A Few Thoughts About Attorney's Fees and Litigation Costs

One stereotype about lawyers: we are all rich.  Several times, non-lawyers have wildly overestimated my income.  While there is some truth to the stereotypes, there are also some misconceptions, based on the attorney's hourly rate.  This post is aimed to shed some light on hourly rates and fees versus costs.

"I can't believe what you charge per hour!" is a frequent comment, whether the attorney charges $150 or $450 per hour.  One reason is because when people think of hourly rate, they typically think of it on a 40-hour per week basis.  If the attorney received $150 per hour for 40 hours a week, every week, that would indeed be a terrific living -- $6,000 a week, or more than $300,000 per year.  While some attorneys make that amount -- usually seasoned attorneys -- most do not.  

Instead, an attorney's hourly rate is based on doing actual attorney work.  This includes attending hearings, drafting pleadings, holding meetings with the other party, and more.  Here is the important thing: if an attorney sits in the office for eight hours, but only spends six hours doing attorney work, the attorney charges for six hours, not eight.  Moreover, if the attorney is new and takes longer to draft a pleading than an experienced attorney, if the new attorney is ethical, he or she will shave time off of the total amount of time taken.  Otherwise, the new attorney could end up making more money for the same tasks than a seasoned attorney would.  

As for why the hourly rate is so high, it often comes down to the fact that attorneys may not have many cases.  Certain types of cases take weeks or months and require a lot of attention.  Therefore, it would not be a good idea for the attorney to have a high volume of cases, as the attorney would have less time to attend to each one.  Yet the attorney still needs to earn a decent living, so he or she needs to charge a certain hourly rate.

The same idea works with flat rates.  Those who hire bankruptcy attorneys who charge $500 for a Chapter 7 may think they are getting a wonderful deal, but it could come at the expense of quality representation.  An attorney who charges such a low flat rate may try to make up for it with high volume -- either a high volume of bankruptcy cases or of other cases.  That could mean handing the details of the case over to a paralegal, or otherwise not giving it the attention it needs.

Now that doesn't mean there are no attorneys who do quality work for a $500 flat rate, or no attorneys with large caseloads who still charge high amounts.  But too often cheap prices equal less care and attention.

Another thing I wanted to discuss was the difference between fees and costs.  The hourly rate mentioned above is for attorney's fees, which are separate from the actual costs of litigation.  Litigation costs include costs of filing a complaint in court, serving papers on the other party, and setting up a deposition.  Some attorneys that do cases on a contingency basis still require the client to pay for the costs of litigation, prompting an outraged: "I thought you wouldn't get paid unless you won!"  It's true that the attorney won't get paid attorney fees unless the client wins, but costs can be charged throughout the case.  Some firms will pay the costs if they sense the case is a good one and can afford it, and then bill the client for the costs later.  However, not every firm is in a position to do this.  Plus, some attorneys believe that clients are more responsible and attentive when they have "some skin in the game."

So hopefully this sheds some light on attorney's fees and costs.  Just because an attorney has a certain rate does not mean he or she is trying to gouge the client.  The attorney -- especially a solo attorney -- is more than likely just charging the amount that will help him or her earn a decent living.

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

Some Hard Truths About Employment Law Claims, Part 2

Last time, I mentioned several situations where bad behavior at work was illegal.  But lots of times, a work situation can be toxic without discrimination or sexual harassment being involved.  Sometimes a supervisor or a coworker is just a toxic person who likes to make everyone in the workplace a bundle of nerves.  Sometimes a supervisor might single out an individual to abuse, not because of the person's race or gender, but because of personality, jealousy, or any number of reasons real or imagined.  Aren't these examples of hostile work environment?  Isn't that illegal?    

Hostile work environment is illegal, but only if the hostility targets one of the categories mentioned in the last post.  On the other hand, hostility by a hot-headed boss toward an introverted employee is not illegal per se.  That said, depending upon the type of behavior, it is possible that a supervisor or coworker could be breaking the law.  Some other types of law-breaking include:

1.  Defamation.  If a supervisor or coworker says something about you that is untrue and it causes damage to your reputation, he or she could be liable for defamation.  The untrue statement can be spoken or written, but must be said to at least one other person to be "published."  

