Plan, Plan, Plan!

In the last few posts we talked about options available to both plaintiff and defendant in terms of kinds of courts and locations.

Now it’s time to change gears a little bit and put ourselves back in the plaintiff’s shoes. We have to do some careful planning before we proceed.

Why now? Why not later?

While in our book, Be Your Own Lawyer we draw comparisons between litigation and playing a game of football, there are some important distinctions. In football you can change the strategy and even your whole plan from play to play. That doesn’t work in litigation. In litigation you will often find that once you embark on a course of action, you are stuck with it.

We’ll discuss some examples below, but the important thing is to lay out your whole strategy ahead of time so that by seeing the whole picture who don’t commit yourself to a position that you later regret.

In this context often one of the more important things you need to decide on early in the game is who to sue.

That sounds deceptively simple, and in some cases it is. In other cases not so much.

Remember in our earlier post when we talked about bringing a lawsuit at all, we listed as one of the considerations, whether or not we could recover if we won. Well here is the point where you might be able to influence that.

To show you what we mean, let’s take a very simple example. 

Let’s say you signed a contract with ABC Roofing Company to install a roof. ABC Roofing is a corporation. It’s Owner is John Jones, with whom you dealt. You paid money for a new roof. It was never installed. All of the papers that you have though, the contract, the warranty for the non-existent roof, the receipt say ABC Roofing, Inc. and John Jones signs as president of ABC Roofing.

OK, at first blush it’s clear. You had a contract with ABC Roofing and you paid ABC Roofing. You need to sue ABC Roofing to get your money back.

Except…..

A little bit of checking shows you that there is absolutely no point in bringing a lawsuit against ABC Roofing. 

It owns NOTHING! Not a truck, no inventory, no buildings. Nothing. Nada! A judgment against ABC Roofing would be worthless.

Here is where you do your homework, do your legal research and be creative. It’s obvious what’s going on here. ABC Roofing is John Jones’ company. He has set things it up so that the company insulates him from liability so that his own assets and property remains safe.  Mr  Jones is loaded. Mr  Jones is who you need to go after.

Of course you’re thinking in terms of suing for breach of contract and you don’t have a contract with Mr Jones.

A little bit of research will show you that breach of contract is only one of about half a dozen different things that you can sue for. You may be able to  sue Mr Jones – not his corporation -  for fraud, for negligent misrepresentation, for unjust enrichment, for money had and received, for deceptive and unfair business practices,  just to name a few.

Understanding each of the theories of recovery right now is not important. What is important is that you research these things and so that you know that they are available. That you devise your plan and make decisions BEFORE you ever file that lawsuit.

While there is often some leeway and overlap, some things are mutually exclusive if not properly dealt with. In other words, if you say “A”, and set it out as your position in the complaint in a lawsuit, you will have a great deal of difficulty, and may not be able at all, to say “B” later, especially if the two are inconsistent.

If you are going to get help with a lawsuit. NOW is the time to do it. Once you’ve filed the lawsuit and the time, period (if there even is one in your jurisdiction) to amend your complaint has passed, it is too late to discover that you left out four potential causes of action against one or two other defendants.

This is the kind of planning that you need to do long before a lawsuit is filed. It goes hand in glove with picking the right court and other considerations. Even if finding additional defendants is not an issue. What about causes of action?

Forget ABC Roofing’s ability to pay a judgment.

What would you rather have? A lawsuit that just raised the issue of a breach of contract, or one that asserted numerous causes of action that would let you recover under different fact scenarios.

Far too many people go charging off to the courthouse before thinking these issues through. They are in a hurry to file their lawsuit. They overlook possible defendants. They overlook potential claims and causes of action. It is important that you not do that. Get organized. Take your time. Devise a complete plan of action before you get anywhere near a courthouse.

This is especially true in light of the way that Be Your Own Lawyer operates and what it offers.

If you’ve got a lawsuit that you’re thinking of bringing, send it to us to look at.   We’ll look at what you’re alleging and who you’re thinking of suing. If there is a better way to do it, or options that you had not considered, we’ll let you know. And it won’t cost you a dime!

Move Things Around

In the last post we talked about as a defendant moving a lawsuit from one kind of court to another. 

Today, we’ll assume that we’re where we want to (or have to) be in terms of the kind or level of court, and we’ll focus on the location.We’ll try to talk to you about some things that you can do that will give you a little bit of advantage just by location. 

While a civil case today may progress for months or years before it actually gets to trial in a courtroom, there are a lot of things going on that make it handy if you’re close to the courthouse, and inconvenient or worse if you’re not.

So let’s look at what determines where a case is brought. 

A major problem is that the plaintiff in bringing the lawsuit has the same considerations and has made choices where he could to favor himself and put you at a disadvantage. So for example, if there was more than one place where which the lawsuit could have been brought, rest assured he did not make his choice to help the defendant.

Two legal principles govern where a case can be brought – jurisdiction and venue.

Jurisdiction refers to the authority and power of a court over a party or the subject matter, while venue refers solely to location. 

Let’s look at the two and how you might be able to use the principles of each in your favor.

