8 Ways to Avoid Paying Expensive Legal Fees

by Jaburg Wilk

"The first thing we do, let's kill all the lawyers." Shakespeare, Henry VI

Meeting new people at a cocktail party and telling them that I'm a lawyer frequently generates disdain. The experience that most people have had with lawyers is in connection with their divorce or a business litigation matter. In either case, it was rarely pleasant and usually very expensive. I explain that I don't sue people. In fact, a key part of my practice is helping my clients avoid litigation.

As a transactional commercial lawyer, I assist my clients start new businesses, strategize and structure their business deals, draft and negotiate contracts that reflect their business goals and comply with applicable laws and regulations.

Although litigation cannot always be avoided, the following steps may mitigate your chances of getting involved in litigation:

Initially and most importantly, evaluate the company or person with whom you will be dealing.  Check his or her background, reputation, credit and litigation history. The best way to deal with a "problem" person is to avoid dealing with him or her.

Second, have a clear understanding of the agreement between the two of you, including all material terms. A clear mutual understanding of the deal and managing both parties' expectations are critical. Once you have arrived at a deal, have all material terms clearly written in a contract that is signed by both parties. Do not sign a contract that includes terms you don't fully understand. To mitigate the possibility of future litigation or liability from that litigation should it arise, you should seriously consider consulting a lawyer to prepare or review your contract.  A lawyer is able to identify the material terms, have the contract clearly state what you agreed upon, provide contingencies for how to proceed should a dispute arise (for example, provide for mediation or arbitration, rather than litigation, to keep down costs and obtain a quicker resolution) and explain provisions that you don't understand.) Most disputes and litigation arise from misunderstandings, lack of communication and unreasonable expectations.

If a dispute arises, don't immediately get agitated. Think and act logically and reasonably.  Review the facts.  Don't take the dispute personally. Put yourself in the other party's shoes and try to understand his or her viewpoint. Review the contract to determine whether the facts or issues underlying the dispute are addressed in the contract.  You may find that it is you, not the other party, who is not complying with your original agreement.

Talk with the person with whom you're having the dispute (or the proper person at the company with whom you're having the dispute). The contract may specify with whom you should be talking.  Before taking that action, be aware of the political consequences of talking with the wrong person or going over someone's head.

Although it is common practice today to communicate by e-mail, there are pros and cons in doing so; sometimes a good result is best achieved by a face-to-face meeting.  In addition, a downside of communicating by e-mail (or otherwise in writing) is that, should you not be able to resolve the issue, in subsequent litigation, anything that is favorable to your position is "self-serving" and of no effect, but anything that is detrimental to your position will be used against you.  You may inadvertently concede a point that could be damaging to your position.

Prepare for the conversation or meeting by gathering pertinent facts and documentation, outlining the issues, your positions and potential solutions, and by anticipating the other person's substantive responses, so that you are reasonably prepared to respond to them.  If the other person may benefit in some way from your position, framing the facts or dispute in a manner that makes that clear may be persuasive. Your approach and communication style should be cordial, not antagonistic or contentious.  There is no merit in escalating an issue unless and until you need to do so. Taking the offense puts the other person on the defense. You are more likely to achieve a better result through an affable, cooperative approach. Clearly express your concern. Ask questions to understand the other person's position, allowing him or her to communicate his or her needs. Give him or her the opportunity to consider the issue and your position, which may include allowing him or her to respond to you at another time.

Hopefully the dispute can be resolved by a mutual understanding of the others' positions and needs and mutual agreement to a win-win solution. Although parties' starting positions may be in conflict, each party's actual needs frequently are not in conflict and an amicable win-win resolution can be achieved. Even if the parties' actual needs are in conflict, a reasonable resolution may be achievable through compromise.

If the dispute has not been resolved amicably, you must decide what your next step is.  The alternatives available will vary depending upon the facts and context.  However, it is important to determine and fully consider each of the available alternatives, as well as the practical, political and legal consequences of each alternative. (You might consult a lawyer at this time to advise you of your rights under the contract, help you determine and evaluate your alternatives and advise you of the legal consequences of each alternative.)

If you decide to pursue your position in the dispute, send the other party a formal written statement of your position, requesting one or more specific resolutions. Again, your approach and communication style should be cordial, not antagonistic or contentious. What you say in your letter is very important.  Not only is your letter your opportunity to persuade the other party of the merits of your position and request, but, as noted above, its contents may be used against you. Accordingly, you may want to have your lawyer send the letter.  On the one hand, a lawyer's letter reflects that you're serious; on the other hand, it escalates the dispute. Regardless of whether you or your lawyer send the letter, you should have him or her prepare or review it.

At this point you're back to Step 5 above: communication, negotiation and, hopefully, resolution. Unfortunately, disputes cannot always be resolved amicably or cordially and through persuasion and compromise.  If you cannot achieve resolution, you're back to Step 6 above: considering your alternatives and deciding how to proceed.  One of those alternatives may be to pursue litigation against the other party.  In that case, you'll need a lawyer who can vigorously represent your interests.

Hopefully you can achieve an acceptable resolution to your dispute by utilizing the above strategy, as your best option is not to win in litigation, but to avoid litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jaburg Wilk | Attorney Advertising

Written by:

Jaburg Wilk

Jaburg Wilk on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.