FAQ

ANY OF THE FOLLOWING ANSWERS OF A LEGAL NATURE ARE BASED SOLELY UPON EXISTING CALIFORNIA LAW. THEY ARE ALSO OF A GENERAL NATURE AND ARE NOT INTENDED TO GIVE ANSWERS TO ANY SPECIFIC LEGAL SITUATION WITHOUT FURTHER CONSULTATION WITH AN ATTORNEY. THE LAW OFFICES OF BARI S. ROBINSON DOES NOT ANSWER SPECIFIC LEGAL QUESTIONS ONLINE. IF YOU WISH FURTHER ANSWERS, YOU ARE ENCOURAGED TO FORMALY CONSULT WITH THIS FIRM IN PERSON.

General Questions Regarding the Firm

  • If I have a case for which I wish representation, with whom do I communicate in your office?
    • You would communicate directly with Bari S. Robinson, both for the intake and initial conference. She screens all cases coming into the office because her experience allows her to ask very relevant questions which both help the client and help her make a decision as to whether the firm can give the potential client the best service possible.
  • Is there a free consultation?
    • Initially over the phone, Ms. Robinson will take a few minutes to listen to the facts of the case. During that period of time she will determine whether she is interested in hearing more about the case. If she is not interested in taking the case, she will tell the potential client and perhaps suggest some alternative action to using her service. That consultation is free. If Ms. Robinson feels that she may be interested in the case and sets an appointment with the potential client, she will charge a $300 fee for the consultation, payable at the beginning of the consultation. The consultation will last until a retainer agreement is signed or until Ms. Robinson determines she is unable to take the case. If she decides that the firm will not take the case, she will return the fee at the end of the session. If the potential client or clients decide not to retain Ms. Robinson and the firm at or after the end of the initial in-office consultation session, the firm will keep the fee.
  • In litigation, how long does it take for a case to go from filing to trial?
    • That depends upon the court, the judge’s caseload, and how heavily the case is litigated. "How heavily litigated" refers to how many motions are filed and the amount of the discovery (interrogatories, requests for admission, and depositions). Today the California state courts are subject to significant budget cuts and fewer personnel. It takes an average of two years to get to trial, depending upon the above factors. The federal courts also have budget constraints. However, it may take less time to get to trial, depending upon the judge and his caseload. Whether you file in state or federal court depends on many factors, which will be explained to you at your consultation.

Questions Regarding Alternative Dispute Resolution

  • What is Alternative Dispute Resolution?
    • Alternative Dispute Resolution (ADR) refers to a method of resolving your case without a court trial. It could take the form of Mediation, Arbitration, Early Neutral Evaluation or a combination of the above. Using ADR can be less expensive and take less time. However, it may not be ideal for all cases. You should decide whether to use ADR after consultation with an attorney.
  • What is Mediation?
    • Mediation is a process of resolving a dispute wherein a neutral person or mediator, generally a very experienced attorney or retired judge, listens to the parties talk about the facts of their case. The mediator may then talk to each party and/or their counsel individually and privately. By doing so, the mediator may get additional facts that one party is unwilling to discuss in the presence of the other party(ies). Each party may tell the mediator that certain facts are not to be disclosed to the other party(ies) and the mediator will not disclose such facts. The mediator uses such "shuttle diplomacy" to assist the parties in arriving at a solution to the dispute, while disclosing to each party the merits of his case if he were to go to trial. The mediator does not make any decisions or decide the case, but attempts to bring the case to resolution through agreement of the parties.

      Mediation is extremely effective, especially with the budget cuts and delay the courts are experiencing. The mediator is generally paid from $350-$600 per hour, to be split by the parties, and depending upon the individual rates of the mediator. Retired judges charge more than attorneys. The parties generally also each pay their own attorneys fees. The discussions during the mediations are generally not admissible in court, except for reporting that the case was or was not resolved.
  • What is Arbitration?
    • Arbitration is a process where the parties present their case to a neutral or arbitrator, usually an experienced attorney or a retired judge, as if in trial. The rules of evidence are used, but there is no jury. The arbitrator does make a final decision. If a litigant prefers a jury, he should discuss this preference with an attorney in order for the attorney to cite the pros and cons of not having a jury in that particular case. It is possible to resolve a dispute earlier by arbitration than waiting upon assignment by a court judge to a trial. The fees charged by a neutral or arbitrator is about $350-$600 per hour, depending upon the individual rates of the arbitrator. The arbitrator’s fees are generally split by the parties unless a statute awards costs of suit to a prevailing or winning party. A party also pays his own attorneys fees unless a statute requires one party to pay the other party’s attorneys fees. An example is where a statute requires the losing party to pay the attorneys fees of the prevailing party. Arbitration is less formal than a court trial because it is held in an office rather than a courtroom.
  • What is Early Neutral Evaluation?
    • Early Neutral Evaluation is a process by which the parties present their case to a neutral early in the litigation and the neutral first evaluates the case and gives each party his evaluation of the merits of the case. The neutral’s evaluation of a party’s case is private and is not disclosed to the other party(ies) unless such disclosure is approved by the party to whom the evaluation is made. The neutral may then attempt to mediate the case if the parties so desire. These proceedings are not admissible in a court of law unless there is a resolution. Then, only the final resolution is reported.
  • What process should I use to hire Ms. Robinson as a mediator, arbitrator or early neutral evaluator?
    • If you are involved in a dispute or litigation and the parties decide one form of ADR is a possibility, you should consult with another attorney to decide whether and which form of ADR is appropriate. After all of the parties decide upon one form of ADR, all parties must agree to use Ms. Robinson’s services. If the parties decide to use Ms. Robinson’s services each party would telephone this firm’s office to give information such as the identity of the parties to the dispute, the type of case, the type of ADR you prefer, and the party’s available date(s) for the beginning of the proceeding. Ms. Robinson’s office will then coordinate her schedule with those of the parties.

