Licensing Mistakes That Can Continue to Haunt You

Alexa Stephenson and Rick Seely | Compliance Construction Litigation

Today there are nearly 290,000 contractors licensed in California. This number continues to grow as California law requires businesses or individuals who alter any road or structure to be licensed contractors if the total cost of the project is $500 or more (including labor and materials). Complaints about improper and defective work performed by contractors are constantly filed with the California Contractors State License Board (“CSLB”) and any violations by those contractors could result in a license suspension. A contractor whose license is suspended by the CSLB or otherwise becomes unlicensed jeopardizes a contractor’s livelihood, compromises current insurance policies, and curtails an ability to obtain future insurance coverage. Moreover, being unlicensed could force a contractor to disgorge all money received on a project per California Business & Professions Code § 7031. What can contractors do to stay vigilant and avoid these scary outcomes? Stay tuned for a few suggestions.

  1. Stay Qualified

Contractors must make sure the correct person and/or entity is holding the contractor’s license. Contractors can obtain licenses as a sole owner, partnership, corporation, joint venture, or limited liability company. For any form of the business entity, one individual must act as qualifier to meet the CLSB license requirements. This qualifying individual must have the knowledge, experience, and skills to manage the daily activities of a construction business (including field supervision) or be represented by someone else with at least four years of experience within the past ten years as an unsupervised journeyperson, foreperson, supervising employee, or contractor in the trade being applied for.

When applying as a sole ownership, an individual must be the owner or a responsible managing employee (“RME”) permanently employed by the contractor and working 32+ hours each week. For partnerships, either general partner or RME will suffice. For corporations, officers designated as a responsible managing offer (“RMO”) or their RME can qualify. Limited liability companies are also allowed to have responsible managing members or managers to serve as the qualifier.

But wait, there’s more!  Please note: The CSLB requirements for the qualifying individual became more stringent this year to ensure that bona fide, permanent, likely full-time, and senior employees are the ones seeking licensure. Additionally, one person cannot serve as the qualifier for more than one active license, except in specific conditions. 

  • Stay in Your Lane

Contractors must also make sure they are not acting outside of their license scope. Contractors in California can hold up to 44 different license classifications in 4 different license categories: Class A (General Engineering Contractor), Class B (General Building Contractor), Class B-2 (Residential Remodeling Contractor), and Class C (Specialty Contractor). Contractors are only allowed to perform work outside of their license classification in limited circumstances. For example, contractors only holding a Class B General Building Contractor license can self-perform the framing and carpentry work on the same project or self-perform two or more separate and unrelated trades other than framing or carpentry on the same project. Otherwise, a contractor holding the necessary specialty license must perform the work. It is always good to know your basic ABCs.

  • Stay Covered

Contractors must ensure they have the proper insurance coverage – including workers compensation insurance. Nearly all construction contracts will include provisions requiring the contractor to maintain a certain type and/or level of insurance. Being a contractor with continuous Commercial General Liability insurance policy is key to protect a contractor’s current and future business. Additionally, California law requires contractors to maintain workers compensation insurance, with few exceptions. Under California Business and Professions Code § 7110, a contractor’s license may be suspended or revoked if the contractor fails to secure proper workers compensation insurance. Therefore, a licensed contractor could have its license revoked simply because it did not have the necessary workers compensation insurance coverage throughout the project.

  • Stay in Touch

In sum, staying vigilant is a better than being in violation. Contractors should make sure they are compliant with their license status, qualifying personnel, and insurance requirements at all times. The CSLB website is a wealth of information for persons wanting to stay up to date on contractor licenses, updates to licensing requirements, and frequently asked questions. Staying in touch with the applicable rules and regulations will help contractors avoid licensing mistakes that can continue to haunt them for years to come.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Are Lawyers to Blame for a Client’s Boorish Deposition Behavior?

Esquire Deposition Solutions

Seasoned litigators know that incivility toward opposing counsel and their clients is not only unprofessional but is, ultimately, a disservice to the client. Harsh words and dilatory behavior impair constructive communications among the lawyers involved in the case, raising costs for everyone and short-circuiting opportunities for reaching a settlement prior to trial.

We’ve written several times about the value of professional civility and the ethical issues raised by uncivil behavior. And we’ve been pleased to note that lawyers recognize the importance of civility in litigation and that, according to one report, civility is alive and well within the legal profession.

