I’m Eric Lanigan with Lanigan and Lanigan attorneys in Winter Park. I want to talk for a minute about something that came up in a case of mine just in the last couple of weeks that reminded me of a principal that I need to make sure that I always apply and that I would certainly recommend to other lawyers. And that’s the second opinion.
You can watch this video “Make Your Attorney Get a Second Opinion” on the Lanigan&Lanigan YouTube channel.
What happened is, I received a frantic call from some people who had a case that involved some rental property renovations in Central Florida and they got in a dispute with the contractor and they ended up in a lawsuit where the contractor was suing them and also suing to foreclose on a construction lien. And it was quite a nightmare.
Oral Contracts Lead to “He Said, She Said”
There was no written contract; it had been an oral contract which is always a nightmare in and of itself when you get into a “he said, she said” scenario which is an oral contract in my opinion in the end everybody loses. On top of that they’re facing a construction lien which means that this contractor if he prevails it all of the construction lien then he recovers all of his attorneys fees. Which I’ve had cases where the attorneys fees in those kind of cases can be double what the actual monetary outcome of the case might be.
So the case was a nightmare and it was getting ready to go to trial in 10 days. They were frantically searching for a new attorney because their existing attorney was sick. I think maybe the case had caused this person to basically have a mental breakdown.
And anyway they had to get a new attorney and there were things that had not been done. The court had entered sanctions against the attorney $2,500 $3,000. The homeowners were not going to be allowed to call any witnesses other than those listed by the plaintiff. They couldn’t put into evidence any exhibits other than those that the plaintiff produced so from a defendant standpoint it’s a nightmare case. So bad that even the judge scheduled a hearing when I filed an appearance to sort of make sure I understood what the whole picture was here and literally said, “Well Mr. Lanigan having heard all of this I’m going to give you a chance to back out if you want to do so.”
Seek a Fresh Set of Eyes
And we sort of took the sort of attitude well what the heck? Somebody has to try this case, it might as well be me. So we start frantically preparing for this trial over 10 days and it became very clear in the beginning that both sides had sort of coalesced around a couple of issues as being the deciding factors in the case and not because we’re rocket scientists maybe just because we’re coming in with a fresh set of eyes and an open mind about what’s going on.
We’re going through all of this and one day a few days before the trial is going to start, I’m going down this several page billing final billing from the contractor with all of these various things in it and as my eyes are scrolling down there it hit a couple of lines that are all talking about electrical work. Rewiring putting in new electrical circuitry which is not just replacing a light switch. And I knew from a case years ago that OK this is going to require an electrical contractor license and I also remembered something about the statute that said if you’re out there doing work that requires a particular license and you don’t have it then you have real problems.
Look for the Little Details to Make Big Points
And this issue had never been brought up and had never been discussed in three years leading up to this trial. So sure enough we went in, the contractor did not have an electrical contractors license. So we knew all we gotta do is get this guy to admit on the stand that a. he did the work, and b. he didn’t have an electrical contractors license, and he didn’t sub the work out to an electrical contractor. All of which I was very very sure were true.
So sure enough we get on the stand and we go through there and buried in all the questions is that information and I even took the definition of what constitutes electrical contracting work worked it into a question and said, “These electrical things that you did here on the bill would that come under that definition that I just referred to?” and he said, “Well, yeah it would.”
Well, what the statute says is that if you do that kind of work and you don’t have the requisite license, you have no construction lien. The construction lien is out the window.
No Contractors’ License? No Ability to Collect Payment
Now what about the rest of his contract? The statute also says that if you don’t have the requisite licensing, then you cannot collect for any labor material or services. Any labor material and services provided under that contract. So our position at that point was the construction lien is out which is a victory in and of itself, because that probably would have been by the time all was said and done I’ll bet the attorneys fees from the other side had they prevailed on a construction lien would have been $75,000. So that goes out the window.
And then there was the entire argument about the statute clearly says that you cannot collect for any materials, labor services provided under the contract that encompasses in which that work is encompassed.
So this was an argument that had never been brought up but because a fresh set of eyes looked at the case with sort of an open mind, it came up and became the determinative factor in the case. Which reminded me that I can just as much be a victim of that as anybody else. I can be the one who says I’m so fixated on what I think are these particular issues that I lose the sight of what else might be going on in the case.
So I’ve taken the step I’ve gotten a case that’s going to be going to trial probably in about six weeks I took the trial notebook, I went to a respected friend colleague and said, “here’s what the case is about, here’s what I see to be the fundamental issue. We’ll pay you for a day to sit down and go through this and see if something else jumps out at you. Or if you think that what I think is important, really isn’t important and maybe something else is more important.”
Get a Second Legal Opinion Whenever Possible
Bring those fresh set of eyes on the case. If your lawyer is confident he will appreciate that second set of eyes before you go to trial than have your client show up after trial and say, “well I was talking with so and so the attorney down the street and he said you could’ve done this, you should’ve done that.” Now, it’s too late to do them you just look bad because you didn’t. So, if you’re the client, ask your attorney, has he gotten a second set of eyes on this. If you’re the attorney don’t hesitate to go out there, bring a friend in say look take a day to go through this file and tell me if I’m missing something or if I’m focused in the wrong place.
Again, I’m Eric Lanigan, Lanigan and Lanigan attorneys, Winter Park, Florida.
