the Rules of Evidence, but without the need for formal proof of authentication or identification; • (6) The written statement of any other witness, including the written report of an expert witness, and including a statement of opinion which the witness would be allowed to express if testifying in person, if it is made by affidavit or by declaration under penalty of perjury; • (7) A document not specifically covered by any of the foregoing provisions but having equivalent circumstantial guaranties of trustworthiness, the admission of which would serve the interests of justice. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] 5 2/27/2014 What Venue…Superior Court <$50K? •MAR “De Novo” Appeals • MAR 7.1 (a) Service and Filing. • Any aggrieved party not having waived the right to appeal may request a trial de novo in the superior court. • MAR 7.2(b)(1) • The trial de novo shall be conducted as though no arbitration proceeding had occurred. No reference shall be made to the arbitration award, in any pleading, brief, or other written or oral statement to the trial court or jury either before or during the trial, nor, in a jury trial, shall the jury be informed that there has been an arbitration proceeding. • MAR 7.3 • The court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party's position on the trial de novo. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] What Venue…Small Claims Court? •Small Claims Court • Suits under $5,000 • Must be a resident of the county • Can collect attorney fees‐RCW 12.40.105 • If the losing party fails to pay the judgment within thirty days or within the period otherwise ordered by the court, the judgment shall be increased by: (1) An amount sufficient to cover costs of certification of the judgment under RCW 12.40.110; (2) the amount specified in RCW 36.18.012(2); and (3) any other costs incurred by the prevailing party to enforce the judgment, including but not limited to reasonable attorneys' fees, without regard to the jurisdictional limits on the small claims department. • Transfer to Superior Court for enforcement‐RCW 12.40.110(3) • Transcripts of such judgments may be filed and entered in judgment lien dockets in superior courts with like effect as in other cases. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] 6 2/27/2014 The “Pocket” Serve •Serve without filing •Get their attention, possible negotiations •Couple with a demand letter Aric Bomsztyk, Esq.
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