What Makes a Successful Lawyer for Real Estate Litigation?
James shares some of his expertise as a specialist in commercial and residential litigation and what gives rise to such cases. What drew you to the legal profession? I’m originally from Denver, Colorado and I grew up in an oil and gas family. My oldest brother was a doctor and my sister was a lawyer. …
James shares some of his expertise as a specialist in commercial and residential litigation and what gives rise to such cases.
What drew you to the legal profession?
I’m originally from Denver, Colorado and I grew up in an oil and gas family. My oldest brother was a doctor and my sister was a lawyer. They were both adamant that I (being the youngest of four children), should choose their respective profession as my career. The big family holiday in my family was always Thanksgiving when everyone, no matter where they lived, ended up at my parents’ house. One Thanksgiving while I was in undergraduate school, my brother, the surgeon, showed up for the holiday with blood on his shoes from a recent surgery he had performed. It was at that moment, I looked at my sister, the lawyer, and informed her that she had won the contest and I would attend law school.
In order to be a successful trial lawyer you have to be able to think quickly on your feet; always be willing to re-examine the facts and evidence, and always be two steps ahead of your opponent.
Who influenced your career development?
Since graduating from the University of Oklahoma law school in 1982, I have had but one job and that is with my current firm Jones, Gotcher & Bogan, P.C. The firm was founded in 1964 by Bill Jones and Jack Givens. After starting out as a young associate, with the help of the senior partners, I continued to develop my skills as a trial lawyer and eventually became president of the firm in 1994. I have served in that capacity since that time. I can proudly say it’s the only law firm where I have ever wanted to practice. The atmosphere at Jones, Gotcher & Bogan, P.C. is what brought me there and I have continued to run the firm in the tradition of Jack Givens, Bill Jones, and Neil Bogan. JGB is unique, we work hard, we play hard, but we always put our clients first and provide only the highest quality legal advice, which is what has brought success to this firm for over 50 years.
Early on in my career, I was mentored by such fine trial lawyers as Burt Bailey from Fellers Snider in Oklahoma City, where I was a law clerk during school, Jack Givens, Darrell Gotcher and many others too numerous to name. I was taught early on in order to be a successful trial lawyer you have to be able to think quickly on your feet; always be willing to re-examine the facts and evidence, and always be two steps ahead of your opponent. To be a successful trial lawyer you must work hard, you must think fast, and of course, know the law.
Whether a trial lasts three days or six weeks, you must prepare well in advance, then constantly re-evaluate the evidence that comes in each day during trial
What makes you a successful litigator?
Throughout my career, I have been successful in both prosecuting and defending commercial litigation cases of all types, including EEOC, trademark, commercial and residential real estate transactions, and construction. Whether a trial lasts three days or six weeks, you must prepare well in advance, then constantly re-evaluate the evidence that comes in each day during trial; then each evening reassess how it has affected your strategy to guide the case to a successful conclusion.
The biggest suggestion I could give to any attorney would be don’t prejudge the case
Any trial lawyer worth their salt knows that no one can predict the outcome of a jury trial. However, through hard work, a thorough examination of the facts and evidence and extensive preparation of your witnesses, you can put your client in a much better position to succeed at trial. I have been asked on many occasions how I prepare for a lengthy and factual intensive trial. The biggest suggestion I could give to any attorney would be don’t prejudge the case; prepare outlines that only contain the topics about which you wish to cover on cross-examination (i.e., don’t try to just script your examination) and most importantly listen to the testimony of the witness from the stand. If you have done your homework and know the facts sufficiently, when a witness says something contrary, either to their previous testimony, or a document, a contract, a letter, or email and you have that information readily at hand, then, particularly during cross-examination you can immediately challenge the witness on their testimony. At a minimum, you will damage their testimony and most probably destroy their credibility with the jury.
I have been practicing law since 1982 and firmly believe that I continue to learn something new every day. Although many cases I handle involve similar areas of the law, each case is uniquely different because of the difference in the facts, the witnesses or documents involved.
I strongly advise clients not to own commercial real estate, or any other business, on a 50/50 basis, because if the partners cannot agree then there is a stalemate which often leads to litigation.
