Hey now, Nikki G, I'm getting sued. I gotta hire a lawyer. What questions should I ask to be sure I'm getting the right one? Now, you may not ever have to ask that, but if you're a business leader, there's a pretty good chance you will.

So we're gonna get the answers from the expert on this edition of the Inside BS Show. Hey now, I'm Dave Lorenzo. This is the Inside BS Show, and the perfect person to teach us what to ask before we bring on a litigator is none other than my partner, Nicola Gellarmino.

You know her as Nikki G. Hello, Nicola. How are you today? Good morning. I'm great, Dave.

How are you? I'm doing great, thanks. So your alter ego, you're Nikki G on the show, but during the day, you're in court slugging it out with the best of them, and you're Nicola Gellarmino there, and that's what we're calling on today, your superpower of being a top-notch litigator. What do we need to learn about someone before we engage them in a business dispute? So first and foremost, we're gonna set the table, right? And we're setting the table by telling people what we already told them, and we told them this probably two weeks ago, that litigation is not designed to be fast, it's not designed to be cheap, and it's not designed to be fair, right? But they have a dispute, and they feel like they're gonna have to litigate.

Either they're on the defensive, or they gotta get somebody to do something they were supposed to do contractually, and that's where you come in. So now, let's say I'm Joe business owner, and I've never hired a business lawyer before. What's the first thing I should do? What's the first question I should ask the business lawyer sitting in front of me to make sure I'm getting the right one? First question should be, can you tell me about some matters that you've handled? You need to make sure that the lawyer you're speaking to has the right experience for the type of matter that you may have.

You said litigation, Dave. You better make sure the lawyer that you are interviewing has litigation experience. You want to make sure you have someone who is prepared to handle that case, has the experience to know how to do it, and can talk about it.

Why? This is a difficult time for you. It is stressful for any business owner when they are facing this circumstance, and it's great to have someone who can ease you through the process, talk to you from experience, and help you identify what the plan is going to be to handle it. Yeah, I think that's obviously something that you want in a lawyer, but I'm regularly surprised, I guess is the right word, by how many CEOs even of large businesses don't know that it's not all like Law & Order, the TV show, right? You guys don't all go to court every day and then come home from court and go back to the office and drink scotch and talk about the judge or how bad the decision was.

It doesn't work like that, right? There are litigators, and then there are transactional attorneys, and then there's even administrative attorneys. So do me a favor, explain the difference just in basic terms, and those of you who are sophisticated in the legal world, indulge us for 45 seconds. Tell people the difference between transactional lawyers and litigators.

Sure. High level, transactional lawyers are the ones who are working on deals. They are putting together the papers that are going to comprise that deal.

Think of a merger and acquisition. That's a deal lawyer. That is a transactional lawyer.

They are the ones who are able to get that done, make sure all the documents are in place, and make sure that the right protections are in those documents for that transaction. Litigators or trial lawyers are individuals who practice law and end up in court. We are in state court, federal court, and bankruptcy courts.

And what we do is we handle matters that end up in court. Oftentimes we counsel pre-dispute or pre-litigation as well, but we are lawyers who are regular lawyers attending court. So we handle matters where filings have to occur inside of a court and also oral arguments and ultimately trials.

Yeah. And although not every case goes to trial, every case that is a lawsuit needs a trial lawyer, correct? Correct. Okay.

So if you have been served a subpoena, if somebody came to your office and made you sign for some documents, you call your lawyer and your lawyer is going to tell you, hey, listen, I'm a deal lawyer, I'm a transactional lawyer, you need a litigator. Now, if there's somebody, Nicola, how should we handle somebody who says, oh no, it's okay, I do both? Some lawyers do both, but you need to ask more questions about that. More lawyers do one or the other than do both.

So in certain spaces, I will see lawyers who do both and do both very well. It's not to say it can't be done, but you need to ask the right questions. Again, make sure it's the right fit for your matter.

Yeah. I would say as a business guy, I would say if somebody says I do both, like Nicola is very kind in saying some people do both and some people do both very well. As a business person, I would say if there's a lawsuit and the lawsuit involves a very specific or narrow area of the law, you not only want a litigator, you want a litigator that has experience in that area.

So for example, insurance, there are lawyers who just work on insurance matters. Construction matters, there are lawyers who just work on construction matters. Creditor's rights, bankruptcy or lawsuits that arise from a bankruptcy, very specific field.

