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Tag Archives: Litigation Preparation

Where Are You Going: Arbitration or Court?

11 Tuesday Mar 2014

Posted by Barry M. Bordetsky, Esq. in Uncategorized

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Arbitration Complaint, Attorney, Bordetskylaw, Breach of Contract, Broker-Dealer, Commercial Litigation, Investor Complaint, Lawsuit, Litigation, Litigation Costs, Litigation Preparation, Strong Defense, Suitability, Supervision, Unfair Competition

The charge goes out from the client: Sue Them!   Doing the due diligence before drafting a complaint the attorney discovers an agreement between the parties that permits the claim to be filed before an arbitration forum or court.

So where to go?  Choosing which forum to commence the proceeding can prove critical to the case.  The importance of the forum analysis cannot be overlooked.  Factors to be considered include the amount of time it will take to have the trier of fact (judge, jury or arbitrator) render a decision, the type of discovery that will take place in each forum and the costs associated with each forum.

Arbitration includes a generally expedited process where a claim is heard within a year or eighteen months after the filing of the claim.  Conversely, a court proceeding can last from one to three years. Generally no depositions or interrogatories are permitted in the arbitration process. In English, this means unlike a court proceeding a party in the arbitration process has no idea what the other party is going to say when called to the stand. Arbitration attorneys often call the process trial-by-ambush.

An advantage seen in the arbitration process, particularly for individuals as opposed to corporate parties, is the decreased cost associated with the diminished discovery permitted in the forum.   Discovery for an average commercial matter can be the most expensive part of a proceeding. Some, however, do not see the cost benefit of limited discovery.  If the potential claims are believed to be in the range of hundreds of thousands of dollars, then spending tens of thousands of dollars to ensure you acquire the relevant information to prove your case can be seen as money well spent.

Where a party chooses to litigate a case in court, the judge is randomly selected upon the filing of the complaint, where parties to an arbitration will select the arbitrators. This judge in the court case will determine issues ranging from discovery to substantive motions filed by the parties.  In most jurisdictions this will be the same judge that presides over the trial.  In the event a court renders a decision, whether on a pre-trial matter or on the decision from the trial, a party has a right to appeal the issue to an appellate court.

Like a judge, arbitrators rule on various motions including discovery motions such as motions to compel, motions to exclude as well as motions to dismiss certain causes of action.  These are heard prior to the arbitrators ruling on the merits of the case. Importantly, unlike a court proceeding, these decisions by the arbitrators are not immediately appealable.  Moreover, after arbitrators render their final decision, it is very difficult for a party to overturn, or vacate, the arbitration award.  Said differently, the appeal process in arbitrations is substantially more difficult than in court proceedings.

The decision of the forum is critical and should not be disregarded as inconsequential.  Prior to any filing, take the time to determine which forum is better for your matter.

The Law Offices of Barry M. Bordetsky represents parties before courts and arbitration forums. If you have any questions, please contact us by telephone (800) 998-7705 or by email at barry@bordetskylaw.com.

Help Your Attorney Help You

10 Monday Mar 2014

Posted by Barry M. Bordetsky, Esq. in Uncategorized

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Arbitration Complaint, Arbitration Discovery, Attorney, Bordetskylaw, Breach of Contract, Commercial Litigation, Compliance, Court, Customer Complaint, Fraud, Investor Complaint, Lawsuit, Litigation, Litigation Costs, Litigation Preparation, Mediation, Misrepresentation, Stockbroker, Strong Defense, Suitability, Unfair Competition

All too often a party retaining a law firm moves forward with the belief the litigation costs will be minimal because the issues, from the client’s standpoint, are simple, straightforward and should not require a lot of work.  Except all too often simplicity is a mirage of a complicated and often times very expensive litigation.

Clients that provide the attorney with a clear road map of what did or did not happen do themselves, their attorneys and their case a great favor.  This process is done with the client preparing a written description of the facts as he or she sees the situation.  For every point supported by documents, provide those documents.  Don’t take this the wrong way, but it is our jobs as attorneys, playing devil’s advocate, to test your story, try to poke holes to test the points raised if for no other reason than to determine the viability and/or liability potentials of your case.  We will use your description and supporting documents to do that; don’t let us learn the case from the other side’s attorney.

This process begins before the first meeting with your attorney.  Take the time to go through your files and prepare for the meeting just as you would prepare for any other meeting where tens of thousands of your dollars are at stake.  And to be clear, this is the money that you could spend on your attorney to gather and review documents in the course of your case if you do not take care of the initial due diligence.

The lesson here:  avoid or minimize this cost by doing the necessary legwork.  Go through your files and copy (keep a copy of everything) all documents relating to the matter, putting the documents in chronological order to provide to the attorney.  Take the time to review your emails, utilizing relevant keyword searches that relate to all aspects of the issue and keep a log of the keyword searches.  Put the emails in chronological order and include the complete email string together with any attachments that were included in the message.  A key point: it is not your job to decide what is or is not important to a matter.  Give the attorney everything, tell the attorney everything.

What will this work do for you?  By providing an organized package of documents to your attorney (don’t write on the documents!) with a corresponding description of the facts and circumstances relating to your matter, explaining how the documents relate to the issue at hand, you provide a road map for your attorney to follow and understand your case at a much more cost efficient basis for you.  Give your attorney as much ammunition as possible to fight for you.

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Law Offices of Barry M. Bordetsky

570 Lexington Avenue, 44th Floor
New York, New York 10022

22 N. Park Place, 2nd Floor
Morristown, New Jersey 07960
(800) 998-7705

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Law Offices of Barry M. Bordetsky

Law Offices of Barry M. Bordetsky

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