Environmental litigation is complex. The applicable laws and statutes are often difficult to understand and apply. To make matters worse, the application by the courts can sometimes differ significantly depending on where the case is filed. As a result, when choosing the right environmental trial attorney, expertise should be your primary concern.
It is very important that the attorney have a good grasp on the different ways courts have handled various key and recent issues in environmental litigation.
For instance, several Texas appellate courts have reached seemingly opposite conclusions related to the difference between permanent and temporary injuries based upon very similar fact patterns. As a result, your common law claims might be barred by the statute of limitations in one jurisdiction, but permitted in another.
With respect to statutory claims, the courts have also differed on the proof that is required when proving that the cleanup was reasonable and necessary. This determination could vastly change both the timing and how much a party can seek when asserting a cost-recovery claim. It is critical your attorney understands how the courts have ruled on these issues, as well as many others, as it might influence the decision of where to file suit.
It is also important to choose a lawyer that has significant past experience in environmental litigation. Although the case law is complex, some of the same issues come up in almost every case. Your attorney should have a standard set of written discovery requests concerning core background information. They should also be very familiar with the EPA and state environmental agencies as they oftentimes will need to work in parallel with those agencies in order to resolve the litigation. Finally, it is paramount that the attorney has a bank of good environmental consultants that can provide expert testimony if necessary.
The attorney should also be open to alternative fee arrangements that align his interests with yours. Hourly arrangements have been the norm in the past. However, for many clients the hourly arrangement is simply no longer acceptable as cases tried on an hourly basis can easily dwarf the amount needed to clean up the property, leaving the client “upside down” in the case due to the attorney’s fees incurred.
Sometimes an hourly arrangement is the most appropriate means of handling the matter. However, when representing a plaintiff, the attorney should be open to representing the client on a contingency basis. When representing the defendant, the attorney should be open to defending the matter based upon fixed fees for certain phases of the litigation. This latter strategy is a new concept, and compensates the attorney for outcomes, not incremental projects (i.e. 1/10 billable items) that do not further the outcome of the case.
Please see the section on “Alternative Fee Agreements” on this website for more information on how I represent Clients in these types of matters.
Do you have questions? You can get our FREE ebook, Environmental Litigation: What Every Attorney and Environmental Professional Needs to Know, just by providing your name and email address at this link. We promise your information won’t be shared with third persons. And if you’d like to speak with me about your case, I welcome your phone call at 972-850-8490. I look forward to speaking with you.