Alternative Dispute Resolution (ADR) a Growing Trend in Settling Disputes Without Litigation

A trial is an expensive, time-consuming tool to use in a search for justice and is especially stressful for a plaintiff who may have been severely injured and in the midst of extensive medical treatment or rehab.

That is why many litigators rely on other strategies and methods to avoid a trial when feasible. A common option, of course, is to negotiate an out-of-court settlement which provides justice at an agreed upon level without undergoing the rigors of a trial.

While some attorneys are better than others at negotiating an out-of-court settlement, the process is unscientific, unpredictable, and at times unprofessional. Furthermore an out-of-court settlement can being a high risk endeavor putting both sides at the mercy of an emotional process often determined by outside forces meeting in high-powered, closed door sessions developing strategies to spring a trap on the unsuspecting plaintiff who only wants justice - not high-noon drama.

Increasingly, the shortfalls of settlement bargaining are being overcome by relying upon Alternative Dispute Resolution (ADR), a growing trend for commerce and government as well as for the legal system.

Alternative Dispute Resolution involves the use of procedures for settling disputes by means other than litigation. ADR commonly involves the use of arbitration, mediation or mini-trials. These procedures are less costly and more expeditious than litigation and are increasingly being used in commercial and labor disputes, divorce actions, in resolving motor vehicle and medical malpractice tort claims, and for other disputes that would otherwise likely end up in a trial.

By the early 2000s, ADR was being used more and more as plaintiffs, lawyers and judges agreed these procedures could help resolve legal disputes quickly, cheaply and more privately than conventional trials. Many reformers also felt ADR is a creative tool more focused on problem solving than litigation which is based on an adversarial model.

Because Alternative Dispute Resolution has been so effective, only about 5 percent of all cases actually go to trial while the remaining 95 percent are resolved through out-of-court settlements or with ADR. So what once was an alternative is now becoming the norm.

The most common procedures are arbitration and mediation. For this reason, I will not linger long on either method. Briefly, mediation or conciliation provides a forum in which parties can resolve their disputes with the help of a neutral third party. Mediation depends upon the commitment of the disputants to solve their own problems. The mediator never imposes a decision but keeps both parties talking until an agreement is reached.

Arbitration involves use of a neutral third party who, after hearing the evidence and arguments, imposes a binding decision that is enforceable by the courts. The disputing parties agree ahead of time to live by the arbitrator's decision and both parties ahead of time agree upon who will be the arbitrator. Often one or both parties are unhappy with the results but the matter will be resolved.

A more interesting and less-known ADR procedure is the mini-trial which allows each party to present its case as in a regular trial except that the case is not tried by a judge but is "tried" by the parties themselves in an abbreviated manner. This process is often used for complex questions of mixed law and fact such as product liability, massive construction, and anti-trust cases.

In a mini-trial lawyers and experts present a condensed version of the case to top management of both parties. Often a neutral adviser sits with management and conducts the hearing. After the presentations, top management attempt to reach an agreement. If they cannot, they will ask for the neutral adviser's best guess on what will be the expected outcome and after hearing the best guess will resume negotiations. By providing a look on how an outsider views at the dispute, a mini-trial often sets the stage for a settlement.

Another tool, an Early Neutral Evaluation (ENE), is used when one or both of the parties seek the advice of an experienced individual (usually an attorney) about the strength of their case. An evaluation by an informed outsider can move parties away from unrealistic stands as well as providing insight into the strengths and weaknesses of their case. If the parties have faith in the third party, and are willing to compromise, an ENE can lead to a successful agreement.

Another ADR tool is a summary jury trial, a procedure used primarily in federal courts where cases can be tried in an abbreviated fashion before a jury which then renders an advisory opinion. An advisory opinion can assist both parties in assessing the strengths and weaknesses of their case, leading to a settlement. A summary jury trial, like an ENE, can be scheduled much quicker than a trial, thus avoiding the delay, expense and stress that occur in litigation.

State and federal governments have enacted a series of enabling legislation to encourage the use of ADR processes and to make the processes more fair and effective. Michigan law, for instance, provides for conciliation, four types of mediation (general civil mediation, domestic relations mediation, Friend of the Court mediation, and Community Dispute Resolution), mediation/arbitration, Early Neutral Evaluation, Case Evaluation, Domestic Relations Arbitration, Mini-Trial, Summary Jury Trial, and Settlement Day.

