Not Going To Work Out

November 20, 2012 in Roland's Law Blog


© 2012 Roland Brown

You are getting into your car outside the mediator’s office looking forward to an untroubled night’s sleep. The long-running bitter dispute with your former business partner is over (substitute contentious neighbor, former spouse or significant other, angry relative, etcetera for “business partner” to fit the facts). Your lawyer, on the other hand, is thinking “this won’t work out”. Why? Because unless your settlement is with an insurance company where an exchange of a release for a check is the norm, there may be future payments or other obligations involved. Your lawyer is now faced with the important task of trying to foresee every possible thing that can go wrong with the settlement, and to craft settlement documents accordingly.

If you are to receive future payments as part of the settlement, those payments need to be secured. If the settlement is reached after a lawsuit has been filed, you may simply leave the suit pending and agree that if the payments are not all made, you can resume the lawsuit. However, that is not the best of options since avoiding a trial was a big factor in your decision to settle. If you are giving up title to assets, particularly real property, or if your adversary has equity in non-exempt property, your lawyer may try to include a lien on the property to secure the future payments. Generally, the giving of a lien would have been discussed during the settlement negotiations as it can be difficult to agree on a lien after a settlement has been reached. Other issues that often must be addressed include when someone will vacate jointly owned property and what happens if they don’t, who will handle the sale of property, who will pay certain debts, etcetera. Your lawyer should anticipate these issues during the settlement negotiations, but you should also think ahead with the “this is not going to work out” mentality and feel free to ask your attorney how these potential future problems can be avoided.

Permission to publish in Wimberley News & Views and Dripping Springs Outlook granted by author.


What is A Litigator?

November 20, 2012 in Roland's Law Blog


© 2010 Roland Brown

What does a “litigator” do? Some folks may not really know what a is meant when a lawyer is referred to as a “litigator”.  The term “litigate” derives from a Latin term which means “to drive a lawsuit”. The title “litigator” describes one who moves a lawsuit through the judicial (or court) process. Applied to a lawyer, it suggests a licensed attorney who assists clients in preparing and trying the lawsuits they are involved in. The term should also be understood as applying to a lawyer who assists clients in presenting their dispute to an arbitrator (a sort of privately hired judge). The term “trial lawyer” is somewhat synonymous with the term “litigator”. So– think of a “litigator” as a lawyer who represents one side of a dispute against the opposing side, whether in court or in the arbitration process.

Although the terms sound similar, a litigator and a mediator are not the same. Mediators are neutral individuals who meet with all of the parties to the dispute and assist them in attempting to reach an agreement without court proceedings or an arbitration proceeding. Unlike an arbitrator, the mediator cannot make a decision that is binding upon the parties, and unlike the litigator, a mediator does not fight for one side or the other.

A litigator is typically engaged in every aspect of the process from the initial meeting with the client through the trial of the case. The litigator must investigate the facts, determine the law that applies to the case, obtain information from the other party or parties to the dispute through the discovery process, and make efforts to resolve the controversy through negotiation. Ultimately, though, the litigator must be prepared to “drive” the lawsuit through the court or arbitration proceeding with a goal of obtaining the results desired by the client. If a party to the lawsuit appeals the trial court’s decision, the same attorney or litigator who tried the case may also handle the appeal. In other instances, an appellate specialist may take over following the trial court judgment and prepare the brief on appeal as well as arguing the case before the appeals court. The selection of a litigator or trial lawyer is one of the most important decisions to be made when one finds themselves in a serious dispute.