The longer I practice in this field, the more strongly I feel about the importance of spending time to get to know a client before agreeing to representation. Of course, I firmly believe that the converse is true. It is vitally important for a client to get to know his attorney before entering into an engagement. In business and employment litigation matters the attorney and client will work closely together, share confidences, discuss strategic approaches, and experience ups and downs. I do not recommend entering into this sort of relationship with someone who you have not gotten to know, or ..read more

Should you go to trial or settle your case? Well that depends. In modern litigation virtually every case is at some point flagged for a formal or informal settlement discussion. Most civil cases do settle prior to trial. Why do litigants settle? To avoid risk – cost, inconvenience, the chance of losing. So why not settle every case? Because a settlement is a compromise and not every litigant is willing to compromise. So what should I do? 1. Get the facts. No decision should be made until you have considered the various risks and benefits of each approach. 2. Do not limit yourself. If you are n ..read more

Arbitration of business litigation matters is something to consider and here are some thoughts. You may have no choice. If there is a binding arbitration provision in the parties’ contract, then the decision has already been made for you. If there is not a pre-existing arbitration agreement, the parties can still enter into one at any point during the litigation process. Arbitration is much, much faster than court. The final decision is likely to occur in a matter of months, not years. Arbitration is final and unappealable. Ultimately, this saves both time and money. The winner wins; the loser ..read more

I doubt I ever once considered that I would work on weekends when I was a student aspiring to one day become an attorney. It probably took about a year or so after I began practicing law for me to become part of the “weekend team.” That meant I was a trusted enough member of the firm to work on weekends – when the real strategy happens. That’s when you have no distractions, the phone does not ring and there are no hearings or conferences to attend. Soon thereafter, I began working on most weekends, just to get myself organized or get a head start on the upcoming week’s projects. Do I mind work ..read more

I had the pleasure to meet a potential new client this week. She had already spoken to two other attorneys, neither of whom felt she had a case. She was referred to me by a colleague who knows me well. I spent a few hours speaking with the client and we were able to identify several claims and a good strategy to move forward. This is art . . . not science. Lawyers should think realistically, but also creatively. If you look hard enough, you may find something someone else did not.  The post Eyes of the Beholder first appeared on Law Offices of Stanley B. Cheiken ..read more

The Rules of Professional Conduct require attorneys to communicate with their clients about their goals and objectives. Sadly, many attorneys do a poor job of communicating. I’m not talking about returning phone calls or responding to emails. That is important too. I’m talking about the conversations during which a client obtains a realistic understanding of what can be accomplished in litigation, the benefits and risks of any particular strategic approach, and the financial impact of the various options available. This should be a running dialogue, because in litigation things can change dras ..read more

For those of you who are sports fans, you probably know that professional head coaches negotiate severance packages that apply in the event that the team fires them before the end of the contract term. Many employees do not have the bargaining power to negotiate a severance package, but some do. If you are presented with a job offer that includes post-termination restrictions, such as a noncompete, and/or non-solicitation, why not consider attempting to negotiate a severance provision as well? For instance, if the employer terminates you without cause and wants to enforce a nonsolicitation pro ..read more

The Alabama Supreme Court’s opinion was in the news this weekend. To listen to the media, the decision was based on one’s religious/political views about when life begins. But I read the opinion, and the actual decision is very limited.  The decision was simply based on the meaning of the word “child” based on the definition contained in a state statute. I instantly recognized the analysis because, very frequently, the business litigation matters I handle turn on the definition of a single word or phrase in a contract. Words matter and defining important contract terms (or in this case st ..read more

Parties to a contract are always able to modify their contract. The requirements for a binding modification are the same as for other contracts. The parties need to reach a meeting of the minds on the terms of their modification. Importantly, contract modifications must be supported by consideration. Sometimes, a party to a contract will claim that the contract was modified to somehow excuse that parties’ obligations under the contract. It is possible to reach such a modification, but remember, there must be consideration to support it.The post Contract Modifications first appeared on Law Offi ..read more

I have an employment dispute case that polarizes opinion. I have discussed the matter with many colleagues and they each have a strong opinion about the correct outcome. My colleagues who represent employers think the employer should win. My colleagues who represent employees think the employee should win. I try to get each of them to see the other side of the issue. No dice. All people harbor biases and this case’s fact pattern seems to have exactly what is needed to expose them. So what does this mean for a trial lawyer? Getting the right judge or selecting the right jury is the most importa ..read more