Now, if it's a general contractual dispute, like a dispute over specific performance, somebody was supposed to do something and they didn't do it, you can go to a litigator that just says they handle complex commercial litigation matters and they handle a broad spectrum of litigation matters and they do that. But for the most part, speaking as a business owner myself, I would not generally, 99% of the time, I wouldn't hire anybody who says, yeah, I do both transactional law and litigation because it's like hiring a carpenter to put on your roof. That carpenter may be really good at putting on roofs, but you don't want to find out.

You want a roofer to put on your roof. So if you've got a litigation matter, my counsel is a business guy. Go with somebody who just does litigation.

All right. So question number one was, what other types of matters have you handled? Now, in somebody giving this answer, Nicola, what should we be listening for in that answer? You should be listening for, are they talking about the general area of what I do in terms of a business? Did I hear that? Did I hear any specific experience, and Dave, you kind of got to this point, specific experience that would speak to this type of matter. So even where we have a lot of lawyers who are commercial litigators, there are a lot of different niche areas within commercial litigation.

So you've got to keep asking the right questions about that lawyer's experience to make sure that you get to the specific type of experience. Again, I agree. You would want someone who has specific experience of that type of issue, certainly if you know that you are going to end up in litigation over it.

Okay. So we find out that this person, they have done these matters before, they have handled these matters before. Should I ask, and I'm legitimately asking this now, I'm not fishing for a specific response.

Should I ask if they've ever taken a case like mine all the way through to a court decision? You can ask that, but knowing that statistically 90 something percent of cases are resolved before they end up at a trial, just make sure you're aware of that. So just because that lawyer has not necessarily taken that case to trial doesn't mean they're not a great litigator, but it also speaks to, do they have trial experience? If you end up going the extra, you might end up in trial. Yeah.

I'm also thinking, you know why I'm also asking this, Nicola? I'm asking this for negotiating leverage too. And we're negotiating over a settlement. I think I have the advantage there because if it has to go the distance, you know what this is going to look like.

You know what the landscape is going to look like. But even more importantly, from a business decision standpoint, that other person is going to have to spend extra money, more than likely, to bring in additional counsel if this goes all the way to trial. And I'm going to make sure that when you're negotiating with the other side, that you hammer home that we're ready to go the distance.

We're ready to go the distance. I feel as somebody who's, you know, who's negotiated things at issue, if somebody doesn't have someone on the other side who's ever taken at least one of these cases all the way through to a verdict, we've got the upper hand if we have people who have that level of experience. What do you think? I think you're speaking to reputation there when you're coming to a settlement table.

Right. If you're going to be at that point, then you're right. That's a leverage piece for you is to be able to say, we're ready to go to trial.

So forget about that experience. You always need to be prepared to be in that position if you are facing off with someone and this really could go all the way. You have to be prepared and you better make sure you're able to do it.

Yeah. And I, you know, my view of this is if you're in a business dispute, it's the entire, the entire business dispute has to be viewed through the lens of leverage and negotiation because if you're, if you're betting on winning a trial, you're basically rolling the dice. You could, you could have the best lawyers in the world.

You could have all the facts on your side. You could have the law on your side, but nobody knows what a jury is going to do. Nobody.

And if it's a trial to the bench, nobody knows what, you know, how the judge is going to apply the law. You can try to predict it, but it's the way you go into a lawsuit. My opinion as a business guy is you're focused on the best leverage you can get to get the best possible settlement you can get because it's going to be, you know, it's going to be a toss up going to trial.

You can only prepare yourself so much. It is, it's going to be what it's going to be. Is that fair? That's fair.

All right. Question number two. Hey, Nikki G, did you know you can also get our show as an audio podcast? Of course I know you can get the show as an audio podcast.

I'm on it. But does our audience? I don't know. So those of you who are watching on YouTube, you can find us wherever you get your podcasts.

Just search up the Inside BS Show with The Godfather and Nikki G and you'll find us right there. Click the follow button so that you never miss a show. Now there's a couple of reasons why you're going to want to do that.

Nikki G, tell them what the first reason is. You get to ask us questions that is exclusive to our podcast listeners. Yeah.

We only answer listener questions on the audio version of the podcast. We don't do it on video. So if you want to hear what everyone's thinking, or if you want to ask us a question, you got to download the audio podcast.

The second reason, and my favorite reason is because you can take us with you. You can have a little Nikki G in your pocket while you're working out in the gym, washing the dishes or walking the dog. I love me some Nikki G in my pocket when I'm walking the dogs.