In Michigan, case evaluation is a process through which a panel of attorneys not involved in the case hears the issues and renders a monetary evaluation of the case. Penalties may be attached for not accepting the award. An example is the Mediation Tribunal Association, a non-profit that processes cases of the Third Circuit Court - about 4,100 hearings a year.

Settlement Day in Michigan is more of a case management tool than an ADR technique. The court will suspend trial activity for a day and concentrate on the settlement of long-pending civil trials. The idea is that the litigants have a good chance to settle if they meet in an informal setting to discuss a settlement. Volunteer attorneys trained in mediation are often selected to assist. Oakland and Kent counties have successfully used this method to reduce a backlog of older cases awaiting trial.

In summary, ADR can be an effective tool when a dispute first arises, before a lawsuit has been filed, at any point during the course of a trial, after a trial has taken place and a decision has been made, or during or after an appeal.

The principal advantages of ADR are that it:

· * Saves time

· * Saves legal expenses

· * Provides parties greater control over the dispute resolution process

· * Allows parties to resolve a conflict in a more creative way than if left to a judge or jury

· * Gives greater privacy in resolving the dispute than in a public courtroom

· * Reduces the emotional toll a lawsuit can take

· * Can permit valued relationships among the parties to be preserved.

Because of these advantages plaintiffs seeking justice when first contacting an attorney should examine that law firm's skill and experience in Alternative Dispute Resolution and question the attorney about how he/she feels about ADR procedures as an option to going to trial.

There is more than one path to justice and a skilled, experienced attorney committed to justice for clients rather than the highest fees can help you find the best path.

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Tips To Help You Find The Right Litigation Lawyer

When some people are charged with a crime, they think that it is a good idea to represent themselves and save some money by not hiring a proper lawyer to represent them. In all reality, you could end up spending even more money or seriously disadvantaging yourself by taking a similar route. It is important to keep in mind that a trial can be a very long and complex procedure, so it helps to have an experienced litigation lawyer on your side to help you every step of the way. Not only will they ensure that all paperwork is filled out and filed correctly, they can offer you legal advice at each stage of the trial process.

But how do you ensure that you are hiring the best litigation lawyer for your circumstances? There is no denying that there are plenty of these lawyers out there, it's just a matter of wheedling out the good from the bad:

• Speak to family and friends
You never know who has used a litigation lawyer in the past so, by asking family and friends for suggestions, you may be able to find one who has been recommended.

• Search online
In this age of the internet, many lawyers choose to advertise their services online. Looking through the profile of a lawyer before you meet with them can actually tell you a lot about the person you are thinking about hiring.

• Ask about experience
You should always hire a litigation lawyer who has been practicing for a while - the more experienced he (or she) is, the better they will be able to represent you. You may also find that an experienced lawyer has dealt with a case similar to yours in the past, giving them invaluable experience that could make or break your case.

• Take your time
You should never hire the first lawyer that you speak to. As the initial meeting is generally free, you should try and meet with two or three before making a decision.

• Be honest
If you want your litigation lawyer to help you out, you need to make sure that you tell them absolutely everything about your case. If you do not do this, your lawyer will be unable to help you as well as they would have otherwise.

By using the above tips you can make sure that you find the best litigation lawyer for your needs and that you are comfortable in your choice. You should never try to represent yourself in court, as you could seriously damage your chances of coming out on top - instead, hire a lawyer who specializes in litigation and allow them to represent you to the best of their ability.

This article suggests some tips to help you find the right litigation lawyers. Mason Sier Turnbull litigation lawyers provides strategic advice and solutions to their clients.

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Expert Advice About Commercial Litigation Financing - Commercial Lawsuit Loan

Commercial lawsuit funding is the non-recourse cash advance offered to plaintiff businesses involved in business lawsuits. The pre-settlement financing is provided to lower the monetary problems of the contending plaintiff companies. Commercial litigations are on a continual surge as well as the financial responsibilities that it could introduce upon the contending company might be enormous.

How Commercial Litigation Funding Helps the Plaintiff Companies:

Commercial lawsuit funding facilitates a large amount of non-recourse cash advance to those who are in dire need of cash while waiting for their business litigation to settle. Using this facility and by leveraging the unique financial strength of commercial litigation funding, plaintiff company increases its prospects for a favorable outcome. An advance on pending settlement also allows attorney the time needed to get the full value for the case and the time period to negotiate a better settlement deal.

