The Costs Of Litigation Of Mechanics Liens or Stop Notices
The Real Consideration
We just finished what should have been a 4 to 5 day trial on a Stop Notice/Breach of Contract action. Instead of being done in that time though, the case went on for nearly 3 weeks. This was not because the case became more complicated or because there was a lot more evidence to get in then we originally thought. There was that too, but the problem was that the court could not accommodate us for a full day of trial. Instead we were only allowed to be in court from 8:45 until 1:15, with no lunch but with a ten minute break every hour. It was very nice to have the afternoon to prepare for the next day’s testimony, but it also dragged the proceeding on for a lot more time than we, or our client, expected.
The point is that with the State budget cuts and the impact on the courts the time that is available, and the courtrooms and the court personel that are available, are very limited these days. This means that your budget for litigation, if you choose to litigate (or are forced to litigate) will need to increase, sometimes significantly. The time that it takes in court is only part of the time that you need to be accounting for when you consider trying a case. The usual rule of thumb for relatively simple cases is that a trial day is figured as 10-12 hours per day.
This is because while attorneys are usually well prepared, the testimony that comes out at trial will require adjustments to the trial plan as the trial proceeds. When the court day is done the attorney will head back to his/her office and review notes, review exhibits, tweak and/or develop questions for the next day. The better prepared the attorney is, the better chance your case will have. But it all comes at a cost and that cost is going to come in the form of a bill to you.
If you decide to take a case to trial, be prepared for the expense. Trials are not cheap and any attorney worth his/her salt is going to want to be as ready as they can be for the information that will come out at the trial. These cost considerations need to be taken into account when you are considering what to settle the case for or whether to settle the case. If the case is not an especially high dollar matter, then settlement, as difficult and distasteful as it may be, is sometimes the best decision you can make.
Do not use the courts to get even or to cause the other side financial pain. Unless there is an attorney fees provision in the case that might, and that is a very big might, allow you to recover your fees, then whatever is awarded as damages to you may just cover your legal expenses- maybe. Litigation is expensive and if you are in for a penny, you are in for a pound.
Discuss with your attorney what he/she estimates will be the cost of the trial. For the most part, in construction cases an attorney will not take the case on contingency. You, the client, will pay the full freight and will take the whole risk. Make sure you know what that risk is before you take it.