You practice in the area of commercial and residential real estate litigation. What gives rise to most of these types of cases?
Ninety percent of the time, litigation arises out of a commercial and/or residential real estate dispute over the disclosures and representations that are made prior to closing. It is most important when you are negotiating a contract for the sale of real estate that you go over the disclosures and representations very carefully with your client to make sure they are accurate. In residential real estate there is a statutory framework, Title 60, O.S., §831 et. seq., for failure to disclose a known defect in the house. This property disclosure statute, also known as the safe harbor, requires the seller of residential real estate to disclose on a statutory form known defects of the house. The seller of the real estate is not required to perform any inspections or investigation but to only disclose what is known. The way the statute operates is that if a seller discloses known defects and latent or unknown defects are later discovered, the seller cannot be held liable. Unique factors of the statute are that the prevailing party in a claim under the disclosure act is entitled to their attorney’s fees; in addition, the residential disclosure act limits the type of claim to only cost of repair or replacement, and eliminates any other claims including punitive damages.
As a practical matter, one should always put an attorney’s fees clause in a contract whether it be real estate or any other type of contract.
Unlike residential real estate, in commercial real estate litigation there is no overriding statutory framework from which the claims can arise. Therefore, when representations and warranties are made in a contract for the sale of commercial real estate, the claims more likely to arise are not only breach of contract, but also fraud in the inducement. The damages sought are broader and include everything from rescission to diminution in value of the property and punitive damages. Unlike a residential real estate case, unless the contract provides for attorney fees to the prevailing party, a lawsuit in a commercial real estate transaction does not carry the award of attorney’s fees to the prevailing party. As a practical matter, one should always put an attorney’s fees clause in a contract whether it be real estate or any other type of contract.
To counteract any concerns about one person being in charge, the operating agreement can be written so that there are protections built-in for the minority interest holders.
With commercial real estate generally being owned by more than one party, how can clients avoid disputes in this area?
In my experience over the last 30+ years, most commercial real estate is owned by a single asset LLC. The LLC is then owned by the various members who have contributed capital towards the purchase of the commercial real estate. I strongly advise clients not to own commercial real estate, or any other business, on a 50/50 basis, because if the partners cannot agree then there is a stalemate which often leads to litigation. The old adage that someone has to be driving the bus is certainly true in commercial real estate. Someone needs to be designated as the managing member owning a majority interest (i.e., 51% or more) of the LLC that controls the real estate. This way the business of running the commercial real estate can move forward and the parties won’t get deadlocked if there is a difference of opinion. To counteract any concerns about one person being in charge, the operating agreement can be written so that there are protections built-in for the minority interest holders. Some examples would be: certain activities cannot be conducted without either unanimous or at least super majority consent; that the minority shareholders cannot be diluted without their consent; that the real estate can’t be sold or otherwise compromised without at least a super majority agreeing to the action. There are numerous other protections that can be written into the LLC operating agreement depending on the type of transaction, the number of owners involved, and whether someone wishes to be a passive or active investor.
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Mr. Weger has been practicing law since 1982 with Jones Gotcher. His current legal practice centers on complex commercial litigation in state and federal courts across the country. He has represented numerous companies in all areas of commercial litigation, including commercial real estate, EEOC defense, trademark infringement, environmental, securities, antitrust, and defense of professionals in E&O claims. He also represents clients in the areas of radio and television, banking, public educational institutions, residential and commercial construction/development, real estate brokerage companies, insurance companies, and several companies involved in high-tech development.
From the time we opened our doors, the partners at Jones Gotcher have insisted on practicing law with integrity. More than fifty years later, we still insist on high standards.
A mid-sized Tulsa firm, we’re large enough to accept any assignment – but never at the expense of personal attention. We treat our clients with the same respect that we have for the law.
Jones Gotcher, a 30-person firm, bears the distinct honor of being listed in the Bar Register of Preeminent Lawyers and has fostered three State Bar Presidents, five Tulsa County Bar Association Presidents, and an American Bar Association Board of Governors member.