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Ms. Natbony has authored, presented, or been published in the following:

Press / Blog Posts

Should You Sue?

 

*Most of the contents of this article also appears as a video on YouTube.

**By Suzanne Natbony, Esq.

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Clients, friends, family members, even random people at the gym who know I’m a lawyer, frequently ask me if they should sue someone or a company because of a claimed wrongful act. The wrongdoing could include taking money and failing to perform the terms of a contract, getting injured on a property, a botched medical procedure, food poisoning, or being misled. You name it, I have been asked about someone’s legal rights pertaining to everything from a dog bite to revenge porn!

 

While people may want a simple, “yes” or “no,” the analysis that goes into this legal consideration is based on years and years of practice and law school.  Some lawyers refer to the legal analysis as the “4 Cs of case evaluation.” You must have the following 4 components of a case before even thinking of pursuing a claim, successfully:

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1) Claims

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Do you have valid legal causes of action, such that you can actually sue and likely win if filed?

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Frequent claims include, breach of contract, negligence (personal injury or professional malpractice), defamation, nuisance, and employment discrimination and wrongful termination.

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Each claim must have the elements fulfilled.  For example, if it’s personal injury which involves a claim for negligence, you have to have to have 4 elements – duty, breach, causation and damages. Even if you have all of those factors, your claims must be better than the other person’s and if your claims will not counter the other party’s possible claims or defenses, the litigation might not be worth it for you to initiate.

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You have to ask – will there be counterclaims or defenses to make a lawsuit not worth it?

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2) Compensability
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Can you even get compensation, which is provable money damages, or other meaningful remedies, given the harm caused?

 

Suppose a company made a mistake, but that mistake didn’t cost you any money, such as when an airline loses your bag for several hours, causing you no financial loss (just frustration).  The airline might have been at fault and you might win on a negligence claim if they broke a $10 souvenir in your bag, but is it worth the time, money and energy to sue?

 

You need to ask yourself:

  1. How much money have you lost?

  2. Are the damages compensable?

 

Suing in civil court can cost thousands of dollars.  Small claims court might cost only $100 to file and serve, but it can take hours and hours of time to fill out the paperwork, find a process server, figure out how to serve the person, file more paperwork, get ready for court, perhaps redo paperwork and sit there for hours.

 

The damages could be difficult to quantify and you may want what’s called, equitable relief, such as an injunction – an order to do or stop doing something.

 

For example, if someone threatens you, you may just want a temporary restraining order to keep him or her away. If someone has misappropriated your name or are using an image of yours without your permission, maybe you want an order for them to cease and desist instead.

 
3) Corroboration
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Do you have evidence, witnesses or experts to testify – to corroborate your story and help you prove your case?

 

You usually must have a written contract if you’re trying to show breach of contract. An oral agreement is much harder to prove.

 

If it’s products liability, you need to prove that it was this product that caused the damage and possibly have to conduct testing on that product.

 

If it’s medical malpractice, you’ll need an expert to testify that it falls beneath the standard of care – and you should expect the other side to bring its own expert.

 

4) Collectability

 

Will you be able to collect if you win? Does the person you’re suing have sufficient, accessible assets and, even if so, how difficult will it be to collect from that person? If you have to take the matter to “collections” or if the person might file bankruptcy, you have an issue.

 

In conclusion, you need to think through all of the 4 Cs.  If you don’t have positive answers for the four components, you should strongly consider not moving forward, and wasting your time, money and energy.  Even if you have all positive answers, be aware that there are many other risks to consider. You could have all of the above and your case could be decided by a judge who is in a bad mood or you could get a jury that doesn’t like you and then you can lose anyway!

 

**My background is in business law with a broad range of experience that runs from contract drafting to resolving disputes – I deal with almost all of the legal issues that businesses encounter.  I have worked at law firms and in house for several startups.  My focus is on helping clients grow their business. If you’d like to learn more, visit my profile on LinkedIn, LawTake.com or suzannenatbony.com.  I am a cofounder of LawTake and I created several other videos on the website. You can also email me at SUzanne@lawyer.com if you have additional questions about suing. As someone whose felt terrible over injustices, I can relate to what you’re going through and offer unique legal advice and experience with resolving disputes.

