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Practical considerations before litigating

Posted by Editor on April 15, 2019
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 Question: I’m a transaction broker for both the buyer and the seller. The transaction failed to close. Although I’m not allowed to give legal advice and would never discuss this with the parties, it looks clear to me that the buyer did everything correctly and is entitled to get the deposit back.

However, the seller refuses to sign the release and cancellation form. As best as I can tell, this seems to be based on the seller’s paranoid suspicion that there’s more to the story, although none of the suspicion is merited. The seller and buyer have fought over this issue for a month now, and the seller stubbornly says he will never change his mind. The title company acting as escrow agent says it will not release the deposit to the buyer, but will instead give the deposit to the county court by filing an interpleader action.

What should the innocent buyer do in this situation?

Answer: The buyer should consult a lawyer who will give them a candid assessment of what the lawyer’s recommended next step(s) would be under the circumstances.

Although the facts you’ve presented so far show that the buyer has a great case, that’s just the beginning of the analysis. It fails to consider any of the factors below, which could dramatically change the full analysis. Here are a few practical considerations that parties often overlook when they are in the beginning stages of a dispute.

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  1. How much money are the parties fighting over?
    This is an important factor in deciding what the best strategy is, including whether to pursue litigation or a settlement with the other party. The best strategy for a $100 dispute can look very different from a $100,000 dispute. Sometimes, in the small claims range, it may even make sense to walk away from a dispute or just try to negotiate a settlement despite having a very strong case.
  2. What are the chances this case will eventually settle?
    Most legal disputes end up with some form of settlement sooner or later, and parties would be well advised to ask an experienced attorney about the pros and cons of settling vs. continuing to contest the issue at each stage of the process.
  3. How much money can each side spend to pursue litigation?
    Parties who have a higher budget to cover fees and costs for a longer period will often see a better outcome – or at least get more detailed guidance along the way. Although there are some pro bono attorneys available for certain situations (no charge to the client), pro bono attorneys tend to be the exception, rather than the norm.
  4. Is there an attorney fee provision?
    Are there any fees and costs not covered by the attorney fee provision? These fee shifting clauses can dramatically change the landscape. Without them, parties may have to calculate whether the amount they hope to win justifies the amount they would have to spend to pursue it. Even with a provision, parties may want to consider if they can afford to pay the other side’s attorney fees if they lose.
  5. How stubborn is each party?
    Some people’s zeal to pursue legal action will fade after a few months or years if the matter isn’t resolved. But other people seem to remain completely focused on the fight for as long as it takes.
  6. How confident is a lawyer that the trier of fact (judge, jury, arbitration panel, etc.) will side with their client?
    No case is guaranteed, and any experienced litigator can share a story or two about how a “winning” case lost the day in a particular trial.
  7. Will the losing party promptly honor a court’s judgment?
    Or will the winning party become a debt collector who must continue to take additional steps to recoup the judgment?

Please keep in mind that every case is different . You should always encourage the parties to consult with a lawyer to get perspective on the strengths and weaknesses of their cases, along with the equally important questions of how much it might cost to pursue the matter and how long it might take.
Joel Maxson is Associate General Counsel for Florida Realtors

© 2016 Florida Realtors®

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