But what happens when the uncivil behavior emanates from a litigant rather than counsel? Litigants, it turns out, are largely impervious to the checks and balances that promote civility within the legal profession. To what extent can litigators be blamed for their client’s misbehavior during depositions?

Take, for example, the case of Ludwin v. Proman, No. 20-81755 (S.D. Fla.), a defamation action in which the defendant could not resist the urge to display contempt for the plaintiffs during his remote video deposition. According to the court opinion sanctioning the defendant’s deposition misbehavior, the defendant:

  • positioned his webcam so it showed only the underside of his chin, refusing requests to re-position the camera to show his face at eye level
  • stood up and walked around the room during the deposition
  • moved outside of the camera’s view several times
  • walked around the room carrying the webcam, disrupting the deposition and causing distraction
  • threatened to leave the deposition, at one point saying, “move on or I’ll drop off”
  • used a voice-activated remote control to watch television (and change the channel several times) during the deposition
  • refused to mitigate noise disruptions
  • announced that he was “going to take a leak,” asking if he should bring the webcam to the bathroom while he did so
  • cooked pasta during the deposition
  • drank what appeared to be wine, tipped his glass, and said “cheers” into the camera
  • cursed and insulted the plaintiff’s lawyer during the deposition
  • threatened to leave the deposition
  • repeatedly asserted his Fifth Amendment privilege against compelled self-incrimination, even when asked if he was cooking or watching television during the deposition

“Throughout the deposition, Defendant Proman acted like a spoiled, entitled child who was thumbing his nose at the deposition process, and thus, at the Court,” the court observed.

The court appeared to have two main concerns: first, that the remote nature of the deposition had contributed to the defendant’s poor behavior; second, that the defendant’s attorney had not done enough to rein in the defendant’s boorish, on-camera antics.

The court remarked that it was “a strong proponent of remote depositions and the use of modern technology to make the litigation process less expensive and more efficient for the parties.” In most cases, the court added, “remote depositions are cost efficient, professional, productive, and effective. This, unfortunately, is not one of those cases.”

For sanctions, the defendant was ordered to sit for another deposition and to pay all attorneys’ fees, court reporter fees, and legal videographer fees, incurred by the plaintiffs during the first, remote deposition. The court remarked that it was “troubled” by the behavior of the defendant’s attorney, though it declined to specify the misbehavior. The next deposition, the court said, will be in-person and in the Southern District of Florida. (The defendant resided in California, and his lawyer at the time was based in New York.)

The court also ordered the defendant’s attorney to “familiarize himself” with the local court rules (PDF), particularly the provisions dealing with expectations regarding attorney behavior and the court’s authority to impose discipline on specially admitted attorneys.

Did these sanctions have their desired impact on the litigation? Apparently not.

Eight months and 60 docket entries later, the case is limping toward a scheduled Jan. 17, 2023, trial date. The court’s docket sheet, which now contains more than 200 entries, demonstrates how litigation can spiral out of control when the task of resolving a legal dispute takes a backseat to other concerns. The docket reflects a seemingly endless amount of squabbling over pretrial discovery, of shuffling of new counsel in and old counsel out (at one point the defendant represented himself), and the filing of motions in limine, motions to strike expert reports, motions to enforce compliance with prior court orders, motions for protective orders, and motions to extend deadlines and re-schedule court dates.

Unfairly or not, courts will usually look to the lawyers to get control of their clients. The court seems to have taken that approach in the Ludwin v. Proman case, though it’s not clear what counsel did wrong or what could have been done to prevent the defendant’s deposition from spiraling out of control.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Turning Deposition No-Shows to the Client’s Advantage

Avi Stadler | Esquire Deposition Solutions

This post is addressed to the attorney who has properly noticed the deposition of an opposing party for but, for some reason, the intended deponent has failed to appear at the appointed time and place. A basketball metaphor comes to mind this time of year: You’ve been fouled, and you step to the line for your two free throws. That said, no points are on the board yet. You’ve got to make the shots.

An earlier blog post discussed the consequences of failing to appear for a deposition, with the message that “failure to appear” is a circumstance that should be avoided if at all possible. A party that fails to appear for a properly noticed deposition needlessly tries the patience of everyone involved in the litigation and, more importantly, risks judicial sanctions that can include dismissal of the absent deponent’s legal claims, monetary sanctions, or striking of a defendant’s affirmative defenses. 

When a deponent fails to appear for a properly noticed deposition, the attorney who set the deposition has the responsibility to take whatever steps are necessary to (1) preserve the client’s right to recoup the costs of wasted litigation effort and (2) turn the deponent’s discovery violation into a litigation advantage for the client. This means taking steps to document the absent deponent’s behavior as well as the extent of the resulting harm

Ready, Camera … No Action?

