How to Make the Plaintiff's Life Miserable

 In this and the next few posts we'll talk about how to cause the plaintiff as much inconvenience, trouble and expense as possible. In short, we want to make him want to rethingk the wisdom of ever bringing the lawsuit.

The first question for the defendant that we posed in the last post was, do you want to leave the lawsuit where it is or move it? 

There may or may not be options. 

In this blog we’ll focus on the kind of court it may be in and whether you leave it there, or try to get it transferred to a different court.

If your neighbor is suing you over damage done to his car by a falling branch from your tree, and the amount he is suing you for is much less than the maximum amount for small claims court in your county, then it might seem that there are not many options.

But in the real world of litigation – the stuff that you really need to worry about, it is seldom that simple and there are usually quite a few options from which you can choose.

The first question that comes to mind is why you would bother? After all, a lawsuit is a lawsuit and one court is as good as another.

The answer is twofold. 

First, courts are not the same. Different courts offer different advantages and disadvantages.

Second, as we talk about if you’re the plaintiff, carefully choosing the court where a matter will be resolved is fertile ground for tilting the playing field to your advantage and making life as difficult as possible for your opponent.

Once again, for those who have commented to me to the effect of “that sort of approach is not ethical”, or “that’s not fair”, please spare me. You’re reading the wrong blog!

Especially if you’re the defendant, you did not ask for this lawsuit. Second, ethics apply to lawyers. They will not hesitate to use their superior experience and familiarity of the system against you. If you fail to use the tools at your disposal, you’re just being foolish and short-sighted. The object of a lawsuit, especially if you’re being sued is to win. This is not a game. Somebody is trying to do you harm via the legal system. You get to fight back.

So having said that, let’s look at some factors.

Today we’re going to look at the kind of court that you have been sued in. 

Many states have what are referred to as “small claims” courts. They may actually be referred to by different names… “magistrate’s court, justice court”, “municipal court”. These courts have limited jurisdiction amounts usually in the five to ten thousand dollar range. 

The more important thing is that these courts are usually intended for people to appear without attorneys, and some, do not even allow attorneys to participate. They often have abbreviated and simplified rules of procedure, evidence rules are less formal, and the court room procedures are simpler.

The key here is that if you are able to do the research and get the information you need, whether it be from Be Your Own Lawyer or elsewhere, why would you want to let the plaintiff, who is suing you get off easily and simply? If you’re prepared, what might seem a little complicated to you is going to be overwhelming to him!

 

He’s filed this lawsuit, filing fee around $50 or so, possibly with a handwritten complaint, hoping to simply waltz into court, tell his story and have his problem straightened out.

Why would you want to let him do that? You didn’t  ask for this lawsuit, so why make it easy on him?

You’ve got the resources and knowledge to handle this in a higher more complex court. This is definitely an option, if available that you want to pursue because it gets the plaintiff out of the easy, low cost environment of the small claims court.

If you are able to get a case removed from small claims court to a court of general jurisdiction, the plaintiff is confronted with either getting up to speed on all of the law and procedures very quickly, or going out and hiring an attorney.

Congratulations! You’ve just changed the whole ball game. 

You’ve taken the plaintiff from a posture where he spends only a few dollars for a quick and easy resolution of the case to the point where he has the choice of spending thousands of dollars, or just forgetting about it and walking away.

Given that your ideal would be not to be getting sued at all, this is a pretty could place to be.

So how do you do that? How do your get the case out of small claims court?

The court structure and rules that apply to small claims courts vary from state to state but generally, there are three avenues available.

First, some (though fewer and fewer) states allow the option of whether to file in small claims court or in a court of general jurisdiction, and likewise give the defendant the option of removing the case to another. Do not count on this option. As court dockets are getting more and more crowded the trend is to get more cases into small claims court and not less.

The best possibility for removal from small claims court arises from the amount in controversy. The plaintiff may have sued you for an amount just under the small claims court limit, but that does not mean that you cannot counterclaim for more. When you do that you get the amount in dispute above the small claims court limit and the case can be transferred.

