Actions in Orange County Superior Court -- Tips, Information and Urban Legends
I see other attorneys and people representing themselves make the same mistakes over and over in Orange County Superior Court. I therefore present this list of frequently asked questions, setting forth information you need and tips on how to avoid the pitfalls of litigation in general and Orange County Superior Court in particular. THIS IS NOT LEGAL ADVICE and is not intended to take the place of a face to face meeting with an attorney. Every case has its own unique facts and circumstances, so do not make any final decisions based on what you read here without consulting an attorney.
Some of these questions may seem surprising, but it is to be expected that someone who has never had any involvement with the court may have little idea how things work. You can get a form answer (called a General Denial) at the Orange County Superior Court, fill it out and file it, but that's usually not a good idea. Here's how pleading works. The plaintiff is supposed to serve and file a complaint that sets forth sufficient facts so that you know what you are being sued for. The complaint sets the parameters for the action. If the complaint says you owe plaintiff money because you borrowed money and didn't pay it back, he can't spring on you at trial that you also stole money from him. The plaintiff is bound by the complaint. And so it is with the answer. You must set forth the defenses you will rely on in defending against the complaint. If it's not in your answer, you may be barred from using that defense at trial. Wouldn't it be ashamed if you ended up paying money you did not owe, just because you left some magic words out of your answer? Remember, "the man who represents himself has a fool for a client." An answer is a specific type of document, and a letter does not qualify. A judge is not permitted to read any letter that you send, because that would be what is called an ex parte communication. A judge is never supposed to talk to one side without the other side being present. A possible exception is Small Claims Court. Since that is designed to be layperson friendly, a judge will read the letter to see if you are asking for an extension. That's not the trial date. For some reason, when some people receive a summons and complaint, their eyes glaze over and they can't or won't read the papers to see what they are supposed to do. The summons clearly states that you must file and serve an answer within 30 days (it's only FIVE days for some complaints, so read carefully). Inexplicably, that part never gets read. Instead, the defendant turns to what is called the notice of case management conference. That also explains that the defendant has only 30 days to answer, but the only thing the person sees is the date of the scheduled conference, which is generally set about four months after the action is filed. If you wait until that date, a judgment will have already been taken against you. And if you are not there to defend yourself, the case that involved only a few thousand dollars may have turned into a multi-million dollar judgment. See, for example, Oh What a Tangled Web We Weave. What do I say in the answer? Is that where I tell my side of the story? Can I just use the "check-the-box" form I found on line? Here is the way it is supposed to work. The plaintiff files a complaint which is supposed to contain enough facts so that the defendant can properly know of what he or she is being accused. If a complaint just said, "defendant injured me," that would not be sufficient. The defendant would not know whether he is being accused of assaulting the plaintiff, or perhaps was involved in an auto accident with the plaintiff. The complaint needs more facts. Similarly, an answer is supposed to contain sufficient facts so that the plaintiff will know the basis upon which the defendant is denying the allegations of the complaint. But for some reason no one does it that way. Most defendants will simply file what is called a "general denial," claiming that all the allegations of the complaint are false. This is a legal fiction, because even the defendant will admit that some of the allegations are true, such as the county where he resides. If a plaintiff really wants to force the defendant to file a more meaningful answer, he can file a verified complaint. With a verified complaint, the plaintiff states under penalty of perjury that all of the allegations are true. The defendant, under most circumstances, must then file a verified answer, either admitting or denying each of the allegations in the complaint. Generally it is considered a bad idea to file a verified complaint unless a particular cause of action requires it, because as you conduct discovery in a case, your understanding of the facts might change. As to the check-the-box answer you can get from the court, utilizing that form can be a really bad idea. The answer must also contain any "affirmative defenses" upon which the defendant intends to rely. A general denial puts in dispute any allegations that are specifically refuted by that denial. In other words, if plaintiff alleges you owe him $100,000, your general denial will be sufficient to allege that you don't owe him $100,000 (although some attorneys will argue that does not deny that you owe him $99,999). But any defense that goes beyond a direct denial requires an affirmative defense. This is sometimes called the "yes, but" test. In other words, if in response to an allegation in the complaint, your response is, "yes, that allegation is true, but . . .," then a general denial does not properly refute that allegation. There are many affirmative defenses that must be set forth in the