When neither the deponent nor deponent’s counsel appear on time for a deposition, most attorneys will wait 20 to 30 minutes before attempting to contact counsel. At this point, it’s advisable to call the counsel’s office or reach out in some other fashion reasonably calculated to obtain a response. For purposes of creating a strong record documenting the deponent’s failure to appear, it’s a good idea for counsel to attempt to contact counsel in writing, even if those efforts are unlikely to be successful.

Litigators shouldn’t be surprised when a party or witness fails to appear for a deposition. Calls and emails with opposing counsel and the progress (or not) of pretrial discovery efforts leading up to the deposition date usually give the attorney taking the deposition advance notice whether the deponent will appear or not. Forewarned, the attorney who set the deposition should bring materials to the deposition that can be used as exhibits to document the absent deponent’s violation of discovery rules and the extent of the harm caused by the behavior. These materials might include:

  • Deposition notice (or subpoena in the case of a nonparty witness)
  • Proof of service
  • Prior stipulations or court orders compelling attendance at the deposition
  • Correspondence, email messages, texts, and telephone logs regarding the deposition

If the attorney has invoices or other materials that can document the costs incurred attempting the deposition, those should also be brought to the deposition.

Modern deposition practice frequently includes the presence of more than the deponent, counsel and the court reporter. It’s increasingly likely, particularly during the COVID-19 pandemic, that the deposition will be recorded on video or conducted remotely with a videoconferencing platform. Technicians and consultants, litigation support personnel, and additional members of the litigation team are often on hand for depositions, thus increasing significantly the costs of a deponent’s failure to appear.

Counsel should be prepared to document these expenses when a deponent fails to appear — if not at the time of the deposition, then later when drafting a motion to compel or motion for sanctions.

Go on the Record

Once it’s determined that the deponent will not be appearing, the attorney who set the deposition should ask the court reporter to go “on the record” and begin documenting the events that transpired on deposition day. Some attorneys have a no-show deposition script prepared for just this eventuality.

The attorney’s statement should include, at a minimum:

  • The names of all attorneys who appeared — in-person or remotely — for the deposition and the parties they represent
  • The names of all parties who appeared — in-person or remotely — for the deposition
  • The legal authority and/or court rule authorizing the deposition
  • The purpose of the deposition 
  • The time and date, the fact of the deponent’s nonappearance, and the extent of the attorney’s efforts to contact the deponent or deponent’s counsel and apprise them of the deposition
  • An explanation of the steps taken to serve notice of the deposition — as well as any communications that occurred between counsel leading up to the deposition — that show counsel’s good faith efforts to obtain the deponent’s testimony
  • A description of the deponent’s proffered excuses for failing to appear for the deposition (remember, this is “free throw”), as well as the deponent’s failure to file for a protective order (if that is in fact the case). 

Finally, the attorney should attach as exhibits all supporting documents on hand, including the notice of deposition, proof of service, and communications among counsel.

Request Meaningful Relief

Having created a record documenting the deponent’s failure to participate in lawful discovery efforts, the attorney who set the deposition is in a strong position to request meaningful relief for the client with the court.

In the federal system, Rule 37 of the Federal Rules of Civil Procedure authorizes the court to impose a wide range of sanctions for a party’s failure to appear at a properly noticed deposition. Per Rule 37(b)(2)(A), sanctions that may be imposed include:

  • Treating factual disputes as established in the prevailing party’s favor
  • Prohibiting the party who failed to appear from asserting claims or defenses, or from introducing evidence
  • Striking pleadings in whole or in part
  • Staying the case until the deposition is conducted

Rule 37(d)(3) additionally provides that “the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” (emphasis added) An award of expenses and attorneys’ fees is mandatory — provided that the attorney who set the deposition can create a record rebutting any claim that the no-show was justifiable. 

Although one party’s failure to appear at a deposition will, in most cases, result in an order compelling the deposition, the failure to appear can, in extreme cases, support a motion to dismiss. Dismissal of a claim is, in practice, a sanction of last resort that is imposed only after a long history of failure to participate in pretrial discovery.