Again, putting the matter of ethics aside – you need to win, your counterclaim does not have to be the greatest in the world – be imaginative. 

Take our “simple” tree branch falling case. 

With a little imagination and a couple of cooperative witness you might be able to file a counterclaim for defamation, arguing that the plaintiff has been going all around the neighborhood telling everyone what a sloppy how-owner you are, that you’re negligent for not trimming the tree, etc., etc. It doesn’t matter if you win or lose on the counterclaim – it’s just a tool to get the case where you want it – not where the plaintiff wants it!!

Another way to get a case out of small claims courts is to add issues to the controversy that exceed the jurisdiction of that court. 

Most small claims courts are limited in what they can do, and because attorneys often do not participate, their jurisdiction does not include more complex legal matters. Usually they are limited to granting money judgments along with other, minor things, like evictions, landlord tenants disputes, etc.

Often, a small claims court will not be able to grant what is called equitable relief – issuing a general restraining order (not to be confused with e personal restraining order such as harassment or stalking), or making determinations as to ownership of real property. They likewise are often not empowered to issue declaratory judgments – making a legal determination of an issue.

So here again, you file a counterclaim requesting something that the small claims court cannot give you, and viola, your plaintiff finds himself completely unprepared in a court with rigid rules and procedures regarding which he is clueless!

So how would you apply this to our “falling tree branch case”? 

Easy. 

How about seeking a determination of where the property line between the two properties is and whether or not the tree branch was crossing the line. What about seeking a permanent restraining order against the plaintiff, prohibiting him from cutting or damaging the tree? What about an interpretation of the subdivision restrictions to see if the tree branch protruding onto plaintiff’s property is protected by an easement? 

With a little imagination there are all sorts of possibilities. If any one of them works you succeed in getting the case out of small claims court and into "big" court, where the price to play just went up exponentially for the plaintiff!

Just remember, the harder you can make it on your opponent, the more trouble you can cause him, the more you can cause him to spend, the better off you will be!

Next we’ll talk about possibly moving to different locations.

When You're Being Sued

Moving right along, I hope you’re beginning to get the picture of how to lay all of this out so that you can make logical decisions.

So far, we’ve talked about the plaintiff. Let’s talk a little about what happens if you are the one getting sued. Many times the first time you’ll know that you are a defendant in a lawsuit is when someone hands you a bunch of papers.

The first thing to do once you’ve gotten served with papers is NOTHING!!

I don’t mean forever. 

Obviously they need to be addressed. But right at the outset, don’t do a thing. Put them on the table or the desk or whatever, and only later, when you’ve had a chance to relax and contemplate things, pick them up and start laying out your own options.

First of course the lawsuit has to be responded to. 

But you’ve got time. 

The shortest period that I’m aware of is twenty days (from the time you receive the papers) with the more popular trend being around thirty days. 

Now that doesn’t mean to leave them sitting on the counter until the last day. It does mean though, that you take the time to carefully consider your options.

From this angle you don’t have nearly as many options, but you still have more than most people realize.

Let’s take a look at some of the things you can do to shuffle things more to your liking.

Obviously, you can’t decide whether the lawsuit is started or not, it’s there in front of you, but there are some things that you can do about how it progresses.

First, do your own assessment from the plaintiff’s perspective. Why is this guy suing you? What does he hope to get? What is he after?

Here’s an example. We recently helped someone that had been sued for huge sums of money by someone who more money than he knew what to do with. Had to stop and think – what’s this about? He’s not going to get any money, and doesn’t need it anyway. Where is this going?

Turns out all the plaintiff wanted was for the defendant to “stop saying bad things about him”.

Not every lawsuit is that easy to dispose of, but at least start by trying to figure out what’s really going on. 

The big advantage that you have in this regard is that even if there is an attorney involved for the plaintiff, you can still pick up the phone and call the plaintiff. 

The professional rules of ethics are what preclude an attorney from speaking directly to someone who is represented. They don’t apply to you when you represent yourself!! You can talk to whoever you choose.

