Decision Vision

A Podcast
for Decision Makers

 

Episode 9

Should We Sue?

 

Episode 9: Should We Sue?

How do you assess the pros and cons of bringing a suit or defending against one? How do you know “when to hold ’em and when to fold ’em?” What’s the best way to work with your attorney in a lawsuit? In this episode of Decision Vision, litigator Jessica Wood speaks with host Michael Blake, Director at Brady Ware & Company, on these questions and much more.

Jessica Wood, Bodker, Ramsey, Andrews, Winograd & Wildstein, P.C.

Jessica Wood is a Principal with Bodker, Ramsey, Andrews, Winograd & Wildstein, P.C. one of the top 100 Super Lawyers™ in Georgia. She has won all of her trials in her 24-year practice. Jessica is also known for achieving outstanding results for her clients without going to trial. She helps individuals (including doctors, lawyers, CPAs, and entrepreneurs) and companies begin, maintain, and end business relationships. Her advice relates to contracts, employment issues, officer and director duties, and trade secrets.

In addition to practicing law, Jessica teaches law students and attorneys. She lectures on contract drafting, expert depositions, mindfulness in the practice of law, networking, pro bono work, trial techniques, and wellness. In her free time, Jessica enjoys volunteering, 80s new wave/pop/punk, and compulsive punning.

More on Jessica’s professional affiliations, awards, publications, and representative cases can be found here.

Decision Vision Podcast Episode 9 | Jessica Wood | Brady Ware

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Transcript: Should I Sue? - Episode 9

BradyWareJessicaWood.mp3 (transcribed by Sonix)

Intro: Welcome to Decision Vision, a podcast series focusing on critical business decisions, brought to you by Brady Ware & Company. Brady Ware is a regional, full-service accounting and advisory firm that helps businesses and entrepreneurs make vision a reality.

Michael Blake: And welcome to Decision Vision, a podcast giving you, the listener, clear vision to make great decisions. In each episode, we’re discussing the process of decision making on a different topic. Rather than making recommendations because everyone’s circumstances are different, we are talking to subject matter experts about how they would recommend thinking about that decision.

Michael Blake: Hi. My name is Mike Blake. And I am your host for today’s program. I’m a Director at Brady Ware & Company, a full-service accounting firm based in Dayton, Ohio, with offices in Dayton; Columbus, Ohio; Richmond, Indiana; and Alpharetta, Georgia, which is where we are recording today. Brady Ware is sponsoring this podcast. If you like this podcast, please subscribe on your favorite podcast aggregator and please, also, consider leaving a review of this podcast as well.

Michael Blake: So, today, we’re going to have the car wreck equivalent of a business conversation, which is about, “Should I sue?” And if you’ve never thought about suing somebody, it means that you have not been in business long enough to have thought about it. It, ultimately, is going to come up. And it’s a lot more complicated than just, sort of, dialing up the phone number of an attorney whose picture you saw on a bus driving by to figure out if that’s a good idea. It’s a very complex decision. There’s a heavy emotional investment, as well as a financial investment in doing it.

Michael Blake: And, of course, this is not something we can just tell you over the virtual radio, “Hey, you got to go sue somebody.” That doesn’t make any sense. But we can give you some advice from somebody that knows what they’re talking about in terms of thinking through that decision. And, probably, maybe there’s no place for a framework is more helpful because chances are if you want to sue somebody, think you might want to sue somebody, you’re pretty upset. And not many of us make our best decisions when we’re upset.

Michael Blake: And so, having that touchstone, I hope for all of you guys listening, that’s going to be helpful. And to help us through this is a dear friend of mine, Jessica Wood, who is a litigation attorney with Bodker, Ramsey, Andrews, Winograd & Wildstein. Stein or Stein?

Jessica Wood: Stein.

Michael Blake: And I’ll say this. I know Jessica. I know a lot of her colleagues as well. And it’s, sort of, hard, I felt like I was picking which one of my children I was going to have on the podcast, I was going to favor.

Jessica Wood: Are you saying that because I’m so short?

Michael Blake: Not at all, not at all. I’m definitely not going there. But one of things that impresses me about the firm too is all of your colleagues mentioned all five named partners all the time. Everybody else. There may be 18 partners, only the first two get mentioned. We have this firm in town called Morris, Manning & Martin. Nobody ever here is the Martin. I wonder if there’s a real Martin or not. It’s just everybody says Morris Manning, for example. But you guys all mentioned the five. I think it has something to do with the law firm culture, but I digress.

Michael Blake: Jessica is one of the top 100 Super Lawyers in Georgia. She’s won all of her trials in her 24-year practice. So, she’s basically the Golden State Warriors of litigation or the Miami Dolphins of the early 1970s that were undefeated. She’s also known for achieving outstanding results for her clients without going to trial. So, this is not something that’s necessarily trying to railroad you into a trial, which is why I wanted to have her on. She helps individuals, including doctors, lawyers, CPAs, and entrepreneurs, and companies begin, maintain, and end business relationships. Her advice relates to contracts, employment issues, office and director duties, and trade secrets.

