A Cynic's Guide to Civil Litigation; Chapter 7 - Defending When You are Sued

Learning some schmuck has filed a civil case against you is gut-wrenching. You imagine the worst. First, you didn’t do anything wrong. Most of what the schmuck says in the complaint are lies. The rest is just, plain bullshit. You could lose everything if some stupid jury believes the lies and bullshit. You have family that relies on you. You might have to pay some foolish judgment instead of putting your kids through college. Doesn’t this guy know what he could do to your family?

The short answer is of course this asshole knows what he is doing to you. He/she would love to drive you into the street.[1] He would love to see you curled up in a corner in a fetal position weeping. He wants to force you to settle just to protect everything else you own. He does not care how you are destroyed; he only cares that you are destroyed.

This is the reality of the law. Each side is dedicated to its cause. Each side believes they are right. Each side believes you are wrong. This is not about the truth. It is about what a jury or judge believes. Sad, but true. Do not get caught up in pursuing some noble “I don’t care about the money; I just want the truth to come out” mantra. I have had plenty of clients who champion this gallant saying. It is elitist and foolish. It isn’t honest. When the money shows up, despite the nobility, it is always too little, and the mantra becomes, “See if you can get more", or, "I’ll take it if you lower your fee.”

If you persist in this self-sacrificing cause, you might feel noble; but you will get a bunch of bills for costs in running your defense.

Do you want to champion a cause? Make your cause money. That’ll hurt a lot more than some jury or judge saying “You are right. He was wrong. Now go away”. I am not a cynic,, or that much of a cynic. I believe that you shouldn’t lie to yourself. You will get nowhere championing a noble cause. Enough fools are trying to mold society into their idea of utopia by using the courts to force your behavior. Don’t add to it. You aren’t that noble anyway. You, and I, and everybody else just think we are noble. We are human. Human isn't noble. There is a ton of historical evidence that supports what we are. We are just at the top of the food chain. That makes us…on top of the food chain. Nothing else. We are, without equivocation, mean, selfish, and greedy. We were not born mean, selfish, and greedy. We were molded into mean, selfish, and greedy. If we do something nice, we do it because it makes us feel good doing it. We are enormously hedonistic.

Hey, if you are happy living in a shack with your wife and three kids, knock yourself out. Your kids will understand they can’t have a laptop computer because it would have been unfair to take advantage of another fellow human. Good luck with that. Your kids can borrow the laptop from the kids of the guy who did not care about being fair.

Now don’t get all depressed. I am not a self-deprecating fool. I am an asshole. I know that. I am a trial attorney. We are all assholes.

Insurance companies hire lawyers to beat you out of the money they are supposed to pay you for all the insurance premiums you have coughed up. It is not about right and wrong. It is about balancing a ledger. It is about keeping the money you paid them for the coverage you expected. They are not going to give that back unless a jury or judges forces the issue.

War Story

I have not been in every state. I can tell you with complete confidence, though, that in every state insurance companies have very influential, and very expensive, lobbyists in the state legislature. They advocate, anyway they can, for laws that favor the insurance companies. Of course, because all insurance companies are about money, they lobby for laws that restrict or limit your ability to get money from them when you have a claim.

I had a client who through no fault of his own was in a car accident that totaled his older pick-up truck. Never been in an accident. Never had a ticket. Always paid his premiums on time. Just an all around hard working nice guy that believed in the American dream.

Gets a check from the insurance company after talking to them over the phone. Looks for a couple of weeks for the same truck, same year, same equipment, but cannot find it for the same price as the check the insurance company gave him. In fact, it was thousands more.

He called me. We sued because the insurance company was not going to budge.

We got a verdict in his favor but the insurance company insisted the Judge submit individual questions to the jury. I objected because I knew what the insurance company was up to.

When the jury came back with a higher number for the property loss, the truck, than the insurance company gave in the check, the insurance company argued all they had to do was rely on market value and that the Judge had to reduce the property loss award.

The judge had no choice but to reduce the award. It was the law.

My client had other money in the award he could rely on, but that money was for personal injury, not property damage.

The accident was not his fault. He was entitled to be made whole. He wasn’t.

Not justice.

It is about people who see the courts as income. There are a lot of people out there that sue repeatedly. They count on settling because they are such a nuisance.

The list goes on and on. It is what it is. The sooner you get a grasp on this, the better off you will be. Get tough. You are going to need it.

What do you do if you are sued? Fight back!

Before we get into any of this, I need you to think about your “feelings’. Let’s “slow roll” for a minute and take a little “psych” trip.