I don't know about you, Nicola, but that's one of my favorite things to do. Absolutely. Take us with you.

After you watch this episode here on YouTube, go to wherever you get your podcast, click the follow button so we can go with you on your journey and you can ask us questions. We will see you or more like hear you there. Question number two, how much is this going to cost and how long is it going to take? That is a tough question, but you should be asking it because you should understand at least an estimate of what this could cost you, especially if you're going to proceed with a litigation matter and how long that's going to take.

You want to understand that well before you get involved in it. And while lawyers cannot tell you exactly what it's going to cost, we can certainly provide you estimates based on experience and you can leave and look at it through phases. So you can look at it on the front end and then keep continue to estimate it as the case progresses, because certainly there will be some factors that impact what it's going to cost and how long it's going to take.

There are other factors that will also come into play, such as where is the matter going to be state court or federal court that also impacts your timing. It is absolutely important that you understand that from a business standpoint, because again, this is your business and it's going to be impacted by this both from a cost standpoint and from a time standpoint. Can I tell you how much I absolutely love that you, the lawyer, just told people to ask how much and how long, because every lawyer that I've ever worked with has said, I can't answer those two questions, right? And here's the thing.

This is one of the things I absolutely love about you is that you are a business person who happens to be a lawyer. You get it, right? The reason that your lawyer is going to struggle with answering this question is because litigators bill by the hour and we don't know what the other side is going to do and how the other side is going to respond. But Nicola's point is so good.

Hey, dude, you've done this before. So give us some parameters. Tell us what each phase of the matter is going to look like.

And you know what's going to happen. And this is something that I would love to get your feedback on. This is going to inform your strategy, your overall strategy for how this whole thing plays out.

Because if the lawyer says to you, listen, it's going to cost X to get through a motion for summary judgment. And then we're going to go into discovery and discovery is going to cost X times five. And then if we get through all that and it still doesn't settle, you're going to have trial prep and trial prep is going to be X times 10 and then actual trial X times 20.

What's going to happen. You as the business owner now can make an educated decision and you can draw a line and say, we got to settle this before it gets to here, because I do not want to invest any more in this matter than this. Is that fair? That is fair.

This is how I know you've worked with a lot of lawyers, Dave. I mean, it just, this is not something that if you're on the, if you're the person bringing the suit, this is not something to be entered into lightly. I know a lot of business people that are there, you know, their first instinct is to immediately go and say, Hey, we're going to, you know, they, they breached the contract, we're going to sue.

And the next thing they know, they turn around and they're eight months into this and they're deposing everybody who even walked by the place and it's costing a fortune. Nicola, give us, give us an example of just timing. We're not talking about money because in litigation, time and money are, that is, that is what you're talking about.

So the investment of time in the initial phase of the case and then, you know, discovery and then beyond discovery, trial prep, what does the time look like for each of those phases? Dave, it really varies. Again, like it, and this, this isn't the lawyer answer. This is, it really varies.

Where are you, right? Are you in state court or are you in federal court? Generally speaking, the case will take longer to travel through state court than it will through federal court. Federal courts tend to set a little bit tighter trial schedules, and then the case will just inherently move faster because of that. Each phase is already planned out.

Although now in Florida, we have in, in both worlds, we have trial orders that are getting set. So you do know exactly when everything is happening in the case and you'll have a better sense of your timing. So that really just came together not that long ago in our state court system.

So here, you know that we will see exactly when those deadlines are now setting aside, whether any of them are moved out further with a request that is made to the court and granted. But again, overall, you have a better sense of the timing of those cases. So, you know, very high level, we're talking a year on the short end to a few years.

And you're, and in each phase you're working, and it may be, it's not just one lawyer with like an eye shade and a pencil in a dark room. It's like four or five people working because let's say you're suing someone. You may be driving the case, but there may be a counter claim or the other side may be throwing stuff at you that you have to respond to.

So whatever you think it's going to take time and money wise as a business leader, multiply that by three at minimum, because it's going to take three times as long and cost three times as much because everything that's going on on your side is probably going to be countered by the other side. And that doesn't even take into account some of the surprises that are going to come around the corner. So while Nicole is sitting there busting her butt, trying to get you into whatever you want to get into or get you out of whatever you want to get out of while she's doing that, she needs to get paid to do that and she may need help to do that.

And guess what? If you lose, you might be on the hook for the other guys, Nicola and their team. So all of this needs to be considered before you ever enter into it. All right.

