Arizona Business Laws

Mindset in Deals versus Litigation

Hello, I’m Michelle Lombino, a partner at Jaburg & Wilk, and a business lawyer and certified understanding-based mediator. Are There Differences in Clients’ Mindsets in Deals Vs. Litigation?Frequently when people are entering into deals, the positive mindset dominates. They’re very eager, they’re very excited to get the deal done. They’re willing to compromise with the other party. But at the same time– oftentimes that is, they will rush through things they don’t want to confront or address issues that they fear might derail their deal.

Drawbacks to Positive Thinking in Legal Transaction

It is fashionable to tap the virtues of the positive mind; and the positive mind is beneficial. It focuses on what works, on results, it’s action oriented. But if the positive mind dominates, parties may be easily fooled. They may not consider the risks or the potential pitfalls of a problem. Over the years I’ve been involved in many a litigation involving Ponzi schemes, and I’ve though that those Ponzi schemes might be the result of the positive mind dominating.

Benefits to Negative Mind

Yes, at its best, the negative mind sees the risks and potential downfall of a situation. However, taken to its extreme, the negative mind can lead to anger, intolerance, and a sense of frustration. Many a settlement negotiation has fallen apart because the negative mind has predominated.

Clients Help Themselves by changing their mindset

Yes, first by recognizing the benefit of using both the positive mind and the negative mind, and using both approaches. And second, by cultivating a neutral mind that can consider both what could go right and what could go wrong, and from that place deciding the best approach.

 By: Michelle Lombino

Hi, I’m Kraig Marton and I do employment law here in the firm.

Why do you call employment law alphabet soup?

Employers have to know so much when they’re engaged in the field of employment law. And there’s so many acronyms that are used that just learning them becomes difficult. There’s things like FMLA. There is USERA. There is COBRA. There’s HIPAA. One can go on. Now there’s the  ACA, some call it Obamacare just keeping track of the initials for the laws is hard much less keeping track of the actual laws that govern the employment relationship.

Which types of employers are more susceptible to get sued?

What I find is that an employer with (50) to (100) employees – who’s grown fast because it was a family run business – are those who are most likely to get sued. And the reason for that is, they grew fast and the controller or the sister is handling the HR functions instead of a HR professional. And so what happens is that if you’re not familiar with all of the laws that govern employment law, you’re going to make a misstep. You know the cost of a lawsuit these days is tens, probably hundreds of thousands of dollars to defend when an employer gets sued. And it’s a no-win proposition for the employer because if the employer loses, they not only have to pay the other sides attorney’s fees, they also have to pay whatever damages the jury assesses. On the other hand, if the employer wins, almost for sure, they don’t get back their attorney’s fees nor do they get back any real benefit other than vindication. And so what occurs is the cost of a lawsuit can be tremendous in administrative cost, in financial cost, and just in morale. And so if an employer pays attention to employment law in advance, and does things right, and follows the law, and treats employees fairly, they’re not going to get sued. Proactive is the way to go.

By: Kraig Marton

If I Won my Case, Should I Worry About an Appeal?

Hi. I’m Kathi Sandweiss at Jaburg & Wilk. I’m an appellate lawyer here. Congratulations on winning, first of all. But if your opponent appeals, you are going to have to defend the judgement. By defending the judgement, what we’re talking about is we need to tell the Court of Appeals that your trial judge didn’t make any reversible errors. The process as the appellee is simpler. It basically involves only one brief as opposed to the two briefs that the appellant would have to file, so there would be an answering brief that’s based completely on the record that was presented to the trial court. And at that point, we’re telling the Court of Appeals that, based upon the evidence presented, the fact finder, either the jury or the trial judge, did not make any errors, and that based upon the legal issues presented, the trial judge made no legal errors, and that’s very important because we’re looking at what’s the standard of review on appeal. If it’s a legal error that the appellant is urging, then it will be reviewed de novo. If there’s a factual error alleged, then the court of appeals will defer to the fact finder, which would be either the trial judge if it was a bench trial or a summary judgement motion, or it would be the jury. In that case, you’ve got a much better chance of it being affirmed on appeal.

If My Lawyer Made a Mistake, Can I Challenge the Appeal Outcome?

There’s a big difference between lawyer mistake and trial court mistake, and a big difference between lawyer malpractice and then appeal. Clients are always coming to me and saying, “I told my lawyer he should look for these financial records, and he never did, and he never presented them.” And clients will say, “I told my lawyer we had a fraud case, but he never raised that issue in the trial court, so can we appeal this?” And what I am telling you is, that’s not an appeal unfortunately. An appeal is based solely on the record that was presented to the trial court. If we don’t have that evidence in the record, we’re not going to be able to present it to the Court of Appeals. What the appellate court say is that they want the trial court to correct its own errors first. Therefore, if an error hasn’t been presented to the trial court, it’s not going to be presented to the Court of Appeals. The Court of Appeals can’t reverse it. What we’re looking for is an error by the judge. I know it sounds kind of funny, we’re looking for judge-made errors, but that’s what an appeal is. We’re looking at a three-judge panel, a higher court reviewing what one judge did in the lower court.

By: Kathi Sandweiss