answer or they are waived (although the court might give you permission to amend the answer to add a defense). In other words, you could go to trial and lose because you can't rely on a defense that would have defeated the claim. One of the best examples of this is the statute of limitations. Take an oral contract. Under the statute of limitations, an action on an oral contract must be brought within two years of the breach. Defendant sues you three years after the breach, and you file an answer with no affirmative defense for the statute of limitations. If you had alleged that affirmative defense, you could have won the case by simply proving that the breach occurred more than two years before the complaint was filed. Without that defense, the judge will not permit you to rely on that defense (because you did not put plaintiff on notice that was your intention), and you will need to find some other reason that you are not responsible for the debt. Playing the, "I wasn't properly served" game is fraught with peril. If you receive a complaint, even if it was nailed to your door, never, ever ignore it. There are a number of urban legends about service. Many people think it's like a game of tag, and that service is ineffective unless the process server gets the defendant to take it in his or her hand. That's a dangerous myth. It's not even true that the process server has to personally serve you. By law, the process server is supposed to try to personally serve you. If he does find you, he is supposed to tell you the nature of the documents (so that you won't think it's someone trying to hand you religious literature) and then deliver them to you. "Deliver" does not mean he needs to hand the documents to you. So, the process server will walk up to you and say, "Mr. Rogers, this is a summons and complaint." If you take the envelope from him, great; if not, he can drop it at your feet. He could even approach you in your car, make the statement, and stick it under your windshield wiper. So, yes, sticking it under your windshield wiper can be effective service. If he makes three attempts to serve you, but can't find you at home or work, he can substitute serve you by giving it to someone at your home over the age of 18. He must then mail you a copy as well, to make sure you get it even if your no-good adult son that answered the door never gives it to you. That process server will now prepare a proof of service, attesting to the fact that you were served. Thirty days later (40 days for substituted service), the opposing party will take a default against you, and then seek an unopposed judgment. In one case, a client came to us who had ignored a complaint that involved $35,000. With no opposition, the plaintiff was able to convince the court to award $1.2 million. We were able to get it reversed, but not without much effort. We've had to teach this lesson even to other attorneys. We once had a case where the attorney for a corporation had foolishly listed herself as the agent for service of process. She thought she had pulled a fast one because she ran her practice out of her home, and her home was in a guarded community. She thought she was somehow immune from service, and when we served the guard at her community, she sent a letter stating that was not effective service and that she would sue for abuse of process if we took the corporation's default. Not only did we obtain the default judgment, an arrest warrant was issued against her for failing to appear at the judgment debtor's exam. You see, she did not know there was an obscure rule about serving people in guarded communities that permits the party to serve the party by giving the complaint to the guard. So what you're saying is, no one should ever be able to sue unless there is some independent evidence to support the case? For instance, if a woman is sexually molested in an elevator, she just has to take it because it would just be her word against the attacker's. Fortuneately, that is not how the law works. I just got served with a complaint that the judge will be able to tell just from reading it that the case is without merit. I mean, for God's sake, the plaintiff says I'm from Mars and that I'm mentally attacking him in his dreams. Do I really need to respond to the complaint? Yes, you must respond to the complaint. The question is reasonable, but based on a false assumption. It is essential that you understand that NO ONE AT THE COURT WILL EVER READ THE COMPLAINT. Let me explain the process. A lawsuit is commenced by the filing of a complaint. When the complaint is filed, the clerk stamps a date on it, returns a stamped copy to the plaintiff, and then puts the complaint in the file, never to be seen again. The defendant reads the complaint to file an answer, and the answer follows the same process. No one at court reads the complaint or the answer. Even if the case goes all the way to trial, no one at the court will ever read the complaint or answer, UNLESS those documents are somehow put in dispute by the parties. Let's use our Man from Mars complaint to show just how far this goes. You are sued by someone for infliction of emotional distress because, according to the complaint, you are a Martian and you are attacking him in his dreams. You want to get the judge to take a look at the complaint, so you file what is called a "demurrer," which states that the complaint fails to state a cause of action. The judge will then look at the complaint, because you forced him or her to do so. But even then, the judge MUST assume that all the allegations in the complaint are true. So, the complaint says you are a Martian, and you have mental powers you are using to attack him. Taking those facts as true, then