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#1
Old 07-06-2012, 12:14 PM
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Defendant wins: why not countersue?

I recently successfully defended a lawsuit. The plaintiff pretty much embarrassed himself (I objected to hearsay testimony by him 4 or 5 times, was sustained each time, until he screamed at the magistrate).

The magistrate ruled in my favor and gave a lecture to the plaintiff about his lack of a case against me.

I had no attorney fees, and only missed a few hours of work. Preparation for my testimony was done on the back of an envelope. But could I counter-sue for the waste of my time, the stress of being sued, etc? Why wouldn't every winning defendant file a counterclaim?
#2
Old 07-06-2012, 01:03 PM
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Quote:
Originally Posted by kayaker View Post
... But could I counter-sue for the waste of my time, the stress of being sued, etc? Why wouldn't every winning defendant file a counterclaim?
You generally cannot file a counterclaim on a matter after the matter has been to trial--you would have to respond to the original claim with your counterclaim, all before the matter makes it to court. Since the majority of civil suits are settled out of court, there is no telling at that point what you might need to claim if the matter does make it to court. At any rate, the matter is now res judicata (i.e. it has been decided), so if you do try to counterclaim on the matter now, the court will not reopen it.

Did you get costs? These would help with the "waste of your time" etc. Note that, in my jurisdiction, you generally cannot use a lawsuit to claim costs associated with court matters. For example, mileage and parking on the day of court cannot be included in your claim; and if you had a lawyer, the lawyer's time and your mileage and parking when meeting with him or her cannot be included either. If you try to claim such things in your lawsuit, the court will deny your claim, because these are the kinds of things that should be covered by an award of costs. Your jurisdiction may be similar in this regard.
#3
Old 07-06-2012, 01:36 PM
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Originally Posted by Spoons View Post
You generally cannot file a counterclaim on a matter after the matter has been to trial--you would have to respond to the original claim with your counterclaim, all before the matter makes it to court.
Well, crap. Guess I had an idiot for a client.

I got nothing but the satisfaction of seeing the plaintiff freak out repeatedly over my objections. Of course, that was worth a good deal.
#4
Old 07-06-2012, 03:18 PM
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Quote:
Originally Posted by kayaker
I got nothing but the satisfaction of seeing the plaintiff freak out repeatedly over my objections. Of course, that was worth a good deal.
A few years ago, the cost to file an answer was more than made up for when I caused the prosecutor to change color after I caused his star witness to perjure themselves.

Red from embarrassment followed by a sickly green when His Honor said "The plaintiff's claim is dismissed with prejudice."

$75 filing fee to see this? Priceless.
#5
Old 07-06-2012, 03:28 PM
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The fact that the plaintiff did not prevail does not necessarily mean you had a claim of your own that would be worth anything.

You'd have to establish "abuse of process" or something similar to prove he intentionally brought a frivolous lawsuit (I'm simplifying of course)

Alaska is the only jurisdiction I'm aware of in the U.S. that has "loser pays" as part of its civil rules. Probably doesn't apply to small claims court, but I've never checked.
#6
Old 07-06-2012, 03:37 PM
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Originally Posted by Procrustus View Post
Alaska is the only jurisdiction I'm aware of in the U.S. that has "loser pays" as part of its civil rules. Probably doesn't apply to small claims court, but I've never checked.
CA has something like that. Generally in a civil suit, you need to try to negotiate and settle. Each side needs to make an offer. If the two sides don't agree, it will go to trial. If the trial settlement is between the two offers, each side pays their own costs. If not, the loser has to pay (some?) costs.

For example: A offers to give B $10,000. B wants $50,000. If B is awarded $5,000 at trial, he gets the $5,000 but has to pay A's costs. He could have just taken the $10,000 and saved everyone a lot of time. If B is awarded more than $50,000 then A must pay costs on top of the award. If it comes in at, say, $25,000 then no costs are awarded.