2.  False Light.  If a supervisor or coworker implies something false about you that would be considered highly offensive to a reasonable person, and that implication is made public, then he or she could be liable for false light.

3.  Intentional Infliction of Emotional Distress.  If a supervisor or coworker intentionally engages in reckless or "extreme and outrageous" conduct that causes you emotional distress, he or she could be liable for intentional infliction of emotional distress.   

4.  Assault, Battery, and/or False Imprisonment.  Things would have to be pretty bad for one of these to be applicable, but it's not impossible.        

5.  Breach of Contract.  If an employer's bad treatment violates terms and conditions of your contract, your employer could be liable for breach of contract.   

Also, if the supervisor "punishes" you by denying you wages or vacation, despite no evidence of wrongdoing on your part he or she may have violated a number of federal and California labor laws.

Suppose you think that your boss's behavior is wrong, but are not quite sure it is illegal.  Here are some possible options:

1.  Document Everything.  Even if you don't know, you can always keep a journal of what was said and when.  That way, you have recorded a pattern of behavior that at the least, could be used as records for internal discipline and at most, could be the basis for a lawsuit.

2.  Check Your Company's Policy.  Usually before you contemplate filing a lawsuit, it's a good idea to try to resolve the issue internally.  You could check your company's policy on reporting abusive behavior, and/or speak to someone in the HR Department.  The policies in place may allow you to report bad behavior without revealing yourself/exposing yourself to possible retaliation.  If there are no policies in place, and you don't feel safe reporting the bad behavior to a supervisor, you should consider speaking to an experienced Bay Area employment law attorney.

3.  Don't Lose Your Cool.  Regardless of the type of treatment, it is important to remain calm and professional.  If you blow up, it becomes easier for the supervisor or coworker to portray you as the malcontent and instigator.

4.  Don't Let Your Work Slip.  A lot of people respond to prolonged abuse by missing workdays or performing poorly.  Though you might need more time off to recover your health, it is important to do it within permissible bounds.  Otherwise, the supervisor and/or coworker might find it easier to challenge your credibility. 
      
Some employees may find that there are no good internal ways of dealing with the problem, and thus proceed to a lawsuit.  Other employees find that no matter how terrible the boss, his or her behavior does not meet the illegal threshold.  What to do then?  An employee can always leave the job, though at this time, that might require pain and sacrifice.  Many employees fear that if they look for a new job, the abusive supervisor will give him or her a bad reference.  That may be, but if so, that supervisor may open him/herself up to charges of defamation. 

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

Some Hard Truths About Employment Law Claims, Part 1

Because of the amount of time we spend at work, no workplace conflict is small.  Conflicts with your boss or coworkers can damage your self esteem and your health.  When you are fired from your job after being in a toxic situation, and you believe that it was not due to performance, it is easy to think that your firing was unlawful.  However, the hard truth is that your firing can be completely unfair... and still be legal.

How can that be?  The reason is because California, like most states, has "at will" employment.  That means an employee can be fired at any time for any reason, barring specific exceptions.  It does not matter whether you are in a probationary period or are a full-time employee: you can still get fired because you have a personality conflict with your boss.

The purpose of "at will" employment is to maintain a flexible work environment.  At will is a two-way street: employers aren't burdened with unskilled or unmotivated workers, but employees can also quit with little to no notice, usually without repercussions.

Still, most employees want to keep their jobs.  If the default is that you can be fired at any time, for any reason, then when is it unlawful?

1.  When you have been discriminated against on the basis of your race, gender, national origin, age, religion, disability, and (under California law) sexual orientation.  

This discrimination is not always easy to prove.  Fitting a certain gender or racial profile when you are fired is not enough -- the behavior itself must show intent to discriminate.  An employee who believes he or she was fired due to discrimination must first make a "prima facie" case: (1) the employee was a member of a protected group; (2) the employee was qualified for the position and performed its requirements satisfactorily; (3) the employee was terminated; and (4) after termination, the employer hired another person with similar qualifications.  The defendant then has the chance to rebut the case by providing evidence of a nondiscriminatory motive.  The plaintiff then has the opportunity to prove that the defendant's claimed motive is just pretext, covering the real discriminatory reason for the discrimination.  As the one filing the lawsuit, the plaintiff carries the heaviest burden of proof.