Commercial Litigation Financing has Following Features:

1. Non-Recourse: It is non-recourse. It is paid back only if the plaintiff wins the case at trial or reaches an out-of-court settlement with the defendant. If plaintiff is unsuccessful in getting the claim, the borrowed amount is never paid back.

2. No Monthly Payments: Once plaintiffs are approved and funded, they pay back directly from the proceeds of their successful settlement.

3. No Personal Guarantee: Unlike conventional loans that almost always require the personal guarantee of the business owners, commercial lawsuit funding is a non-recourse investment, secured by the prospective proceeds of pending claim and not the cash-flow of their business or their personal assets.

4. Off-Balance Sheet: Financing provided by is off-balance sheet and non-recourse. It allows businesses to prevent and protect from litigation risks. In addition, financing may be used to supplement working capital and to remove liabilities from balance sheet of the business.

5. Unrestricted and Unlimited Use: Cash obtained from commercial litigation financing can be used to pay down debt and invest to maintain or help in business expansion. Company can use the cash advance for fixed and variable costs such as payroll and operating expenses. Funds can also be used to invest in the expansion of their business, which maintains the confidence of creditors, investors, and employees.

Business lawsuits are, in general, one of the long and expensive legal processes that take out several years together for a settlement to occur. Many people find arranging for funds quite difficult when a particular lawsuit is going on in the court of law.

A commercial lawsuit funding offers a financial support to plaintiffs when they need it most. Their attorney provides the legal help and the financial support provided by commercial lawsuit funding can create a win - win situation for the client. In this win-win scenario, financial help provided by lawsuit funding will allow the plaintiff business to take care of pressing financial needs and wait for a just and equitable settlement. In the final analysis, they net more from a settlement than would have been possible without the commercial lawsuit funding.

Introduction of the commercial litigation financing service has come in for greater appreciation from all corners of business world. Commercial lawsuit funding helps to fulfill the monetary obligation that a business gets to meet when facing a commercial lawsuit and it is a solution in the form of legal financing facility. Best part is that being non-recourse it is risk-free and one can pay back upon settlement completion or after winning over the trial.

What Types of Cases Qualify for Commercial Litigation Financing?

There are variety of cases that can qualify for commercial lawsuit loan, these include, but are not limited to: Contract Disputes, Trademark and Copyright Infringement, Fraud, Industrial Products Liability, Construction Disputes, Intellectual Property, Shareholder Suits, Securities and Investment Fraud, Banking and Insurance Disputes, ERISA, Professional Negligence and more.

Golden Nugget:

It is a well-known fact that commercial legal processes will drag for several years and it serves best to settle the case at the earliest. An organized pre-settlement funding from a well-funded legal financing company aids one in getting immediate cash and the time period to negotiate a better settlement deal. Commercial lawsuit funding allows these firms to leverage the expected settlement from their case to obtain the capital they need now. A commercial lawsuit loan helps the plaintiff company regain their financial freedom.

Paul Sherman, The Lawsuit Money Man, is a Legal Funding Consultant at Easy Lawsuit Funding. Visit our website http://www.easylawsuitfunding.com/ to get additional useful knowledge and information about commercial litigation financing and make an educated decision to apply for your commercial lawsuit financing today!

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Understanding Construction Litigation and How an Attorney Can Help

Construction law is a general term that encompasses the vast scope of operations related to construction projects, from residential to commercial building. This extensive area of the law helps to prevent possible disputes from occurring while ameliorating the ones which do arise during the building process.

Because the construction of a residential home or building requires a considerable amount of coordination between many professionals, planning is a must. As a result, much of this law is comprised of contracts (the agreements made between the owner, contractors, subcontractors, suppliers, engineers, architects, developers and so on). That is why it is extremely wise to hire an attorney during the planning phases to ensure that you are protected throughout the entire project. It is always far easier to address an issue before it becomes a problem versus after.

Many people underestimate the value of hiring an attorney prior to signing a contract rather than when a disagreement begins. They view this as an added expense. However, doing so is actually a relatively modest investment when considering the problems taking this step can actually prevent. Legal battles, complacent workers, delays in building, defective work, and cost overruns are just a glimpse into the myriad of issues you can potentially avoid when you hire an experienced construction attorney from the beginning of a project.

How can a lawyer help you with building contracts?