Emotions

If you are anything like me, God forbid, your initial urge when you are served a civil complaint is to drive to the plaintiff’s house and to hit him in the face with a tire iron. If you do that then you will need to hire a criminal defense attorney. They are very expensive. I am very expensive. I know defense attorneys are very expensive. Trust me they are.

We are all emotional. Some far more than others, but we all are weepy blobs of Jell-O. In the right circumstances, we revert to sucking our thumb, (figuratively, I hope).

I have had quite a few criminal clients over the years. They all had a single thing in common. They all lost control over their emotions. You might think “That make sense. They were drug addicts or alcoholics and once that stuff gets a hold of you, your screwed.” You are partially right. But what triggered the addiction? A weak personality governed almost totally by emotions.

I am going to prep you for my bad attitude. I don’t care about being PC. If you are sensitive about hurting the feelings of someone you have never met, then skip this part and go hug a tree. Preferably a sticky sugar maple. You can glory in its tree-ness and weep with happiness as you join nature in all its majestic beauty. Avoid trying to represent yourself though.

Most people are not smart people. Most of the smart people are not smart people. They do not have control over their emotions because they are not smart enough to realize they need to control their emotions. All people have an ego. The dumber people are ruled by their ego. Smart people think because they are smart, people should respect them. When people do not respect them, they get emotional. Rich people are the dumbest people. They think because they are rich, they are smarter than anybody. After all, someone is paying them big bucks for their smartness. That means they are important too. Wow. Smart, rich, and important. These smart, rich, and important people get offended very easily because of the fantasy world they live in. They are surrounded by people who want to please them. Those people tell the rich people they are smart and important. The rich people believe them. Other people, who do not need the rich people, do not care if they hurt their feelings, which is very easy, because they think they are smart and they are rich, and people should bow down and kiss their ring. When a smart, rich, and important person gets mad, you are in big trouble, because they will spend their money and use their “connections” to hurt you. They will hire people like me.

Can you guess how many rich, smart, and important people I have represented charged with major felonies? Do you know how many I have fired because they have treated me like staff? Too many. I don’t need your respect but respect the relationship. I am not your staff. Don’t give me orders. You paid me for my skill. You want my advice, you ask, not your lacky. You decide whether to take my advice. If not. So be it. It is only going to hurt you.

Do not let opposing counsel push you around. Don’t think you need to answer stupid questions like, “You really don't think your counterclaim have any chance of succeeding, do you?” Opposing counsel is just baiting you. Trying to get a rise out of you. Testing you for your emotional response and looking for your triggers. If he finds them, he will use them every chance he gets.

If you do not control your emotions, you will get in trouble. You have them, use them. Control them. Let them out when it is to your advantage.

Are you getting the theme here? Other than I am a very bitter person. Do I have an ego? Yep. Do I think I am smart? Yep. Am, I smart? Why do you care? I don’t. I can think. If that gets me somewhere better than where I am now, so be it. If not, I’ll try something else.

I am in control of my emotions. I vent. This is a good way to vent. Write a book. Make some money. Buy a toy.

You need to control your emotions. You are going down a difficult road. There will be pitfalls. You will not “win” every battle. It is not necessary to win every battle. It is necessary that you win the war. Calling the guy and yelling at him is a bad idea. It will not get you anywhere, and if he is represented by counsel, you will get in trouble. Control is important. Emotions are nothing more than a useful tool.

The point I am trying to make is that in the practice of law raw emotions and the use of an emotional response have value in limited situations. You have every right to be offended, but lashing out in court, or for that matter, out of court, is the wrong move, unless it is calculated to affect a positive outcome. I do not call it emotions. I call it “animation”.

Animation is the calculated use of emotions to affect an anticipated reaction from an observer of the animated event. Sounds all scientific and sophisticated, doesn’t it? Once in a great while attorneys do put together a sentence rightly … correctly, correct, accurately? (sorry)

Many times, I take my cue from opposing counsel, who may get emotional during an argument to accentuate a point. I may gauge my response to demonstrate I am just as much invested in my opposing point as opposing counsel is invested in theirs.

Emotions have a great deal of value coming from a witness in front of a jury. You can see the effect on a juror’s face. If they do not react, you better circle the horses and think of another way to get across the desert.

I am not going to spend a great deal more time on emotions, but I do need to address humor in a courtroom.

Attempting to inject humor into the courtroom is a very dangerous thing. Unless you are inordinately talented at reading a room, it can take years of experience before you develop an instinct for the use of humor. If you muck it up, it is not just a tough audience, you could get chastised by the Judge or a smart lawyer could use it against you. If you have a jury deciding your fate and you fumble, it will harm you and could be the reason for losing your case. If you are not serious about your case, why would a jury be serious about your case?