Michael Blake: In addition to practicing law, Jessica teaches law students and attorneys. She lectures on contract drafting, expert desk positions, mindfulness in the practice of law, networking, pro bono work, trial techniques and wellness. Jessica also runs a quarterly water cooler event in midtown Atlanta that’s designed to help attorneys build a professional network within the legal profession, focusing on younger attorneys, but also helping older and younger attorneys build mentor-mentee relationships. She enjoys volunteering ’80s new wave punk rock, which explains the orange hair that she walked in with here today and compulsive planning.

Michael Blake: And on a personal note, I’ve known Jessica for, I think, about 15 years or so. And she’s also been my personal attorney, although I’ve not had used her in the context of a lawsuit. I’ve used her for contract work to make sure that I didn’t get sued. So, I have a healthy respect. And I’m not just an admirer, I’m also a client, as they say. Jessica, welcome to the program.

Jessica Wood: Thank you for having me. Just one friendly addition to my bio. You, Michael Blake, helped me invent Water Cooler Office Hours. So, thank you.

Michael Blake: Again, I think you give me too much credit for that, but I’m just going to stop resisting everything and accept it. You’re welcome. I’m awesome. So, we’ll will just move-

Jessica Wood: I agree.

Michael Blake: We’ll just agree I’m awesome and move on.

Jessica Wood: All right.

Michael Blake: So, you’re undefeated in law. What’s your secret to being undefeated?

Jessica Wood: Luck and preparation.

Michael Blake: Yeah, okay.

Jessica Wood: And it’s really picking the cases to go to trial. You can control the outcome by knowing where the dangers lie.

Michael Blake: Yeah.

Jessica Wood: And I coach my clients relentlessly about, “Here are the pros. Here are the cons. Here’s a risk benefits analysis,” so that they — and I love the way you described this podcast. We are on the same team. I’m trying to coach them, so they can make an intelligent decision. And it really depends on what the goal is, what the mission is.

Jessica Wood: Sometimes, the mission in my life as a litigator, sometimes, the mission is to save a marriage. There’s an inconvenient fact that you do not want your wife to know about. And so, that person is going to be incentivized to not sue or to get out of the lawsuit by settling on reasonable terms. Sometimes, the mission is to teach the other person a lesson, so that they do not commit this business sin that they’ve committed again. Sometimes, the mission is to punish and deter. Sometimes, the mission is to save the company. So, every decision we make, every bit of analysis that we do is around what is that end result that we want to see.

Jessica Wood: So, a lot of this, I guess — and we’ll get into this as we really jump into the questions here, but is it fair to say a lot of litigation is knowing when to hold and knowing when to fold?

Jessica Wood: Yes.

Michael Blake: Right. Because, sometimes, I’ve heard-

Jessica Wood: To quote of Kenny Rogers, yes.

Michael Blake: There you go. You can’t go wrong with that, right? So, I miss that punk rock. But there is such a thing as overplaying your hand.

Jessica Wood: Absolutely.

Michael Blake: That’s right. It can be irresponsible and can really blow back in your face, right?

Jessica Wood: Yeah.

Michael Blake: So, you want to understand, sort of, the certainty of your outcome. So, with that, let’s talk at the very beginning. And the first question I have, I think, really gets to probably the first question, the first call you receive from a potential client. They’re mad, they’re upset, they’re frightened. Maybe some cocktail of all three and plus two other things I can’t think of right now.

Jessica Wood: Chagrined.

Michael Blake: At what point — Chagrined, nonplussed.

Jessica Wood: Yes.

Michael Blake: At what point does that emotion get converted into a serious discussion about taking this from a garden variety, “I’m mad” kind of, dispute into potentially a court of law?

Jessica Wood: One approach that I’ve used with some success with clients is telling them, “I want you to sleep well at night. I want this business issue to stop haunting you at a certain point, so that you can go forward and be successful.” People don’t come to see me on a good day. They don’t come in to tell me how well their business is going.

Michael Blake: That would be weird.

Jessica Wood: It would be really. I would love it, actually. It would be delightful. So, they’re coming to me on their worst day. A nightmare has occurred. Something awful has happened. Someone may be about to see them, or, as you said, they’re furious. They performed a bunch of work. Someone got what they wanted out of them. And, now, they refuse to pay. And it can be very consequential for small to mid-sized businesses. So, they are, I think, you mentioned the cocktail of emotion. And I think you’re dead on.