An example of the type of obstructive behavior necessary to bring about dismissal of a case for discovery violations can be found in Mendez v. Community Health Clinics Inc., No. 16-cv-00425 (D. Idaho, Feb. 9, 2021). In that case involving a pro se plaintiff who had been given every opportunity to participate in the process, the court held, “Mendez, however, has abused the Court’s kindness or simply ignored the court’s warnings seemingly without regard for any consequences or hoping to rely on his pro se status. The Court’s patience has waned at times, but it has repeatedly given Mendez every opportunity to prosecute his case. But at a certain point, the Court must simply move on.”

Yes, deposition no-shows are an inconvenience for everyone involved. But experienced litigation counsel will view the opposing party’s failure to appear as an opportunity to advance their client’s interests. By creating a strong record of the opposing party’s failure to engage in meaningful discovery, they can improve their chances for discovery in the future, narrow the contested issues in the case, and perhaps set the stage for dismissal of the opponent’s claims entirely.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Insurer Litigation Guidelines: The Unholy Grail of Defense Cost Coverage

Lynda A. Bennett and Eric Jesse | Lowenstein Sandler

READ THE TRANSCRIPT

Lynda Bennett: Welcome back to Don’t Take No For An Answer. I’m your host, Lynda Bennett, chair of the Insurance Recovery Practice at Lowenstein Sandler. And it’s old home week. I’ve invited my partner, Eric Jesse, back today. Welcome back, Eric.

Eric Jesse: Thank you for having me, Lynda. Always good to be here.

Lynda Bennett: All right. Well, so hey Eric. Today we’re going to talk about one of our favorite topics, and that is insure litigation guidelines, the unholy grail of defense cost coverage. So, why don’t we set the table by informing our listeners what are litigation guidelines? And more importantly, where can they be found in the insurance policy?

Eric Jesse: Yeah. So, to be blunt, these are the handcuffs that insurance companies try and put on defense counsel’s defense of the claim, right? Defense counsel, they have their professional responsibility obligations to their clients, and they need to do what they think they need to do. And the insurance companies want to second guess and really use these guidelines to try and go line by line through the defense counsel’s bill and strike out this task or that amount. And to answer your question of where they can be found in the policy, it’s probably a game of “Where’s Waldo”, except you’re not going to be able to find Waldo because they’re not in there.

Lynda Bennett: All right. Well, so in that case, typically, when do policy holders get to see what those guidelines say?

Eric Jesse: Yeah. So, typically it’s when the litigation begins, and defense counsel is appointed. At that point, that’s when those guidelines are going to come across and usually not before.

Lynda Bennett: So, what do the guidelines say though? Give me some examples of what are the details that are in there and what’s in bounds and out of bounds?

Eric Jesse: Yeah. So yeah, these are the guidelines. I mean, even though they’re called guidelines, the carriers will treat them as hard and fast rules when you’re reviewing the defense counsel’s invoice, and they’re going to go and say, “Well, you had three lawyers at this meeting, so we’re going to strike that because we don’t allow in firm meetings.” And so, part of the problem there is carriers don’t recognize that sometimes putting on defense requires collaboration with attorneys in the firm, and so you need to have those discussions. Other restrictions are going to be that only an attorney of a certain experience level can perform certain tasks. They might restrict the number of attorneys that can even work on a case to begin with.

They can impose requirements for task-based billing as opposed to block billing. So, if an attorney dared put two-time entries together, the carrier is going to strike that. It might involve caps on the hourly rates that the carrier’s going to pay. It can be an exclusion for what the insurers deem administrative work. One of my favorites is that even though we’re in the year 2020 where everything is done electronically, legal research costs are going to be stricken, so no coverage for Lexus or Westlaw, the carriers will argue.

Lynda Bennett: Well, there’s always Google. So, it sounds like the rubber really meets the road in these lit guidelines for what constitutes a reasonable, “reasonable” defense cost or activity. So, who gets to decide what’s reasonable or not?

Eric Jesse: Yeah. I mean, I think there’s the practical reality that I think a lot of these issues are going to be negotiated. So, if an insurer is taking a scalpel approach to a defense cost invoice as opposed to a hatchet, I think you’re going to try and work it out with the carrier and try and get some more of those costs covered. And you’re going to try and explain why that task was important, why it was important to have a third attorney in a meeting to talk about the defense of the case. Where carriers take the hatchet, you can still try and negotiate and go through the give and take, but it may ultimately be a judge who decides if the amount and controversy is significant enough.