Last edited by hajario; 07-06-2012 at 03:37 PM.
#7
Old 07-06-2012, 04:09 PM
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Quote:
Originally Posted by Procrustus View Post
You'd have to establish "abuse of process" or something similar to prove he intentionally brought a frivolous lawsuit (I'm simplifying of course)
Frivilous and Groundless is a tough standard because the system does not want to discourage someone from seeking justice. Nevertheless I did get a judge to grant my team a recovery on those grounds. Got about 90% of my defense costs including attorney fees reimbursed, and the plaintiff attorney sanctioned. My guy had been named in the suit for the sole purpose of securing his resident county as the suit venue.
#8
Old 07-06-2012, 10:53 PM
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Quote:
Originally Posted by Spoons View Post
You generally cannot file a counterclaim on a matter after the matter has been to trial--you would have to respond to the original claim with your counterclaim, all before the matter makes it to court.
This. Most, if not all jurisdictions have a "mandatory counterclaim" rule. If someone sues you for X, and you also have a bitch that arose out of the circumstances surrounding X, then you must raise that as a counter claim in your answer to their lawsuit or else you lose the right to assert it forever.

The rule is there for judicial efficiency so that the same matter only comes to court once and there are not 14 different cases arising out of the same incident. The judge, jury, and lawyers are all there and learning about what happened, so why make another judge, jury, and lawyers relearn and redecide again?
#9
Old 07-06-2012, 10:55 PM
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Plus, you seem to be advocating for a "loser pays" rule. It's been suggested by evil Republicans, but the American rule is that each side always pays for their own costs unless the original suit was so ridiculously frivolous to bypass all human imagination.
#10
Old 07-07-2012, 12:50 AM
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Quote:
Originally Posted by jtgain View Post
Plus, you seem to be advocating for a "loser pays" rule. It's been suggested by evil Republicans, but the American rule is that each side always pays for their own costs unless the original suit was so ridiculously frivolous to bypass all human imagination.
Is that relevant with the advent of contingency fees? It seems to me that that is one situation in which the plaintiff's lawyer should be liable for the accused's fees.
#11
Old 07-07-2012, 04:43 PM
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Originally Posted by Quartz View Post
Is that relevant with the advent of contingency fees? It seems to me that that is one situation in which the plaintiff's lawyer should be liable for the accused's fees.
*checks forum. Yes, if you had a "loser pays" rule, the Plaintiff would have to pay the defense reasonable costs if Plaintiff loses. If the defense loses, even if the Plaintiff was paying a contingency rate, his attorney would still get a reasonable fee based upon the hours worked.

The court determines what kind of hourly rate is reasonable and how many hours should have been worked. They will usually defer to the attorney's honest estimate, but don't say you worked 500 hours on a slip and fall.
#12
Old 07-07-2012, 07:09 PM
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Quote:
Originally Posted by jtgain View Post
*checks forum. Yes, if you had a "loser pays" rule, the Plaintiff would have to pay the defense reasonable costs if Plaintiff loses.
I'm mooting that in contingency fee cases the plaintiff's lawyer pays.
#13
Old 07-08-2012, 02:09 AM
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Now, what about the case where the parties have a contract, and it specifies that the losing party shall be liable for all the prevailing party's court costs, attorneys fees, etc.. This is an absolutely standard sort of term that appears in contracts that are dictated by one party for the other party to take it or leave it -- e.g., lease agreements between landlord and tenant; terms of bank accounts; stuff like that. Are those terms legal and enforceable? How does stuff like that play out in real life?

(I read somewhere that such contracts are called "contracts of adhesion" and blatantly one-sided terms like that are sometimes not taken very seriously by courts. Are either of these facts correct?)
#14
Old 07-08-2012, 02:52 AM
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Quote:
Originally Posted by Senegoid View Post
Now, what about the case where the parties have a contract, and it specifies that the losing party shall be liable for all the prevailing party's court costs, attorneys fees, etc.. This is an absolutely standard sort of term that appears in contracts that are dictated by one party for the other party to take it or leave it -- e.g., lease agreements between landlord and tenant; terms of bank accounts; stuff like that. Are those terms legal and enforceable? How does stuff like that play out in real life?

