litigation

“DO I HAVE A CASE?” 5 Tips on How to Know

The first contact between many clients and this office starts with this question, “I’d like to know if I have a case?”  Every fact situation is different, but most individuals have the resources available to answer this for themselves, at least in a rough kind of way.  Your attorney will help you figure out the nuances, the practicalities of whether pursuing your claim is cost-effective, and a good attorney will also caution you that litigation is stressful, time-consuming and often very costly.  Mediation can be the better alternative, but even then one should always negotiate from a position of strength.  This means: (1) knowing the legal strengths and weaknesses of your position; (2) knowing the “rules” that will govern the game; and (3) knowing the intangibles that may motivate the other party or parties to avoid litigation and settle reasonably.

I.  ELEMENTS OF A BASIC LAWSUIT

Every claim requires four elements:  (1) that the other party(ies) owed you a duty [statutory, contractual or common law]; (2) that they breached [this means in a material way…not minor, insignificant things that didn’t really alter the terms of your situation]; (3) and because of  the breach; (4) you were damaged in a foreseeable or predictable way. 

How do you know if the other party legally owed you a duty?  Today, there are many ways to learn about the obligations we all owe each other.  For example, in a real estate deal, you may say, “I didn’t sign a contract yet, but they told me the house was mine.”  Did the seller have a duty to you, because they made such statements?  You can research this by going to http://www.leg.wa.gov (our state legislative website); looking in the search box (top right of the upper menu bar) and selecting “RCW’s) (revised code of Washington…our statutory authority). 

Enter your search terms —  for example:  “verbal agreement real estate” or “oral contract real estate.”

The pertinent statute will come up and tell you that ALL contracts to convey real estate in Washington must be in writing to be enforceable. 

You may have other claims, though.  It may seem to you that your situation is a bit special, because the seller specifically told you that they would lease your old house until you could sell it; they would pay your temporary living costs until they were ready to move out of the house being sold to you, etc. and you relied upon this, and changed your current situation to your detriment based upon those promises.  A court may not force them to sell the house to you, but a court may force them to reimburse you all of your damages for having relied upon these “side” promises.  It would be very fact dependent.  That is why your first meeting with your attorney should be as thorough, but concise, as possible. 

II.  DEFENSES THAT COULD DEFEAT YOUR CLAIM(S)

If your research shows that you have met the elements of DUTY, BREACH, CAUSATION and DAMAGES, you still must consider whether the other party has valid defenses that would defeat your claim in court.  Such defenses are also fact specific, but you can find most of them listed on the court’s website, under the civil rules of procedure, at CR 12.  (Civil rule 12).  Go to:  http://www.courts.wa.gov, and on the left menu, select “court rules.”  Type in “CR 12″ and read the entire rule.  For most lay persons, the language used is meaningless.  This is where you need to consult with an attorney if you suspect that the other party to your dispute may have some valid defenses to your lawsuit.  Examples of common situations are:

1.  You had a valid claim, but you waited too long to file suit.  This is called the “statute of limitation.”  There are different periods governing different claims.  For example, you have six years to sue for breach of a written contract, but only three years to sue for breach of an oral contract, and only two years to sue for fraud.  Many insurance contracts have a one-year suit limitation period that Washington courts have enforced.

2.  You had a valid claim, but you brought the case in Washington, and the contract says that all of the disputes will be resolved in Boston, MA and Florida law will govern and you must arbitrate and sixty days prior to the arbitration you must serve a demand for mediation upon the other party.  [Yes, I have seen a few contracts that have such convoluted provisions.  Most of them, but not all, are enforceable].

III.  PRACTICAL CONSIDERATIONS

You’ve decided that you have a claim, and that it is unlikely that the other party(ies) has any defenses.  They crashed their car into you, running a red light, were ticketed, were uninsured (also a violation of the law), and caused you both property damage and personal injury.  Unfortunately, you were also uninsured!  You will have to hire an attorney to pursue the other party and try to recover.  Most attorneys accept personal injury cases on a contingent fee basis, which means they agree to not charge you directly, but will take a 1/3 or greater percentage of whatever is recovered from the at-fault party.  Here, the fact that the at-fault party had no insurance probably means they also have no assets that they were tryin to protect with insurance.  Perhaps they are also very willing to give up their low-earning job, flee the state, and melt into the Florida economy rather than paying you from their garnished wages.  So, you may find it very difficult to interest an attorney in your case.  Collecting is the fifth element that many attorneys want to discuss with you first…before time is wasted establishing that you actually do have a valid case.  You should ask yourself this question before visiting the attorney, and do any research that is possible on your own before the first appointment.

A well prepared client is a more attractive client to any law firm.  I hope this blog posting assists you, and I also hope it assists your future attorney.  Time saved is not just money saved.  It creates a professional bond that tells your attorney you are competent, will be easy to work with, and will present well in depositions (recorded interviews of you under oath, taken by the other attorney(s)).  Organized, concise clients are desireable clients!

ENGINEER SUED FOR REFUSING TO ALTER REPORT DISMISSED FROM CASE

I recently had the pleasure of giving my client the good news that he was dismissed from litigation “with prejudice.”  This meant that he was out, for good.  The homeowner that sued him could not re-file the claim against him after trying to find evidence to support her claim.

The homeowner bought the house as a “tear down.”  However, her project turned more expensive and complicated than she had anticipated.  After firing the first contractor, she engaged a new general contractor.  That general decided to hire an engineer to monitor progress on the project.

As the homeowner believed the second contractor also did not perform well, she terminated him.  She then demanded that the engineer alter his report to reflect her own view about the second general contractor’s work on the project.  If he refused, she would sue the engineer.  The engineer responded that the report was accurate, and he refused to alter it, even to avoid being sued.   Eventually the project ended up in litigation, and the homeowner sued three of several contractors she had hired on her project, and the engineer.

As they say, “Happiness is not whether you win or lose, it’s how you place the blame.”

In this case, however, the engineer had no contract with the homeowner, and had not designed the plans and specifications for the project.  Those recommendations that the engineer had made after the homeowner expressed her unhappiness had been rejected, because they would have required even further investment in the project.  The engineer engaged me to defend him in the suit.

The engineer argued that he had no contractual duty to the homeowner, as his client was the second general contractor.  He argued further that the real reason he was sued was not because he did anything wrong on the project, but because he had refused to cave to the homeowner’s pressure to alter his reports.  The engineer maintained that his reports were accurate and therefore he had no duty to alter them.  Accurate reports could not form the basis of any misrepresentation claim, either.

After filing the motion for summary judgment, the homeowner’s attorney acknowledged the complete lack of evidence supporting the claim against my client.  Although a year to defend an unwarranted suit was too long (the plaintiff changed attorneys three times), the final result was complete and total vindication for the engineer.

I am very happy to have been able to provide this result to my engineer client.  The cost to defend the litigation for over a year, including multiple sets of discovery, a site visit, and the drafting of the motion for summary judgment,  came to less than $10,000.  While that seems like a lot to an engineer that was paid far less than that on the project, his reputation and professional integrity emerged intact.  Sometimes, happiness IS whether you win!