Lawyers Question V2.45

[Jims5543]

I cannot go into great detail here but I have to ask a basic question.

If someone sues me with a BS lawsuit and they loose, how do I go about recouping the 10's of thousands I had to spend in legal fees defending my self?

Is it automatic that a Judge will award me court costs or do I have to sue to get them recouped.

[Dueller]

Under the "english" system, the loser often has to pay winner's legal expenses. Under the "American" system not so. However you can ask for Rule 11 sanctions (from Rules of Civil Procedure) for sanctions in the form of attorney's fees if the lawsuit is frivolous. Not awarded that often...has to be pretty egregious.

Another tact is to file for summary judgment; i.e., there is no set of facts even assuming all allegations of the plaintiff are true that would allow the Plaintiff to prevail at a trial on the merits. Judge can award atty fees in this situation.

Finally, you can sue for malicious prosecution if you prevail.

[MRM]

Jim, there's a difference between legal fees and costs. If you prevail on the lawsuit you will probably be awarded costs as a matter of law along with the dismissal of the claim. Costs include filing fees, copy expense, deposition transcripts, out of pocket expenses.

Fees are not recoverable unless provided for by statute, contract, or the judge finds the claim frivolous. In a breach of contract sort of suit you might have a contract where if there is a dispute between the parties the prevailing party gets attorneys' fees, but unless you have that kind of contract, there isn't likely any way to recover attorneys' fees. There are some specialized statutes that provide for attorneys' fees in situations like consumer fraud claims or land disputes, but nothing I can think of for a garden variety business dispute.

That brings us to frivolous claims. Don't get excited. Frivolous in legal terms means having no basis in fact or law, and not making a good faith argument to extend the current state of the law. In other words, if the judge doesn't toss the suit early based just on the claims in the complaint, you probably are not dealing with what the law calls a frivolous suit. There is a difference between a claim that has no merit and a claim that is frivolous.

Sorry I couldn't be the bearer of better news.

[Christien]

Another thing to bear in mind, too, is the plaintiff's ability to pay your costs. So a judge awards you costs, and even legal fees - can the plaintiff afford to actually cough up? This is one of the problems with legal aid - someone who has no money can go after someone who does, with no financial risk to themselves, but the defendant may be forced to pay to defend a borderline-frivolous lawsuit. If it's ridiculously silly and a slam-dunk defense, maybe consider representing yourself, to avoid legal costs that will never be recouped.

On the other hand, if the plaintiff is paying his/her own legal expenses you can bet it won't get too far if it's that silly, and you'd have a fair chance of recouping costs, or collecting on a counter-suit.

[the]

Originally Posted by Jim Cesiro

I cannot go into great detail here but I have to ask a basic question.

If someone sues me with a BS lawsuit and they loose, how do I go about recouping the 10's of thousands I had to spend in legal fees defending my self?

Is it automatic that a Judge will award me court costs or do I have to sue to get them recouped.

What MRM said. Forget any claim based on "frivolous," you need to look to either a contractual provision that you have with the person which allows for recovery of attys fees, or a statute.

If you have a basis to recover attys fees, you don't need to sue to get an award. That would be done by motion.

As said above, if you win the suit, in most states you will get your "costs" back, but usually that does not include attys fees. Costs are usually not very much, they are things like your actual filing fees. If there were a lot of depos in the case, there are often significant recoverable costs for those.

When you get into any kind of litigation, you need to, up front, determine (1) whether you have grounds to get an award of attys fees if you win, AND (2) if you can get that award, whether you can actually collect it.

***If you are already deep into the lawsuit, your attorney should have already advised you of these issues, before you spent "tens of thousands of dollars." ***

You don't give the facts (although I think I remember some from other posts), but in a commercial business dispute, IMO you want to drain the emotion out of it and come to the strategy that makes the most *business* sense (i.e., not spending 10s of thousands to "prove a point" or for "the principle").

[Jims5543]

My attorney did advise going in it could be expensive. We just had a meeting this morning and I asked flat out how much he thought it was going to take to get this through trial, he really did not answer, so I threw a number out there of $25K and he replied, "Minimum".

I am already about 20K in to this, its killing me financially. We petitioned the Judge to toss the case but was denied. Does that mean its not "frivolous" well, I guess that is a matter of opinion.

The person that should be sued is dirt poor and it would be akin to getting blood from a stone. So the next in line was me because I have a legitimate business and insurance.