(I read somewhere that such contracts are called "contracts of adhesion" and blatantly one-sided terms like that are sometimes not taken very seriously by courts. Are either of these facts correct?)
Contracts can be extremely complicated, depending on the contract, who drew it up, and the intent of the parties. Not to mention legislation that may negate certain terms of the contract--one cannot "contract out of the legislation," in other words.

Generally speaking, a court has the last word. If a party to a contract feels that he or she has the short end of the stick when all the clauses have been enforced, a court action may be called for. For example, the contra proferentum rule (which favours the party who did not draft the contract) may resolve matters. If a court orders the terms of a contract changed for whatever reason, then they are changed; regardless of what the parties thought they originally said.

As for costs of the action, those are (in my jurisdiction, anyway) entirely in the hands of the court. Parties cannot "contract out" of an award of costs.
#15
Old 07-08-2012, 10:07 AM
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Quote:
Originally Posted by Quartz View Post
I'm mooting that in contingency fee cases the plaintiff's lawyer pays.
Why?
#16
Old 07-08-2012, 11:04 AM
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Originally Posted by Northern Piper View Post
Why?
Because otherwise it's a case of 'buy us off or face a costly lawsuit'. Win or lose the defendant is put to great expense. There needs to be some balance.
#17
Old 07-08-2012, 01:20 PM
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Quote:
Originally Posted by Quartz View Post
I'm mooting that in contingency fee cases the plaintiff's lawyer pays.
That would all but eliminate contingency fee arrangements. Again, checking forum, that may or may not be a bad thing. For example, attorneys, by ethical rules, are not permitted to take criminal or divorce cases on a contingency fee. The rationale is that they may be tempted to lie, cheat, or steal in order to get a more favorable result for their client.

If that is true, why do the same fears not apply to civil cases?
#18
Old 07-08-2012, 01:39 PM
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FYI, in my experience "loser pays" usually ends up helping plaintiffs more than defendants. When the plaintiff wins, it's an extra amount added on to the judgment. When the plaintiff loses, they often have no ability to pay the defense fees and defendant gets nothing.
#19
Old 12-04-2012, 10:02 AM
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I am being sued as the owner of company I don't own

My husband owns a construction company and is being sued for work he did. It is a bogus claim and he is prepared to defend himself. However they have named me in the suit as an owner of the business which I am not. I filed a motion for summary judgement (I have been researching what to do) and attached to my affidavit, 20 years of business certs, tax form, banks statements, signature cards, proposals all of which my name is not on. I have a full time job elsewhere. They named me becasue they are trying to get a lein on the house which is in my name only. Their argument is a google search which showed me as the principle. I have no idea why it shows me and I have tried for months to straighten it out but its a joke. Anyway my hearing is on Thursday, do you think I will win?
#20
Old 12-04-2012, 11:10 AM
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In some cases, a prevailing party can move for sanctions, attorneys' fees, costs, or other types of recovery after judgment is rendered. It depends on the specific type of case and the law of the jurisdiction.
#21
Old 12-04-2012, 11:47 AM
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You can read about the Rule 11 of Federal Rule of Civil procedure for sanctions based on frivolous pleadings here:

Quote:
Rule 11 of the Federal Rules of Civil Procedure ("Rule 11")' is
designed to ensure that claims brought in the federal courts have merit
and are not brought for an improper purpose.2 To accomplish these
goals, the Rule imposes upon an attorney or litigant' a duty to make a
reasonable examination of the merits of and motives behind a claim
before signing a paper and filing it with the court.4 Rule 11 imposes
mandatory sanctions for failure to comply with this duty,5 and the Rule
encourages both courts and litigants to play an active role in deterring
litigation abuses.
http://ir.lawnet.fordham.edu/cgi/vie...79&context=flr (warning .pdf)

Many state rules are similar in nature.

