Law Talk with the Flock

How Do You Decide When and Where to Sue?

August 31, 2020 Jeana Goosmann, Larry Roland Season 1 Episode 27
Law Talk with the Flock
How Do You Decide When and Where to Sue?
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Law Talk with the Flock
How Do You Decide When and Where to Sue?
Aug 31, 2020 Season 1 Episode 27
Jeana Goosmann, Larry Roland

Goosmann Law Firm's Omaha Litigation Practice Area Leader Larry Roland and Host Jeana Goosmann discuss how to decide when and where to sue from a business owner perspective. In this episode you will learn:

  1. What to consider before you sue
  2. What jurisdiction do you sue
  3. Who should sue? Business or business owner?
  4. Do you need a lawyer?

Learn about Goosmann's Litigation Practice HERE. 

Become a flock fan and subscribe to our Podcast for weekly episodes! Learn more at www.goosmannlaw.com.

DISCLAIMER: The information in this podcast episode “episode” is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By listening to our episode, you understand that there is no attorney client relationship between you and the Goosmann Law Firm “GLF” attorneys and podcast publisher. No information contained in this episode should be construed as legal advice from GLF or the individual author, hosts, or guests, nor is it intended to be a substitute for legal counsel on any subject matter. Please read our full Podcast Disclaimer

Show Notes Transcript

Goosmann Law Firm's Omaha Litigation Practice Area Leader Larry Roland and Host Jeana Goosmann discuss how to decide when and where to sue from a business owner perspective. In this episode you will learn:

  1. What to consider before you sue
  2. What jurisdiction do you sue
  3. Who should sue? Business or business owner?
  4. Do you need a lawyer?

Learn about Goosmann's Litigation Practice HERE. 

Become a flock fan and subscribe to our Podcast for weekly episodes! Learn more at www.goosmannlaw.com.

DISCLAIMER: The information in this podcast episode “episode” is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By listening to our episode, you understand that there is no attorney client relationship between you and the Goosmann Law Firm “GLF” attorneys and podcast publisher. No information contained in this episode should be construed as legal advice from GLF or the individual author, hosts, or guests, nor is it intended to be a substitute for legal counsel on any subject matter. Please read our full Podcast Disclaimer

Goosmann Law Firm :

Do complex legal issues hold you back? Let's get energized and bring clarity to your top legal questions. This is Law Talk with the Flock by Goosmann Law Firm.

Jeana Goosmann :

Hello, I'm Jeana Goosmann CEO and managing attorney of the Goosmann Law Firm here to walk you through the law and your life as a leader today on Law Talk with the Flock and I really excited to have with me, Larry Roland . Larry is an attorney at the Goosmann Law Firm and co-leads our litigation practice area. Welcome Larry.

Larry Roland:

Hello, Jeana. Thank you for having me today.

Jeana Goosmann :

Excited to have you on, and we're going to talk about business owners and businesses and when they should file a lawsuit. I think that you're uniquely equipped to talk about this today, Larry .

Larry Roland:

Yes, yes. For about 20 years before I got into the world of law , I was in the business world and ran my own businesses and ran other people's businesses. Um, and so on almost daily basis, interacted with the law unaware of what I was really truly doing and interacting with the law. It almost gives me an unfair advantage because I know what that business owner is going through. I know what those decision points are, what those stress points are and just trying to make sure they understand , um , the tools that the law can provide for them , um, and how litigation can protect their assets.

Jeana Goosmann :

I also think you have a unique experience in the courtroom and great advantage because you too have some media background. Maybe you could share that with our listeners. Larry,

Larry Roland:

I used to have, I have a voice for TV. I have a voice. I have a face for radio. That's how it goes. I have a face for radio, but for many years back in Washington D.C. and then in Nashville, I was on television. And through my different campaigns and then in the Omaha area, I am not camera shy. I am not a camera novice. If need be, I could probably fill 20 hours of content on a daily basis. That's not good for anybody. So we want to make sure we stay on track because I can get into the weeds in lots of different tangents.

Jeana Goosmann :

Well, we're not going to do a 20 hour podcast marathon today, but we will do about a 20 minute one.

Larry Roland:

I'll meet you there. I'll meet you there.

