ABC's OF LITIGATION

In today's business world, litigation should be the option of last resort. The time, expense, and emotional cost associated with complex litigation can, in some cases, vastly exceed any possible benefits associated with "winning" a lawsuit. This can be especially true in the context of homeowner or condominium association litigation where the litigation often involves neighbor against neighbor.

Notwithstanding the foregoing, it is almost inevitable that your association will ultimately be involved in litigation. Board members have a fiduciary responsibility and obligation to all members of their association to collect assessments and to enforce the governing documents of the association. As such, it is very likely that the board of directors will, when faced with a militantly stubborn owner, be forced to retain legal counsel to pursue litigation. The decision to retain counsel to pursue litigation is understandably a difficult one for most board members. Some of the reluctance to retain counsel and pursue litigation is often associated with a general lack of knowledge and understanding of the legal process.

This article will very briefly provide an overview of the litigation process in an attempt to allay some of the common fears held by many board members.

Generally speaking, the first order of business for the attorney is to review and evaluate the facts and circumstance of the case in order to determine whether there is a legal issue or right which is ripe for judicial resolution. This seemingly simple process is often the most important aspect of the entire case. It is in this early stage that an attorney knowledgeable in the particular field of law can protect the client from themselves by recommending against bringing a lawsuit with little or no viable chance of success. It is for this reason that, for your association, hiring counsel who is intimately familiar with the legal issues routinely faced by community associations can aid your association in maximizing its litigation dollar.

Generally speaking, the second order of business for your attorney will be to send to the recalcitrant owner a demand letter in an attempt to obtain voluntary compliance and thereby avoid litigation. For your association, the effectiveness of this demand letter is routinely a reflection of the credibility of your association's counsel. The hiring of competent, knowledgeable counsel with a reputation for aggressive litigation in the field of association law may result in a direct economic benefit to the association by obtaining voluntary compliance from the recalcitrant owner without the necessity of actually filing a lawsuit.

DO YOU NEED A MANAGER?

HERE'S A FREE SERVICE JUST FOR YOU

Have you decided that you are tired of all the work involved in managing your own association? Clayton & McCulloh has always strongly recommended professional management for community associations. By becoming professionally managed, the association may be able to turn over many of the day to day tasks involved operating the association to a licensed community manager, while still retaining control of the association. Hiring professional management can curtail burnout of directors which will result in lower turnover rates for directors. As such, directors should:

• Have less work;
 
• Should have less stress;
 
• Potentially can reduce their liability;
 
• May be able to decrease legal expenses; and
 
• Can better channel their talents in other directions for the good of the association.

The end result is that the association should become a more stable and happier place to live.

One of Clayton & McCulloh's complimentary services is our Management Referral Service. We will contact several management companies on your behalf.  They, in turn, will either telephone and/or mail information (whichever is your stated preference) to you. Selecting a management company is very personal decision. It is absolutely imperative that associations have a good rapport with their manager. For this reason, we will provide you a list of three or more licensed community management companies in your area In addition, if you desire, our Director of Public Relations will assist your association in this endeavor (e.g., provide informative articles and booklets and help you understand the functions of a manager). Since we do believe that the selection of a management company is an important business decision for the association to make, we never try to insist or even recommend a particular management company.

If you would like to avail your association of this complimentary service, please contact Arlene-Frances Ring at any of our offices.

Volume IX                   Page Two                    Clayton & McCulloh

TRIAL STAGE MAY TAKE UP TO YEARS!

In the event that the owner fails to come into voluntary compliance, then litigation may be the option of last resort. Once the decision to litigate is made, it is important for the board of directors to have a clear and realistic understanding to the time involved in getting a case to trial. Many times, unrealistic expectations on behalf of the client related to the time it takes to get a case to trial results in the most contentious attorney/client disputes. The board of directors needs to understand that the judicial process moves at its own pace and the rules of civil procedure provide for certain time periods which cannot be shortened by the attorney. Furthermore, the board should understand that their association attorney is only one-half of the equation. The attorney for the owner can delay the litigation process and drive up the litigation costs by the filing of unnecessary motions or seeking voluminous discovery.

Briefly stated, there are four stages to civil litigation in Florida. These stages are often referred to as the pleading stage, discovery stage, trial stage, and the appellate stage. Simply stated, the purpose of the pleading stage it to establish the plaintiff's legal basis for relief and the defendant's defenses to the plaintiff's claim. The pleading stage is started with the filing of the complaint with the court and serving the complaint on the defendant. Often, the defendant will respond to the complaint by filing a motion to dismiss or other similar motion. Ultimately, however, in most cases the defendant will file an answer to the complaint. By the filing of the answer to the complaint, the pleading stage is generally concluded. This pleading stage may last as little as twenty days or may last as long as several months.

The second stage of litigation is the discovery stage. It is in this discovery stage of the litigation that both sides strive to obtain all of the documentation, depositions, and other evidence necessary to prove their case in court. The discovery stage may take as little as a couple of months to as long as several years depending upon the complexity of the lawsuit. However, in a typical association lawsuit, the discovery stage often takes approximately six to eight months.

The third stage of litigation is the trial stage. Assuming that the lawsuit is not resolved prior to trial by summary judgment or settlement, the lawsuit will end in a trial. In today's judicial climate, the number of cases on the court's trial calendar vastly exceeds the judicial resources available to have all of these cases heard by the number of available judges. As a result, it oftentimes takes many months of waiting before the case will move to the top of the list for trial. Depending on the expected duration of the trial and whether or not a jury trial has been requested, the trial stage may take as little as two to three months or as much as a year or more. All totaled, these first three stages of litigation will take anywhere from as little as approximately one year to as much as several years.