So how much and how long that's question number two. What is just a like a horrible answer to that question, Nicola? Like if you ask how much and how long there's so many shades of gray in there, the person can say, well, you know, typical cases like this, take this and they take this. But, you know, every case varies.

What's just a bad answer? What's a knockout answer? A bad answer is just saying, I don't know, or it depends. Yes, it depends. That should be followed by a but.

It depends. But let me give you an idea. Again, we cannot guarantee what it's going to cost.

So as long as you explain that, you can still provide some sense of what that cost will be, as we've discussed, based upon how much time you think it will take the phases that you will go through and at least look at it that way. But you have to just going back to our first point, you have to understand that before getting into this. That's that's something I see that ends up as a point of friction in lawsuits where that understanding wasn't had, wasn't made at the beginning of the matter before it started.

You have to do it at the beginning. I love it. OK, question number three.

Question number three is what are my options? I would ask this because you want to know, is litigation my only option or is there something else that I can consider that might make more sense for my business? You want to be asking that question so you can think through if there is more than one option. Often there is. Which one may be better for you so that you have the opportunity to weigh those and make an informed decision based upon how long it will take, how much, how much time and what it will cost and also what the potential risks are that you will be facing with each option.

All right, Nicola. So when I'm making a decision whether I want to get into a litigation matter or not as a business owner, I look at two things. What I look at as a business owner, I look at venue and I look at attorney's fees provision.

Right. I want to see where the case is going to be tried and I want to see who's going to pay my fees and then who's going to pay the other side's fees. So in other words, in an attorney's fees provision, it's my understanding they can go a couple of ways.

We each pay our own or loser pays. Big difference, big difference if loser pays or I pay my own. So talk to us about those two specific provisions in a contract and how they'll influence a decision when it comes to whether or not we go, you know, we go to battle on a litigation matter.

Often contracts may have what is called an attorney's fee provision. I'm going to back up here for just a minute. What that is is a provision of the contract that provides for an award of attorney's fees in and it can either be one of the two things you mentioned, Dave.

It may either say the attorney's fees are going to be paid for by each party to the contract. In other words, they will bear their own fees in the event there's some dispute over this agreement. Or it can be a provision that is more of a one way provision that says that in the event that there is a dispute involving this contract, such as enforcement of the contract or other dispute arising from the matters that are addressed in the contract in the event that a party prevails, then that party is entitled to an award of their fees back to them.

So the loser pays for the other side's attorney basically is what happens in that case. And that provision is huge because you never know what's going to happen when you go to trial. So if you're willing to gamble, you're not just gambling on what's at issue, you're also gambling on the attorney's fees.

Now the other provision that I mentioned in there was a venue provision. Touch on that briefly because that's another one that I see business owners just gloss over all the time. And, you know, if you're in a multi jurisdictional business or multi-state business, talk about the venue provision and how that can trip you up.

In the event there is a dispute that arises out of the contract, then your venue provision will dictate where that action or proceeding will have to be filed. And it often will be very specific. It will say in Florida, in federal court, or it will say in the state of Florida.

And it might even provide you a specific court. Yeah, I put in all of mine the laws of Miami-Dade County, Florida. So, you know, the laws of Miami-Dade County apply and if, you know, if there's, if a dispute arises, the specific venue for that dispute will be Miami-Dade County, Florida.

And if the person doesn't take it out, they're coming here. So, and again, this is another element of this contract that can, you know, that can kind of dissuade people from filing a lawsuit. If they're a California company, they may not want to bring everybody here to Miami to have to deal with that stuff.

All right. So, we talked about the question, the first three questions that you should ask. We're up to question number four.

What is question number four we should be asking an attorney before we hire them to handle a litigation matter? Sure. What will you need from me? So, I like this question because it is important to understand as a business leader, how much of your time will be involved in this particular matter? You know, it may be a lot. It may be that there's other folks at the company that you can introduce to us that we will be working with, but it is certainly important to understand what that time commitment might be, especially if we're looking at litigation.

Yeah. No, I, I love that you're telling the business owner to ask the lawyer what they need from them. Bad answer from a lawyer? Oh, I don't know.

It depends. So, if I, if I come to you and I say, what will you need from me? What are some of the things you're going to ask me for, Nicole? It depends on the case. So, let me just use bankruptcy case as an example.