Jeana Goosmann :

Sounds great. And Larry also, you have a newborn at home. I know.

Larry Roland:

Beatrice is 15 weeks. She had rounded the corner for a little bit where she was sleeping through the night from about 10:00 PM till about 5:00 AM. And she has decided she doesn't like that anymore. She misses her late night TV, early morning TV with dad. So she's back up at about four. Um, so that's when I start my days

Jeana Goosmann :

Early riser getting up with the baby, alright? Well, let's jump in and talk about some law. And in particular, when we're looking at it from a business owner's perspective, what are some things that a business owner should consider before they decide to file a lawsuit?

Larry Roland:

Truly that question can get answered even before that business owner even finds themselves in a situation where they need to consider the law because as a business owner there's a thing that you do. There's a passion that you have. There's a craft that you Excel in. There's something that you have turned into a business. You might not be the best at running a business, but you're really good at this thing that makes up your business. And so you've done some prep work and you've said, I probably need to make sure I've got a lot of stuff in writing. And I've got to make sure that I've got the right people around me, whether it be an accountant, whether it be , a business plan or whether it be an attorney. So since day one, when you came up with this idea for your business, you've been accumulating information paperwork, and I hope you have most of that stuff organized because it's the benchmark for what we're going to use, because you can't have a lawsuit, unless you don't know where you were, where you currently are and where do you want to go. And is there something that's currently impeding where you are and where you want to go, that you need to address , an uncooperative vendor, a client who owes you money, a landlord who is not being accommodated, who isn't taking care of the commercial property that you have. There's lots of different scenarios where a business owner needs to say to themselves, okay, do I have a remedy at law?

Jeana Goosmann :

And a lot of our business owner issues do STEM from a breach of a contract. There's an agreement. Both sides had understandings and somewhere along the way, something went wrong.

Larry Roland:

Right? And as that business owner, when you contact Goosmann, when you contact any lawyer, but specifically, when you're dealing with the Goosmann Law Firm, we make sure that we demark, you know, here's what the law says, here is where you can use the law to your advantage, here's where that breach has happened. But it's ultimately up to you business owner, to decide as a business decision, whether you want to move forward with a potential lawsuit, whether you want to threat mitigation through a demand letter, or whether you're willing to follow through and file that suit. Because if the dispute is for $500 and again, not to downplay $500, I'll take it right now. If you've got it to hand out. But if your legal fees exceed what it is that you could possibly recover for damages, then it's not a good business decision to bring that lawsuit. And while we appreciate principle , we appreciate people wanting to hold themselves. And the people that they do business with accountable, we have to understand that it is still impractical to file suits when the damages aren't excessive enough, or don't justify expending those kinds of times and resources. Because even if you win, it is it's , it could be stressful. Um , it can be time-consuming , um , it can take you off of your focus for your business, and that's not good. It's hard enough to run your business, let alone run your business while you're in the middle of a lawsuit.

Jeana Goosmann :

And those are all things we factor in when we help guide a client on what they should do. And I think one of the more important things that I try and help and part on younger lawyers in particular is to tell the client, this is what I recommend and why. A lot of times, especially coming right out of law school, young lawyers want to give him a treatise on the law. And it's certainly happy to help a business owner, right, because that's not the real world. And so at Goosmann , we really focus on giving them practical, legal advice that they can use in running their business to make real business decisions. And certainly this decision is up to them. But if we tell them, this is what I recommended and why I can tell you, Larry, almost all my clients tend to follow that guy. Yeah ,

Larry Roland:

Correct. I literally had a call with a client right before I came on this podcast in which I spent about two minutes explaining the law. And then about 10 minutes explaining what it means. Listen, you're about to go down and on the potential to be an unfriendly road with a very important vendor of yours. And I get, I get that they in your eyes breach the contract, and I get that you feel betrayed by them, but you need to start thinking of the forest, not just that one tree. And so they hadn't stopped and looked at it that way. And again, I'm not saying that you wouldn't bring a suit just because it might mess up your operation. We can always find workarounds to it. But if you're not looking at the whole force, if your client doesn't see that whole forest, and they just see that one tree in that one tree is being driven by some hurt feelings, again, a good close, personal relationship that they feel has been abandoned by the other side. Uh , you just have to remind them that it is more than just that one tree, make sure you're seeing the forest. And that's where specifically my experience before the rule of law allows me to understand that , listen, I've considered all those things, the tax implications, the literally that the manpower implications of this decision and what happens if you have to change your location or your product mix, or your vendor suppliers, because of this lawsuit, what is that going to do to your overall delivery? Um, and so just understanding forest, not just the trees.

