Top Attorneys Answer Your Questions
Life changes and life stages often bring situations that require the advice of an expert.
Q: Who pays the legal fees in a legal dispute?
A: The answer is, it depends. In the United States the general rule, called the “American Rule,” is that each side is obligated to pay the cost of their own attorney. The result is that even if you win your lawsuit, you may not come out whole because any recovery you obtain will be reduced by the amount you have to spend to cover your legal costs. There are important exceptions, however. If there is a provision in a contract that allows for an award of fees, the court may make such an award to the victorious litigant and thus, many contracts contain attorney’s fees clauses. Another exception is where there is a claim under a statute that provides for recovery of attorney’s fees, such as a race discrimination claim under Title VII of the Civil Rights Act of 1964. Other exceptions are certain consumer protection laws. In exceptional cases a court may find that a lawsuit has been brought, or that a defense has been advanced, in bad faith. In these situations a litigant can ask the court to force the other side to pay its attorney fees. An award of fees in these situations is, however, very rare and should not be counted on.
Q: What are the challenges of representing a high-profile client in a legal matter?
A: Representation of high-profile clients in legal matters presents unique challenges and opportunities. Initially, there is usually intense media scrutiny. An integral part of representing the high-profile client is management of the media. Our firm has found success in a “less is more” approach with the media. We have found that controlling the amount and content of information released by both the client and attorneys results in a quieting of the media storm. It served us well in our recent representation of Alex Rodriguez and Andy Pettitte in their respective matters involving performance-enhancing substances. It is critical in a high-profile matter to evaluate all possible legal issues that could affect the client. A regulatory or institutional investigation can often blossom into criminal and civil issues. Our firm evaluates all aspects of the specific matter facing the client with an eye toward preventing additional legal implications that could stem from the original matter. It is also important to evaluate how the legal matter facing the client will affect his public standing, both presently and in the future. These are often tricky waters to navigate, as there is a balance between legal strategy and the public’s perception of the client. We strive to give our clients the best legal advice while maintaining their public appeal.
Q: I have heard that a lot of companies that made asbestos products have gone bankrupt. Is there any way to obtain money from them?
A: Absolutely! While it’s true that many such companies filed for bankruptcy protection, the vast majority of them formed trusts with their assets in order to pay future asbestos disease victims. There are more than 25 such trusts from which we can obtain money for our clients. We have a trust department of 10 people whose only job is to file claims with these trusts for our clients to obtain this money. We have been praised by the administrators of these trusts for our ability to file claims quickly and correctly, thereby obtaining money for our clients in a short amount of time. Smaller firms don’t have this manpower advantage and, as a result, their claims get filed incorrectly or there is a long delay in the claim filing. We pride ourselves on our ability to file claims correctly the first time, so that there is no delay created by the refilling of the claims. This is important because there is quite a bit of money to be obtained from these trusts, for example, one trust paid $80,000 in a mesothelioma case.
Q: Can I file a lawsuit for my loved one’s asbestos related cancer even though he or she has died from their disease?
A: Absolutely, yes you can. In Pennsylvania, one has two years less one day from the date of diagnosis of the asbestos related disease to file a lawsuit against the parties that may have caused the disease. In situations where the asbestos victim dies, one has two years less one day from the date of death to file a lawsuit. One of the deceased’s loved ones, usually a spouse, but it can also be a brother or sister or child, needs to be appointed as the representative of the estate of the deceased. This person, or persons, then stands in the shoes of the asbestos victim and the proceeds of the lawsuit are paid to the estate. If a client comes to us and their loved one died without formally setting up an estate, we can do it for them. We have an estate department whose sole job it is to file the necessary documents to get an estate representative appointed for purposes of the lawsuit.
Q: If I choose to mediate my divorce, who makes the decisions regarding my property, custody of my kids, or whatever issue or issues are in question?
A: The answer is that you do. When a divorce matter is litigated by attorneys before a judge in a courtroom, the ultimate decision regarding the intimate aspects of the couple’s personal lives is determined by a judge. When a couple chooses to mediate their divorce, they have decided to make their own decisions regarding custody, property, etc., with a mediator to help guide them and lay the ground rules in the process. Mediation allows a divorcing couple to consider factors that the legal system does not. In a courtroom, two adversarial spouses typically have a few hours to a few days to present their cases, stipulations, and all evidence collected through discovery to the judge. A couple is very limited in the admissibility of the evidence that they may present at trial. As a result of heavy caseloads and numerous other divorce cases, the judge has a very limited amount of time to think about the information presented by the spouses and their attorneys and to make a decision. In mediation, a divorcing couple is given unlimited time and the freedom to negotiate their own fair agreement. The couple has the advantage of giving themselves the time that they need to consider the things that they think are important. In addition, the couple also has the ability, if they choose, to consult attorneys outside of the mediation setting regarding their agreements. A couple should realize that the mediator’s purpose is not to make decisions for the divorcing couple. A mediator is not a judge. A mediator does not have the ability to make decisions. Rather, a mediator’s job is to guide the couple through their own decision-making process, as well as to facilitate the couple’s negotiations regarding their own version of a fair agreement.
Q: How much alimony will I have to pay and for how long?
A: Section 3701 of the Domestic Relations Code contains 17 different factors the court is to consider in determining the nature, amount, duration and manner of payment of alimony. The most significant, although they are not specifically to be given any particular weight, is the length of the marriage and the respective earning capacities of the parties. Predicting the length and amount of alimony is the most suggestive component of a divorce case. It is important for the person seeking alimony to have an accurate budget of their reasonable needs to submit to the court so that the court may factor those needs into the expenses.
Q: Should I immediately change my beneficiary designations on my life insurance if my spouse and I are separated?
A: Section 3502 of the Divorce Code provides in subsection (d) states that the court may direct the continued maintenance and beneficiary designations of existing policies insuring the life or health, for that matter, of either party originally purchased during the marriage or within the effective control of either party. I have never seen a situation in which the court would not continue both maintenance of such policies pending a final resolutionof the case. Section 3502 further directs that, if necessary, the court can direct the purchase of policies insuring the life or health of either party, in order to protect that person’s interest.