the plaintiff has properly stated a cause of action for infliction of emotional distress, and you will be ordered to answer the complaint. Why is such an absurd result permitted? The reason is that cases must be decided by the EVIDENCE. Again, let's use our crazy facts to illustrate the point. This time, we'll make you the plaintiff. You were happily living you life in your home, but a Martian really did move in next door and he really is attacking you in your dreams. Do you want the judge to have the power to throw out a complaint based only on his own beliefs or understanding of the facts? How will we ever stop the Martians if every judge throws out any complaint involving extraterrestrials? OK, the Martian example is extreme, and the truth is you probably could get the judge to take judicial notice that no Martians have ever visited Earth and dispose of the case by way of demurrer. But what about cases that are not so extreme? What if you are suing because you tripped on a crack in a sidewalk that was not properly maintained? Should the judge be able to throw out your complaint, because he doesn't remember seeing a crack the last time he walked on that sidewalk, or because he believes that no one is clumsy enough to trip on a crack? Don't you want the opportunity to present your evidence before the judge decides the merits of your case? Bottom line. When you are being sued for what you think is a frivolous reason, it gets very frustrating that you must go through the process for a period of time before you can force the judge to examine the facts and evidence by, say, a motion for summary judgment. But that is the price you pay for the day that you become the plaintiff and don't want your case thrown out on the whim of a judge who has never seen your evidence. No one is better than Morris & Stone at disposing of frivolous cases, but even we must use the process. Yes, and the Orange County Superior Court is fairly generous in granting such requests, if your financial circumstances so warrant. Here is the packet you need to complete. The packet is daunting, but if you have more time than money it is an option. I am owed $8,000 (or $9,000 or $10,000). I've talked to a few attorneys and they all tell me it would cost more to sue using an attorney than I could recover. Am I out of luck? Don't I get back the attorney fees if I win? First the attorney fees. Generally you DON'T get back your attorney fees unless there is a contract that provides for attorney fees, or some special statute. If you are owed money pursuant to a contract or promissory note, look at the document to see if it provides that you can recover your attorney fees. By the way, attorney fees are always reciprocal, even if the contract says something different. For example, a promissory note may say that only the lender is entitled to recover attorney fees, but if the lender sues and you win, you would get your fees. And so it is with your $8,000 claim. No experienced attorney will take a case in the hope of recovering his standard hourly fee, when he can earn that fee through paying clients. If you are willing to take that risk by paying the fees up front on the hope that you will recover them from the defendant, then you can probably find an attorney. But even without an attorney, you can still pursue your claim. You can now sue for up to $7,500 in Small Claims Court. If your claim is for more than $7,500, you just waive the rest. So, pursuing an $8,000 claim in Small Claims Court means you are giving up $500 that you are owed, but that is far cheaper than what it would cost you to hire an attorney. As you see from the definition of mediation, the mediator assists the parties in formulating a voluntary solution to the dispute. We sometimes see agreements drafted by attorneys that call for "binding mediation." There is no such thing, since that implies that the parties will be bound by the decision of the mediator. The mediator doesn't make a decision; he only tries to get the parties to agree to a resolution. You could, theoretically, agree that a third party will have the absolute right to decide how the parties will resolve the case, but that is not mediation. Mediation is sometimes required by an agreement, but that just means that the parties must get together and try to work out their differences. In many standard real estate agreements, the parties are required to mediate the dispute before going to court. Sadly, we have seen a number of cases where the attorney ran to court and filed a complaint without reviewing the agreement closely enough to see the mediation requirement. By the terms of the agreement, that waives the recovery of all attorney fees. Even if a party is certain that mediation will be unsuccessful, it is far better to spend an hour or two going through the process to preserve the right to recover attorney fees. Arbitration is not mediation, although sometimes even arbitrators lose sight of this fact. An arbitration is an informal trial, and should follow the same rules of evidence. Many courts will order you to non-binding arbitration, hoping that will resolve the dispute. But what is to keep the loser from simply rejecting the arbitrator's decision if the arbitration is non-binding? Nothing, but who won and lost is not always so clear. Say, for example, an employee is suing for wrongful termination, and thinks he is entitled to $400,000. He goes to the arbitration and wins, but the arbitrator finds that he failed to mitigate his loss of future wages, and awards only $75,000. The defendant employer might reject the award to avoid paying $75,000, but it might decide that is better than going to court and running the risk that the jury will award the full