 

Before you break down and sue, call SUzanne – to the rescue!

Defamation or Legal Free Speech?

How to Deal with Defamatory (libelous) or Negative Reviews on Yelp and some other Social Media and Review Sites:

 

Did you just get a very negative review about your business or practice?  Do you believe that the review was blatantly false or defamatory?  Perhaps you tried to contact the poster to no avail. If you are considering hiring a lawyer to assist with the take-down, you may want to look for one who does not just jump into sending a cease and desist letter, as that can backfire.  A lawyer can help you figure out if the content is actually defamatory, as there are several different types of defamation. Remember that truth and opinions are protected speech, so if someone has given an opinion, no matter how negative, you likely would not have a claim for defamation. However, whether something is an opinion or fact is a litigated area and you will need the guidance of an attorney. The following best practices are from a specific situation with a client (confidential information has been removed) and your situation may be different. This does not substitute for the legal advice of an attorney as your facts and circumstances may differ.

 

General best practices in terms of dealing with negative or defamatory reviews and disputes are the following:

  1. Get to the bottom of the facts as far as who is technically liable and what the possible claims are. This may require some investigation in conducting interviews with employees, online research to figure out who the review poster is, and other fact checking.

  2. Determine if the post is just a negative review or defamatory (libel). There are several types of defamation. You need to decide if you are a public figure or private individual. In general, in California, for the post to be defamatory, the defendant must have made an unprivileged false statement of fact (opinions are protected) to at least one other person (not you, the person being defamed), without using reasonable care to verify the truth of the statement, and that person must have understood the statement to be about you, with damages to the plaintiff, such as shame or loss of business. You may also need to request that the defamatory statement is retracted before initiating a lawsuit.

  3. If the post is just negative and only potentially defamatory, you can try to call the person who posted and try to reason with him or her and persuade him or her to remove the post in a sensitive and caring way. Hopefully this causes the poster to remove the post. Note: if you are hot headed, then you should not be the one to make this call. This is when you should consider employing an advocate to finesse the situation and persuade, such that the negative or potentially defamatory post is removed.

  4. If the review is false and defamatory, you can try to contact the Web Host of the Review site to explain the situation – be clear that the review is false. They should have a process for reporting defamatory or illegal content and you need to take steps to report it.

 

However, if the above does not work, then:

  1. Email a positive follow-up to the poster, including empathy (try to understand their perspective and put yourself in their shoes) and possible solutions, such as compensation for the frustration or complimentary products or services.

  2. A lawyer could continue to try to call and email the defamer, or even send a text.  It does continue to add up legal fees, so the client could also start privately messaging through the review site, emailing, calling and texting.

    1. Consistency of follow-ups, every 2-3 days, or at least weekly (to keep putting pressure on the defamer) with something such as the following:

      1. “Thank you for speaking with our attorney last week and understanding that the [Google/Yelp/Facebook/etc.] review was [accidentally/full of misinformation/etc.] posted on our page, and agreeing to delete it. We were just wondering when you were going to please correct the mistake and remove it? Our attorney is $XXX an hour, so I hope you understand why I am following up! I am available for a call if you need assistance.

  3. If you have a friend or insider who works at Yelp, Google, RealSelf, etc., please contact them to make an internal complaint.

  4. A public response by the business to honestly acknowledge any shortcomings, clarify misunderstandings and express empathy without revealing any confidential information, such as HIPAA protected personal information. However, this can bring attention to the post and raise it to "recommended" (on Yelp) or "relevant" (on Google).

  5. Send a firm Cease and Desist demand letter that mentions claims for defamation and the risk of litigation.

  6. Send an even stronger demand letter, with a draft complaint attached with claims for defamation, telling the defamer that we are filing this compliant in 5 business days if the defamatory post is not removed.

  7. Advise client about potential defenses – here, it is the risk of an Anti-SLAPP motion in which client has to pay attorney fees if the post is not really defamatory – and also conduct hours of legal research to find similar cases and predict what might occur in court.

  8. File a lawsuit for defamation and other plausible claims. I have created a video, Should You Sue, which I recommend that my clients watch before deciding on litigation. The text and link to the video can be found under Press/Blog here: https://solveandwin.com/press#should-you-sue.  If you obtain a court order to remove the review, the Web Host should comply with the removal.

