How do you Choose the Best Business Litigation Attorney? One Chief Technology Officer Offers his Two Cents.
(What Business Litigation Attorneys in Ohio and Beyond Can Take Away from Kyle O’Hehir’s Viral How-to Guide)
The Chief Technology Officer of a New York-based real estate finance company recently went viral with a post (formerly “Tweet”) on X entitled “HOW TO HIRE GOOD ATTORNEYS” in which he vented his frustrations about hiring the wrong attorney for a case.
This post got me thinking. As a member of the legal profession, it can be downright painful to witness the fate of a party who chooses the wrong attorney. Sadly, it happens all the time in business and other litigation. When it comes to business litigation in Ohio, these ill-starred stories usually fall into one of two categories: 1) the party hired a lawyer who was unequipped to handle the case at issue, or 2) the lawyer unnecessarily ran up an excessive bill that quickly made the case not worth it to pursue. Some cases fall into both categories.
Beware of Hiring the Wrong Attorney for Business Litigation in Ohio
One case from years ago comes to mind. A company in Cincinnati, Ohio was aggrieved when a group of employees stole the company’s trade secrets, misappropriated its intellectual property, and began manufacturing and selling competing products, including to the their employer’s clients—and they developed the scheme while continuing to receive a paycheck!
Not only did these employees violate their noncompete, non-solicitation and confidentiality agreements, they violated a laundry list of statutory Ohio laws and longstanding common law doctrines. The employer should have been able to put an immediate stop to this malfeasance, disgorge every cent of ill-gotten profit, obtain a huge damages award and leave the former employees in ruin. But they hired the wrong lawyer.
The company retained an attorney whose law firm website advertised a range of legal services, including personal injury and divorce. This lawyer meant well but did not have the necessary tools—experience in commercial and complex civil litigation in Ohio courts, the ability to deploy discovery procedures that are necessary in trade secret misappropriation cases, an understanding of E-Discovery—to handle the case. Any Ohio commercial litigation attorney watching the case unfold would have cringed as the attorney failed to properly build the case.
For example, the attorney failed to obtain essential evidence that could have easily been subpoenaed, had no clue certain expert witnesses were necessary, failed to have forensic searches performed of the Defendants’ electronic devices, failed to establish the company’s damages, and even filed the case in an unfavorable venue (in my opinion, which I believe the majority of lawyers who litigate business disputes in Ohio would agree with). The case ultimately went to trial. Improbable as it sounds, the company lost!
By the time the case was referred to me, it was too late. I reviewed the case along with an experienced colleague. After skimming the written filings, watching video clips of the trial and reviewing key exhibits, we quickly realized what had occurred. We cringed at the lawyer’s performance and practically felt personally offended as we struggled to comprehend how such a winnable case was lost. It made us angry that this lawyer would hold their firm out as being capable of handling this business dispute. The lawyer should have had the judgment to turn down the engagement and instead refer the client to a top business litigation law firm in Cincinnati.
Avoiding Excessive Attorney Fees in Ohio Commercial Litigation
Here, the issue is usually not that the lawyer ripped off the client or intentionally ran up a pointless bill just to drum up fees. Most business litigation attorneys I know in Ohio are truly not doing those things. The issue is that some attorneys lack the necessary judgment and foresight to advise a client considering whether to undertake litigation.
At Durst Kerridge, we make it a point to be extremely candid and up front about our legal fees. I have seen attorneys fail to advise the client at the outset of a business litigation matter how expensive it is likely to be, and the result is ugly.
The attorney fees likely to be incurred in a legal matter is one of the most important factors to consider when deciding whether to file suit (or what approach to take when responding to a lawsuit as a Defendant) in a case. Luckily, business litigation attorneys in Cincinnati, Dayton, Columbus, Toledo, Akron, Cleveland, etc., do not charge upwards of $1,000 per hour like in bigger markets such as New York, Washington, D.C. and California. But attorney fees can still add up very quickly.
At a recent cocktail party, I was informed of a situation where a company hired a litigation attorney to file suit in a real estate matter. The client was owed under $50,000 from the opposing party, and the attorney assured the client the case was a slam dunk. Well, that might have been true, but the attorney fees quickly spiraled out of control. After a lawsuit was filed, the Defendant filed counterclaims and took a very aggressive stance to the litigation. Before the client knew it, the bill was beginning to approach the amount in controversy.
While it is easy to play Monday morning quarterback, the absolute most important asset an attorney has is their judgment. That judgment is paramount in a case like this. Reading between the lines and closely scrutinizing the client’s case, the attorney (in my opinion) should have foreseen that, regardless of the merits, it would not be a simple path to victory. There are few “simple” cases.
In another case I am aware of, a business litigation attorney in Ohio cost a Plaintiff client a lot of money as a result of the attorney’s poor judgment. The Defendant made a substantial pre-suit settlement offer—not as much as the Plaintiff wanted, but the Plaintiff had a weak case. Not only was the Plaintiff’s case weak, it was clear it would be expensive to pursue due to the cost of the experts that would be required (to say nothing of attorney fees). In light of that, the settlement offer was generous and the attorney should have counseled the Plaintiff to accept. You can see where this is going. The Plaintiff did not accept, and instead filed suit.
The Plaintiff’s attorney failed to work the case up properly, presumably because doing so would have been cost prohibitive, and the case languished and became weaker and weaker. Eventually, the Plaintiff was forced to accept an offer that was under HALF the amount the Defendant had offered pre-suit! Bad judgment, bad outcome. The Defendant may even have lost money after accounting for attorney fees.
In the next blog post, we will begin breaking down O’Hehir’s Tweet.
About Durst Kerridge
Durst Kerridge maintains an extensive commercial and complex civil litigation practice throughout Ohio. To schedule a consultation, call (513) 621-4999 or reach out to Alex J. Durst or Paul R. Kerridge.