2.  When you have been terminated due to sexual harassment.

As with discrimination, retaliation related to sexual harassment can be difficult to prove.  The employee must make a prima facie case that: (1) he or she was a member of a protected class; (2) he or she received sexual advances or requests for sexual favors from the supervisor; (3) his or her refusal to give in to these advances or requests affected his or her employment status; and (4) the supervisor used his or her authority to create adverse job consequences for the employee.  Again, the employer has the opportunity for a rebuttal, and the employee must provide evidence that it is pretext.

3.  When your termination violates public policy.

An employer violates public policy when an employee is fired for refusing to participate in an illegal activity, or for participating in a legal activity like voting or other political activity.

4.  When you are terminated for being a whistleblower.

5.  When you are terminated for filing a Workers Compensation claim.


Whether you fit one of the above scenarios may also depend upon the type of workplace: the number of employees, the nature of the work, or other factors.

So if you believe that your boss's behavior toward you is illegal, what should you do next?  And if you don't think that it's illegal, but still find it toxic and harmful, what should you do then?  Some suggestions will be provided in Part Two.

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

But What If You're the Debtor? Some Bankruptcy Pointers

In my last post, I looked at things from the creditor's point of view.  That was because previously, I had discussed employees filing lawsuits against their employers.  I wanted to show what could happen to employees if their employers decided to file for bankruptcy.  I addressed the most simple scenario; for instance, I didn't discuss some of the steps available to employee-creditors if their employers filed for Chapter 11 business bankruptcy.  Chapter 11 is very different from Chapters 7 and 13, and will usually be discussed separately.  I will discuss Chapter 11 in a future post, but suffice it to say that employee-creditors can be involved in the Chapter 11 reorganization process.

What I wanted to stress was that the creditor is not always a mortgage lender or a credit card company: sometimes the creditor is you.  However, you could just as easily be the debtor, especially if you are an employee who was demoted, wrongfully terminated, or otherwise denied wages.  If that's the case, what can you do?

Figure Out How Much Debt You Owe.  When you don't have a job and are struggling to pay your credit cards and mortgage, it can be tempting to choose bankruptcy as the first step.  But bankruptcy is a serious decision, and if you have the time, you should definitely consider other options first.  Those options include seeking a loan modification with your mortgage lender, which could lower your monthly payments and interest rate, and negotiating with the credit card companies.  You might also consider selling certain property and using the money to pay down your debts.

If your debt is mostly credit card debt, and is fairly low -- such as $10,000 or $20,000 -- you might be able to wipe it away through a method other than bankruptcy.

If Bankruptcy, Which Type?  If you have tried the above options and still can't manage your debts, you need to figure out what type of bankruptcy would be best.  For that, you should consult a Bay Area bankruptcy attorney.  Individual debtors usually file for Chapter 7 or Chapter 13.

Chapter 7 is the most common form of bankruptcy, and usually the fastest.  With Chapter 7, the property you own before you file becomes "property of the estate," and the Chapter 7 trustee will determine which of your assets can be sold to pay off your creditors.  Before you file, you state which property is "exempt" (off-limits) and "non-exempt" (can be used to pay creditors).  To figure out which property to exempt, you would choose one set of California's exemptions, 703 or 704 -- whichever set best suits your needs.  If the Chapter 7 trustee and the creditors do not object, then the non-exempt assets will be sold and the proceeds paid to your creditors.

Chapter 7 is a good option for those with a lot of credit card debt who are not attached to their property.  But Chapter 7 does not get rid of your obligation to pay off most secured loans -- loans secured by the house, car, or other property as collateral.  If you have defaulted on your mortgage payments and want to keep your home, you may want to file for Chapter 13.  Whereas Chapter 7 is usually fast -- 3 to 6 months -- a Chapter 13 bankruptcy lasts from 3 to 5 years.  During that time, you pay off your creditors a little each month through a court-approved payment plan.

Whether you file for Chapter 7 or 13 may depend solely on whether you pass the "means test": if your income is more than the median income for your state, you are required to file for Chapter 13.  If your income is less than the median income, you could potentially file for Chapter 7 or Chapter 13.  However, if your debts are above a certain limit ($1,149,525.00 for secured debts; $383,175.00 for unsecured debts), then you are not eligible for a Chapter 13 -- you must file a Chapter 7.  In the case where you earn too much and have too much debt, you could file an individual Chapter 11.