      A neutral cannot speak with one party to a case about the facts of the case without including the other party(ies). A neutral can, however, take care of administrative details in setting up the proceeding, and be told about a few minor details such as the type of matter in dispute, i.e., "real estate contract dispute." You or your counsel will then follow certain briefing procedures, decided upon with the neutral, the type of ADR selected and the hearing takes place. The briefs are given to the neutral and to the other parties.

      In arbitrations, you may have to undertake discovery (written interrogatories, requests for production of documents, requests for admission and depositions) before the arbitration hearing, if that discovery has not already taken place. There may also be motions given to the arbitrator and originated by one or more of the parties.

Questions Regarding Real Estate Law or Commercial Law

  • Where should a lawsuit based upon a real property dispute be filed?
    • In the State of California, a real estate property dispute or lawsuit determining an interest in real property should be filed in the superior court in the county and state where the real property that is the subject of the lawsuit is located.
  • Where should a lawsuit resulting from a dispute regarding a contract or agreement be filed?
    • In the state courts of California, such a lawsuit should be filed in the state and county where the contract was signed, where the activities based upon the contract took place, and/or where at least one defendant resides.
  • If a potential client wishes this firm to draft a lease, real estate contract, or other document, what should she bring with her to a conference with the attorney?
    • A potential client should take good notes of any pre-meeting(s) she has with the other party(ies) to a lease or agreement and bring those notes to the meeting. Even better is for the attorney to negotiate for the client at the meetings with the other party(ies).
  • If there is a dispute between parties to an agreement or any other dispute, what should a client bring with her to a conference with the attorney?
    • A potential client should bring a chronology with the dates of each meeting or event leading up to the dispute and the events which occurred on those dates. This is vital to the attorney being able to understand the dispute within the shortest time possible. It also aids the attorney in drafting a complaint or drafting an answer to a complaint. A complaint is the beginning pleading that is filed with the court by an attorney or party to begin a lawsuit. The party that files the complaint is the plaintiff. An answer is the pleading that is filed by the party being sued which either admits or denies the allegations of the complaint. The party that answers the complaint is the defendant.
  • What is one of the greatest causes of lawsuits being filed based upon contract or other agreements?
    • One of the greatest causes of such lawsuits being filed is a lack of clarity in the negotiation of the contract or agreement. Such lack of clarity can result from the failure of the parties to reduce the agreement to a writing. A contract can exist even if it is not in writing—it can be oral. However, it is always best to put a contract or agreement in writing. Even if a contract is in writing, one or more of the parties may not have made sure an important term was included. The writing may also be ambiguous. There are legal rules to determine the construction, validity and meaning of a contract and its terms. They are very numerous. It is always best to hire an attorney to draft a contract or other legal document to prevent disputes.
  • Can a real estate lease or other real estate document be oral?
    • Generally, in California and most other states, if a real estate contract or lease is designed to be performed in more than one year or whose term is more than a year, it must be in writing. This is called the "Statute of Frauds." Although there are several circumstance which would take the agreement or lease out of the Statute of Frauds, such as performance by one of the parties, we strongly recommend that all real estate contracts or leases be in writing in order to be valid and to avoid disputes.

Questions Regarding Construction Law

  • How do you avoid disputes arising out of construction contracts?
    • Construction contracts are like any other contract with regard to the need to negotiate carefully, take notes regarding the negotiations and incorporate clear provisions into the contract which are agreed to by the parties. However, construction contracts are generally very complicated and it is even more important to get an attorney involved from the beginning of the negotiations.

      Many contractors, especially those who are involved in smaller residential projects, make the mistake of either not having a written agreement or having a sloppily-written agreement. Many of those who use a written agreement try to use the same agreement for different projects without carefully tailoring it to the circumstances and discussions surrounding a specific job. The owners of small residential projects need to review the contract carefully and make sure it reflects the discussions with the contractor before signing it. If the contract is for a medium to large-sized project, it is vital that both sides consult with an attorney before and during contract negotiations.

      Another layer to entering into the construction of a project is whether an architect or design professional is used. An owner needs to enter into a separate agreement with an architect or design professional unless the project is a "design-build" project—one where the design professional is part of a team made up of the contractor and the design professional. Because such relationships are very complicated, all parties need legal representation before entering into the project.
  • What is a mechanics lien?
    • A mechanics lien is a device used by direct contractors, subcontractors, laborers, materialmen (those who supply materials to the job) or design professionals in order to protect their right to payment in private works of improvement. The mechanics lien is not available to governmental or public works of improvement. The California legislature amended the laws in California related to mechanics liens in 2012. The laws were made operative as of July 1, 2012. An attorney should be consulted before placing a mechanics lien on a property or before attempting to remove it.
  • How are experts used in litigation?
    • In construction and construction defect litigation, as well as many other business and real estate disputes, a party must use an expert in relevant fields to help work up a case and testify at trial or arbitration. For example, if there is a construction defect dispute, a construction and/or design expert is able to examine the problems within a project and consult with and educate the attorney and the litigant about what needs to be done to correct the problem or to verify that no problem exists. The expert may then testify about his findings at trial.

      The Law Offices of Bari S. Robinson has worked extensively with experts in all of the areas of the firm’s practice in order to maximize or limit recoveries, depending upon the interests of the client. Experts charge their own fees separately from attorneys fees and those fees vary according to the individual fee structure of the expert.