Seeking Leverage Points to Drive Early Dispute Resolution
After 35+ years of practice, Thomas Whitaker works hard to use his multidisciplinary experience to create alternatives to litigation. He explains that avoiding litigation involves finding a leverage point as early in a case as possible to try to motivate the parties toward a resolution.
Tom described how he has used ROSS to break through the logjam of stalled negotiations. In a recent matter, Tom was retained to help a client who had inherited a life-estate in the beach home she had shared with her close friend for decades when her friend passed away. Her roommate left the remainder interest in the beach house to a relative, so the client and the relative were both heirs to the property. When his client decided to move out of state, she looked to Tom to help her negotiate the sale of her life estate to the relative. Tom began looking at cases involving cotenants and partition of the property, but quickly realized that the law was contrary to his client’s position. Opposing counsel had read the same cases and insisted that his client would pay nothing for the life estate.
“Boom. I hit a wall and that’s where ROSS came in. I was looking for some leverage and my ROSS search results led me into a line of cases I hadn’t considered before—that the other side hadn’t even thought of—and I saw a way to press a settlement.” Specifically, Tom’s ROSS search results returned cases discussing the rights of coparceners, a relatively obscure legal relationship he had not encountered in 35+ years of practice. Tom used the cases to distinguish the broader rights of coparceners from the cotenant cases opposing counsel was relying on.
“I’m stubborn and I’m good at research, so I would have eventually arrived at the right answer. But, man, I tell you, I got there pretty quickly with ROSS.”
Once Tom had a core set of relevant cases supporting his opinion, he used the ROSS Find Similar Language feature to dig deeper. “I went back and traced the reasoning to U.S. and Florida Supreme Court cases going back to the late 1800s and early 1900s. The cases show how the relevant Florida statute evolved. I offered to show opposing counsel my research. But he didn't want to see it because at that point he saw that he might be wrong.”
Using ROSS to persuade opposing counsel
Armed with a stronger legal position, Tom was able to persuade the other party to make a substantive offer to purchase his client’s life estate interest. “We arrived at a point early in the case where opposing counsel saw the downside risk for his client. He might keep saying, ‘Well, that case doesn't hold.’ But if he believed that they wouldn’t be offering any money.”
“Now, it wasn't enough in the first round, but they went from pound sand to, and no pun intended, it's at the beach, to making a real offer.”
Tom finds it hard to quantify the precise amount of time he saved using ROSS. “But the fact is I got to the right answer before my client had to make some big decisions—like whether or not to file a lawsuit. When I cited the right authority, all of a sudden, they begin to negotiate, and made a meaningful offer.”
“The best thing about ROSS, is that I saved a lot of time I would have spent doing menial research and I was able to invest that time in high value support for my client.”
Now comes concierge element of his practice. “We’re going to touch base in a month to see how things are going. Then, if things are going well, we'll talk 60 days later. Then we'll make it every quarter. But I'll be with her throughout this experience.”
Tom draws the most satisfaction from counseling his clients, which also dovetails with the faith- based aspects of his practice. Tom recently became a Certified Kingdom Advisor®. “It basically certifies that I’m a lawyer who knows how to pray. I work with people of all faiths, and I try to live my Christian perspective in my work. That's the way I want to practice law. Because the miraculous happens all the time ... I never get tired of it.”