amount. The plaintiff employee might reject because he got far less than what he asked for, but he could also be educated by the process and realize that his case wasn't the slam-dunk he thought it was. I seldom reject the option to mediate a case. It provides an independent view of the case by an impartial third party. You either reach an agreement or you don't, and there is no downside. I've seen good mediators settle cases I never thought would settle. On the other hand, I seldom agree to non-binding arbitration unless the court orders me to go. If the case requires expert witnesses, you must pay them twice -- once for the arbitration and again at trial. Similarly, you must inconvenience your witnesses twice if the matter doesn't settle (although you can under certain circumstances use declarations or deposition transcripts in lieu of live testimony). Should I sue everyone that might be responsible for my damages? Can't I just dismiss if I'm wrong? Another common mistake made by people representing themselves, as well as amateur attorneys, is to sue everyone they can think of, and throw in every conceivable cause of action. The thought is that even if someone is named as a defendant that shouldn't have been, the action can always be dismissed as to that defendant. Unscrupulous attorneys will try to settle with the improperly named defendants, offering to dismiss the action for, say, five or ten thousand dollars. This is common in construction defect cases, where the plaintiff's attorney will name every subcontractor. Even if the claimed defect is soil subsidence, they'll name the guy that installed the air conditioning. Naming too many defendants and "over-pleading" (listing too many claims) are both bad strategies if the attorney on the other side knows what he or she is doing. For example, let's assume my client is a construction corporation that bought some building materials from you, but due to a downturn in the housing market is unable to pay you when due. You go to an attorney who properly sues the corporation, but then thinking it will apply a little more pressure, he also sues my client as in individual, even though it was the corporation that bought the materials. For even more pressure, the attorney also sues for fraud, not just breach of contract. By suing for fraud, you could recover punitive damages, so that make the action much scarier for my client, or so your attorney thinks. Even though you won on one cause of action, my clients prevailed on three. That makes them the prevailing parties. They will recover all attorney fees and costs, assuming there was a basis for attorney fees, and that total may well exceed the amount you recover for breach of contract. If there is no basis to recover attorney fees directly, no problem, we then just sue for malicious prosecution and recover them that way. All because your attorney named too many defendants and causes of action. It's a balancing act when you draft a complaint, because you do want to allege all appropriate causes of action in case one gets thrown out, against all the appropriate defendants, but as you can see it can be perilous to over-plead. Be sure to consult a competent attorney. Many amateur attorneys used to play the game of asking for $10 billion as punitive damages, thinking the amount was so shocking that it would somehow intimidate the other side. Sometimes it would even generate press coverage. After all, someone being sued for $10 billion in Orange County Superior Court must have done something really bad, right? In response, the California Legislature passed a law making it improper to allege an amount of punitive damages. You must still ask for punitive damages in your complaint if there is a basis for recovery, but you may not set forth an amount. As satisfying as you might find it to ask for $100 trillion in punitive damages to show how outrageous the conduct of the defendant, all that will happen is the court will strike the allegation and possibly sanction you. By the way, you cannot recover punitive damages in a breach of contract action. OK, if I can't specify how much in punitive damages, can I set forth the damages I suffered? Actually, you are required to set forth the damages, as least in general terms, in order to determine the proper court. But be careful, and don't inflate your claims. Let's take an example. Say you loaned someone $100,000 to invest in a new business, but that person used the money to add an addition to their home. You are only out-of-pocket $100,000 and some interest, but you decide you are going to sue for fraud and seek $1 million dollars in damages, which you put in the complaint, thinking it will scare the heck out of the other side. In litigation there is always more that can be done in a case. That obscure witness that most likely knows nothing about the facts of the case can nonetheless be deposed. If discovery was propounded yesterday, more can be propounded today. Motions can be brought, injunctions can be sought. Every adverse ruling by the trial court can be appealed. The other side lied during the trial, and as a result the judge entered a judgment against me. Can I sue for perjury or defamation because of the lies? You or your attorney should have assumed that the other side would lie and prepared your case in anticipation of that fact. And if you testified but the judge chose to believe the liar on the other side, what does that say about your perceived credibility? For whatever reason, the judge did not believe you, so why would a new trial, where you again claim that the other side is lying, come out any differently? Anything said in court is absolutely privileged, meaning that you can't sue. (See .) Your remedy for a bad