If, if we're looking at a case where you end up getting, your business ends up getting pulled into a bankruptcy because a third party that you were working with filed for bankruptcy, and now you are facing an action by the trustee seeking to claw back monies that you received leading up to the bankruptcy, say in the 90 days before the filing. And then I would want to know, what records do you have? I have to see all of the records that you have that pertain to those, the transactions that went on that are now the subject of the lawsuit for clawback. So, that's going to be time on your part that will have to be spent gathering all of those records, providing them to me, and then also helping to make sure that I understand them.

So, there are certain business dealings that may not be obvious from just looking at the records themselves. There may be a contract, maybe there wasn't a written contract, but there will also be questions that are stemming from those records. So, that will be a significant time investment, whether that's with you or that's someone else from your company.

So, that's why I say you should ask, you know, what, what will this take from me from a time standpoint? Because I also want that person to be thinking, you know, if you're, you're the owner of the company, are there others who you may be able to put me in contact with who can work with me to do that where it's not taking up as much as your time, but understanding this will be a necessary time commitment for the company. Yeah. No, that's great.

That's, that's terrific. So, you're, the answer to that, the, the answer that you would give to your client or your perspective client on that is very specific and it's very focused. And again, it gives the client a really good understanding for the level of detail that's going to be required of them in order to get into this lawsuit.

Okay. That's question number four. What's question number five that we should be asking a litigator before entering into a relationship with them during a lawsuit? You should ask, what can I tell you about my business? I like this question because if you have not already been fielding questions about your business in the course of that conversation, you want to make sure to ask this question so that you can develop a better relationship with the lawyer who you are considering hiring.

If you are providing legal advice to a business, you have to understand that business, how it operates and how the advice you are giving is going to impact that business. It will, you know, in my view, those issues are intertwined. Business matters and legal advice are absolutely intertwined when you are a business lawyer.

And if we don't understand the impact that advice is going to have to your business, then we're not doing our jobs effectively. Okay. That's fantastic.

The things that you've given us to think about here are quite different from what we would hear from most attorneys. So the way that you've counseled us to ask the questions and then the answers that we're expecting from a lawyer, your perspective is different because in my opinion, you're a business person who just happens to be a lawyer. In talking to many, many lawyers over the years, many lawyers will be, I guess I would say put off by these questions, especially the how long and how much, what do you want to know about my business? You're going to find that most lawyers are going to answer these questions very generally.

They're going to say, well, I need to get into it first before I find out what I need to know about your business. I really need to, you know, I really need to look around and get an understanding. You're going to get very generalized answers.

Nicola, tell us the reason why you're focusing on these questions. Tell us about your background and how your background has informed the questions that you've given us to ask, specifically your experience in the business world, separate and apart from being a lawyer. Sure.

So as, as many of you now have heard, if you listen to episode one, I grew up in a family business and I had a career in business before becoming a lawyer. And so I've always thought about the business before thinking about the law, right? So when providing legal advice, I still think about that business, even though that is, it's not my business. I still think of it as a business that I know what it takes to have built the company.

And I want to make sure that I have a good relationship with the business leaders on the other side of this, who are at the receiving end of that advice to get, to do that. I want to make sure that I understand their business and I'm asking the right questions because I do know that, you know, this is a serious matter for them. It is a time commitment.

It is a monetary commitment and it takes away from what they do best, which is running their business. So I think all of that wraps into the advice that we're providing and it's good to consider that. I think that's great.

I think, I think that makes sense. And I think that's what sets you apart from everyone else who does what you do. So Nikki G, what's the one thing that a client can say to you in a consultation that will absolutely positively make you turn down the representation of them in the case, separate and apart from money.

If the client says I'm broke or whatever, okay, fine. But aside from money, what's the one thing the client can say in the consultation that will make you as the lawyer go, I'm sorry, you should find someone else. I want to file this lawsuit out of spite.

If you watched our earlier segments, you know, there are good reasons and bad reasons to bring a lawsuit in our view. And I, if I receive a reason and I will ask that is not a good reason, then I will turn down the matter. It has to be a good reason and it has to be aligned with your business.

All righty, folks. You heard it here. No spite suits for Nikki G. This has been a great episode.

Fantastic information. Thank you so much, Nikki G. My name is Dave Lorenzo. This is the Inside BS Show.

We're here every day giving you great information, the insider business secret. You just got 30 minutes of great insider business secrets on how to select a lawyer for a litigation matter. Join us back here again tomorrow for another edition of our show.

Until then, my name is Dave Lorenzo and she's Nikki G. And we'll see you tomorrow. Here's hoping you make a great living and live a great life.