Once you hire an attorney at the very start of your project, you are already at an advantage. A construction lawyer can help you determine the most profitable financial terms for you in a contract. They are also experts at determining your risk factors and helping to mitigate your downside. A lawyer can also help you identify if you are at risk of losing money on your project and how much you will be responsible for in the event that something goes wrong. In addition, your attorney can assist in managing certain risks that you may undoubtedly need to take when undergoing a complex project.

Another invaluable tool your lawyer can provide is the ability to assess unfair terms or conditions that are stated in the contract. There is no ideal contract, but both sides must be willing and able to compromise so that each party is in agreement. Any unrealistic, oppressive, or difficult to achieve terms should be eliminated and may even be considered a violation of the law. Do not rush into signing a contract simply to get the project moving or to collect your first check. This could place you in a very compromising-and expensive-position.

Because there are so many parties involved in the process of building, construction law is a very complicated. Including some of the main issues we have already looked at, there are also insurers, design professionals, lenders, sureties, construction managers, and governmental entities to consider. Each link added to the chain increases the complexity of the project and the potential for conflict. If you do not have a construction law attorney backing you up, you may encounter some very costly circumstances. As mom always said, better safe than sorry, and this is exactly what she was talking about.

Why should you hire an attorney?

There are many responsibilities that a construction attorney will undertake upon being engaged. A good attorney will handle all the legal issues involved with the entire project including financing, negotiating and creating contracts, and dealing with any settlement claims after the project has been completed. They can also help with managing the compliance of state and local entities, claims of lien, and offering suggestions for financing options. The list of responsibilities a construction attorney will undertake is significant and hiring one can be the best choice you have ever made if you are involved in this complex industry.

Many people think that you need to hire a construction attorney when disputes occur or when someone breaches a contract during the construction process. This is a common misconception. Hiring an attorney at the beginning of the project is not only a preventative measure but can also be a huge time and money saver in the event that a future dispute occurs. It is when attorneys are hired to do damage control that the bills start to add up.

You see, when dealing with construction, most of the time everyone involved is on a strict timeline for completion. When a conflict ensues, it could potentially put your project on hold which could end up being a costly circumstance. You can also encounter court costs, attorney fees, claim compensation and more. However, if you take the initial step of hiring a lawyer at the beginning of the project, you will not need to waste any time bringing the attorney up to speed on the details of the situation at hand. He can then go straight to addressing the issue immediately.

Whether you decide to hire a construction law attorney prior to beginning your project or when a dispute occurs, it is always best to look for an experienced lawyer that understands the complexities of construction litigation. It will save you a lot of money and headaches in the end and you will learn that an attorney many times can be your best friend and most trusted ally.

David Di Pietro is an experienced attorney who has has tried over fifty (50) jury trials and numerous bench trials. To learn more about the author or construction litigation, please visit http://www.lawyerftlauderdale.net/

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What Services Do Litigation Support Firms Offer?

Some lawyers and small legal firms may seek the help of consultants in the area of litigation services to prepare for court proceedings. This assistance is usually provided by litigation support firms who are professionals and non-lawyers. These litigation support firms often have a multidisciplinary team to deal with a wide range of legal processes, needs and requirements. Services offered by litigation support firms may relate to cases that are currently being prosecuted as well as pending ones and also involve pre and post-trial preparation.

To help meet the varying needs of lawyers, litigation support firms offer a range of services such as:

• Researching, preparing and reviewing litigation documents such as pleadings and motions,

• Assessing and managing cases by providing technical and operational support to the legal team,

• Training litigation staff in areas such as electronic documentation, review and production as well as e-discovery and social discovery,

• Providing problem solving expertise and support on litigation issues,

• Developing and managing the clients' databases,

• Planning and organizing processes and resolving problems relating to documentation.

Other services may involve coding of litigation materials, interviewing witnesses, providing courtroom support such as exhibits, presentations and jury selection and computer forensics.

To perform legal proceedings in a professional and proficient manner, litigation support firms may use many types of techniques and software solutions. These may include the traditional methods such as document imaging, conversion of audio-video, duplicating CD-ROM, and DVD, Bates stamping and endorsing and copying and reproduction services. Some technology based processes may include tools for online web-based review, managing documents and assessing cases and Cloud-based products. With the volume of data and documents to handle, having the appropriate processes, software and technology is essential to thoroughly and successfully prepare for legal proceedings.

