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Choosing Your Battles is Half the Battle

July 28, 2019

There were at least three non-rent default cases in the last twelve months that residential-landlord clients brought me that they were certain were “slam dunks”. After I ran a Legal Project Management Analysis on these cases, however, I determined that they were not worth filing. By not filing these loser cases, my clients dodged the loser-bullet, which landlords get hit with in Housing Court 85% of the time (see the Housing Court Study that I am publishing at the end of 2019). It occurred to me that these stories are very worthy of telling. Let other lawyers use their blogs to tell you tales of their stunning victories. In today’s piece, I am going to tell you the story of three cases where discretion was the far better part of valor.

If you hire me (be you landlord or tenant), here is how I work. 

A legal matter is a project. In order for a project to meet its goals, the project needs to be managed. Therefore, I employ Legal Project Management in every engagement. See my LPM blog for more information. 

Legal Project Management begins with a detailed and formal analysis of your case, and out of that analysis, a project charter is forged. Thus, I begin every engagement with what I call a Legal Project Management (“LPM”) Letter. In the LPM Letter, I will:

Review all facts, both those you present me with and those I research myself.

Explain the law to you in clear language and with citations to legal authority. When I work with clients, I educate them. After every engagement with me, you come out knowing more for next time, so that you can, hopefully, prevent problems in the future.

Clearly restate your goals, so that we can be sure that the client and the firm have an identical understanding of what success looks like for the client. 

Present your available options. For each option, I tell you:

o the option’s pros, 
o the option’s cons, 
o the cost, 
o the time frame, 
o the risks, and 
o the percentage likelihood of that option achieving your goals.

Suggest a communications plan.

Frankly address legal fees. 

Conclude with a recommendation for a course of action and a scope of work. 

Your lawyer should not be a disembodied voice pontificating on the phone. When you get one of my lengthy LPM letters, you can read my analysis, your options, and my recommendation, at your own pace and as many times as you like, and you can share it with your team. Everyone has a team, even if it is unofficial – your partners, transactional attorney, spouse, in-house counsel, accountant, adult children, broker, friend who is a lawyer, public relations people, etc. The team can read what I am saying, as opposed to my contact person at the client having to relay what I am saying, which is often complicated, to a whole bunch of people. 

When the LPM letter is complete, we discuss it. Then, for no extra charge, I make changes or additions to the letter, if necessary. In this fashion, the LPM Letter evolves into a project charter – a roadmap for the engagement. At key points in a matter, when there are decisions to be made about next steps, I repeat the LPM Letter process.

I charge a flat rate for the LPM Letter, which is not cheap. But the cost of not analyzing is much, much higher.

This is how I roll. This is not an optional part of working with me. There is no, “Oh, Michelle, that Legal Project Management thing sounds so great, but I think I’ll skip it.” 

And, yes, everything with me is this long of a story. 

Anyway, at last we get to the meaty part of this story. Based upon my Legal Project Management analysis of these aforementioned three different cases on behalf of three different residential landlords, I determined that each had a less than fifty percent (50%) chance of winning. One case was a licensee holdover / succession case in Queens and the other two were nonprimary residence cases in Manhattan and Brooklyn(FN1). None of these cases had technical or procedural problems with the leasing or the DHCR filings and each landlord had a colorable claim of a regulatory default on behalf of their tenants. But neither was I convinced by the “proof” of the substantive defaults the landlords thought they were seeing. 

A landlord always has blind spots at the beginning of a rent regulatory default case. It cannot know what it does not know. And so much about rent regulatory defaults is fact specific. Therefore, in each of these matters, I either served a predicate notice or sent a letter to the tenant, and awaited in each case the appearance of counsel on behalf of tenant. Once tenant’s counsel enters the picture, you can simply ask them about the full story and decide whether to proceed from there. Neither I nor my three clients felt, after discussing these prospective cases with tenants’ counsels and undertaking further investigation, that the cases were worth bringing. Leases were renewed. Legal fees were spared. Resources for all were conserved. Sometimes the best cases are the ones you never bring.

Respectfully submitted,

Michelle Itkowitz 

FN 1. Unimportant details changed to protect the innocent.

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