judgment is to appeal or bring a motion for a new trial. If parties could start new actions to address perceived grievances from other actions, the process would never end. If you can convince the District Attorney that a witness lied on the stand, he or she can be criminally prosecuted for perjury. In the more than 20 years I've been practicing, I've seen that happen . . . never. But that doesn't mean that the system doesn't work. It's called an adversarial system for a reason. And if your case is presented properly, truth will prevail over lies. A business claims I owe them $450 and has dinged my credit, but I can prove I don't owe that money. I've called and written a million times, but they just ignore me. Can I sue? You can sue for what is called declaratory relief, but that can only be done in Superior Court (not small claims), and it will cost you thousands of dollars if you hire an attorney. If you follow certain procedures and the business fails to comply with the Fair Debt Collection Practices Act, you can sue, but again that will cost you thousands of dollars. These traditional approaches just are not very practical because of the amount involved. But here is my patented Small Claims Court procedure that can solve the problem for about $40, assuming it is a local business. Pay the amount under protest, and then sue to get it back. Small Claims Court is not a court of equity, it can only award damages. This means that you cannot go to Small Claims Court to declare that you do not owe the money. But you can accomplish the same thing by paying the money under protest and then suing to get it back. The judge will then have to make the determination that you never owed the money. Be forewarned, however. This approach is too sophisticated for some judges. With these judges, the conversation will go something like this: "Your Honor, I'm seeking reimbursement of the $450 I paid to defendant under protest." "But didn't you owe the money to defendant?" "No, your Honor, that's the point. I never owed the money to the defendant, I only paid it under protest so that I could sue in Small Claims Court to get it back. Otherwise, there is no simple mechanism to have a court determine that the amount is not owed." "Why would you pay the money if you didn't owe the money?" "Because the defendant reported it as a unpaid debt to all the credit reporting agencies. I don't have the thousands of dollars it would take to sue in Superior Court to have the matter decided and clear up my credit reports, so by paying the money under protest and then suing to get it back, I will now have a judgment showing that I do not owe the defendant any money. I can then provide that judgment to the credit reporting agencies in order to remove this false information. Or, if I challenge the information on my credit reports and defendant continues to report that the information is accurate, even after it was determined in Small Claims Court that I never owed the money, then I will have an outstanding case against the debtor for violation of the Fair Debt Collections Practices Act." "So you paid the money to defendant, just so you could turn around and sue to get it back? That's the craziest thing I ever heard. Judgment for defendant, and don't ever waste my time like that again." All you can do is hope you don't get one of those judges. In Orange County Superior Court, you have four basic ranges that dictate where you will file a civil action. Small Claims Court, a part of the Superior Court, handles claims up to $7,500. You can also sue in what is called limited jurisdiction Superior Court for any amount from $0 to $25,000. These were called Municipal Courts until a few years ago, when they were consolidated into the Superior Courts. Claims for $10,000 or less are handled a little differently, but by the same courts. Generally if the claim is less than $7,500 you would want to take advantage of the faster and cheaper Small Claims Court, but there are times when you are not permitted to file your action there, such as when you have filed more the the number of claims you are permitted in a year, or when you want to be represented by an attorney (you cannot be represented in Small Claims Court). Claims of more than $25,000 are filed in Orange County Superior Court as "unlimited." Perfectly clear? Litigation is never easy. Web site of the Orange County Superior Court. Orange County Superior Court Forms.
I was served with a summons and complaint, and the summons says that I need to file an answer within 30 days. What does an answer look like? Is it something I can just pick up at the Orange County Superior Court?
I know that I am required to answer the complaint. Can I just send a letter to the judge explaining what happened?
I just got served with a complaint. The case is set for Orange County Superior Court. Is there anything special I need to know or do?
Fortunately, the Superior Courts as now governed by a set of uniform rules. At one time, every courthouse had its own rules, as did each judge within the courthouse. It could be a nightmare trying to figure out the rules. Now there is a set of rules that apply to every court, and no jurisdiction is supposed to deviate from those rules without obtaining a waiver from the State. Courts and judges can, however, create there own rules so long as they don't conflict with one of the standard rules. And some judges just ignore the law and make their own rules anyway, so you still need to ask questions. Even if the judge doesn't have his or her own rules, he or she will have a way they like to handle things. Stop by the courtroom at some point when court is not in session, and ask the court clerk if the judge has any printed procedures.