You are not looking for laughter necessarily. You are looking for an agreement. You want the Court or the jury to acknowledge and recognize that something about the opposing case is ridiculous or foolish. If you use humor correctly you will demean opposing counsel’s case, their witness, or their evidence. If you understand this, you can understand how the opposite is true. If you mess up, all you do is strengthen their case and hurt yours.

When you are in court you must make split seconds decisions on your feet. If opposing counsel is using humor against you, and it seems like it is successful, you must decide how to react. You are on display. Eyes are on you. A Judge or a jury will look to you for a reaction. This is a tough call.

My “go to” is not to react, other than to slightly turn my head side to side as if to say, “This is a serious case, not a funny one.”. There is a risk with this reaction. A Judge or jury could consider you delusional, or lacking a sense of humor, a “stick in the mud”. There is always a risk. I would not laugh at the detriment to my case or my client. I would consider that abandonment. Hang tough. Don’t give up.

It is best you do not attempt to use humor in Court, no matter how nervous you are. Laugh if the Judge laughs. Do not laugh if opposing counsel does. Try your best to read your jury and react as you see fit. If you have suffered a great deal, your emotions will leak out when you are on the stand. They will be honest emotions. The Court or the jury will see that.

Enough about emotions. On to some nitty-gritty.

The Answer and Counterclaim

You must answer the complaint and, if you have any balls at all, counterclaim. Answering is just denying. Counterclaims are just that. They are claims you can make to counter against the claims the other guy has made against you. We addressed this a bit in chapter 1 when we were discussing the whole “do it yourself” thing. Here we get into it a little bit more.

Before You Counter, Answer

In every state you will find rules of procedure on how to “answer” a complaint. If you take a broad look at what needs to be accomplished, it is enough that you recognize that you are the defendant and in only limited circumstances will you have the burden of chasing anyone. We describe this as the burden of proof. The plaintiff has, as I have pointed out, the burden of proof and production. The plaintiff must “prosecute” the case against you. The plaintiff must produce evidence that proves you are liable for the harm you caused.

That is not to say you can get away with doing nothing because you are “innocent until proven guilty”. Do not mix apples and oranges. Innocent until proven guilty is a standard of proof in a criminal case, not in a civil case. In a criminal case other constitutional rights kick in that are not applied in a civil case. In a criminal case, you do not have to say or do anything. The burden is completely on the prosecutor.

In a civil case, you should meet the proof offered by the plaintiff. You can, with a broad stroke of a brush, “put the plaintiff to his proof” and you should. This boils down to answering each paragraph of the complaint as simply as possible.

There may be limitations on how you answer, but, as a matter of general practice, you can “deny” each paragraph in the complaint even if the paragraph is true. This is called “putting the plaintiff to his proof”. It is safer to admit to paragraphs that cite biological data accurately, like your name and address. A Judge could get pissed off that you are creating more work. The plaintiff might have to get certified copies of your birth records from your state’s Vital Records office when it is completely unnecessary. Some states may prohibit you from denying paragraphs that contain biological data. If it doesn’t hurt you, you can admit to those types of paragraphs. You don’t want to appear too much like a dick.

Sometimes a paragraph says more than one thing. It is good practice to answer that type of paragraph by noting you admit to some part of the paragraph and deny the other part of the paragraph.

Here is an example:

“2. The defendant admits so much of paragraph number 12 that identifies his name and residential address and denies the remainder of paragraph number 12 insofar as it alleges the defendant is an asshole.”

Or something like that. (don't use profanity!)

Just because you are a defendant in a case, does not mean you give up your rights to Due Process including your right to seek redress in the courts for wrongs committed against you. The mechanism for pursuing your rights as a defendant begins with two things: Affirmative Defenses and Counterclaims.

Affirmative Defenses

An affirmative defense is nothing more than an argument you make in a shortened captioned form. It is an attempt to “avoid” the claims. It is usually made after you answer the claims of the plaintiff. It is placed in your answer before your counterclaims. Usually, you captioned this section of your answer as “Affirmative Defenses”, and then list them by paragraph.

Affirmative defenses can shift the burden of proof and production away from the plaintiff and on to you. Some affirmative defenses need be factually specific, like fraud.

Every jurisdiction should have a rule or rules that address affirmative defenses. Every jurisdiction should have a rule that provides that if you state a defense or counterclaim and it is an affirmative defense then it will be considered an affirmative defense.

These rules usually list the defenses that you can use as affirmative defenses. Here are some:

1. The plaintiff has failed to state a claim upon which relief may be granted.

This as a “catch-all” affirmative defense. All it means is that the plaintiff has no case against you. I will discuss this affirmative defense later when we talk about what you can do to attack the plaintiff.