Jurisdiction may be had by more than one court depending on the circumstances. The “circumstances” are what can be used to your advantage. 

To understand, let’s look at a not uncommon example. You have gotten into a dispute in a business arrangement. You ordered something from someone living in state “A”, while you live in state ”B”. There was an issue with what you ordered and you refused to pay. You are being sued in State “A”.

The first thing you have to do is find out if you are even subject to jurisdiction of the courts in State “A”.  

 Do this before you do anything else!!

This is one of those traps that people can easily fall into. If you are going to represent yourself let us at Be Your Own Lawyer look at this for you first! This is part of what we offer as a free case assessment and it won’t cost you a thing. It could save you thousands!

Why is this so important?

Because virtually every court that we are familiar with, throughout the United States provides that you can waive the issue of personal jurisdiction, and it is deemed waived if you do not raise it before you do anything else. 

So in our example, you may not even be subject to jurisdiction in the courts of State “A”, but if you fire off an answer, denying that you should be required to pay for defective product, etc., congratulations! You will have just waived your right to object to jurisdiction and your case will be tried in State “A” – possibly hundreds of miles from where you reside.

So remember back a couple of posts ago – the first thing to do if you’re sued is NOTHING!

Take a deep breath and assess things. If the lawsuit is in a different state, or even in a different county in your own state, take a long hard look to see if you can do anything about it.

As I said, with respect to jurisdiction, that is something that we at Be Your Own Lawyer can help you with. It requires researching the possible basis of jurisdiction of the courts in the state that you are being sued in and examining your activities in that regard. 

Has your conduct been such that you have brought yourself under the “long-arm” statutes of that state? Were you doing business individually or as a business entity? Do you have any other ongoing contact with State “A”? What kind of contact did you have with the state? What are the allegations that suggest jurisdiction? Does the assertion of jurisdiction by that state seem unfair?

While we’re addressing the issue, and as an aside, be very, very careful about contracts and agreements to buy things or provide services. Often, buried in the fine print will be a jurisdictional clause. People tend to just gloss over the legalese, especially at the end of agreements, but it can be critical. You could be agreeing in the event of a dispute to be subject to jurisdiction in a court far away, where you otherwise would not have had to worry about being.

Back to the issue of jurisdiction. 

If you think there is any chance that you are being sued in a court that has no jurisdiction over you, take a long hard look at the statutes and circumstances. Examine everything from every angle. Even when there are contacts with the asserting state, courts have looked at the nature of those contacts, treating for example emails and telephone conversation differently than physical meetings in the state. 

This is all part of an overall assessment that needs to be done before any responsive papers are filed or served.

Even if a court may have jurisdiction over you, all is not lost. You may still be able to get the case moved. If you can identify an indispensable party, such as a corporation, or another party to the matter over which the court has no jurisdiction, you may still be able to have the case dismissed, to be filed in a forum more convenient to you. If all of the events took place outside of the asserting state, or if all, or substantially all of the witness are elsewhere, there are potential grounds to get the case moved.

This is such a critical stage of the proceedings that it is absolutely essential that you do your homework or get some help from Be Your Own Lawyer. 

You can do things at this stage that will heavily affect the outcome of the case – to the point that it may go away entirely. If a plaintiff has sued you in his home state on the assumption that the case would be disposed of there, in a place convenient and inexpensive to him and prohibitively expensive to you, when that turns out not to be the case, he may just forget about it and move on. After all, prosecuting a case in your hometown, with the courthouse down the street, and your own lawyers, familiar with your matters next door is one thing. Hiring unfamiliar attorneys, and having to travel back and forth to a court hundreds of miles away, changes the complexion of things.

The other major area where you may be able to change things is with respect to venue. 

This generally deals with the county or court within your state where a case is handled. Court rules, and sometimes statutes govern the location where a case must be filed and tried in each state.

Again, the plaintiff will have tried to avail himself of the venue rules to make it convenient for him and inconvenient for you. Fortunately, venue can be changed. If the initial court selection violates your state’s venue rules, or is basically unfair, a motion to change venue is in order. 

Again, do this research and make this decision before doing anything else. While usually not as strict as jurisdictional issues, venue issues must be raised early on, and in federal court as well as some states, must, like jurisdictional issues be presented in the first response that you file with the court.

Some states require that a case be brought where at least one defendant resides or does business. Others create multiple approaches t proper venue – where either part resides, where the cause of action arose, etc. One thing all have in common is that the judge usually has discretion to assign venue based on practical fairness considerations. 

So for example if the plaintiff has filed suit in his home county, based on a statute that allows venue where either party resides, that is not necessarily etched in stone. You might still be able to get the venue shifted if you can should that most of the witnesses to the case reside elsewhere for example. 

Again, this is something to be examined carefully early on. Expense of litigation is always an important consideration, and especially if you are representing yourself, things like travel expense, and time required to go to and from hearings and other proceedings are an important factor to consider.

We can’t address all the law that applies to these questions in a blog post. 

We do hope though that we’ve presented you with enough to understand that if you are served with a lawsuit, there are enough things going on, and enough issues to address, that if you have decided to represent yourself, you avail yourself of the help that we can offer at www.beyourownlawyer.org.