Jessica Wood: And so, I always want people to have to take a deep breath. I always urge them, “Let’s talk. And let’s go away from this, spend the weekend. Go to your child’s dance recital. And then, come back and tell me how you want to do this.” Of course, you always have to look at timing. There is a statute of limitations that may apply. The quickest one is defamation, that’s one year, on up to breach of a written contract, which is six years. So, there’s a lot of time for that anger to cool.

Jessica Wood: And we also have to look at the life cycle of a lawsuit, which it’s going to be 18 months to two years. I have a case right now in Knoxville that’s been pending for five years, but I’m the defendant, s I’m okay with that.

Michael Blake: Right.

Jessica Wood: We can take as long as we need.

Michael Blake: And so, I think, it’s not by accident that that the honorific of attorneys is often counselor because one thing that you and I have in common, your profession and my profession has in common, is that we are counselors. And I don’t think that’s not what they teach me in business school. I don’t know if they teach that in law school either necessarily.

Jessica Wood: They don’t, unfortunately.

Michael Blake: But you do have to have a certain way of managing anxiety and managing emotions to kind of get to the root of the problem and make the problem manageable, right? Is that fair to say?

Jessica Wood: Yes, yes. We break it up into smaller components. Often, these things are inextricably bound, but there’s a lot of untangling that goes on. And a lot of the times — this bears noting. A lot of the times I have to be cognizant of the fact that a portion of my client’s anger is with themselves. And so, I have to be somewhat deaf and delicate around that. We can’t change the past. So, frequently, I will say to a client, “We can’t change what happened then, but what can we do today? What can we do tomorrow?”

Jessica Wood: Another question that I ask along the road is, “Do you care about this?” I’m involved in a negotiation right now where it came down to a stapler. It’s not about the stapler.

Michael Blake: Just not.

Jessica Wood: The stapler, I don’t think. It’s a proxy for something else. But I will, sometimes, give my clients a little bit of tough love and say, “Okay, you’re paying me X number of dollars an hour. Do you want me to negotiate this stapler deal for you?”

Michael Blake: Right, in an hour.

Jessica Wood: And then, they’ll be like, “Wait a minute.”

Michael Blake: An hour, you could have gone to Office Depot and bought a hundred staplers.

Jessica Wood: Exactly. Here, take my stapler.

Michael Blake: So, at what — So, let’s fast forward that a little bit. Let’s say somebody gets through your game. I think it’s worth mentioning that I know that you don’t take every case that comes to the door. I know your colleagues don’t take every case that comes to the door. And I think that’s a sign of a good advisor. But let’s say they meet your standard, that this is (A), a case that is winnable on facts and law; and (B), is worth having the fight about basically.

Jessica Wood: Right.

Michael Blake: What does that process look like? And we push that red button. What are the mechanics that process look like?

Jessica Wood: Well, so, there is something that leads up to the process. I will frequently say to the client, “I want every piece of paper that relates to this. I want every text, I want you to tell me every scary thing. I want you to tell me every embarrassing thing.” And it goes back to what you said about our roles as counselors. We, as humans, want to impress each other. And so, frequently, what can tank a case is what a client does not tell me. And so, I try to be very kind and gentle and say, “There’s no perfect case. If you think there’s something stunning and bad out there, I really, really, really need to see it.”.

Jessica Wood: Because I can always help a client. I can always do my special brand of legal ninja. And I can handle it live on the record as a surprise, but I can do a lot better if I know about it. So, I’m simply just going to gather up everything. Frequently, I’ll ask my clients to do a narrative for me, and everything in chronological order. That can be enormously helpful because they’re going to bottom line everything even though I’m going to look at the documents behind the narrative.

Jessica Wood: But it also helps them unburden a little bit. It, also, helps them refresh their recollection. Frequently, clients will say, “As I was typing this 27-page, eight-point font, single-space document for you, I remembered that one time where the bad guy did this thing.” And I, also, always tell them, “We’ve all seen so many police procedurals and TV shows about law firms. They will want to censor themselves and say something like, ‘Well, I can’t tell you about that. It’s hearsay or what have you.'” I’m like, “Don’t you worry. We’ll fix that in the mix. Tell me everything. Don’t worry about whether it’s relevant. You and I will sort that out together.”

Michael Blake: So, that’s interesting. I was not expecting that answer, which means I’m learning something. Part of that decision process, if you’re going to sue is, are you willing to be vulnerable yourself? And I imagine not just to your counselor but to your representation. But you’re, also, asking that questions because you’re assuming opposing counsel, who is competent, will make the best move available to them, and it’s going to come up and, potentially, on the public record.

Jessica Wood: That’s correct.

Michael Blake: So, you had to think long and hard that if push comes to shove, am I willing to have that out there? Winning this case, is the price of having that out there a price I’m willing to pay to win this case?

Jessica Wood: Yes.

Michael Blake: And, sometimes, maybe it isn’t.

Jessica Wood: That’s right.

Michael Blake: I imagine, right.

Jessica Wood: That’s right.