 

Some clients prefer to jump from step #1 to #5 or #8 because they know that the steps in between are costly. If the review is by a competitor, someone without deep pockets or is a blatantly false allegation that can easily be proven, then a lawyer might suggest skipping steps. If it seems like it was possibly a misunderstanding, then it makes sense to employ the “honey then vinegar approach.”   Also, some clients may prefer to conduct the costly legal research (#7) at the outset if they are ready for litigation.  Some lawyers may refuse to send a demand letter without first conducting the legal research. It can depend on whether the words or writing are a in a grey area or novel to the lawyer.

 

The risk of sending a cease and desist demand letter is it can cause the “Streisand Effect,” which is when something blows up out of proportion and brings more attention to the situation.  The defamer could retaliate in various ways such as posting the demand letter on the review site or elsewhere, have friends post negative reviews, make complaints to professional boards, etc. Further, even a public response or getting a review removed can cause the reviewer to post a negative review on another site or through various fake accounts.

 

In the interim of attempting to get the review removed (since the above process can take a long time), you can try the following options:

  1. Bury the negative review with positive reviews from customers/patients, which I suggest as a best business practice to do anyway – *suggest* reviews to happy customers (as some companies prohibit, asking for reviews, and especially paying for them).

  2. You should ask your customers and friends to at least report the negative reviews for violating hosting company policies, but again, this could bring attention to the review, especially if a technologically challenged user accidentally clicks the wrong button to Like or give it a Thanks, etc.

  3. Again, responding to or restating the public response to the review to be 100% clear that the post is false, but also offer empathy and support, it must be carefully written to show potential customers how wonderful you are. “You are not defined by your failures – you are defined by how you overcame them.”

  4. There are a number of companies that offer to remove reviews for a fee. I am not certain how much that costs or whether they are successful, but may be worth considering.

  5. Responding to the Web Host of the Review site again with the information that the post was defamatory and evidence and trying to persuade them to hide the review and mention their liability for failing to remove the defamatory post.

  6. Sending a formal and firmer demand letter to the Web Host of the Review site, similar to the type that Marty Singer sends.

 

I understand that this is a difficult decision for the client. I personally and professionally prefer the “honey then vinegar approach,” but I have written numerous demand letters and have seen things go positively, some go nowhere and some lead to costly litigation. The choice is the client’s.  I wish I had a crystal ball to predict the future.  Thus, lawyers use research, analysis, investigation, negotiation and if necessary, litigation, to meet the client’s goals.

General Counsel Opinion: Top Five Legal Issues That Can Derail a Small Business’ Efforts

*Suzanne Natbony, Esq.

Most clients that I represent have the following typical top 5 business goals:

1) make a profit, if not maximize profits,

2) provide a useful/safe/top-notch product/service in that it provides customer/patient satisfaction,

3) minimize legal risks,

4) reduce costs, and

5) minimize tax exposure.

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As a general counsel attorney, I work very hard to achieve those goals for my clients, but the following are the top 5 legal issues that can derail our efforts:

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1. Doing Business with Bad People

  • I can’t emphasize this enough – business partners, employees, customers, vendors, etc. - if you end up dealing with a complainer, or someone who is vindictive, difficult, litigious, entitled, pesky, or even worse, criminal, such as a fraudster, your business will likely suffer. Lawyers can help you vet your contacts by conducting due diligence on potential deals. Also, the recommendation to have a “no jerk policy” cannot be emphasized enough.

 

2. When You Are the Bad Actor

  • Do not alienate, belittle, overpromise/underdeliver, fail to recognize colleagues, employees, customers, etc. Disputes can arise when my client, let’s say, has had a bad day and been rude to an employee, or failed to recognize an employee, causing a chip on a shoulder, or when the business overpromises about a product or service, or perhaps just falls short of providing the best service, then customers may complain, or people sue.

 

3. Not Being in Legal Compliance and Getting Caught

  • This could be seemingly innocent, such as your website was not in compliance with the ADA, and you get sued. You want to make sure to have a lawyer review your business plan, products, website, advertisements, etc. to make sure that you have legally required language protecting you or highly advisable language such as disclaimers.