Jeana Goosmann :

All right . So let's talk about, we've decided we're going to move forward with a lawsuit and where do we file and what jurisdiction do we choose to file in ? Because there's a lot that goes into that as well.

Larry Roland:

Yeah. And , and here's where, as well-versed, as, as a lot of our business owners are, and our clients are like, this is one where you have to have an attorney. Who's instructing you as to where, because the type of claim that you have and who that claim is against specifically where they are geographically in the world in the country slash world will determine whether you're in a state court or whether in a federal court. And then the dollar amount, if you're in a state court will determine whether you're in the County court, the district court, in some of those courts have exclusive jurisdiction to certain subject matters. And so at a bare minimum, you're going to have a breach of contract. If we use the scenario where we've set a business owner is looking at a breach of contract, know we're going to be in a state court at a bare minimum. We know we're going to have state claims. We might be in a federal court with state claims, but at a bare minimum, we're going to have a breach of contract in a state court. And then we're going to consider, do we have unjust enrichment? We have conversion. Do we have fraudulent or negligent misrepresentation that led us to signing that contract? And so we're going to be in the dollar amount is over a certain, we'll probably be in the district court on a state level, the district where Saudi, the County in the County, where ultimately you're going to end up where the defense is located or where the contract was agreed to. Um, you can always put it in your backyard as the plaintiff, cause you're the one who files, but then a lot of times she'll get opposing counsel that will move to a different venue. But now we're kind of getting into the weeds.

Jeana Goosmann :

And a conflict might dictate where it gets filed too , right? Attracts have a jurisdiction clause or venue clause, and people have to really pay attention to those once they've signed that agreement. And now there's a dispute. And I know a lot of times in the Midwest who will get agreements for clients and says, Oh, venues in California, why did they do that Larry?

Larry Roland:

The honest answer is so that they can be a little more challenging because that's one of those pressure points where you have to sit yourself, okay. If it was going to cost me X to do this lawsuit in Nebraska, it's going to cost me two or three X to do it in California. I got to find California. I got to fly to California. Maybe I got to do depositions out there . All of a sudden the cost becomes burdensome. And so you are correct. Um , we might always want to make sure our clients are kind of bringing us into the mix before they sign anything.

Jeana Goosmann :

Right. That's why we like our transaction lawyer friends too right? To Make sure those clauses don't end up in those kind of tracks, but let's move on and say, who should Sue? I know that's often a confusion for business owners. Is it them personally? Is it their business? I think this is an obvious answer if you're a lawyer, but a lot of people don't know.

Larry Roland:

Right? And so the contract is the one that dictates and again, without making too many assumptions, because we all know what happens when we assume, but when we get into a contract if it was my business and Jeana's business that got into business together, it wouldn't be Larry and Jeana in theory, our contracts would say my business name and Jeana's business name. I don't have the standing to sue Jeana. My business does because that business and Jeana's business, the ones that got into the contract together. But if the contract was entered into, by you, the business owner individually, or you, the business owner individually made a guarantee on a specific loan or a note, then you individually can be sued and then you individually can Sue yourself. So at most times it's going to be the business that is going to file the lawsuit itself.

Jeana Goosmann :

And again, that's a great area for business owners to be reminded, to always put their contracts in the name of their business, because they want to try and make sure they're shielded by that limited liability and sometimes can get sloppy and they're doing things fast and they just sign things with their own personal name. And , and we really don't want them doing that. Do we, Larry?

Larry Roland:

No, we do not respect a corporate form. Easiest way to stay out of trouble, respect a corporate form.

Jeana Goosmann :

All right. I'm going to tee you up a softball here. Larry. How about, do you need a lawyer for this process ?