Michael Blake: I mean, have you ever had a client, you say, “You need to know X, Y, and Z,” and they say, “You know what. If I got to disclose that, it’s not worth it”?

Jessica Wood: Absolutely.

Michael Blake: Okay.

Jessica Wood: And the issue that comes up the most frequently would be what I would delicately call a relationship overlap issue where you’re engaged in one marital relationship, but there’s another relationship that occurred simultaneously or a couple of them.

Michael Blake: An uncomfortable Venn diagram.

Jessica Wood: Yes, a very uncomfortable Venn diagram.

Michael Blake: Okay. So, you’re right. A nice segue. So, thank you for that. One of the first things you do is you ask in effect for a data dump.

Jessica Wood: Yes. yes.

Michael Blake: Everything on analog paper, digital paper, and otherwise.

Michael Blake: And texts. How does that-

Jessica Wood: And Facebook post and social media.

Michael Blake: All that too, right?

Jessica Wood: Yeah.

Michael Blake: If it’s out there, it’s out there.

Jessica Wood: Absolutely.

Michael Blake: Certainly cheaper, if the client provides it to you, than you have to go scrape it somehow.

Jessica Wood: Yes.

Michael Blake: So, how does all of that work? I mean, you mentioned police procedurals. Everything I know about the law, I learned from basically NCIS and TJ Hooker because I’m in the tank for William Shatner, and I just admit it. I have a problem, I admit it. But in the real world, how does evidence work? I mean, is everything on the table? What kind of stuff does get excluded. I mean, go through the mechanics of how evidence works in a trial scenario.

Jessica Wood: Sure. It’s a multi-step process. So, in a lawsuit, there’s going to be a complaint. And then, 20 to 30 days after service, depending on if you’re in state of federal court, there’s going to be a responsive pleading, which could be an answer and could be a counterclaim. So, that’s always something you have to keep in mind. And then, there’s a discovery period. And, again, state versus federal, it’s going to be about four to six months. Frequently, it’s going to get extended because it’s unwieldy, and it takes a long time.

Jessica Wood: So, everyone is going to exchange documents. They’re going to pose written questions. Then, you’re going to be deposed. So, that’s all of these pieces of paper, they all become evidence, could conceivably become evidence. So, at the discovery stage, you’re not really looking at whether something’s admissible. So, it’s a little more free range. At the trial stage, however, there are going to be many motions filed. They’re called motions in limine. You’re going to file motions to knock out certain evidence because it is irrelevant. That’s a big one. It’s actively harmful and can bias the jury in a way that’s inappropriate.

Jessica Wood: And so, what comes in and what comes out is going to be up to the judge. I will tell you a very interesting evidentiary issue that’s arisen recently is what do emojis mean? So, we’re seeing more and more. When we think of a contract, we think of something with very formal language, and whereas, and things of that nature drafted by an attorney. Well, most of my messy cases don’t involve that. It’s the old spinal tap. They drew it on a napkin and crayon.

Michael Blake: Right.

Jessica Wood: And that leads to problems. Well, now, you might have a contract that’s a series of letters, or emails, or texts. And people are less and less formal in how they communicate. So, what does that winky emoji mean? Does it mean that that’s really the deal or that you were kidding? So, we’re starting to see this show up as an evidentiary issue.

Michael Blake: That is fascinating.

Jessica Wood: A very pivotal one, Isn’t it?

Michael Blake: That is fascinating. So, a thumbs up emoji could be, I guess, construed-

Jessica Wood: It’s a deal.

Michael Blake: … as acceptance of a deal, right?

Jessica Wood: Absolutely.

Michael Blake: That’s really interesting. So.

Jessica Wood: So, watch your emojis, people.

Michael Blake: Yeah. Well, boy. Nothing but smiley faces now or maybe just the straight face actually, just noncommittal. Now, what is a deposition? Not everybody necessarily knows what a deposition is.

Jessica Wood: All right.

Michael Blake: And they’re not necessarily the funnest things to go through. So, what is a deposition?

Jessica Wood: Well, they’re fun for me.

Michael Blake: It’s more fun if you’re in the driver’s seat, right?

Jessica Wood: Absolutely. So, in a deposition, it’s a Q&A. You’re going to ask. An attorney’s going to ask questions. And then, the deponent is going to answer those questions. And the deponent is going to be seated right next to their attorney. And the attorney may object as to form. But like I said, it’s going to be pretty free range. Mostly anything goes. So, truly, you’re trying to figure everything out and get to the essential facts of the case. And they may ask something that is impertinent or improper, but you’re rarely going to see an objection that’s going to stick. Typically, the client is going to have to answer.

Jessica Wood: So, this is where you start getting nervous in a lawsuit, if there’s something that’s got to be — something unsavory that has to be unpacked.

Michael Blake: Okay.

