FAQs

I have been sued over a business or real estate dispute. Do I need a lawyer?

That depends on the amount of money that is in dispute, and it depends on the complexity of the legal issues involved. Small claims lawsuits are limited to the parties - lawyers are not generally allowed to participate in the small claims trial (although they can participate in the defendant's appeal to the Superior Court). In California, small claims matters cannot exceed $5,000, and in some cases cannot exceed $2,500. Otherwise, the lawsuit goes before a regular trial court. Judges in California are often sympathetic to parties in a civil dispute who cannot afford a lawyer, but they are required to apply the law, and often the law involved can be too complex for a non-lawyer to handle by himself or herself. In those cases, a person who has been sued in a business or real estate case should hire the best lawyer he or she can afford to act as their advocate in court. Lawyers will tell you about their experience with cases similar to yours. You should also ask about the lawyer's background, such as where the lawyer went to law school, how long the lawyer has been actively practicing in California, and whether the lawyer has trial experience.

I have a dispute with my partner in a business or real estate venture. Are there alternatives to court trials for a business or real estate dispute?

Yes. Small claims court is a great place to solve minor disputes that involve less than $5,000. Otherwise, mediation and arbitration may be alternatives to lengthy court trials for a major business or real estate dispute. Indeed, your dispute may be governed by a written agreement containing a provision requiring arbitration or mediation, so review any relevant contracts as soon as you find yourself in the middle of such a dispute. Since mediators and arbitrators typically are either lawyers or former judges, you should hire the best lawyer you can afford to represent you. Most likely the other side will have a lawyer, and you should not try to represent yourself in that situation. Hire a lawyer at the start of the dispute, so you get the full benefit of his or her experience in trying to resolve your problem.

I own a business. I have no kids from my marriage. Can I do my own divorce?

That depends on whether your spouse has been an equal partner in the business. If both spouses understand the business and are truly equals in operating the business, then both can appraise the value of the business and arrive at a settlement regarding the value of the business and how to divide it. But divorce cases involving a business can be very contentious, especially where one spouse has been kept in the dark about the other spouse's business over many years. In that case, it helps if both spouses have an experienced family-law attorney to represent each of them. That way, the process of getting financial information about the business and then appraising and valuing the business is open to both sides. An open process of valuing the business is more likely to result in a fair and reasonable division of the business asset, and it will be less likely to require an expensive trial to value the business.

I had a long marriage which ended in divorce. My circumstances have significantly changed. The spousal support awarded in my divorce judgment is too high (or too low). What can I do?

You should see a lawyer about reducing (or raising) the amount of spousal support. The court is under a duty to consider and weigh each of the issues mentioned in Family Code section 4320 that apply to a particular case in determining whether to modify a spousal support provision contained in a divorce judgment. Section 4320 requires the court to consider "the extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage . . . ." The provision focuses upon the marketable skills of the supported party, the market for those skills, the possible need for retraining of the supported party, and the extent of any impairment in ability of the supported party to obtain marketable skills due to periods of unemployment during the marriage to permit the supported party to devote time to domestic duties.

The court also must consider "the extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party" and the "ability to pay of the supporting party, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living." Another area for the court to consider is the "needs of each party based on the standard of living established during the marriage" and the "obligations and assets, including the separate property, of each party." Naturally, the court must take into account the "duration of the marriage" and the "ability of the supported party to engage in gainful employment" without interfering with his or her duties to any minor children of the marriage, as well as the "age and health of the parties." The court must consider the "immediate and specific tax consequences to each party." Spousal support is taxable in the United States to the payee and deductible to the payor. Last, and often most importantly, subparagraph (k) of Family Code section 4320 requires the court to consider the "goal that the supported party be self-supporting within a reasonable time."

Can I handle my own auto accident case?

If you have auto insurance and you are involved in an accident that someone claims is your fault, then you should immediately report the claim to your insurance company. Your insurance company is required to provide a lawyer to represent you if the claim involves a risk that is covered under your insurance policy.

If you are involved in an auto accident that is the other party's fault, and you are injured in the accident, then you can make a claim against the other driver's insurance policy. You can handle this yourself if the injuries are minor and if the insurance company adjuster is willing to negotiate reasonably with you. In many cases, and especially when you are seriously injured, you should hire a lawyer to handle the claim for you. Usually, the lawyer will charge a percentage fee based on the amount actually recovered from the other party's insurance company - this is called a "contingency- fee". You can negotiate with the lawyer about the amount of the percentage fee, especially if the claim is likely to be settled without having to go all the way through trial to obtain a recovery. But insurance companies are very skeptical of big damage claims for minor injuries from slow-speed impacts. If the claim is seriously contested by the insurance company, the lawyer will likely charge a percentage of 40% to take the case to trial.

Crashes resulting in major injuries, such as head or spinal injuries or injuries to internal organs or permanent injuries to joints, should always be handled by an experienced lawyer. Ask if the lawyer has experience handling injury cases similar to yours. Ask about the lawyer's background, such as where the lawyer went to law school, how long the lawyer has been actively practicing in California, whether the lawyer has taken special medical-legal courses, and whether the lawyer has trial experience. Ask if the lawyer will advance the costs of preparing for trial.

My current lawyer doesn't seem to be doing a good job on my case. Help!

First, try talking with your lawyer. Many times the lawyer is doing good work on the case but the lawyer is too busy to explain just what is going on in the case. Set an appointment and prepare specific questions to ask the lawyer about the progress of your case. Most lawyers are willing to take time to explain what is happening.

If after talking to your current lawyer you still don't have confidence in how he or she is handling your case, then make an appointment with another lawyer to talk about your case. Then you can decide if the situation requires that you change lawyers. This can be a drastic step, so only change lawyers after carefully reviewing your options. But in some cases it may be necessary to change lawyers if you are to avoid a disastrous result. It is your right to change lawyers if you feel you have to do so. Your lawyer should not object and he or she is obligated to cooperate with you and your new lawyer if you decide to change lawyers. The client's interests always come first.

My lawyer was unprepared and I lost my case. What can I do?

First, talk in person with your lawyer about what happened in your case and the reasons why he or she thinks you lost. Also ask about your options, such as post-trial motions and/or an appeal. Make sure you understand any time deadlines, such as when the time expires for bringing an appeal or post-trial motion. Then, after talking to your current lawyer, you can make an appointment with another lawyer to talk about your case. Time is short, so do so promptly! When you talk with a new lawyer, be sure to discuss your alternatives as well as what the first lawyer may have done wrong to cause you to lose your case. Don't just focus on what the lawyer may have done wrong. You may have a valid appeal or a motion for reconsideration or motion to vacate the judgment. But again these alternatives are time-urgent, so discuss them with a lawyer immediately upon receiving any bad news on your case.