By John L. Bryan, Jr., Esq.
A lawsuit should be the final step a broker takes to protect a commission. Alternatives to lawsuits include voluntary mediation, arbitration or private negotiations. While lawsuits can be expensive and time consuming, if other alternatives fail, a broker has no choice but to either file a lawsuit or walk away from the commission.
In Palm Beach County, it presently takes from nine months to a year or more to take a lawsuit from the initial filing through trial. All but one or two of our local judges will require non-binding mediation before the trial. If judges require mediation anyway, it makes sense to attempt to get the seller to agree to mediation before a lawsuit is filed.
Mediation involves appearing before a Supreme Court certified lawyer who has been trained in dispute resolution. The mediator has no power to decide the outcome, but can only assist the parties in reaching agreement. The mediator will meet with both sides together and then separately. If a case does not settle, the mediator cannot tell a judge the reason.
If mediation is unsuccessful, your case will go to trial. If you have good, written records, your odds of success improve. For instance, if you keep a log of your sales efforts on a daily basis, the log can demonstrate how hard you worked to earn your commission. You will most likely be deposed, which means that the seller’s lawyer will ask you questions, under oath, and your answers will be written down by a court reporter. You will also be asked to give the seller’s lawyer any written records you have, such as your log. Your lawyer, in turn, will probably take the seller’s deposition and obtain copies of any written records the seller has.
If you go to trial, you have the right to expect a fair result. Remember, the judge or jury does not know what really happened. There will be at least two different versions, yours and the seller’s. Your task, and that of your lawyer, is to show that you are the most credible and believable witness. Consistency, honesty and good records are the key to credibility. A judge really does not care who wins. He or she is simply trying to reach the best result possible, based on the believability of the information provided. Having said that, you also must remember that judges are human beings. They have likes and dislikes; in a close case, your appearance and demeanor may be the keys that tip the scales of justice in your favor.
Your goal is to make certain that any trial you get involved in is a little more fair for you than it is for your opponent and the best way to improve your odds is to keep good written records.