 

4. Resisting Change/Failing to Adapt to Changing Technology/Customers/Growth etc.

  • Business success requires a certain degree of determination, which can include rigidity, but there needs to be room for growth, improvement, and change. A seasoned and experienced general counsel, with business experience, can assist by facilitating deals, rather than killing them.

 

5. Passing Up Opportunities.

  • Related to the above issues with resistance, clients have passed up on great opportunities. I have employed calculations to help my clients determine whether to partake or pass on these opportunities. Unfortunately, overlooking opportunities can be related to having an ongoing litigation as a distraction from growth.

 

As a general counsel, I cannot help prevent all of the above problems, but I do my best to help my client put mechanisms in place to prevent or put out fires, as swiftly and efficiently, as possible.

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* Suzanne Natbony is a licensed California lawyer, with an emphasis in healthcare law, and partner at Aliant LLP, with her own law firm, Solve & Win, PC, practicing transactional and regulatory-compliance law, while also being an entrepreneur with her own healthcare product company, with four patents in her name on a Class II FDA medical advice. She is also general counsel to a multistate medical spa franchise and other medical spas and physicians around the U.S. You may contact Suzanne by email at suzanne@lawyer.com.

Solve & Win Announces that A Non-litigator Attorney Prevails in Breach-of-contract Case Against Litigator Over Referral Fees

 

California business attorney prevails in Natbony v. Reccius et at., a referral fee case, under Rule 2-200 and Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler. Suzanne Natbony, Esq. referred Mr. Benjamin Reccius a client because Mr. Reccius promised to pay Ms. Natbony a referral fee, but then refused to pay. Ms. Natbony filed suit for breach of a referral fee agreement against Mr. Reccius, and the case was decided by Judge Emma Castro. Ms. Natbony prevailed and was awarded her referral fee plus costs.

 

LOS ANGELES (PRWEB) August 04, 2021

 

Business transactional attorney-entrepreneur Suzanne Natbony, president of Solve & Win PC, has won a judgment against Benjamin Reccius, an associate attorney at Kimball, Tirey, St. John LLP over a breach of contract regarding referral fees.

 

Heard by Judge Emma Castro of the Los Angeles Superior Court, Suzanne Natbony v. Benjamin Reccius et al. (2021) Cal. Sup. 21STSC00537 hinged on whether a referral fee Reccius promised Natbony was enforceable under the California Lawyer Professional Rule of Conduct 2-200 and case law. Natbony was awarded the $9,000 fee entitled to her plus costs.

 

“How can an officer of the court who is charged with creating and enforcing contracts for the people not be held to the contracts that he himself makes?” said Natbony. “I am not a litigator and the amount at stake wasn’t that much, but it’s the principle.”

 

In Natbony, plaintiff Natbony referred a landlord/tenant matter to defendant Reccius, who agreed to take the case on a contingency basis, pay Natbony a referral fee of 25 percent of the fees earned on the matter, and include written disclosure of the fee division in his retainer agreement. The amount of the referral fee was confirmed in an email, and Reccius advised Natbony that he had included the required Rule 2-200 language in the client’s retainer agreement and that he had signed it.

 

Under these facts, Natbony had no reason to doubt Reccius’ representations as to compliance with Rule 2-200, which permits referrals fees paid between lawyers if two factors are met: The client must agree to the fee in writing and the legal fees may not be increased due to the referral.

 

California permits lawyers to pay and receive referral fees under the current Rule 1.5.1 and the “old rules,” which were in effect when the Natbony referral was made. Accordingly, in Natbony, Rule 2-200 was the operative rule.

 

While most California lawyers understand that lawyers can make or pay referral fees if both factors are met, these lawyers are actually unaware of the case law providing for an exception. In Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, the court of appeal held that when a referring attorney is prevented from complying with Rule 2-200 by the attorney to whom she referred the client, the defendant attorney is equitably estopped from asserting Rule 2-200 “as a ‘sword’ to escape a written referral fee agreement.”

 

The Barnes Court held that the record demonstrated that the defendant had actively prevented plaintiff from complying with Rule 2-200 in obtaining written authorization from the client for the fee division. Id. at 175.