Jessica Wood: And it might be audiotape. There’s going to be a court stenographer there. It may be audiotaped. And then, it’s ultimately going to be transcribed. And it might be videotaped and shown to the jury. So, if it’s videotaped, and my client is going to be videotaped, I’m obviously going to prepare them for that and videotape them beforehand. We all have weird facial tics.

Michael Blake: We do.

Jessica Wood: And some of us may have an aspect to our personality where the outside doesn’t match the inside, and where your credibility could be called into question even though you’re telling the truth. But you’re so nervous, it appears that you are not being truthful. And the opposite is also true. I’ve seen some very smooth operators in my day.

Michael Blake: We all do.

Jessica Wood: They are absolutely not telling the truth, but if you’re looking at their micro expressions, and you’re listening to them, and you’re watching their body language, they appear to be truthful.

Michael Blake: So, at what point then or what are the most common reasons where you look at this whole process, you look at what the client is telling you, saying, “You know what, don’t sue. This is not going to help anybody. I don’t want to take your money.” What kinds of things typically leads you to that advice?

Jessica Wood: What’s going to lead me to that advice is a client who has never been in a lawsuit before, and a client who does not seem to understand my warnings, doesn’t understand — when a client says it’s about the principle, that is never about the principle. It’s about something else. When a client wants a victory that to me seems unseemly, or inappropriate, or something I’m not going to sign up for, I’m going to show them the door. If someone walks in and says, “It’s not enough for me to win. The other guy’s got to lose, and he’s got to be humiliated-

Michael Blake: He’s got to be scorch to earth.

Jessica Wood: … in front of the world.” I’m not going to do that.

Michael Blake: Why?

Jessica Wood: I find it wildly inappropriate. It will take a portion of my soul that I’m not willing to give. And that’s just not how I’m going to do business. And not for nothing. It’s destined to blow up in everyone’s face. It’s just not an appropriate mission statement in my view.

Michael Blake: Now, I want to pause on that and kind of go off a script. So, I think that’s a really important discussion point because one thing that I have observed in the litigation process, the few times that I’ve been involved, is clients will sometimes be frustrated because they don’t think that their counsel is mad enough basically, right. And then, like, “You know I’m right. Why aren’t you pissed off about this whole thing? Why don’t you leaping across and ripping out their throat and so forth?” Why is it not a good idea to have your counsel get swept up in that?

Jessica Wood: I have a saying, “A mad attorney is a bad attorney.” The calmest person in the room is the person in the catbird seat. So, actually, I would think the opposite. I would want my attorney to be very calm, cool, collected, and poised because they know something that everyone else in the room is about to find out; that they’re really, really good; that they’ve got good facts; that they have marshaled for their client; and that they’ve got solid case law. So, I don’t believe that yelly attorneys are good. And when I find one on the opposite side, I actually know instantly that they do not have what it takes.

Michael Blake: Well, that makes sense. To me, I always advise my clients, no matter how mad you are on the outside and the inside, always be the adult in the room-

Jessica Wood: Absolutely.

Michael Blake: … on the outside because, at some point, somebody outside maybe determining your fate. And in my experience, it does not impress a trier of fact to have somebody that’s just a blow hard or your stack bully kind of personality.

Jessica Wood: Not only that, it may infuriate the judge, it may infuriate the jurors, it might infuriate the bailiff, or the court stenographer in the courtroom. You can make a lot of enemies really, really fast by engaging that kind of vituperative behavior. Honestly, I’ve never seen it serve anyone. And when I do see it, I just sit back because I know I’m winning-

Michael Blake: Yeah.

Jessica Wood: … when that happens.

Michael Blake: That’s right. Nobody gets upset because they’re winning so much, right?

Jessica Wood: Exactly, exactly. It’s fear based, right? Someone feels insecure, or that is — or they’ve been bullied, and this is how they walk around in the world, which must be very exhausting. And I’m sorry for them. but I’ve never seen it gain an advantage for a client. Now, passion, yes. I am passionate in the courtroom. I take umbrage at things, but I just do it in a quieter way.

Jessica Wood: And I should also say, attorneys come in all shapes and sizes. We all have our own level of emotional intelligence, and our own skill sets, and our own personalities. And I think we should bring our personalities to the table, whatever that looks like. A lot of people when they see me, I’m diminutive, I’m kind, I offer people snacks and coffee. And, sometimes, they think I’m a human marshmallow. and they find out very quickly that that’s incorrect.

Michael Blake: You’re just luring them into the trap.

Jessica Wood: I am, absolutely. Come hit her.

Michael Blake: So, a question almost any client is going to come to the table with, and one of the sources of their anxiety frankly, and I know you encountered this is, can they afford justice? It’s one thing to have a problem you’d like to have solve. It’s another thing to be able to have the financial wherewithal to solve it. And going into a judicial process ain’t cheap, right? A friend of mine years ago told me it’s expensive to be mad. That’s just kind of all there is to it.

