Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting ...

Moving Away from the Billable Hour in Construction Law

I am going to tell you a secret. Most lawyers hate the billable hour. It is hard for us to keep track of our time, even with all of the latest software and technology. Most clients do not understand why some activities take so much of our time. They don't understand the value we provide. That is why more and more lawyers are trying to change the way they charge and use flat fees and other means to bill their clients.

The other day, I had an epiphany. As a lawyer who works mostly in the construction industry, I should bill like contractors. I could prepare a proposal and scope of the work, and notify the client in advance what I would charge. If things changed dramatically, we would execute a written change order that would be signed by the parties. Everyone would be on the same page, and there would be no surprises.

This is easier to do in some areas than others. I pretty much know how much time it takes me to draft a contract, write a demand letter or file a mechanic's lien. The trickiest area is in litigation. The minute you file suit, you have no control over the process. The other side can make it quick, or drag the lawsuit out and make it incredibly time consuming and expensive.

However, I am doing research and trying to figure it out. I have never been comfortable with the fact that the first time I write a motion, it will take much longer and cost the client more money than the tenth time I write it. The billable hour does not encourage efficiency, and I am very efficient. I do not want my clients to be afraid to call me because they believe it will be costing them extra money to speak with me. Those conversations can frequently prevent problems and save money in the long run. So, look for some changes in the way I practice. They are coming soon.

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