LGT(1): Civil Litigation Handbook

This is a series I have been wanting to do for years and a letter I received the day after election day this year spurred me to it as I now have a second tale to tell on the subject. What LGT stands for should be obvious after a while but let’s start with my default reaction to most problems: research, and among the sources I consulted this book has, so far, been the most helpful as well as the youtube at the end from njcourts.

You will not find very much that is ‘just’ in ‘the justice system.’ Law is a business. And business decisions should guide every move you make once you decide to sue or are unlucky enough to be sued. (page ix)

Litigation is not the lottery (for anybody but attorneys)….Not fair? Forget that too. There is very little that is ‘fair’ about litigation. There are far too many variables for that. (page xi)

Insurance companies count on the fact that injured parties will not go to the trouble to sue. (page xiii)

In the eyes of the court, your attorney is your ‘agent.’ Any mistake he or she makes is imputed against you, as if you made it. (page xiv)

In some states, over half of the litigants in lawsuits are now representing themselves. (page xv)

Some actions are quickly dismissed because the lawsuit raises a claim that, even if true as stated, is not one for which the law offers a legal remedy. (page 7)

In the same manner, you cannot sue someone because you believe or you have a feeling the person has violated your rights. You must have facts to support your lawsuit such as the time and place of the incident, witnesses who observed the behavior, and actual admissible articles of evidence or documents that will convince the judge and/or jury of the harm you claim to have suffered. The “burden of proof” is the plaintiff’s responsibility to prove the facts to win the case; and without admissible, factual evidence, the case cannot be supported and won. (page 10)

In effect, you cannot sue for ‘bad service’ unless you received specific assurances of a level of service. If that happens, your cause of action may be “breach of warranty,” “fraud,” “breach of contract,” “anti-trust” or some specific legal theory specified by an applicable statute or case law. (page 20)

Versuslaw provides a free forms page that contains links to legal forms on the Internet that is one of the best available. (page 23)

The victim of the harm can recover his or her loss as damages through their civil lawsuit. In order to prevail, the plaintiff must demonstrate and prove that the actions or lack of action was legally the cause of the alleged harm. In short, a tort is civil wrong which can be redresses by awarding damages – usually money damages. Legal injuries are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. (page 24)

tort lawsuits have a lower burden of proof of a “preponderance of evidence” than the criminal standard of “beyond a reasonable doubt.” (page 25)

Common abuses you should guard against in the earliest stages of your case should be to insure that the opposing attorney does not mislead you (or the judge) regarding the underlying law of the initial causes of action. Frequently, before suit is filed, an attorney may misstate what the law says or means to frighten a potential opposing party into doing what he or she wants to avoid having to file suit. You ability to find and understand the applicable law will prevent your being stampeded into surrender before the case even begins. Even if you have an attorney, that opposing attorney may take advantage of your counsel’s ignorance or inattention to misstate the law to gain advantage. Your ability to understand a stature can protect your interests. (page 30)

An opposing attorney who files a knowingly baseless lawsuit in which he or she does not have sufficient facts or evidence to support stated causes or their necessary and required elements needs to be confronted. Their strategy is consistently to stampede you into a settlement before getting to any adjudication on the merits. Given the large percentage of cases that are settled before trial, it is clearly an option that lawyers count on being able to exercise as a part of their usual actions. Your or your lawyer’s failure to confront such violations of the litigation process simply plays into the hands of such a deceitful opponent to your detriment. (page 30)

Every time you fail to object to the violation of a rule, you may be waiving your right to object or appeal the violation thereafter. (page 42)

“Stare decisis” is a legal principle that obligates judges to respect the “precedent” established by prior decisions. (page 63)

In June, 2011, the U.S. Supreme Court decided Turner v. Rogers in which it required courts to ensure, fairness and accuracy, and to meet the requirements of due process in cases in which a pro se is a party….But remember: if you are setting up an appeal, you must put your objections to the judge’s violations of the Turner requirements on the record as you go along. (page 69)

A civil lawsuit is carefully choreographed warfare. The process begins when the plaintiff or the plaintiff’s attorney files a “complaint” or “petition” stating the grounds on which the lawsuit is being broght. Once the complaint is filed, the plaintiff has the legal responsibility of notifying the defendant with a summons to answer the complaint and appear in court….The defendant does not have to appear in court automatically but must file a written answer to the complaint, file “special appearance” motions for dismissal or alteration of the complaint, file other motions allowed under the rules, or file a counterclaim against the plaintiff. The defendant has a specific amount of time in which to respond with these various alternatives. If he or she does not timely respond, the judge can grant a default judgment. If a response is filed, the parties are said to be “joined” and the actual process of the lawsuit begins. (page 82)

Remember, there are plenty of lawyers available. It is generally easier for you to find a capable lawyer than it is for them to find more clients. (page 89)

Since then, hybrid forms of legal representation, generally known as “limited-scope” or “unbundled representation” have gradually developed. A limited-scope attorney in effect becomes a mentor that carries out some case-related tasks while showing you how to handle others. (page 91)

The privilege against self-incrimination only allows a witness to refuse to testify as to facts that ‘might tend to incriminate’ him or her. If a witness is offered immunity from prosecution, the threat of criminal prosecution is removed and the privilege is nullified. Without a clear right to refuse to testify, failure to testify may be used as evidence of guilt. (page 166)

“Special appearance” motions may be one or a series of motions that are filed before a lawsuit actually begins to attempt to have the lawsuit dismissed entirely, to limit its scope in various ways, or to alter its direction for the movant’s benefit. (page 179)

A ‘motion to dismiss’; asks the court to recognize that the law does not offer a legal remedy for the plaintiff’s claim or claims or that the suit states no legal duty on which suit can be based. In evaluating a motion to dismiss for failure to state a valid claim, a court may recognize the truth of the factual allegations but hold that no cause of action is applicable under the substantive law. (page 179)

A Motion to Dismiss asks the court to end the case once and for all if the judge grants it. The motion is usually filed by the defendant immediately after the plaintiff files a complaint instead of filing an answer. (page 183)

One of the most frustrating parts of litigation is coping with dirty tricks by the other side. They take many forms, but the bottom line is that they are almost always meant to raise your stress and diminish your will to win. You must be prepared for a broad range of misbehavior at every point in the litigation process designed to make you mad and keep you mad for the months that the lawsuit continues. (page 207)

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