Disputes & Litigation
Mediation is a formal process where the parties (or their lawyers) discuss their issues in the presence of a mediator. The most important thing to remember about mediation is that it is non-binding. No one can compel anyone to do anything in mediation, other than discuss the dispute. At times, this is enough for the parties to resolve their dispute because the issue arose when communications had completely broken down. At other times, however, mediation is unsuccessful because the communication in mediation reveals that the parties are too far apart to agree. The role of the mediator is to try to bring the parties together by exploring why positions are where they are and to offer creative solutions that mutually achieve goals acceptable to all.
Arbitration is a process where the parties agree to let someone else (other than a judge or a jury) decide their dispute and promise to honor the arbitrator's decision, win or lose. Early on, arbitration was a highly attractive alternative to going to court. With time, however, some of the gloss has worn off.
The advantages of arbitration are that disputes are resolved more quickly and sometimes more economically. One major disadvantage is the inability to compel evidence to be produced that you need for your case, whether that is a witness or documents. Arbitrators also have to be paid by the parties, while judges are paid with your tax dollars. Arbitrators, while typically skilled in the background of the nature of a dispute (such as securities, stockbroker disputes, etc.), often come from a single perspective and do not have the breadth of experience that a judge typically does nor the consensus approach that comes with a jury.
Arbitration is preferable in some situations, and disastrous in others. Decisions to arbitrate must be carefully made at the outset.
In looking for a litigation attorney, most clients like what I offer - an aggressive stance against adversaries that is always mindful of your goals and the economics of litigation. Litigation tactics is one of my personal preferences and strengths. Many, many lawsuits are won or lost because of events that have nothing to do with the merits of the case. My role is to maximize your leverage in winning or favorably settling a lawsuit or potential litigation.
Litigation is inherently unpredictable, however, and that naturally causes clients angst. I understand how difficult it can be, and can empathize with you because I have been both a lawyer and a party in lawsuits. My role is to advocate your interests, explain the situation to your satisfaction and based on my experience, provide you with the available courses of action when you need to make a decision. With a greater understanding of the process, my clients more completely appreciate the circumstances of the case as well as make better informed decisions. When clients understand the process, angst decreases because the process is easier to grasp.s
Example: Client D and her ex partner lived together and co-owned property for 10 years. Then they broke up and Client D moved out, but the house remained in their joint names. Over 15 years passed without any discussion of the topic between them. Then Client D consulted with me, and I represented her in recovering her fair share of the equity and had her name removed from the mortgage.
Commercial litigation involves resolving disputes centering on business dealings. Naturally, in business matters, the dispute centers on money and value. Thus, the economics of the litigation are always a central concern because no client wants the legal fees to exceed what any potential recovery could be.
I have handled many commercial litigation matters. I know the area well because of my dual financial and legal backgrounds. Consequently, I use my experience to further your interests to achieve your commercial goals.
If you have a potential litigation matter, please do not hesitate to contact me, by telephone or email, to discuss the matter.
Example: Client A came to my office at the end of his 16 year business (and domestic) partnership. Because he had ‘no paperwork’ to substantiate his work in the high-end retail business, he thought he had been ‘just helping around the office off the books’ and could only recover his $5,000 watch in small claims court.
I saw this as an entirely different case. Client A was a full blown partner in the business, and I sued in state court to recover 50% of its value of approximately $4.5 million.
A state court judge agreed that Client A had been a partner in the business and appointed a receiver at my request regarding books and records. Quickly, it became apparent that the receiver should be in charge of the entire business and I asked for the receiver’s authority to be expanded. At this point, the adversary filed for bankruptcy in an attempt to avoid the receiver and the state court ruling.
Undaunted by the bankruptcy filing because of my general practice (a big advantage over specializing!), I pursued the adversary in the bankruptcy court and again put him in a position to lose the business in liquidation.
Result: Client A received between 25% and 33% of the business’ value, over $1 million. Obviously, this is a much better result than the originally envisioned $5,000 small claims suit.
Example: Client E owned and operated her own after-school child sport program and leased space for her students to learn new sports skills. When the facility abruptly cancelled her lease throwing her business into chaos at the expense of the children, I obtained a court injunction reversing the cancellation and forcing the facility to remain open to her (with police involved).
Litigation in a bankruptcy context typically involves a creditor objecting to some part of a debtor's bankruptcy proceeding. There are many particular reasons that a creditor would want to intervene in the process that make solid commercial sense. I have been involved in proceedings of this type where the Bankruptcy Court has specialized rules unique to its jurisdiction in which an attorney must operate. In this context, I have represented both creditor and debtor interests. Consequently, if you have to file for bankruptcy or have a claim affected by someone else's bankruptcy petition, please consider consulting my office to determine the best course of action.
Example: Client H was a commodities trader due $2.3 million in annual trading profits, plus a $300,000 deposit when his clearing house filed for bankruptcy. I successfully represented the trader’s heir (he died during the litigation) in recovering most of the amount due him even though the clearing house was bankrupt. I then drafted a trust for the benefit of Client H’s children so this money would be used for their benefit over their lives.
Estate / Will Contests
I am well experienced in litigation matters concerning wills and estates, disputes typically handled by specialized state courts. In New York, the Surrogates Court is the specialized court handling estate, will and trust disputes. Surrogates Court has highly specialized rules that differentiate it from other state and federal courts.
I have had several cases with hotly contested issues concerning wills, estates, bequests and control of an incapacitated person's finances. I understand that often the adverse parties have known each other for many years and find the entire situation to be very emotionally upsetting. Like any litigation, I seek to advance your interests in an economical manner. In addition, I empathize with my client's situation in what is usually an emotionally trying time.
Example: Client B and his domestic partner had been together for over 30 years. Client B brought me what he (and his partner) thought was a valid will protecting Client B, because all of the assets were in the partner’s name.
I realized that the will was defective, and that the $3 million estate would not be distributed to who was supposed to receive it. I drafted and oversaw the execution of a new will that met the wishes of Client B and his partner. Shortly thereafter, the partner died.
An immediate crisis sprang up because there was no cash to operate the rent-stabilized apartment house, and the new will was bitterly challenged by two wings of the partner’s family.
I successfully negotiated a sale of the apartment house, funded the estate with the proceeds, defended the will, retrieved assets in Switzerland and Germany and thus, preserved the lifetime financial security of Client B.
Example: Client C and his domestic partner had also been together for over 30 years, however, Client C came to me after his partner’s passing and admission of a will adverse to his interests in probate over his partner’s $12 million estate.
When Client C came to me, he was facing a $300,000 cash demand to ‘secure’ his use of their beach home (a right to use the home for the rest of his life being all that was left to him in the will), joint accounts he had with his partner had been drained by a hostile executor and he had just re-entered his home and the beach house after being physically locked out, allegedly to “protect a valuable stamp collection”.
While it was too late for me to do anything about the will, there was much other work yet to be done. A deed to their beach home giving it to Client C had been wrongly ‘unrecorded’ by people involved with the estate but hostile to him. The ‘money trail’ also had to be explored to see who was benefiting from his loss.
RESULT: The $900,000 beach house was put in Client C’s name, the $300,000 cash demand dropped and those who effected this harm to Client C have been pursued in the appropriate legal channels. Net swing: $1.2 million.
Example: Client G’s father had a brain tumor which his girlfriend took advantage of by having him name her as the beneficiary on an $200,000 annuity three weeks before he died. I successfully represented Client G in recovering a portion of the annuity beneficiary.