Having a litigation support firm working with your legal team offers many benefits, which may include:

• Access to qualified talent, staff and resources to handle projects,

• Reduced costs due to outsourcing expertise rather than paying additional staff,

• The ability of smaller legal firms to compete with larger companies,

• Using support services based on project schedules, needs and demands,

• Better time management and turnaround of project documents and processes.

An important aspect of the litigation process involves having the right information, documentation, evidence and comprehensive preparation. By using the range of services and resources that litigation support firms offer, solo lawyers and small legal firms may be better equipped to successfully prosecute different types of cases.

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What Is Probate Litigation?

Definition

Probate is defined as the legal process of how the debts are paid and assets and property distributed of an individual who has passed away. Often times, the process involves a will and sometimes there is not one available. When a deceased individual's Last Will and Testament is offered for probate, there are many requirements and all heirs and creditors have rights, privileges, and limitations that must be strictly followed. The probate court identifies the assets of the deceased, assesses the taxes and other expenses, and distributes the funds and property to legal heirs listed in the will. A lot of probate matters are resolved without legal action, but when complications or requests for contest arise and the matter is discussed in court, it is called probate litigation. If a deceased individual has a large estate, various movable and immovable properties, and sizeable bank accounts, then their assets are more likely to be involved in probate litigation.

What is Probate Litigation?

Probate litigation involves the laws, codes, and statues that preside over wills, trusts, and the settling of a deceased individual's estate. It often includes disputes among relatives and challenging certain sections, provisions, or the entire Last Will and Testament. The Last Will and Testament can be disputed due to several reasons. The facts of individual disputes define the type of action that needs to be defended or prosecuted. The law of limitation is firmly relevant to probate litigation and even if there is a valid claim, a case will not be preceded by the probate court if the time limit has passed.

Types

• Undue Influence: claim that disputes whether the person creating the will did so in a free manner without being persuaded by an individual who was in a position of control and trust.

• Mistake in Execution: the execution requirement for a will to be valid in the state it was created does not meet all of the provisions and is therefore invalid.

• Lake of Mental Capacity: claim declared based on the belief that at the time the will was created, the individual composing the will did not have the essential mental ability to completely understand the amount and nature of the assets and property, the beneficiaries who would normally receive the property, and how the property is distributed by the terms of the will. Lack of capacity can be due to the natural aging process, diagnosed medical condition, or influence of medications. Lack of mental capacity claims are based on medical records and behavior o the individual prior to executing the will.

Other Activities

Probate litigation can also involve various other activities besides contesting wills including:

• Will Construction: in the case of a vague will where the document does not completely dispose the entire estate or beneficiaries have passed away, the court assists in how the deceased estate and property should be distributed.

• Heir Determination: when an individual does not have a will or has little contact with his or her family, the court determines the heirs.

• Accounting: beneficiaries have the right to an accounting of the assets and property and court assistance may be requested to receive an account of the assets of the estate. Beneficiaries may also object to the accounting if it is unacceptable for any reason.

Attorneys

A probate litigation attorney can help make sure the wishes of a deceased individual are legal and binding to avoid interference with those wishes. They are experts in probate laws and help individuals take the right steps to ensure wills and trusts are completely legal. They help individuals leave assets to people other than legal next of kins. Additionally, a probate litigation lawyer can look out for an individual's best interested in the effect of the assets and property to be moved to the beneficiary by making sure the legal process is followed.

For details and common questions about the administration of probate in Nashville, see these Circuit Court Clerk's website providing instructions for Personal Representatives and Fiduciaries.

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Prepare for a Civil Litigation Case With an Experienced Attorney

When preparing for a civil court case, the best move that you can do is to take a healthy step back, and address what you must do to prepare. Too often does the wrong party win a favorable outcome due to a case being mishandled by the justified yet inexperienced. When preparing for civil litigation, it is best to take the case one step at a time for the most favorable results possible, and hire the best civil litigation attorney to ensure that your rights are addressed, no matter the plaintiff or the defendant.

Most civil cases begin at a breach of contract. This can include a failure to pay a bill, or failure to acknowledge a right. Most often, civil litigation involves problems of payment between individuals or businesses that are bound by law or contract. A breach of contract lawyer can define the individual circumstances and articles best per case, so seek a consultation of legal representation will immediately prove useful.