Jessica Wood: Absolutely, it’s the most expensive anger you can feel. You’re better off axe-throwing.

Michael Blake: Right.

Jessica Wood: I think that’s like $30 per hour.

Michael Blake: Not at people.

Jessica Wood: Not at people.

Michael Blake: Wooden targets or, at least, something, right?

Jessica Wood: At a target.

Michael Blake: Do you play a role in helping a client understand that? And maybe there are times when a client does need to financially extend themselves because of the benefit on the other end of the rainbow. And in that conversation, does that add extra pressure on you knowing that the client is extending themselves because they’re literally putting their faith and some of their financial stability in your hands to produce that outcome a year or two down the road? Am I making sense?

Jessica Wood: You are making total sense.

Michael Blake: So, how do you navigate that?

Jessica Wood: So, we would have a budget. Frequently, we blow past it. It’s just like construction, right. It’s going to take twice the amount of money as predicted and three times the length of time, right? It’s always going to blow past that. Going back to a question you asked earlier about when would I show a client the door. If a client told me that they were going into their children’s college fund, I’m not going to do that. I’m just not. They’re going to be enraged. They aren’t going to get what they want. And I don’t think that’s a good use of their money.

Michael Blake: And that’s not so much you don’t have faith in winning the case. You just don’t think that’s a good idea for the client.

Jessica Wood: Yes. I think it’s a wretched idea because you could lose. You could lose. You could wind up paying your attorney’s fees and the other side’s attorney’s fees. So, what I would do at the beginning of a case would be to sit down and, sort of, project out how much will this cost. Are there less expensive alternatives?

Jessica Wood: Frequently, even before suit is filed, I’ll want to go into a mediation or perhaps sit down and talk with the other side. It won’t hurt. It might help. But yeah, we’re going to have a very careful conversation about money because it’s going to be — the other thing is there’s no economy of scale. I will do almost these identical actions for a suit over $5000 as a $5 million case. You still have to have the depositions, you still have to file a complaint. So, you still have to do all this work. So, we really have to look at the scale.

Michael Blake: That’s somewhat of my line of work. It costs as much or, sometimes, even more for me to appraise a pre-revenue startup than it would to appraise a $100 million publicly-traded company.

Jessica Wood: Exactly.

Michael Blake: And it’s not the scale. It’s just that the diligence and do-care required doesn’t vary depending on the size of the matter. It’s just you either do it right or you don’t do it right. End of discussion, right.

Jessica Wood: Absolutely. Now, there might be a $5000 case I would take if my client walked in the door, if my client was a corporation, and had a lot of money, and the client said, “We need the word out on the street that we don’t put up with this kind of behavior. You will get sued, and it will be painful for you.” Something like that. That’s a noble cause, and that’s a good use of money. Frequently, I actually send my client to their tax advisor, whether it’s an individual or a corporation, our attorneys fee is going to be deductible. And what are the tax ramifications of what you may have to pay for a claim or a counterclaim?

Michael Blake: Okay. Now, what about contingency fees? We all hear about attorneys that will take a case on a contingency fee. One, I mean, does that happen, or is that urban legends like roving bands of surgeons that steal kidneys when you’re drunk and dump you in a bathtub, or does it only happen in certain areas of law like personal injury? Talk a little bit about that. Is that a realistic expectation in a commercial civil litigation context?

Jessica Wood: It is. It is a rare attorney who will do them. And I’ll tell you when they might be inclined to do them. So, if you have a vanilla breach of contract, you can get compensation for the breach, and you can get attorney’s fees and expenses. But to get the numbers really pumped up, to get punitive damages, you cannot get punitives on a breach of contract. You can on a tort. So, a tort might be tortuous interference with a business prospect, or it might be defamation, or it might be trespass, something of that ilk. Assault, battery-

Michael Blake: Fraud.

Jessica Wood: … fraud. All of these can be torts. So, you could have fraud in a director officer case for example. So, you might be able to find an attorney who would take something involving fraud on a contingency because the punitives are going to be in an amount to punish and deter. They aren’t going to be somewhat tied to the worldly circumstances of the defendant. So, you might be able to find someone to do that.

Jessica Wood: The incentives are going to be a little bit different in terms of how that attorney is going to behave. They may be in a bigger hurry. They may really want to settle for some certain. They may be super aggressive because they want to get it in, or they want to get to trial by the end of the year, if that’s possible. But I’ve also seen cases where the other side, I suspected they were on a contingency fee basis, and they were not pushing hard at all, perhaps, because they had too much going on.

Jessica Wood: So, it’s difficult to predict what kind of business incentives they’re going to be when you have a contingency fee attorney. But they are very, very rare, I can tell you that. Contingency fees are more common in personal injury.