I think he thought my insurance would settle by now, but low and behold I am not using my insurance because I did not want him hitting it up, I am footing this bill myself. So the joke is on him.... sort of..... I think....

I had the balls to fight this guy head on I guess I should just grow them bigger and dig in.

BTW- He is filthy rich, owns 100's of acres of land along a commercial corridor that is booming. He is not hurting for money, he even has retained 2 attorneys on this case.

[Christien]

Originally Posted by the

in a commercial business dispute, IMO you want to drain the emotion out of it and come to the strategy that makes the most *business* sense (i.e., not spending 10s of thousands to "prove a point" or for "the principle").

This is a good point. I spent a few thousand a few years ago chasing bad money because I was angry. I still am, but I realize it's not worth me spending hard-earned money for revenge. Spending hard-earned money on hired goons, however...

[the]

Originally Posted by Jim Cesiro

My attorney did advise going in it could be expensive. We just had a meeting this morning and I asked flat out how much he thought it was going to take to get this through trial, he really did not answer, so I threw a number out there of $25K and he replied, "Minimum".

I am already about 20K in to this, its killing me financially. We petitioned the Judge to toss the case but was denied. Does that mean its not "frivolous" well, I guess that is a matter of opinion.

The person that should be sued is dirt poor and it would be akin to getting blood from a stone. So the next in line was me because I have a legitimate business and insurance.

I think he thought my insurance would settle by now, but low and behold I am not using my insurance because I did not want him hitting it up, I am footing this bill myself. So the joke is on him.... sort of..... I think....

I had the balls to fight this guy head on I guess I should just grow them bigger and dig in.

BTW- He is filthy rich, owns 100's of acres of land along a commercial corridor that is booming. He is not hurting for money, he even has retained 2 attorneys on this case.

Your atty advising you that it was going to "be expensive" is a different issue than advising you on the issue of whether you can recover attys fees.

You make your premium payments to your insurance company to pay for your defense and settlement of claims, but now that there is a claim, you are not tendering the claim to your insurance company for handling?!?! Even though it is killing you financially? And you think the joke is on your rich opponent. You may want to rethink that one.

If this guy is filthy rich, and there is no attys fee downside to him dragging you through court, the joke is on you. He has nothing to lose (other than paying his own attys, big deal).

Did your atty advise you to not submit to your insurance company?!?

Has the guy made a settlement demand?

Just my opinion, but based on the facts you have given, I don't think this is being handled particularly well on your end.

[stomachmonkey]

Originally Posted by Jim Cesiro

BTW- He is filthy rich, owns 100's of acres of land along a commercial corridor that is booming. He is not hurting for money, he even has retained 2 attorneys on this case.

Jim, bail, you are screwed here.

This is not about money for him and that is a dangerous person to get into a cash pissing contest with.

[Jims5543]

It is emotional for me, I am sick and tired of people thinking they can file a suit just because you have insurance. I am sure he filed the suit and sat back and was waiting for the insurance settlement. Its not a joke to me at all I am more pissed and disgusted that the legal system allows someone to ruin you financially for no good reason.

I told my attorney to feel around off the record and see what he wants to settle, cut and run.


It goes against every grain in my body I will tell you that much. It makes me want to punch a wall <---- and I never get this mad.

[Christien]

What you're saying sounds SO familiar - it's exactly the emotions I had when I went through it from the plaintiff side a few years ago. A dealership owed me about $30K, went out of business and wouldn't pay the debt. I sued, won, no problem (he didn't bother defending) but I can't collect. I've had him and his wife into the lawyers' office twice for judgment debtor examinations, where they basically get all your financial info, work info, etc. so they can find out where they can take money, garnish, etc. We got $1500 out of his wife. He says they make no money, etc etc but I know it's all under-the-table money. Meanwhile the POS still lives in his house (2 mortgages, $5K equity - exactly what it would cost to foreclose) and enjoys life. To say I was livid would be understating it - I also felt like punching walls, and I don't have a temper - I get frustrated at stupid little things, but I don't really get angry. It still makes me mad, but in the end there's really nothing I can do. Aside from hired goons...

[the]

Originally Posted by Jim Cesiro

It is emotional for me, I am sick and tired of people thinking they can file a suit just because you have insurance. I am sure he filed the suit and sat back and was waiting for the insurance settlement. Its not a joke to me at all I am more pissed and disgusted that the legal system allows someone to ruin you financially for no good reason.