The next step will usually involve mitigating. Mitigation can be any attempt to resolve the issue outside of court or to lessen the impact of the case, and this usually is the burden of the non-breaching party. Examples of mitigation can be offering to schedule a payment plan rather than immediately demanding a full payment. While mitigation does not always work, it is ideal to show that attempts were made before taking the case to court. Make sure to record all instances of contact or mitigation prior to the court dates, including cell phone calls, receipts, other contracts, text messages, and emails, to prove to the court that you had no other options besides legal action.

Your civil litigation attorney will handle any work in court for you, but at the end of a civil litigation case is the matter of payment or enforcing the judgment. Sadly, this doesn't often work itself out easily. If the losing party refuses to pay, they can be ordered, under threat of arrest, to attend court and discuss their finances. Seizure of money or property can result from the refusal or inability to pay a judgment. Either way, your civil litigation attorney will help to both ensure enforcement if you won the case, or protect your rights and property if you found to have to pay.

Winning a civil litigation case is all about how you handle it. React to you case calmly, and hire a civil litigation attorney to work with you every step of the way to assure that justice is served.

For more information, visit my source, this collections attorney website.

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Real Estate Litigation

Talking about real estate litigation, it is the routine of finding a legal method to disputes pertaining to real property. Keep in mind that it doesn't really matter whether that particular property is in the stage of 'developed' or not. Often, this kind of litigation arises from disputes at the time of buying, financing, or property development.

Number of attorneys, more so in bigger metropolitan areas usually have expertise in this area and are fully aware of the complicated contracts that are associated with the real estate.

Contracts to buy real estate are one of the most common kinds of litigation. There is a strong possibility that the disputes may occur due to vague language in the contract, or because of the fact that both parties did not the read the contract in a proper manner. In this scenario, any contract breach may be settled out of court. If one party is not in favor of out of court settlement, then there is no other option than to go for a court hearing.

Real estate litigation is also going to happen when there are issues related to construction contracts. In few cases, the contractor and the real estate developer may have an issue regarding the project scope or the finished work quality. If the issue is pertaining to quality, it is the responsibility of a lawyer to gather proofs with the help of an expert. This expert is going to analyze the work and is going to give the comprehensive detail of it to the court.

If the money has already been given according to the contract, then the party concern may need to refund it partially or fully. Conversely, if money has not been given as yet, judge will decide how much one party needs to pay to another party.

When it comes to real estate litigation, financing disputes are pretty much a rarity, but there are cases when it does happen. For example, if two companies decide to share the financing cost and disputes occur, there is a good chance that one company may take the other company to court. If there is a written contract available, court is going to give the judgement on the basis of that. Further, if you are of the opinion that your mortgage lender has not been fair, you can go to the court. For this, you need to take the services of a property attorney.

Buying or selling a home or property in Santa Maria CA, or a Santa Maria foreclosure, or a property on the Central Coast, my goal is to provide you with resources you need. DRE 0131588, NMLS 289430 Gene Perez serving the Santa Maria Real Estate market and surrounding areas.

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Business Litigation: Intentional Interference With Contract

Business attorneys must often deal with claims of intentional interference with contract between competitors. Where a breach of contract lawsuit deals with a contract between two parties, a claim of interference with contract deals with a situation where someone who is not a party to the contract is allegedly interfering with that contract.

More specifically, to allege a cause of action for interference with contract, the lawsuit must show that there is a valid contract between the plaintiff and a third party, that the defendant (the alleged interferer) knew about the contract, that the defendant did something intentionally to induce a breach or disrupt the contract, that an actual breach of disruption occurred, and that the plaintiff was damaged by the interference.

In California there is no cause of action for negligent interference with contract (although see the California Supreme Court's recognition of a cause of action for negligent interference with prospective economic advantage). The acts must be intentional, but the case law does not require that the defendant act with specific intent to interfere. Case law provides that the tort will apply if the actor "knows that the interference is certain or substantially certain to occur as a result of his action. The rule applies... to an interference that is incidental to the actor's independent purpose and desire but known to him to be a necessary consequence of his action."

Of course, the mere fact that interference occurs does not end the analysis. The fact that the interference was not desired and purely incidental (as opposed to intentional) can be used to defend against an intentional interference claim. However, if the action is found to be intentional, notice that the tort does not require that the defendant actually even know who the plaintiff is-just that the defendant knew about a contract and intentionally interfered with it.

This business tort also does not require that the contract actually end up being breached (which is labeled a tort to induce breach of contract). Intentional interference with contract can still be brought if the contract is not breached but plaintiff's performance is made more costly or burdensome.