Oh yes – you’ll get the letter on the fancy letterhead from the attorney telling you that all communications are to go through him. In as polite, or as rude a way as you choose, you can tell him to stuff it. If the plaintiff does not wish to talk to you, he is free to ignore you, hang up on you, or tell you to go away. But unless he does, or unless a court orders you otherwise, you can contact him. 

This is more than just an ego issue. We’ll talk on down the road about attorneys, their fees and their billing practices. Attorneys can be as big an impediment to a quick and easy resolution of a case as any other single factor. After all, why would they let a case settle early on, when it can be settled later after they’ve billed thousands of dollars in fees?

Remember the case I just mentioned? It didn’t settle right away. It had gone well into the discovery phase, with documents flowing back and forth, pretrial conferences scheduled. The defendant was in touch with the plaintiff’s attorneys constantly – never did they suggest  or even mention settlement. Why would they? Their meter is running at four or five hundred dollars an hour!!! The defendant finally picked up the phone one day, called the plaintiff and just flat out said – “this is silly what can we do to settle this.” That’s all it took, but if that had ever come from the attorneys at all, it would have been on the eve of trial.

But that was just an example. Let’s move on. The lawsuit is filed. The plaintiff either won’t talk to you or tells you he’ll see you in court. (That’s as popular as “sue the bastards”).

Time to lay out a game plan.

The first thing you must understand is the papers, what’s in them, and the law that applies. 

Remember, we’ve been saying all along that knowledge and information are everything. 

This is the time for it. The reason is that the procedure regarding court papers is very strict. 

There are a lot of things that you can do wrong at this point. There are  grounds for defense, that you can literally by mistake throw away by saying the wrong things, or not saying needed things in your response.  At best you will probably be stuck for the rest of the lawsuit with what you say in those first papers.

So we stress, this is a point where you either need to do a lot of research very quickly or get some help. 

Be Your Own Lawyer can help you understand the papers that you’ve received and can explain your options to you. Chances are good that it won’t even cost you a dime to get this information since we’ll do it as part of a free case assessment. 

If you don’t like Be Your Own Lawyer get someone to look at it and help. The worst thing you can do is to just toss together a quick response by saying something like “nothing in the complaint is true” and send it off. You can literally lose your case, or make it much more difficult to win at this very early stage with mistakes here.

OK you’ve gotten some help and now you need to make some decisions on how to respond.

Here are some options. We’re going to discuss each of these later in a separate post, but here they are for now so that you can be thinking of them:

-           Do you want to leave the lawsuit where it is or do you want to try to move it?

-           Do you have a possible counterclaim? This is always great sport in that it lets the plaintiff    have a little skin in the game too.

-           Is there someone else that you can bring in? Adding other defendants always spices things up.

-           Are there issues with service or jurisdiction and if so, do you want to bother with them?

-           Is the lawsuit in the court you want to be in? For example if the plaintiff is representing himself in small claims court, can you up the ante by filing a counterclaim large enough to get it bumped up to a higher court?

Stay tuned and we’ll discuss these questions and more!!!

Where to Begin

Ok you’ve put all the questions together in a big bowl, stirred vigorously and have decided that you need to proceed with a lawsuit. Congratulations. You’ve passed step one. 

Now we can move on to other issues.

The next things you’ll have to decide are against who, and where to bring your lawsuit.

Remember how I told you to keep the questions for step one – deciding whether to bring a lawsuit - handy because you’ll need them again.  Well here we go – you need them right now.

The first choice you have to make may at first glance seem silly. Who to sue? 

Well duhh… The guy that shafted you. The guy who’s tree obliterated your garage. The guy that reneged on the contract. The guy that took your money and stiffed you.

But, as with everything in the law, it’s never that simple. There are almost always options. Sometimes not, but usually you have choices and therefore decisions to make.

If there is a business transaction involved, you will often find that there may be more than one individual involved, or there may be entities such as corporations or limited liability companies that you can invite to the party.

What would be the advantage? A couple of things. 

First, that one of your main weapons in litigation is the cost advantage that you have by representing yourself.  

