Lawyer Monthly Magazine - August 2019 Edition

during trial; then each evening reassess how it has affected your strategy to guide the case to a successful conclusion. 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 canputyourclientinamuchbetter 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) andmost 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. 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. 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. 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. Thisway thebusiness 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. LM JAMES WEGER Mr. Weger has been practic- ing 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 litiga- tion, including commercial real estate, EEOC defense, trademark infringement, en- vironmental, securities, an- titrust, and defense of pro- fessionals 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, insur- ance companies, and sev- eral companies involved in high-tech development. FIRM PROFILE 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 at- tention. We treat our clients with the same respect that we have for the law. Jones Gotcher, a 30-person firm, bears the distinct hon- or of being listed in the Bar Register of Preeminent Law- yers and has fostered three State Bar Presidents, five Tulsa County Bar Association Presi- dents, and an American Bar Association Board of Gover- nors member. Super Lawyers By James Weger, Jones, Gotcher & Bogan, P.C. 75 AUG 2019 | WWW.LAWYER-MONTHLY.COM