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May 2010 | dentalproductsreport.comweb exclusiveDentists in litigation Presenting your best position should you end up in court.
May 2010 | dentalproductsreport.com
Dentists in litigation
Presenting your best position should you end up in court.
by Bruce Bryen, CPA
Photo: rubberball/Getty Images
No one wants to be in litigation but, once there, what steps should be taken to allow the facts to assist you in your presentation to the court? Those who have not been in litigation do not understand the trauma, costs in terms of money spent and the amount of time needed to help your advocates such as attorneys, accountants, expert witnesses and litigation support team. Between the interrogatories, discovery and depositions, often enormous amounts of money and time are spent on the case. Sometimes it is difficult to work with your patients because of the time needed to be spent in gathering documents for your defense team so that they are prepared to present your best position to the court. Where does the dentist begin?
Once the dentist is involved with litigation and it seems as if there is no hope for settlement before the trial begins, steps need to be taken to create the least onerous judgment. Those steps are the issues that will be detailed in this article.
Hiring the team
It may seem like a simple process to hire the best in each field to assist in the defense of your position. But historically, dentists retain friends who do not have a specialty in the area that is being litigated. Why is this done? Mainly because the dentist is looking at the amount of money that it will cost to get the best and the friend may trade off dental services for legal costs while the litigation process is taking place.
Unfortunately, it soon may become apparent that the friend does not have the experience or knowledge to give the best presentation. A divorce attorney, for example, would probably not have the experience to represent a dentist in a matter involving an agreement not to compete or in the dissolution of a partnership. Accountants who represent a spectrum of business ventures and do not specialize in representing dentists, probably do not have the experience to understand valuations of dental practices, compensation arrangements for associates or other typical dental financial problems unique to the profession. Experts in evaluating manufacturing businesses are not normally aware of the methodology commonly used in determining the net worth of a dental practice, especially in knowing the difference between specialty valuations and general dental practice valuation formats.
Assisting the team
Tell the truth. Be honest with your team of advisors. Don’t think that your adversary is unaware of what can be hidden. During the interrogatory, discovery and deposition process, let your team know the truth. If your dental supplies are all of a sudden much higher as a percentage of gross revenue on your financial reports, don’t think that will not be noticed by your opponent. Having an outside storage area, holding the supplies on the shelf or prepaying for those supplies and waiting for a future delivery, are certainly points that will be considered by a plaintiff. If you testify that “costs have increased,” and then it is found that you have not been forthcoming about what really has happened, your credibility with the court will be substantially diminished. Not only that, but the credibility of your defense team will be diminished in the eyes of the court and they will have to overcome that problem.
The best advice is to let your advisors know exactly what is happening and let them present a solution on your behalf. Advisors with experience know how to present a situation without hiding the truth. Trust their expertise in the areas needed to show your case in its best position. If you lose credibility with the court, you may lose a lot more than if your position is presented accurately with legitimate reasons for a change in income or an increase in various expense items.
Presenting the case
After the discovery has been reviewed, the interrogatories answered and the depositions taken, it is time for the trial if all settlement attempts have failed. If you have assembled the best team of experts available, and not just a group of friends, you have done all that you can for your best interests.
If your case is credible and you have been credible in your testimony, there is nothing more that can be done other than to allow your team its date in court. It is important to attend the trial because points of fact can be discovered while testimony is being given that will assist the lead attorney presenting your case. It may seem hard to go on with your life while the preliminaries to the trial are taking place and while the trial is in progress, but it must be done.
After both sides have presented the case, the judge will weigh the evidence and eventually issue the decision as to what the result will be. The judge’s ruling may be in terms of money damages, the right to work within a certain geographic area, or in the case of a divorce, the amount of a distribution of the value of the dental practice.
Once the judge issues the verdict in the case, what happens if the results are not to your liking? There are options to overturn the judge’s decision based on an appeal. It must be based on factual issues that have been addressed during the trial. It is so important to be truthful to your advisors during the process because a judge may write in the opinion of your misleading statements. If that should occur, an appeal that would overturn the judge’s opinion is unlikely because of a lack of credibility in the presentation of your case.
You will know how expensive and time consuming the litigation was at the end of the trial. The appeal will not be as long an ordeal in its presentation, but still may be very expensive. Whatever the decision, try to look at it as the beginning of the rest of your life and put the experience behind you.
Bruce Bryen is managing partner for Bryen & Bryen LLP, Certified Public Accountants. Based in New Jersey, Mr. Bryen specializes in deferred compensation such as retirement plans, income and estate tax planning, the determination of the proper organizational format, asset protection and structuring loan packages for presentation to financial institutions. Bruce is also experienced in providing litigation support services and has testified on numerous occasions as an expert witness. Contact him at 800-988-5674, ext. 112.