Even with something as simple as a motion, the disparity is huge. If you do it completely on your own, it costs you at most a nominal filing fee. If you use Be Your Own Lawyer to help you prepare the motion and research the law for you, it will be at most a few hundred dollars. 

On the other hand, if your opponent has to hire an attorney it will take between five and ten hours, which even at $200 per hour (well below the U.S. average attorney rate) will cost him between $1,000 and $2,000.

If you can take delight in knowing that everything you do is costing your opponent far more than it is costing you, because he is paying an attorney, the only thing better would be if he were having one way or another, to pay two attorneys.

Very often, if you can properly couch a lawsuit against and individual and a corporation, you can create a conflict of interest so that separate attorneys will be required for the person and the company. 

At a very minimum by suing your opponent and his corporation you can insure that he is not able to share your advantage of representing himself. Remember,  while individuals can represent themselves they cannot represent anyone else. In the eyes of the courts, a corporation, even if it is 100% owned by one person, is deemed to be “someone else”, requiring representation by an attorney.

You should be getting the picture now. If your opponent had been thinking of representing himself, putting him at the same cost level as you, you have just taken that away from him by including his corporation or limited liability company.

Second, if you can get two parties involved in the litigation that may not be 100% on the same team, it is often possible to “divide and conquer” so to speak. One party may provide valuable information or testimony in exchange for being dismissed and not having to continue to pay huge fees.

Third, the defendants that you sue may become a very significant factor in where you are able to being a lawsuit. 

If both you and the person or persons that you are suing all live in the same location, this is seldom an issue. But where the parties are in different counties within a state, or even in different states, this becomes a significant factor.

Obviously it is most often to your advantage to have a lawsuit close to your own location. It is easier to schedule things as they come up, you do not incur travel expenses, and you do not waste time travelling to hearings and depositions. 

The other side is not stupid in this regard. They too will try to make it as convenient for them and as inconvenient for you as possible.

In bringing the lawsuit you have some advantages in selecting the location, but there are limitations. Properly selecting parties may often help you overcome those.

For example, venue (where a lawsuit can be brought) statutes in many states require that suit be brought in the county where the defendant resides. If there are multiple defendants it can be brought in any county where any defendant resides. 

So in commencing suit in such a state, if you reside in county A and the defendant resides in county B, a considerable distance away, you would be compelled to file in county B. On the other hand if you can find a person related to the case who you could include as a defendant who resided in your county, then you are free to bring the suit in county A – far more convenient for you.

And the last paragraph about who to sue brings us nicely into the next topic, where to go to court.

Sometimes you have no choice in this regard at all, and sometimes who have a lot of options.

At one end of the spectrum for example, if you are in a state that has a small claims court for any dispute less than $10,000, and your claim is for $5,000, and, both you and the defendant reside in the same place, there probably is no choice whatsoever.

On the other hand, if you are in a state where jurisdiction levels overlap, and you and at least some of the potential defendants live in different counties, or even different states, then the available choices increase substantially. 

Now not only can you choose between different courts within the same county, but you can explore the advantages of different counties. You have the ability to choose the place that is most advantageous to you and as inconvenient and expensive as possible for your opponent.

Generally speaking, as long as you have the resources to properly represent yourself, you will want to choose the most sophisticated and complicated court available. The higher the jurisdictional limits and the broader the jurisdiction, generally the more complex in terms of rules and procedures. 

Lower level courts, such as small claims courts have much more relaxed procedures and rules and it is much easier for someone to represent themselves. As long as you’ve got out help and support you can and should shun these small claims courts if at all possible.

The idea once again is to put your opponent in the position of having to either retain an attorney, increasing his costs substantially, or representing himself without any meaningful help or support and making serious errors along the way.

So as you can see, careful planning well before you file the first piece of paper in a lawsuit can be of critical importance. It can stack the cards in your favor. 

But it takes is careful research to determine the options available to you. 

