Defending Against a Lawsuit

Defending Against a Lawsuit

Preparation and Things to Consider



 

Defending Against a Lawsuit

The list of possible lawsuits would be very long.  Here is a short example: mortgage foreclosures, debt collection, unpaid fees for services, real estate leases, negligence and personal injury, auto accidents, employment and/or labor law issues, neighbor disputes, trust and probate issues, discrimination cases, privacy suits, statutory rights, unfair trade, e.g. false advertising, etc.

Cases under $7,000 in damages are typically brought in Small Claims court; over $7,000 in  District Court and over $25,000 in Superior Court; affecting Federal Laws usually in Federal Court (i.e. such as admiralty, antitrust, bankruptcy, copyright, patent and other Federal statutes). 

Upon receiving a summons notifying a party that it is being sued, it is important to contact a lawyer immediately.  Do not ignore the suit.  Although the summons may allow typically 20 days to respond, in order to respond in a way that provides the most protection, an attorney will need time to investigate the claims, defenses and possible countersuits that may be available.  Not to be over-dramatic, some people say that “litigation is war”.

Here are some more detailed examples of issues addressed in lawsuits.  This list is not exhaustive:  

Employer liability for employee’s acts 

a.     Employers can be liable absent negligence for actions of an employee if the employee, operating under the “scope of his/her employer”, injuries a third party. 

b.     Employer defense: Employee’s actions were outside his employment duties. (EXAMPLE: John, who injured Patty in a car wreck, after his shift at Pizza Hut was driving to Bill’s Bar).

c.     Information helpful to lawyers:  job description of negligent employee, timeline of event, internal documentation of the event, witness descriptions.

   Negligence to employee or customer:

All employers have a duty to exercise reasonable care in the context of their customers and employees. When an employer breaches that duty, he/she will be liable.                   

Example: Yolanda owns a drug store. One Wednesday morning, a toddler comes in and spills bleach onto the floor in aisle 2. Customer Conrad and Worker Walt both slip and fall on the bleach. Yolanda will be liable to both for failure to exercise reasonable care. This may be covered under the company’s workers compensation policy for Walt, depending on if he was engaged in a work activity at the time.

Things needed for lawyer: Proof of Yolanda’s practices and policies for ensuring a safe workspace, any contribution on the part of the plaintiff that the plaintiff was not careful.

Negligent Hiring/Supervising:

Claim made by an injured party against the employer based on the theory that the employer knew or should have known about the employee's background and if known at the time would indicate a dangerous or untrustworthy character.

Example: G hires a nurse with a background of drug abuse who harms patient due to being under the influence. If G had not check out references of nurse, he could be liable.

Information helpful to lawyers: employee’s file, copy of correspondence between references of employee and employer, record at old jobs.

Breach of contract:

A failure, without legal excuse, to perform any promise that forms the contract. A material breach of contract occurs when because of the party’s breach, the other party receives something different than what the contract specified. A breach is minor if, even though the breaching party failed to perform some aspect of the contract, the other party still receives the item or service specified in the contract.

Material breach: As a result of breach, the party did not receive her computer at all.

Minor breach: As a result of a breach, the party’s computer was substantially delayed.

            What a lawyer will need: copy of the contract terms, any prior communications altering contract terms, copy of payment terms.

Fraud:

Person or business gains an unfair advantage over another through unjust means, (lying or omitting important details). Actual fraud requires intent to lie, constructive fraud may not require intent to lie. 

Example: Jim the car salesmen does not mention to Stu that the brakes in the Mercedes he sold Stu do not work.

Things lawyer would need for bringing a cause of action: anything documenting the transaction, documentation of the standards for the industry

Unfair or Deceptive Trade Practices:

            Business or person committing a deceptive act, the act in question must have affected commerce and the act must have caused injury to plaintiff.

Example: Jim, the car salesmen, puts a BMV insignia on a KIA and sells it to Stu.

Things a lawyer would need: Documented interactions with other customers demonstrating that the act was a mistake rather than a pattern.

Personal Injury:

Personal injury defense lawyers evaluate whether or not the plaintiff has a valid legal claim, file necessary court documents defending against the injury claims and provide advice on whether it's better to try to reach a settlement or go to trial.

To defend a personal injury claim, you will try to show that you did not meet one of the requirements of the plaintiff’s claim. Thus, you might show one or more of the following:

·       You had no duty of care

·       There was no breach

·       There was no injury or if there was injury, that the injury was not caused by a breach of duty

While your insurance company may provide an attorney to defend against a personal injury lawsuit, it's important to understand that they'll be looking out not only for your interests but also for the insurance company's interests.  It sometimes can be beneficial to consult with an independent lawyer as well. 

Landlord/tenant issues 

Civil courts handle disputes arising between landlords and tenants such as cases where a landlord is trying to evict a tenant from a rental property or a tenant has moved out and is suing a landlord for the return of a security deposit are examples.

Here are typical stages of a case 

  • Pre-filing.  During the pre-filing stage, the dispute arises and the parties make demands, try to negotiate a resolution, and prepare for the possibility of a court action.
  • Pleading.  During this stage, one party files a complaint to start the court action, and the other party files a response such as an “answer” or “motion”.  Often “hearings” are conducted before a judge to settle procedural issues.
  • Discovery.  During the discovery stage, both sides exchange information and learn about the strengths and weaknesses of the other side's case.
  • Post discovery/pre-trial.  In this stage, the parties start preparing for trial; they organize their evidence and witnesses, attend a settlement conference and other court required steps.
  • Trial.  During this stage, the lawyers prepare their cases, coach the parties and witnesses about their testimony.  The case may be heard by the judge or a jury. At trial witnesses are examined, evidence is presented, the case is eventually decided and a judgment entered.
  • Post-trial.  One or both of the parties might appeal the judgment that was entered at trial, or the winning party might try to collect the judgment that was entered.

Keep in mind filing a lawsuit can be burdensome in terms of time and resources. Most simple civil cases typically exceed $20,000 in costs if they go to trial. Although there is a possibility of an out of court settlement, it is best to be prepared for the costly alternative.

Possible reasons for delay/cost of defending the case:

  • Filing to counterclaims.
  • Gathering documents needed to prove relevant facts of the case
  • Filing motions and hearings
  • Locating witnesses (delays depositions and trial)
  • Depositions
  • Discovery delays/court motions to delay (same reasoning as above).
  • Investigating facts (adds to the time of a proceeding as well as the cost if something like an expert witness is needed)
  • Trial prep, party and witness coaching, examination (will take time to vet witness reliability and prep them so as to give the best presentation of the facts)
  • Trial attendance (some parties could be absent at first and subsequent scheduling)
  • Appeals.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  

Image credit: Bill Oxford Unsplash

 

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