The very first thing you should do upon receiving a complaint is to retain the services of Morris & Stone, of course. But if you are going it alone, the very first thing you must do is to determine which judge is assigned to the case. In the old days, you were not assigned a specific judge, and the courts would have some judges that listened to motions, others that considered preliminary injunctions, etc. Every time you went to court, you ended up with a different judge who knew nothing about your case from all the prior visits. It was a phenomenally bad system that only the government could come up with. Now you are assigned to a single judge. When the complaint is filed with the clerk at the courthouse, they actually spin a bingo ball kind of contraption with the judges names on the balls, and pull out a name, and stamp that name on the front of the complaint, right below the case number. This makes sure the assignment is completely random. Every unrepresented defendant that has ever gone to court is absolutely convinced that the other side some how managed to get his friend the judge assigned to the case, but it doesn't happen.
So, look at the complaint and see which judge is assigned to the case. We are blessed with a very good panel of judges at Orange County Superior Court as compared to other counties, but that doesn't mean there are not some clinkers. Attorneys that practice at that court know who the clinkers are, so you should call one and ask about your assigned judge. (714) 954-0700. If you got one that is not so great, you can file a simple form that rejects that judge (called "papering the judge"). You only have ten days to file the form. You can do so only once, so you always run the risk that you will just be assigned to another not so great judge. Unless the judge has a really bad reputation, it is best not to waste your one challenge. If your case ever goes to trial, the odds are that you will not be in front of the judge that has had your case from the beginning. The courts intentionally overbook the trial dates, because so many cases settle on the eve of trial (trial is a real motivator). When your case is assigned a trial date, there will typically be six or more other cases assigned to the same judge on the same day. Of those seven cases, four will be settled or continued. That leaves three cases ready to go to trial. The court clerk will call Master Calendar and ask for a courtroom. You and the other parties will then wait in the hall, sometimes for days, waiting for a courtroom. When you are finally assigned to a new judge, if you haven't used your challenge, you can still use it. "But I thought I only had ten days." You do -- that judge was just assigned.
When I received the summons and complaint, there was a form attached that said my trial date is in about four months. Can I just wait until then, show up and tell my side of the story?
I found a summons and complaint stuck under the windshield wiper of my car. I know that's not proper service, so do I need to file an answer?
If you are improperly served, don't ignore it. If it makes you feel better, go to court and fight the service. You'll still be served, probably in the hallway as you leave, but you'll have all that satisfaction that is gained from spending hours arguing the point. Judges in the Orange County Superior Court are more interested in whether there was constructive notice as opposed to worrying about the technical requirements of service. You or your attorney will look foolish when you stand in front of the judge and proclaim, "your honor, I was never properly served with the complaint that . . . I'm . . . um . . . holding . . . here in my hand." It's usually better and cheaper to just answer the complaint.
I'm being sued, but the entire case is just his word against mine. There's no way he can win if he has no evidence, correct?
If someone sues you and it is just your word against their's, then at trial he or she will take the stand and testify, and you will take the stand and testify, and the judge will decide whom to believe. True, the plaintiff has the burden to prove the case, but the burden is to show that it is more probable than not that the facts occurred as the plaintiff claims (not "beyond a reasonable doubt" like you have in criminal cases). A case can often be determined from the circumstances. Someone gives you $1000 as a gift, and later claims that it was a loan, suing you to get it back. If the money came on your birthday, and there is a history of such generous gifts, then the court will probably find in your favor. If the money was delivered right when your car was about to be repossessed, and there is no history of the plaintiff ever being so generous in the past, then you will probably lose. See how it works? Simple common sense, even though it is just one person's word against another's.
I need to file a complaint in Orange County Superior Court, but can't afford the filing fee. Can I get it waived?
I am owed money by the defendant, but I know he doesn't have any assets. Is there any point in suing him?