Prepare Beforehand.  Before the papers are filed, attend credit counseling.  You must have a credit counseling certificate before you can file.  You should also consider moving your checking account to a different bank, as your current bank might freeze your account after you file.

Attend the Creditors Meeting.  Once you file for bankruptcy, you are obligated to appear at the 341 creditors meeting, which will be held no more than 40 days after you file.  This meeting is very important to your case, so don't miss it.  Your attorney will tell you what you need to bring.

Be Honest and Cooperative.  Both before and during the bankruptcy, disclose everything, even if you are concerned it could hurt you.  Your attorney will help you figure out how to deal with it.  If you forgot something, bring it up as soon as possible.  If you have a change in circumstances, bring it up as soon as possible.  Follow whatever procedures the court or your payment plan has in place.  If you do these things, your bankruptcy is more likely to be smooth.

These are just some of the things you should consider when filing for bankruptcy.  For more information, contact a local bankruptcy attorney.

If you need a Contra Costa bankruptcy attorney or a Bay Area employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

If You Are a Small Creditor, What Are Your Options In Bankruptcy Court?

You're an employee who has spent months trying to claim back wages that your employer owes.  You finally obtain a judgment against him in state court… and he files for bankruptcy.

Or you are a homeowner who paid far too much for your home remodeling because the contractor lied to you about the cost of materials.  You sue the contractor and get a state court judgment against him… and he files for bankruptcy.

Now what do you do?  Bankruptcy court is bewildering enough for debtors who file, let alone the creditors.  At least debtors usually understand the process before they file; creditors have this bewildering world thrust upon them.  They might then hire an experienced bankruptcy attorney to navigate the process.  If they receive notice of the bankruptcy, but wait too long to file a proof of claim, they could be out of luck.

So how does bankruptcy affect state court claims, and what can you do if you are the creditor?

When a debtor files for bankruptcy, an injunction is created known as the automatic stay.  The automatic stay bars creditors from taking any further action to collect on a debt.  Any action.  If you have taken the debtor to court, even if you are in the middle of litigation, you must stop once the debtor has filed for bankruptcy.  Any actions beyond that point are void.  

The automatic stay lasts only as long as the bankruptcy.  If the bankruptcy is dismissed before discharge, the automatic stay lifts, and creditors can pursue legal action once more.  However, if the debtor does everything right and the automatic stay remains until discharge, what are the creditor's options?

1.  File a Proof of Claim.  If the debtor filed a Chapter 7 or 13 and you are an unsecured creditor (the debt owed to you is not secured by collateral) this must be your first step.  You must file within 90 days after the first meeting of the creditors.  On the proof of claim, you would include your name and address, the amount owed, the basis of the claim, and the type of claim.  

If you don't file a proof of claim until after the 90 days, your claim could be disallowed unless you successfully argue "excusable neglect."  Failure to file a proof of claim means you could be barred from receiving payment distributions from the trustee handling the bankruptcy.  

2.  File a Motion for Relief from Automatic Stay.  This option can be used by secured or unsecured creditors.  A secured creditor (debt secured by collateral) might request relief from automatic stay to ensure "adequate protection."  The secured creditor might argue that the collateral is losing value, and the creditor must be assured that it will receive payments from the debtor.  An unsecured creditor might seek relief from automatic stay for debts that won't be discharged, such as child support or spousal support payments.  An unsecured creditor who is a landlord might seek relief from automatic stay to evict for the debtor tenant for failure to pay rent.

3.  File an Adversary Complaint to Prevent Discharge.  If you believe that the debt came about as a result of fraud or defalcation, you could have your attorney file an adversary complaint under 11 U.S.C. section 523.  You would argue that because of the fraud or defalcation, the debtor should not receive a discharge for that particular debt.  You might also have a claim under 11 U.S.C. section 727, which bars discharge of ANY debts.  The adversary proceeding would be an offshoot of the main bankruptcy case and would proceed very much like any other litigation.  If you win, the debt remains even after discharge, and you can pursue it as before.

There are other options as well, such as requiring the debtor to reaffirm the debt.  However, that option is usually exercised by business creditors (such as auto retailers), rather than small individual creditors. 