Michael Blake: Now, we’re talking about-

Jessica Wood: And plaintiffs. Sorry to interrupt. Plaintiff’s employment, those are frequently done on a contingency.

Michael Blake: Right, okay, yeah.

Jessica Wood: Which makes sense, you’ve just lost your job. You don’t have any money for attorney’s fees.

Michael Blake: Right, right. Okay. So, switching gears just a little bit. I think, there’s a conception or concept that if we are suing somebody, then this automatically is going to end up in court at some point. Is that true? How many of these cases actually make it in front of a judge and a jury?

Jessica Wood: Very few. So, first of all, I would want to look at the contract to see, is there an arbitration provision? So, arbitration is basically, you’re going to pay the judge in your case. You’re not going to have a jury. It’s going to be swifter and more expensive because instead of your tax dollars paying the judge, you’re paying the arbitrator or arbitrators per hour.

Michael Blake: That can be more than one.

Jessica Wood: Yes. I once had an arbitration where he had — the deal was if the two sides couldn’t agree on an arbitrator, and, of course, they could not, each one would choose an arbitrator. And those two would choose a third arbitrator. And all three arbitrators would hear the case. And that is what we did.

Michael Blake: Wow.

Jessica Wood: Yeah.

Michael Blake: That’s a fast running meter.

Jessica Wood: Oh my gosh, yes. And we won. Thank goodness. But it was very, very expensive. But I’ll tell you this, the arbitrators, when you’re paying an arbitrator, they’re going to read every word, you’re going to brief the issues before you walk into court. It’s a little bit wild west-ish in terms of evidence because they know what they should pay attention to and what they shouldn’t.

Jessica Wood: So, the first, the threshold question is going to be, do you have an arbitration provision? Then, the next question is going to be, is it enforceable? Otherwise, it is a long road to justice. As I said, it can be 18 months, 24 months, five years. So, you are going to wind up in court along the way perhaps for hearings or a status conference. But to get to trial, it takes a long time. Frequently, the judges will order you to mediation because you have to look at what — The judge is trying to be efficient with these public funds. They’re trying to get cases off their calendar. And so, there’s big incentive to settle.

Michael Blake: Yeah. I want to ask you about that, in fact. So, I am familiar with the fact that judges want to — they do want to get it off their calendar, and mediation is often a step. Have you found mediation frequently to be effective?

Jessica Wood: Yes.

Michael Blake: Really?

Jessica Wood: I have a 100% — there’s an asterisk here. for sports fans.

Michael Blake: You did steroids?

Jessica Wood: Yes, I did steroids. No, I used my whole anger to get through it. I have a 100% success rate in mediations. The asterisk is it doesn’t always settle that day. But it’s like, you know how you’re trying to open up a peanut butter jar, and you’re not successful, and you have to hand it to somebody else? It’s like that. You’re going to loosen things up a little bit. You’re also — not for nothing, you’re going to get free discovery. You’re going to learn something that you don’t know by the end of the day.

Jessica Wood: And, frequently, going back to your question about anger-fueling litigation, there are other ways to feel like you’ve been heard, and you’ve had your day in court than actually going to trial. Mediation, I think, is a great way to do it. Frequently, you’re going to be in front of someone who’s a current judge, who you’ve hired, or a retired judge, or a litigator with years or decades of experience. And they’re going to sit down and listen to you. I’ve had things wind up at 2:00 in the morning. You’re going to spend a very long day, but your client can bring up things that you don’t feel are — perhaps, aren’t relevant in the case but are important to the client.

Michael Blake: And so, there’s a-

Jessica Wood: Going back to the stapler-

Michael Blake: … cathartic element.

Jessica Wood: Going back to the stapler. The gosh darn stapler. I’m so furious about the stapler.

Michael Blake: I’m never going to look at a stapler the same way now. I’m going to have issues with stapling. In fact, I may have stapled my last thing. It’s all going to be paper clips and thumbtacks from now on.

Jessica Wood: There’s always a stapler in every case. I have a case right now where there’s a stapler. I mediated a case to a successful conclusion a couple of months ago. And it was all about the social media of a non-human animal. That was the most important issue. So, you never know, but there’s some version of a stapler in every case.

Michael Blake: Okay.

Jessica Wood: But it’s rosebud, right?

Michael Blake: Yeah. That’s right.

Jessica Wood: It has meaning. It has meaning to the client, and I’m not going to look askance at that.

Michael Blake: Sure.

Jessica Wood: I must respect it.

Michael Blake: Well, it’s part of the fact pattern at the end of the day, right?

Jessica Wood: Absolutely, yes.

Michael Blake: So, it wouldn’t be the way I ran a railroad, but it’s not my railroad.

Jessica Wood: Exactly.

Michael Blake: So, I got time for a couple. I could have a two-hour conversation with you on this, but I can’t afford your rate. So, I’ve only got time and budget for another couple of questions. But one question I do want to ask is, at a high level, what is the best way a client can maximize your value to them? How does a client make sure you’re in the position to be most successful for them?