That is a personal decision depending on your circumstances, but here are some things to consider. That deadbeat defendant may not have anything now, but do you think his situation could change in the next 20 years? A judgment is good for 10 years, and can be renewed for another ten years. I find that the defendants who think they are judgment proof are the ones that either don't bother to show up to defend against the case or if they do, they don't fight very vigorously. You could end up with a judgment at very little time or expense. Then keep it in your safe, and every year or so, check to see what is going on with Mr. No Assets. There's no hurry. Your judgment earns interest at 10% annually. That's one of the best investments going. Once you receive a judgment, you can record what is called an Abstract of Judgment in any and all counties you think the defendant may now or some day in the future own real estate. That abstract puts a lien on the property even if you don't know what property he owns (assuming it is in his name, of course). During the latest housing boom, we collected a number of old debts for clients because the houses appreciated, the judgment debtors wanted to sell or refinance, and they had to come to us to get a release from the lien.
As Abe Lincoln said, "an attorney's time is his stock in trade." You may think that an attorney's time is free, but every hour the attorney spends on your case is an hour he or she is not being paid on another case. I sometimes get calls from prospective clients that want me to handle their $400 collection case. When I ask how they were anticipating paying an attorney to handle a $400 case, they tell me they thought I would work on a contingency basis, taking a percentage of the $400.
But some assume I could do the work, and then recover my usual hourly fees. The problem with that approach is that even when the contract provides for attorney fees, it is always "reasonable" attorney fees. When a judge is determining what is reasonable, he or she will always consider the result that was achieved. If an attorney runs up a bill of, say, $3,500 to collect $400, the judge may find that to be unreasonable and only award $1,000 in fees.
What is the difference between mediation and arbitration?
Mediation - A process in which a neutral third person meets with the parties to a dispute in order to assist them in formulating a voluntary solution to the dispute.
Arbitration - Using a neutral third person to resolve a dispute instead of going to court. The parties can agree whether the arbitration will be binding or non-binding.
Big, big mistake. I will immediately bring a motion to dispose of the action. Once filed, any dismissal will be viewed as a response to my motion, meaning that my client has prevailed on the merits. Even if I allow the case to go to trial, assuming there is no defense to the money owed, you will prevail only on the breach of contract action against the corporation. My individual client, on the other hand, will prevail on the breach of contract cause of action, and he and the corporation will both prevail on the fraud cause of action. To prove fraud, you must show that the defendants had no intention to perform. Failing to pay because of a downturn in the market does not evidence an intent to defraud, only an inability to pay.
I want to include a claim for punitive damages in my complaint. How much should I ask for?
Now you go to court, and the jury agrees with you 100% that you should get your $100,000 back, but awards you nothing on the fraud claim. Who won the case? You recovered $100,000, but you were seeking one million according to your complaint. Thus, the defendant proved that he did not owe you $900,000 of the amount you were claiming. The court may find the defendant prevailed on the action, and make you pay the other side's costs. As set forth more fully below, the defendant's attorney may then turn around and sue you for malicious prosecution since you lost on the fraud claim. This can all be avoided by pleading your damages properly.
Should I take depositions of every possible witness in the case?
That is the way some attorneys handle a case, doing everything that can be done with no regard for the cost to the client. However, a good attorney is constantly performing a cost/benefit analysis. Depositions are one the the most costly parts of litigation. You not only pay for the attorney's time, you must pay for the court reporter, who charges by the page. A day-long deposition can cost over $1,000 in reporter fees and another $3,000 in legal fees. You or your attorney must make judgment calls on who really needs to be deposed.
As a general rule, so long as the witness is available to talk to you and you know how they will testify, you should not take the deposition of a favorable witness unless you need to preserve their testimony (i.e., the witness is in poor health or may be unavailable for trial). You run the risk that the witness may change his or her testimony at trial, but this can be mitigated with a signed statement. If the witness changes their story, just show the statement.
Most attorneys will feel compelled to take the deposition of the opposing party, but even that is not always necessary. For instance, say you are suing on a promissory note loan that defendant failed to repay. You can find out by written discovery if defendant is contending the money is not owed, so what could the party possibly say at a deposition that is worth the cost?
Anything said in court is absolutely privileged, meaning that you can't sue. (See Civil Code Section 47.) Your remedy for a bad judgment is to appeal or bring a motion for a new trial. If parties could start new actions to address perceived grievances from other actions, the process would never end.
How much can I sue for in each court?
