Aggressive versus Effective - Which Trial Attorney is Right for You

If you are looking for a family attorney, or any trial attorney, that is aggressive in the courtroom, there are a myriad of attorneys out there that will say that they are.  This does not mean they are effective in the courtroom.  If your circumstances need an aggressive trial attorney, what should you look for?  There are a myriad of attorneys that say they are "aggressive."  But what does that mean?  It is not difficult to be aggressive just for the sake of being aggressive.  And "aggressive" can be an effective strategy.  An "aggressive" strategy is just that, a strategy.  You should look at the trial process as a marathon, not a sprint.  And, the ultimate goal of any strategy is to win the Court's judgment because each and every case always has the chance of winding up at trial.  In order to win the Court's judgment, you have to win credibility from the Court.  To do so, an "aggressive" strategy must be utilized with planning and precision.  For example, race car drivers do not simply keep the vehicle at maximum speed the entire race.  Running backs do not simply run at full speed the entire game.  There must be strategy.  There are times when it is best to delay, times it is best to slow down, times to look for holes, times to decide when it's good to pass, etc..  An "aggressive" strategy is no different.  Simply being disagreeable, filing motions for the sake of wearing the other side down, and incurring costs for the sake of incurring costs amounts ultimately to what I call "chainsaw surgery."  It's ugly, if it goes on for too long it is not only ineffective but harmful, and it can quickly irreparably injure or kill anyone employing it.  Why?  Because repeatedly being in front of a family court judge and losing motion after motion loses the court's credibility.  Judges have very good memories and as cases develop and get to trial, they remember if a party has been before them and whether that party has been reasonable, has "cried wolf", or has been on a mission to win the war by attrition.  Everything in the case plays into the credibility the court assigns to each party at the end of the case.  "Aggressive" can be an effective strategy, and it can be a very good strategy, but it like any other strategy must be applied with precision.  The party that wins the court's credibility is far more likely to win the court's judgment.  To do so, an attorney must be effective, not just aggressive. 

How Many Applications for Receivership can a Creditor Make?

Applications to appoint a receiver are one method collections lawyers have to secure payment of judgments and other relief.  So, what happens if an application is successfully defended and the application is denied?  The law in Texas does not appear to be settled on what precisely the denial of an application means, and whether the applying party can re-apply for a receiver and when that application may be made is not clear.  If the application was technically defective in some way, is it possible that the applying party can simply remedy the defect and apply again?  What if the legal requirements for appointment of a receiver were not met.  For example, what if the applying party did not meet a substantive statutory requirement, such as the applying party failed to identify any specific non-exempt asset which the creditor cannot secure by ordinary process.  If the application is denied on such a basis, can the applying party simply re-apply and if so when?  Does the applying party have to then attempt to execute the judgment and fail, does the applying party have to do more investigative work or discovery?  The answers to these questions have not yet been answered by the higher courts in Texas, and they are ripe for presentation to the higher courts in Texas.  It is critical to anyone seeking or defending appointment of a receiver to seek out counsel familiar with receivership and well versed in receivership law. 

Arbitration in Divorce, Business Litigation, and Disputes

Arbitration, like collaborative or litigation, is a procedural mechanism for resolving divorces, business litigation, and disputes.  It is in essence a process by which the parties agree upon an arbitrator or panel of arbitrators to hear and decide their divorce or dispute.  It is sometimes referred to as "rent a judge" because that is basically what the parties do.  They pay a person or persons they desire to be the judge, hear their case, and render a final decision.  Some of the benefits to the parties is they decide who will resolve the dispute if they cannot do so themselves, they have more control over the process than if it were in a court system, and they may by agreement limit any right to appeal or post-hearing process so that there may be more finality to a decision rendered by the arbitrator.  It may also be more private since it is not a public proceeding.

Arbitration is a contractual process - both parties must sign an agreement to arbitrate.  The arbitration agreement will set out who the arbitrator or arbitrators will be, or will set out the method for selecting the arbitrator(s).  It will set out the powers and authority the arbitrator will have and the rules for the arbitration process itself, such as the ability to schedule conferences and hearings, the ability of the arbitrator to hear and decide motions, set out rules and deadlines governing discovery and evidence, set the final hearing date and place, set out whether there will be a record made by a court reporter of any testimony presented at the final hearing, set out what rights to appeal the parties may agree upon, set out whether the arbitrator will issue a simple ruling or a reasoned ruling that states the reasons for the arbitrator's findings, and other important matters.  The arbitration agreement should be well drafted by attorneys experienced with arbitration procedure, trial, and agreements.  It should set out all of the agreements and desires of the parties, since it will be the governing document throughout this process.  Arbitration agreements are governed by the Texas Arbitration Act and the Federal Arbitration Act, and attorneys handling arbitration should be familiar with the laws governing arbitration.

Arbitration may be administered privately or as specifically desired and directed by the parties in their arbitration agreement.  It may also be handled by an arbitration or dispute resolution organization, such as JAMS Arbitration, Mediation and ADR Services, the American Arbitration Association, and other such organizations.  Each such organization has its own costs which can be substantial.  These can include substantial initial filing fees, case administration fees, as well as the fees for the arbitrator(s) themselves.  Many parties find these fees exorbitant and prohibitive.  It is not necessary to utilize these arbitration organizations in order to arbitrate matters, as the parties can agree on many procedures and their arbitrator(s) themselves and conduct this process privately. 

The authority of arbitrators is limited, both by the agreement itself but also the law.  Arbitrators act as judges, but they do not have the authority of judges granted by the State.  For example, they cannot hold parties in contempt, they cannot enforce subpoenas, and they cannot compel witnesses to testify.  It is therefore recommended that a parallel legal action remain pending so that the parties can seek a judge's assistance if needed for issues the arbitrator(s) are not able to decide or handle. 

Arbitration can be a very effective and cost efficient process.  Seek out the advice of counsel familiar with arbitration to see if it may be worthwhile for your divorce or dispute.