Jessica Wood: That’s a great question. Give me everything at the front end or as much as you can, partner with me, collaborate with me on coming up with your narrative, be available. That’s another thing that we haven’t talked about. Once you file a lawsuit, you can be held into court at any moment. And the court does not care if you’re on spring break with your children. So, that’s another thing. You’re giving up time, but you might be giving up something intensely personal as well.

Jessica Wood: I want my clients to be responsive, to get back to me quickly. In general, I want to get some forward momentum on a case. There are rare times where I will ask my client, do you want me to refrain from acting? Do we want to just hang out and see what the other side’s going to do? So, there are appropriate times for silence and not doing anything. But, in general, I just need the client to be available to me. I have clients who I will pose a pivotal question, or the other side will ask them for when can we have deposition dates, and they will become [monstrous]. That’s a client I’m going to fire.

Michael Blake: Okay. There are lots of people out there who do what you do. Same with me. There’s people out there who do what I do. And as you said, all attorneys are different. They bring their different strengths and weaknesses to the table. Somebody decides they want to have that conversation, and they need to kind of pick the right representation for them, what are the two or three things you think are the most important or the, kind of, due diligence points that that potential client should be doing on their own end?

Jessica Wood: So, most of my clients are sophisticated business people. Either individual C-suite level, doctors, lawyers, or on the corporate side, very good at what they do. I would say that they should ask around. That’s the best way to find — a lot of people find me through two completely different people. That always makes me feel really good when that happens. But they should ask around, and they need to hear horror stories, and they need to hear success stories. I think that’s the due diligence.

Jessica Wood: You can’t really look up a win/loss record. You would actually have to talk to the attorney about that. I mean, I’m sure you could go to the Northern District of Georgia or Fulton County and look up what cases they’ve dealt with but ask the attorney. And a win/loss rate isn’t everything because, sometimes — or as I’d like to put it, coming in second place because that’s what happens at trials sometimes.

Michael Blake: And there’s that human element, right?

Jessica Wood: Yes.

Michael Blake: You don’t know what kind of judge and jury you’re going to get, and the client may sandbag you by withholding material information.

Jessica Wood: Right.

Michael Blake: And you can play a great game basically and still lose. That’s just the way it works.

Jessica Wood: Absolutely. So, to quote Depeche Mode, “Everything counts in large amounts.” So, it’s a little bit your likability on the stand. It’s a little bit how good is your attorney. It’s a little bit what are the facts of the case, how did the court rule on whether certain evidence should come in or be left out. So, there are many, many ingredients that go into a success or going into second place.

Jessica Wood: Just because you go into second place doesn’t mean that you’re an abject failure. And just because you win doesn’t mean you really won. There are appeals that can be had. I had one case where — and I told my client this. I I said he’s going to file for bankruptcy if we win. He said, no, he would never do that. His pride won’t allow him. Guess what happened, spoiler alert. So, my client got a sheet of paper that said, “You won, and you’re awesome. Here’s $1.1 million.” But then, my client had to chase this guy for another two years to get a fraction of that. So, you can win without winning.

Michael Blake: Yeah.

Jessica Wood: You can lose without losing. You can also win too hard. There are times where you have an early victory, perhaps, at an evidentiary hearing, or you humiliate the other side intentionally in a deposition. And then, that person’s ego becomes so fragile and so involved that they then make the decision to crush your client. So, you have to be deaf at all times, and you have to think everything through. Every single step comes with a consequence. And so, I’m always careful to avoid blow back.

Michael Blake: So, I can’t do any better ending an interview than with a Depeche Mode quote. So, I’m not going to try. I don’t have it in me. If somebody wants to learn more about this topic, if they want to learn more about Depeche Mode, or they just have a great pun they want to share with you, how do they get in contact with you?

Jessica Wood: Well, they can call me. I actually pick up my phone.

Michael Blake: You do?

Jessica Wood: I absolutely do. I know, unless I’m on a deadline, in which case I’m going to ignore the call and get back to you. But typically, I’m going to pick up the phone. So, they can call me on my direct line, which is 404-564-7409, or they can email me at [email protected] They can look at my website, and read more about my bio, and read more about the kinds of litigation that I’ve done.

Michael Blake: All right. Well, that’s going to wrap it up for today’s program. I’d like to thank Jessica Wood so much for joining us and sharing her expertise with us. We’ll be exploring a new topic each week, so please tune in, so that when you’re faced with your next business decision, you have clear vision when making it. If you enjoy this podcast, please consider leaving a review with your favorite podcast aggregator. It helps people find us, so that we can help them. Once again, this is Mike Blake. Our sponsor’s Brady Ware & Company. And this has been the Decision Vision Podcast.

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