 

Like the defendant in Barnes, supra, the Natbony ruling equitably estopped Reccius from asserting non-compliance with Rule 2-200 as a defense to his fee-sharing agreement with Natbony.

 

Pleased with the judgment, Natbony explains that her focus is “preventive legal,” i.e., advising clients about regulations, protecting intellectual property, and drafting and negotiating contracts, but she also has to put out fires.

 

“This was a fire that couldn’t be contained,” Natbony said. “No amount of reasoning, demands letters, offers to settle or mediate, or mutual-connection influences were able to induce even a $1 settlement.

 

“So in that case, you have to do what litigators do and file a lawsuit when you have the facts and law on your side.”

 

Suzanne Natbony is a third-generation lawyer, with a focus on business transactional, regulatory/compliance and dispute resolution. She is licensed to practice in California, with her own law practice, Solve & Win, in West Los Angeles, in addition to being a Partner at the international law firm, Aliant LLP (AliantLaw.com) and Of Counsel to Merino Yebri LLP (MYlawLLP.com), in Century City, and she also serves as General Counsel for Beverly Hills Rejuvenation Center, a multi-state medical spa franchise (BHRCenter.com). Solve & Win is a solutions-oriented law firm comprised of practical, business-minded corporate lawyers, who are effective at closing deals, and creatively overcome legal obstacles through resolving disputes. Ms. Natbony is also founder and CEO of LawTake, the first online marketplace for lawyers to successfully commoditize legal information via videos and forms directly to consumers.

 

This press release was featured here:

 

Solve & Win announces that a non-litigator attorney prevails in breach-of-contract case against litigator over referral fees

Legal Terminology for Civil Claims

If you are new to the civil legal system, you may feel like everyone around you is speaking a foreign language. There are probably some words that are totally new to you and many more that you have heard before, but that you do not have a good understanding of what they mean. Having a basic understanding of common terms used in civil law can help you feel more comfortable navigating your claim and talking with your attorney. Here are a few terms and phrases to get you started:

  1. Liability: Liability, very basically, means “responsibility.” For example, if a defendant is liable for a plaintiff’s injuries, the defendant is legally responsible for the plaintiff’s injury. If a plaintiff can prove that a defendant is liable for the plaintiff’s injury, the plaintiff may be entitled to money damages in civil court. Defendants have the opportunity to assert defenses to refute plaintiff’s claims that the defendant is liable.

  2. Party: A party to a civil case is anyone listed in the name of the case. Every civil case will have a plaintiff and a defendant. Some civil cases will also have third-party plaintiffs, third-party defendants, and cross-claimants.

  3. Pleading: A pleading is a document that is submitted to the court on behalf of any party for the purpose of letting the court know what issues are involved in the lawsuit, and stating a party’s opinion regarding such issues.. Pleadings are often filed at the beginning of a case and include the “complaint,” in which the plaintiff states his or her claim against the defendant, and the “answer,” in which the defendant responds to the plaintiffs complaint, typically denying that the defendant is liable to the plaintiff.

  4. Preponderance of the Evidence: In most situations, a plaintiff must prove his or her civil case by a “preponderance of the evidence” before he or she will be able “win” the lawsuit. By a “preponderance of the evidence” means that a judge or jury is more likely than not that the defendant is liable to the plaintiff. In other words, it is more than 50% likely that the defendant is liable to the plaintiff.

  5. Tort: Tort is another word for “civil wrong.” It is any action taken by or caused by a person that injures another person, and that has remedies available under the civil law. For example, rear-ending someone in a a vehicle accident likely constitutes the tort of “negligence.” Note, many actions that constitute a “tort” may also constitute a crime. A defendant may be charged with a crime and also be sued by a plaintiff in civil court for the same incident.

 

If you have questions about any of the terms above, consult with a qualified and competent attorney from a reputable law firm. Many firms have a sophisticated civil law practice with focus on a variety of fields. Consider calling a personal injury lawyer Washington, D.C., residents rely on today to discuss your case, and get the experience and care of professional attorneys.

 

Thanks to our friends and contributors from Cohen & Cohen, P.C., for their insight into legal terminology.

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