Larry Roland:

Um, I don't think there's any way to answer that question today without the answer. Yes. And it's not because I'm in the business because I used to be in business. And the last thing that I would want is an expense, any expense, even if it's a necessary expense, that's the last thing that you want because it's eaten into your bottom line. But this is a subject area and has the potential for so many pitfalls that not only can you possibly lose the case that you're in, but there may be additional ramifications to that where there might be countersuit damages and pre and post judgment interest. And all of a sudden, a $5,000 dispute as a $25,000 dispute. What if the contract language says that the loser between the contract parties has to pay the other side's attorney's fees? Now, all of a sudden a 5,000 was , was then 25 is now 35. And you're like, how did it, how did this, how did we get here? And that wouldn't have been the case. If you're an attorney right away, that doesn't necessarily mean you wouldn't , you're automatically gonna win a case because you have an attorney working for you. But at least that attorney would've been able to say from day one, Hey, business owner. Here's the challenge that we've got right now. Here's the things that the law favors us. Here's the law that doesn't favor us. Here's the idea of mediation or settlement. Um, and so you, as a business owner, you should have a lawyer. You should have a lawyer even before lawsuit show up. Um, so that there's always someone who's reviewing your contracts, looking at your employee handbook , um , making sure that your relationship with your landlord with your County city state, so that you don't have any tax problems or any kind of, again, insurance problems, I would highly recommend business owners having an attorney on their speed dial , um , so that they spend some time and effort up in front. So they're not worried about it done on the backend.

Jeana Goosmann :

And I found out throughout my career, too, people tend to assume that a business owner has a lawyer. And I've seen a lot of times where maybe a business owner, they had the lawyer that formed your company way long ago. And then they did a real estate deal. They had a lawyer that did that, probably because their realtor, their banker guide of them there, and they've done deals and they've had different lawyers throughout their career, but they may not have their lawyer that they actually have on speed dial. As you say, Larry, where they can just call them up and they can handle whatever they need. And I think that that's one of the things that we really promote Goosmann is that, you know, make us your law firm and we will be here for you and be full-service for all of these different legal needs. And we have different attorneys with different practice areas and we work together as a team.

Larry Roland:

And Jeana, you'd brought up that example where , I know I got to deal with an attorney cause I'm forming my business and I don't know anything about the business formation what's . So I went to attorney X and they did that. And then I was at the bank and I really liked my banker guy. And he was saying that I've got to do this for taxes, or I've got to do this for my landlord , and he put me onto this and there's attorney B. And so in my head, I have two attorneys, but in reality, do either one of them know who you are and what your business is, what your long- term plans are, your business succession planning, your investment planning, and your retirement planning. No. So, if you have your own attorney, if even just for the world of, let's say your finances where you said, I'd like to have an attorney who can walk me through what is a good thing or a bad thing. What's a five 29. What's a five Oh three B what is , what do these things mean? And then when you have a question about your business, about your landlord, about the neighbor kid who just got done breaking your window, you can bounce something off of that attorney. And they'll direct you to the right at the Goosmann world, 99% of the time that person is inside of our own firm, whether it be the Omaha office or Sioux Falls or Sioux City, because the breadth of subject areas that we address it, Goosmann , can pretty much take care of any business owner's concerns, but at a bare minimum, we can always say, listen, that might not be something that we excel in. Um, but here is someone who I will vouch for, who will take care of you, who will treat you like we would have treated you at Goosmann. So get that attorney. You had a call out of the blue from a client of mine from four years ago. I haven't talked to her in four years and she found me , not that I, not that I was hiding from her, but , and she'd said listen, I tell everybody you're my attorney. And so whenever I have any kind of question, I always gotta make sure I track you down. So, and that's a good feeling to have because that's the service that we want to provide. That's that be worth it service that we want to provide to them.

Jeana Goosmann :

Outstanding. Well, thank you so much, Larry, for sharing your insight with everyone today. And I want to thank our listeners and remind you all to go make it worth it.

Larry Roland:

Thank you, Jeana.

Goosmann Law Firm :

Thanks for joining us for Law Talk with the Flock by Goosmann Law Firm. We hope you feel energized and ready to soar past your goals. Become a flock fan and subscribe to our podcast for weekly episodes. Learn more a t goosmannlaw. com. [ inaudible].