You need to understand the jurisdictional issues – what is the court system like in your state? What are the dollar amounts applicable to each court level? Are the ranges fixed or do they overlap? What statutes or rules govern venue and what are the venue requirements?

Helping you with these things is just a small part of what Be Your Own Lawyer can offer you when you undertake to represent yourself in court.

Representing Yourself - Before it Begins

One question that we get asked more than any other is, “how do I even start to represent myself?

What I’d like to do, starting in this post, and continuing for a while, because of course it’s a huge topic, is to talk little bit about that.

We’ll break it up into pieces so you don’t fall asleep. But if you follow along, you should come away with a little more insight into what it really means to take that plunge and represent yourself in court.

The way to attack this question differs  somewhat, depending on whether you are the one bringing the suit that is being considered (the plaintiff) or someone else is suing you and you must respond (you are the defendant. 

Because they’re different, we’ll tackle them separately. Let’s first consider someone contemplating bringing a lawsuit. 

Right out of the gate you have one huge choice, or option if you prefer that a person being sued does not have.  

You have the choice of bringing the lawsuit or not!

That sounds almost too simple, but it’s a real question to be addressed. “Sure the bastards” is such a familiar refrain that it seems in America everybody is suing everybody over something or other.

But this is a point where you really should step back and take a deep breath. Here are some questions that you need to be asking yourself:

            -           What is it that I really want? Not as simple as it sounds. Do you want money? To prove a point? To hurt the other side? You can’t pursue you goals unless you know what they are.

            -           What is it that I a want a court to do for me? Give me a judgment? Make the other side do, or refrain from doing something? Just tell me I am right?

            -           In the same context, can the court even do what I am asking it to do? 

            -           If I am after a money judgment, will, if I win, it even be collectible? 

            -           How much will going to court cost me? True there are n attorney’s fees if you represent yourself, but there are always costs.

            -           Are you able and willing to make set aside and devote the time it will take to represent yourself in a lawsuit?

Let’s look at some of these questions.

What are you looking for in this lawsuit you are getting ready to bring? What can you realistically get? 

For example, courts generally can provide two kinds of things. They can award judgments, expressed as a dollar amount that one party is required to pay to the other. Or they can provide equitable relief. That is they can do things like issue an injunction, or a restraining order. 

What many people don’t understand though is that courts can rarely make someone do something. They usually cannot for example force someone to comply with a contract. They can award a judgment, for damages if there is a breach of a contract, but they cannot require someone to go out and perform a service, or be an employee. 

So the first thing you have to determine in this context is whether or not a court can even give you what you want.

Another thing you have to do is make a realistic assessment of whether you will be able to get whatever the court awards you. 

If for example a court awards a money judgment, there is no guarantee that payment will ever be made on that judgment. 

The defendant may not have any assets from which to pay it. 

The defendant may have moved his assets beyond the jurisdiction of the court. 

The defendant may file a bankruptcy.

You are probably in the best position to realistically assess your opponent and determine what the likelihood of receiving payment on a judgment would be. But be realistic. Don’t spend the money in terms of costs, and your time and effort pursuing a case to judgment against an individual you who penniless.

You also, following this same line of reasoning, have to look at the costs you will incur. While you are not having to pay attorney’s fees, understand that there are a lot of other costs that will be encountered in any lawsuit. 

Filing fees, fees for service of process, witness fees, costs to entities upon whom you serve subpoenas for compliance, deposition costs. They go on and on in modern litigation. 

Be sure when you are contemplating bringing a lawsuit that you consider all of this various costs. They mount up quickly.

Finally, do not deceive yourself. A lawsuit is a lot of work, and if you’re representing yourself, you’re the one that will be doing it. You will have to file papers, go to hearings and conferences, attend and take depositions, respond to discovery.

Unless you are a fabulously wealthy trust fund kid, your time has value and that has to be factored into your equation. Is it worth it to you to spend probably several hours a week working on a lawsuit, when you could be doing something else instead?

It is vitally important that you address these issues well before trotting down to the courthouse to file your lawsuit.

In posts to follow, I’ll talk some more about other options to select once the decision to go to court has been made.