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.

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!!!