Last edited by Darth Panda; 12-04-2012 at 11:48 AM.
#22
Old 12-04-2012, 12:17 PM
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Quote:
Originally Posted by gotpasswords View Post
A few years ago, the cost to file an answer was more than made up for when I caused the prosecutor to change color after I caused his star witness to perjure themselves.

Red from embarrassment followed by a sickly green when His Honor said "The plaintiff's claim is dismissed with prejudice."

$75 filing fee to see this? Priceless.
You had a prosecutor and a plaintiff, huh?
#23
Old 12-04-2012, 12:20 PM
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In Canada generally the losing party pays the costs of the winner. As a result, there is significantly less litigation compared to the USA.

(The law societies also discourage contingency fees; plus, damages have to be more specific, and with our health care system, there are a lot less medical bills to deal with.)

I recall one potential class action suit was shut down right at the beginning because the lawyers for the "class" could not post a bond to guarantee they could cover the victim's costs if they lost.
#24
Old 12-04-2012, 12:30 PM
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Originally Posted by Bricker View Post
You had a prosecutor and a plaintiff, huh?
I'm assuming that "prosecutor" is meant to indicate the plaintiff's counsel.
#25
Old 12-04-2012, 12:44 PM
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Costs can be a handy tool when dealing with litigants who just won't go away.

Where I am (YMMV -- different jurisdictions have different rules), an unpaid costs order from a previous lawsuit can be used to force the plaintiff to post security for costs before moving forward with a new lawsuit. Since this can be dodged if the plaintiff goes bankrupt, it's also wise to have the original costs order include a term stating that that security for costs must be paid before a new matter can be brought.
#26
Old 12-04-2012, 01:04 PM
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Legal advice is best suited to IMHO.

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#27
Old 12-05-2012, 11:28 PM
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Quote:
Originally Posted by md2000 View Post
<snip>The law societies also discourage contingency fees
To repeat an earlier post in response to md2000:

Quote:
Originally Posted by Northern Piper
Quote:
Originally Posted by md2000
Plus, most law societies are hostile to the idea of contingency fees
Another WRONG statement by md2000.

To quote wikipedia on contingency fees:

Quote:
Canada

Contingent fee agreements are legal in some provinces of Canada (Alberta, British Columbia (except in family law cases involving child custody or access),[3] Ontario[4] and Quebec among others). In other Canadian provinces, an attorney may collect a percentage of recovery in case of a victory but must charge an hourly fee otherwise.
To those four provinces specifically mentioned, I would add Saskatchewan, which also allows contingency fees. When you add those five provinces together, they have 89.1% of the Canadian population (Source: Wikipedia: List of Canadian Provinces and Territories by Population), so contingency fees are very common in Canada.
Quote:
Originally Posted by md2000
I recall one potential class action suit was shut down right at the beginning because the lawyers for the "class" could not post a bond to guarantee they could cover the victim's costs if they lost.
That's quite a feat, since costs are not available in class action litigation in Canada.
#28
Old 12-05-2012, 11:34 PM
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Slight correction to the cite. In Ontario contingency fees are permitted except for criminal or family law matters.

Last edited by Muffin; 12-05-2012 at 11:38 PM.
#29
Old 12-06-2012, 01:43 AM
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Originally Posted by Muffin View Post
Slight correction to the cite. In Ontario contingency fees are permitted except for criminal or family law matters.
They're allowed in all matters except for criminal or family matters here also, and I would be surprised if they were allowed in those matters in any jurisdiction.

Regardless, I also noticed md2000's assertion, and remembered Northern Piper's answer from the previous thread where the assertion was made. I'm glad that NP brought it forward.

Last edited by Spoons; 12-06-2012 at 01:45 AM.
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