It's not your job to fix the often broken legal system. Your job is surveying (or whatever you do). You would have been much better off just tendering it to your insurance (that's what you pay for), and moving on to focusing on your business, instead of some useless legal crusade.

Your atty needs to be very careful about how he approaches settlement. To be honest, he doesn't sound like the most sophisticated atty out there, I think he has given you tons of bad advice/mis-advice/non-advice in this case. Raising the issue of a settlement is a very delicate task. If done with a ham-fist, he can make your situation a lot worse. Your well-funded adversary can very likely smell blood and go for the jugular.

[Jims5543]

Originally Posted by the

It's not your job to fix the often broken legal system. Your job is surveying (or whatever you do). You would have been much better off just tendering it to your insurance (that's what you pay for), and moving on to focusing on your business, instead of some useless legal crusade.

Your atty needs to be very careful about how he approaches settlement. To be honest, he doesn't sound like the most sophisticated atty out there, I think he has given you tons of bad advice/mis-advice/non-advice in this case. Raising the issue of a settlement is a very delicate task. If done with a ham-fist, he can make your situation a lot worse. Your well-funded adversary can very likely smell blood and go for the jugular.

My attorney advised insurance from the outset. I chose not to go that route myself, against his advise.

I will make a offer, and it will be worded in a way that will warn him I am ready to go the entire distance. (because I am ) I will also explore the possibility of a counter suit and I may file it prior to offering a settlement.

I will not loose this case, I am 100% sure I will win. The plaintiff knows this and I honestly think he is banking on me folding. I can take this to the end, I was just a little startled over the fact that it was not a given that I would get my attorney's fees back in the end after I win.

[the]

Originally Posted by Jim Cesiro

My attorney advised insurance from the outset. I chose not to go that route myself, against his advise.

Darn. That would have been a good way to get your attys fees back.

[MRM]

Jim, it is likely that your insurance premiums will not be affected by you tendering the case to your insurer. You might be able to get some money back. You do buy insurance for this sort of thing. I always tell potential clients that I am happy to take on cases that aren't about money because it's the principle that's important, but my rates double.

[the]

Originally Posted by Jim Cesiro

I will not loose this case, I am 100% sure I will win. The plaintiff knows this and I honestly think he is banking on me folding. I can take this to the end, I was just a little startled over the fact that it was not a given that I would get my attorney's fees back in the end after I win.

Going to assume you are correct, you have a "slam dunk" case.

Taking that at face value, what is the status of the case? How much discovery has been done? How much discovery do you need to prove your case? Do you have a trial date set? Do cases generally go to trial on the first date set in your court?

[stomachmonkey]

Originally Posted by Jim Cesiro

My attorney advised insurance from the outset. I chose not to go that route myself, against his advise.

I will make a offer, and it will be worded in a way that will warn him I am ready to go the entire distance. (because I am ) I will also explore the possibility of a counter suit and I may file it prior to offering a settlement.

I will not loose this case, I am 100% sure I will win. The plaintiff knows this and I honestly think he is banking on me folding. I can take this to the end, I was just a little startled over the fact that it was not a given that I would get my attorney's fees back in the end after I win.

I have an arbitration clause in all my contracts/work for hire agreements.

Covers jurisdiction and costs.

I know it's no guarantee of anything but at least it's documented up front. Client does not sign it I turn down the gig. For me reluctance to sign is a huge red flag.

[Jims5543]

You guys seems to think this is a rare occurrence.

In the last 5 years I have fought off 4 lawsuits of those 4 one was legitimate and was settle out of court.

The other 3 were people trying to get money and my stupid insurance company paid them off.

My premium last year shot up to 20K per year, because of these deals. I am sick and tired of this.

There are people in this world that just wander around looking to sue for money. I have crossed paths with a few. Welcome to America.

[Tobra]

settle, go to his house and put JB Weld in all the locks while he is gone, sow his property with salt, pell out a message in fertilizer in his front yard(big, bright green, ASSHAT would be nice)there are plenty of things you could do. My father in law allegedely burned down a hunting shack and trailer when the owners strung wires between trees to discourage his boys from riding their motorcycles out by the pipeline behind the house.

If it is emotional for you, that is a huge disadvantage. Will tend to cloud your judgement

[the]

Sorry to hear about all those lawsuits, you must be involved in a very high risk business, or are just unlucky.

Hopefully you at least get a few nice fruit baskets each Xmas from all the attys you are supporting.

Do you have a trial date set in the current case?