For individual and small business clients of the Finney Law Firm, brace yourselves.
Anything other than the simplest litigation involving disputes of under $50,000 are difficult to resolve in a fashion advantageous to the client. Even cases under $100,000 can be tough to resolve economically. This is because the cost and aggravation of litigation, along with the time and unpredictability, make the cost-benefit of the proceeding difficult, if not upside down.
The exception to this general rule is litigation in which punitive damages or “fee shifting” are involved. Punitive damages are for the purpose of punishing the other party. In Ohio in certain circumstances, punitive damages are limited by statute. But in any event that means a multiplier above and beyond the actual damages can potentially be obtained in such cases. Fee shifting means that when you win, the other side pays your legal fees.
But these remedies are limited to only certain types of litigation in Ohio, for example (i) cases involving intentional torts such as fraud, (ii) certain statutory actions where the legislature has specifically provided for these types of remedies, and (iii) cases in which a commercial contract calls for “fee shifting.”
Further, we find that Judges, especially state court Judges, are loathe to award punitive damages and attorneys fees to a prevailing party except in the clearest of circumstances. Thus, litigants (except in public interest cases) should be exceedingly cautious in assuming that “the other guy” is going to be forced to pay your legal fees when you win. The :”American Rule” on fees is that each party pays their own litigation expenses, and that’s almost always how it pans out.
What all this means is that for smaller disputes, the cost of litigation can well exceed the recovery, and clients should be cautious about proceeding even the first step down that path. The reason is that litigation, once commenced, frequently becomes a slippery slope that is easy to enter but hard to exit.
When the Finney Law Firm is engaged for resolution of small disputes, we attempt to explain the risks and anticipated costs up front to empower the client to decide on the best path for himself. We also explore ways to provide value to the client in small cases, including a very early settlement, preemptive resolution, fee shifting and punitive damages, and even turning the table on opponents.
Please contact us to learn how we can help you with your litigation challenges, either defending against a business or personal claim, or prosecuting a meritorious claim you hold.
Read below four related topics:
Navigating turbulent waters: Very early settlement discussions
Navigating turbulent waters: The litigation end game
Navigating turbulent waters: It’s not all black and white for judges
Navigating turbulent waters: Turning the tables on the opposing party