Because it is a claim of interference with someone else's contract, a party to the contract cannot be sued for interference with his own contract. That may be a simple breach of contract action. The distinction is important because intentional interference with contract is a business tort and tort remedies can be more onerous than contractual damages.

A party can defend against a claim for interference with contract through certain privileges or justifications. The court engages in a balancing test to determine the nature of the actor's conduct, the actor's motive, the interests of those being interfered with, the interests being advanced by the actor, the social interests of each party, the proximity or remoteness of the actor's conduct to the interference and the relationship of the parties. Overall, a court looks at the reasonableness of the conduct. The various privileges and justifications, and their applicability, have to be the subject of their own article.

Needless to say these privileges and justifications and the factual balancing that is involved in determining their applicability makes business litigation over an allegation of intentional interference with contract claim very fact intensive. Business litigation attorneys have to investigate these claims, analyze the case law and come up with their best analysis, but whether c company did intentionally interfere with another's contract is rarely a cut and dry issue.

Business Litigation Attorney Los Angeles Laine T. Wagenseller handles commercial litigation on behalf of companies throughout Southern California. Mr. Wagenseller is the founder of Wagenseller Law Firm, a real estate and business litigation firm in downtown Los Angeles. For more articles on business litigation subjects, visit http://www.wagensellerlaw.com/. To contact Mr. Wagenseller, call (213) 996-8338 or email ltw@wagensellerlaw.com.

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Real Estate Litigation 101: Quiet Title Actions and Defaults

Quiet title actions in California are unique in that the California Code of Civil Procedure does not allow a real estate attorney to get a default judgment in a lawsuit.

What Is A Quiet Title Lawsuit?

Real estate attorneys bring quiet title lawsuits in order to resolve disputes over ownership of all or part of real property, including neighbor boundary disputes. These lawsuits can also be used to correct errors in a property's chain of title, even though there may not be a dispute over the ownership of the property.

An Attorney May Not Seek Default Judgment In An Action.

However, many real estate litigation attorneys and even judges are unaware of a requirement of Code of Civil Procedure that the court may not enter a default judgment in a lawsuit. Instead, the court must hold a hearing to hear testimony regarding the case. Code of Civil Procedure section 764.010 states, in part, that "The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants."

Because many judges are unaware of this provision, it is incumbent on the real estate attorney to notify the trial court that such a hearing is required.

A Defaulting Defendant May Still Appear For A Default Hearing In A Quiet Title Lawsuit.

Moreover, in a recent California Court of Appeal ruling, the appellate court held that the plain language of the statute allows a defendant to participate in the hearing, even if that defendant has not appeared in the case. In Harbour Vista, LLC v. HSBC Mortgage Services, Inc. (2011 WL 6318525 Cal.App. 4th Dist. 2011), the appellate court held that the trial court did not have the authority to enter a default judgment in a case and, additionally, that statute obligated the court to hold an evidentiary hearing in open court in which both plaintiff and defendant could participate.

"The Legislature has not left anything to the imagination about whether a trial court can enter a default judgment in an action. 'The court shall not enter judgment by default' is unequivocal," said the appellate court. "Once a judgment on any grounds becomes final, it is good against the entire world as of the time of the judgment. There is, for all practical purposes, no going back. Given the frequency with which actions involve real property-which is recognized as unique-it is understandable that the Legislature would want to take every precaution to assure title is adjudicated correctly. These precautions could reasonably include allowing a defendant having some claim to the property to present evidence, even if it has been dilatory in responding beforehand."

Quiet Title Default Hearings Require A Hearing In Open Court

The appellate court also considered whether the uses of the words "hear" or "hearing" require oral argument. Although other cases have found that this is not always the case, the court in this case held that a judgment requires a hearing in open court.

In the event that the court holds a properly noticed evidentiary hearing and no defendant turns up, then the court renders judgment in accordance with the evidence and the law based on what it has before it.

California real estate attorneys who handle quiet title lawsuits should be careful to educate the trial court about the requirement of having a hearing in open court with witnesses in order to establish quiet title over real property. If these rules are not followed, the default judgment easily gained is then easily lost.

Real estate attorney Los Angeles: Laine T. Wagenseller specializes in real estate litigation in Southern California, including quiet title lawsuits. To read more articles on real estate and business litigation, visit http://www.wagensellerlaw.com/. To contact Mr. Wagenseller, call (213) 996-8338 or email to ltw@wagensellerlaw.com.

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