Lynda Bennett: Yeah. I mean, I think we’re joking around a little bit. The stated purpose of these litigation guidelines and the carriers will tell our clients is to manage the cost of the litigation. And they’re doing that with an eye toward preserving the limit. In many instances now, defense costs erode the policy limit where these lit guidelines come into play. And so, the pitch by the insurers is, “Hey, listen, we’re trying to help you preserve the limit of the policy, so that when there’s an indemnity obligation, either through a settlement or a judgment that gets entered against you, there’ll be sufficient funds available for that.” But I think the in practice, what we’ve seen is that really insurers tend to try to use these guidelines to provide a cheap defense, not necessarily the best defense.

Eric Jesse: Yeah. Insurers, I think with these guidelines, they’ll often take a one-size-fits-all approach, so the guidelines they’re using for the car crash case are the ones they might use for the company litigation that is also subject to coverage.

Lynda Bennett: No, exactly right. And so, you said that in many instances, again, they always have to review the policy language, but in many instances, these guidelines are not a term or condition in the policy. So, the question I have for you is, are policyholders actually required to comply with the guidelines? What have the courts said about these when the dispute makes its way of court?

Eric Jesse: Yeah. So, here the opinions are very policy holder friendly. I mean, first of all, the carriers call them guidelines. So, to my point earlier, they need to understand that these are not hard and fast rules. And courts recognize that they are not part of the policy. They’re not typically referenced in the policy. The policy is going to speak in terms of reasonableness. They have to cover reasonable attorney’s fees, and so that’s what must govern. And so, courts do find that these guidelines are extra contractual and not binding. And as we also mentioned, defense attorneys have professional obligations to zealously represent their clients, and so their ethical obligations will sometimes preclude them from being handcuffed by these guidelines. And so, courts will recognize that as well, and for that reason also find them unenforceable.

Lynda Bennett: Yeah, it’s interesting. There’s not a wide variety of opinions out there. There are some that have been rendered in state or federal court. But what I found interesting is the number of state’s professional responsibility arms that have issued opinions that say these are unethical, that they are impinging on a defense counsel’s judgment and ability to zealously represent their client. Those opinions are always nice to put in front of the carrier when you’re having the fight over this to say, “You know what? Just like health insurance companies can’t tell the heart surgeon when a transplant is or is not necessary here, the insurance company is not allowed to tell a defense lawyer, ‘You don’t need to take that deposition, or you don’t need to hire that expert.”

So, that’s important for policy holders to know that there are not a lot, but there are some opinions out there that you can wave around if you’re really having a hard time with the carrier on this. So Eric, do you see a difference in compliance with these guidelines when the law firm is appointed by the insurance company? In other words, panel counsel versus when the policy holder chooses their own lawyer?

Eric Jesse: Yeah. I mean, have the starting point of when you’re able to comply with these litigation guidelines, it’s the path to least resistance to ultimately get coverage, but ultimately that might not be possible. And I think really the key difference here may be who’s ultimately paying. If it’s panel counsel that’s been appointed and they deviate from the litigation guidelines, I think typically it’s that firm that will bear the risk of not getting paid. If it’s the policy holder’s chosen counsel that has deviated and the carriers aren’t paying for a particular task, it’s the policy holder that might have to fill that gap.

Lynda Bennett: So, let’s talk about privilege for a second too. How do privilege issues intersect with carrier lit guidelines?

Eric Jesse: Yeah. So, this is an important issue, and it certainly may turn on the applicable state law that is an issue. In many jurisdictions where a carrier has acknowledged a defense obligation and they are paying defense costs, there is a common interest privilege that can apply in that tripartite relationship of counsel, insurer and insured. And so in that circumstance, you can have some confidence that there won’t be a waiver if information is shared with the insurer. But again, this is one where choice of law as we like to say really, really matters, so we have to pay attention to that and make sure we’re not falling into a trap.

Lynda Bennett: Absolutely. So, we’ve talked about the fact that they’re not a term of the policy. We’ve talked about that courts have found these to be unenforceable and that there are many bumps that can be created along the road with compliance with these guidelines. So, as a practical matter, is there a middle ground for policyholders to achieve with respect to litigation guidelines? Obviously, most policyholders would prefer not to get into a battle royale with their carrier, so are there some things that policy holders can do to smooth it out at the beginning to avoid those bumps in the road?

Eric Jesse: Yeah. Ultimately, communication is key. As I mentioned earlier, where defense counsel believes they can comply with the litigation guidelines, they should try to do so as much as they can because that is the path of least resistance to getting the defense costs paid. But ultimately, communication is key, and so having that conversation with the carrier up front to say, “Listen, you have given us guidelines for your car crash case, and this is about a company case, so this is how we’re going to need to staff this case. These are the tasks that will need to be performed, and here are the attorneys that will be performing them. These are the number of depositions we’re going to need to take in the case.”