Small creditors with unsecured debts often face an uphill battle to get paid.  But don't be discouraged: contact a Bay Area bankruptcy attorney to learn what you can do.

If you need a Bay Area bankruptcy attorney or a Contra Costa employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

When Is the Right Time to File an Employment Law Claim?

When you are mistreated at work or fired, your first thought may be filing a lawsuit against your employer.  But that is often the wrong action to take.

Depending upon your problem, you may first need to exhaust all available administrative remedies, especially if you live in California.  That means you must first contact the agency that deals with your situation and file a claim.  The agency would then investigate, and either inform you that it found no evidence to support your claim, or that it will pursue the case on your behalf.

Even if the agency finds no evidence, usually it will give you the right to file a lawsuit.  You could then file an employment law claim in state or federal court.  Although agency evidence of wrongdoing would help your case, that does not mean your case would be unsuccessful without it.          

Administrative agency reviews often take several months, even a full year.  Many employees find this process frustrating, but if they try to get around it by filing in court, the judge will dismiss their case.    

An employment law attorney can still help you even with the agency process.  An attorney can review paperwork for the agency claim and point out any errors or unclear statements, so that the employee can correct them before filing.    

So what are some cases where an employee may first need to go to an agency?

Discrimination and Harassment: An employee in California would file with either the federal Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing, or both, depending upon the nature of the problem, the size of the workplace, how much time has passed since the injury, and other factors.

Wrongful Termination: If the termination stems from discrimination or sexual harassment, an employee would again file with the EEOC or the California Department of FEH.  However, an employee who was fired due to engagement in a protected activity (such as political activity) can file with the California Labor Commission.  An employee who files with the Labor Commission is not precluded from filing a private lawsuit and may have attorney representation at any Labor Commission hearings.      

Union Representation: While a union-represented employee does not need to file with an agency for every grievance, he or she must follow the procedures in the union's collective bargaining agreement.  That agreement may require several steps, including mediation, before the employee is free to file a private lawsuit.  

Whatever your problem, it is important to check whether an agency must first investigate your claim before filing in court.  An attorney can help you investigate and determine which agency, if any, you should seek out.

If you need a Bay Area bankruptcy attorney or a Contra Costa employment law attorney, contact the Wild Law Office today.

The above should not be construed as legal advice.

Welcome to the Wild Law Office!

Seeing a lawyer is never fun.  

A lot of people feel ashamed or afraid.  In the case of bankruptcy, they might feel judged.  They could always pay their bills until the husband lost his job, until the wife experienced health problems.  They then used up their savings to pay bills, and now rely on their credit cards.  Their credit card debt is mounting, their home is underwater, and they feel ashamed.  They tried to do everything right, but it still came out wrong.

In an employment law case, the employee might be afraid.  She has been harassed for so long that she believes the boss has total control.  If the employee meets with a lawyer, the boss could find out and fire her.  The employee hates her job, but she needs it to pay the bills, including rent for her apartment.

Seeing a lawyer could mean facing that scary, shameful situation for months on end.  It just seems easier to ignore it, to hold out another month.  Maybe something will change.  Maybe it will get better.

But if your problem is bad enough, the only way to fix it is to face it.  That means seeking out a lawyer.

A lawyer will discuss with you the best way to approach your situation.  Your problem may not have a legal solution, but if it does, the lawyer can represent your interests in court.  

For a couple that files for bankruptcy, that means (1) discussing which type of bankruptcy best suits their needs; (2) helping them file the petition; (3) represent them at the creditor's meeting; (4) helping them come up with suitable payment plan over a three- or five-year period (if it applies); as well as other issues that may appear during the bankruptcy.

For the employee facing discrimination or harassment, that means determining (1) the nature of her situation; (2) whether her problem has a legal solution; (3) whether she needs to seek help from an administrative agency before filing a lawsuit; and (4) if she has exhausted her administrative remedies, where she should file her case.  From there, the lawyer would represent her through the trial phase, unless the case settles sooner.

In each case, the couple and the employee have the opportunity to start afresh.  Moreover, if the employer fires the employee for reporting harassment, the employee has a wrongful termination claim.

The Wild Law Office represents clients in both of the scenarios above.  While I cannot guarantee the best result, I will work hard to get as strong a result possible, so that you can start over with your life.