When you have that conversation up front and understand and help the carrier understand why there’s going to need to be deviations from the guidelines, that will help for a much smoother process going forward. And it’ll avoid the surprise or the shock that the carrier sees when they look at the invoice and see something that departs. And it will also save time on the back end in terms of having to try and argue and get those costs covered by the carrier.

Lynda Bennett: All right. Eric, I think you just gave us the key to unlock the handcuffs of the litigation guidelines, which is to establish strong communication between the defense counsel, the policy holder, and the insurance representative early on. And we can avoid a lot of the push and pull and fights that come out of these lit guidelines. So as always, I appreciate your wisdom, knowledge, and of course, sense of humor as we discuss all these things. So, thanks for coming on today to discuss this topic.

Eric Jesse: Absolutely. I’m glad we’re able to get the gang back together.

Kevin Iredell: Thank you for listening to today’s episode. Please subscribe to our podcast series at lowenstein.com/podcast or find us on iTunes, Spotify, Pandora, Google Podcasts and SoundCloud. Lowenstein Sandler Podcast series is presented by Lowenstein Sandler and cannot be copied or rebroadcast without consent. The information provided is intended for a general audience and is not legal advice or a substitute for the advice of counsel. Prior results do not guarantee a similar outcome. Content reflects the personal views and opinions of the participants. No attorney-client relationship is being created by this podcast and all rights are reserved.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

U.S. Litigation Basics – What Are Your Options?

Jihee Ahn | Harris Bricken

When issues come up, most of our international clients believe filing a lawsuit is the only answer. Unfortunately, the United States litigation process is often complicated and expensive – there will be an exchange of information and documents, the taking of depositions, and probably some motion practice along the way – and most likely, it will be at least a year or two before you get your “day in court.” Sometimes litigation can be the only answer that makes sense, but we typically let our clients know there are other options out there that can be much more cost-efficient and effective in achieving mutual goals. Here’s a breakdown of the alternatives:

Demand Letters

A demand letter is essentially a formal notice that you will initiate some legal action unless the dispute is resolved informally beforehand. Demand letters come in all shapes and sizes, and they can be very effective because (1) it will lay out what gives rise to your legal claim or claims, (2) it will serve as a “final notice” that they better pay attention to, and (3) usually, the last thing people want to receive in the mail or in their inbox is a letter from an attorney. It’s very commonplace for people or companies to bury their head in the sand and hope the problem goes away when they’re dealing with a foreign person or company, so a demand letter from a U.S. attorney typically makes a big difference.

Mediation

Another available option is mediation, which is a non-binding form of dispute resolution that can be a good fit for many types of disputes. Mediation is a negotiation between the parties that is moderated by a mediator. Typically, the parties will select a mediator and provide that mediator with submissions that outline their claims and defenses, prior settlement negotiations (if any), and attach key documents, such as contracts or operating agreements. Mediation can be a powerful tool because: (1) it brings the parties together for the sole purpose of trying to resolve the dispute, (2) the mediator will help facilitate the discussion by encouraging meaningful and productive dialogue, and (3) the mediator, a neutral third-party with no decision-making authority, will also provide his or her honest opinion as to how strong the parties’ respective claims are, which is great perspective to consider given that mediators are typically retired or very experienced judges or attorneys.

Arbitration

I like to loosely define arbitration as a private court case – the parties will agree on one or more neutral third-parties, or arbitrators, to decide their dispute after receiving evidence and hearing arguments. Compared to traditional court cases, arbitration is much more relaxed and has more flexible rules, making it easier to streamline the entire process. For example, I’ve commonly seen agreements to limit the number of depositions per side or set an overall shorter or expedited timeline to complete discovery. Ultimately, this does lead to a faster and more cost-efficient process.

Receiverships

Sometimes, the best answer for some companies is a court-appointed receiver. These receivers are neutral third-parties that will take over a business’s operations while it’s involved in legal proceedings. A receiver’s sole purpose is to preserve and protect the business during this period – and, if you take care to ensure that your receiver understands your business, they can typically handle everything while the issues are worked through.

Final Note

In most cases, if you find yourself in a dispute, the above options likely can and should be considered as alternatives or additions to running to the court. And of course, the options often can and should be tailored to fit your specific circumstances.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.