2. The plaintiff is “estopped” from claiming the defendant is liable for the alleged harm.

“Estopped” means like what it sounds. It is an affirmative defense that alleges the defendant cannot win because of something he did or did not do that stops him from suing you. It is also called “unclean hands”.

Others can include "accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense."

Do not just list all the affirmative defense allowed in your state. They must apply to the claims. Accord and satisfaction means you have settled the dispute with the plaintiff before he filed the complaint. You cannot stick that in as an affirmative defense if it is untrue. If the complaint has tort claims, you only interject tort-type affirmative defenses. If it has contract claims, only contract-type affirmative defenses. Some affirmative defenses cover all type of claims. Study up. There is plenty of information on the internet. You are not a dummy. You can understand this stuff.

Counterclaims

Counterclaims are how you retaliate. The plaintiff has attacked. You regroup and go on the offensive with counterclaims.

Each state probably has their own way to design counterclaims, but most likely you are going to design your counterclaims identical to how the plaintiff designed the complaint. You will have a section that identifies the “Parties”, a section that state the “Facts” and a section that makes the “Claims” against the plaintiff.

Counterclaims are usually setoff from your answer and affirmative defenses in a section that is titled “Counterclaims”. Below that caption, there is a caption titled “Parties’” or “Counterclaim Parties” or “Parties in Counterclaim”, or some such caption.

The exercise here is to clearly identify this part of your answer as your counterclaims. You need the reader to see that you have gone on the offensive and you must provide “notice” to the plaintiff that he is being sued back.

When you include counterclaims, you, the defendant, change into a plaintiff. You become a plaintiff-in-counterclaim. The plaintiff, the person suing you, becomes a defendant-in-counterclaim. Once again, the labels are only important because they tell the person reading your answer that you are making claims against the person who has sued you. Each state may name the counterclaim parties differently, but there must be some designation. Do a little research.

You are going to include a section on facts that support your counterclaim. If you are thinking like a lawyer, you probably are thinking that your facts are going to be similar to the plaintiff's facts. To a certain extent that is true. You are right to be concerned because if you denied a fact the plaintiff cited, then how can you list it in your facts in support of your counterclaim?

This can happen but if you are careful, it is not a problem. Remember when I told you you can “put the plaintiff to his proof” and deny a fact that is true? The plaintiff, as a defendant-in-counterclaim, can do that to you. He can deny a fact that is true and put you to your proof. To be safe, though, I would be consistent. If you deny a fact the plaintiff stated, don’t contradict it with a fact in counterclaim. If you denied, for instance, your traffic light was green to put the plaintiff to his proof, and in counterclaim you state your traffic light was red as you approached the intersection, change the denial in your answer to match your fact in counterclaim.

Do not, however, just admit to liability. In my example there may be many reasons why you went through your red light at the intersection that have nothing to do with negligent operation. If so, you can handle that in your affirmative defenses or counterclaims.

After you list your facts, paragraph by paragraph, your will need to list your claims against the plaintiff/defendant-in-counterclaim. The same process should be followed in listing counterclaims as were followed listing claims. Do your research and make sure you include claims that meet the rules or guidelines for your state or jurisdiction.

The plaintiff/defendant-in-counterclaim, or you if you are the plaintiff/defendant-in-counterclaim, will have to answer the counterclaim. The same rules apply to answering the counterclaim as the claims. They can be denied paragraph by paragraph.

War Story

When I was a couple of years out, my dad gave me a small criminal case in the Boston Municipal Court. He knew it was a winner, and he was right. But because of the client, he wanted to see how I would handle it.

John, all my war story clients are named “John” or “Joanna”, had been charged with operating a motor vehicle while under the influence of intoxicating liquor, or drunk driving.

Classically there are charges that partner a drunk driving charge simply because the state needs to prove there was a solid reason for the stop unless it’s a roadblock case. This wasn’t a roadblock case - random stop case, but there were no “pre-textual” charges like weaving, speeding, or operating negligently, just drunk driving.

Odd. The police report shed some light. John had been discovered parked partially on the sidewalk on the roadway underneath the elevated highway in Boston, (The elevated highway is gone now.) He was taken into custody and released to his father. The state had his bad parking as the reason for the approach and the classic “strong odor of alcohol emanating from the vehicle” as the reason for the arrest, but no field sobriety tests. None.

The reason? The police always ask if there is some medical reason why you may not either understand or be able to complete a field sobriety test.

John had a pretty good one. He was blind. The odor of alcohol was coming from his buddies. John was sober.

John’s buddies had spent the night drinking at various waterholes downtown Boston. John’s buddies were far too gone to drive, and it was thought that if they told John when to turn, stop, and such, he could drive safely. John had never driven and was thrilled. John was not the brightest bulb, but he figured even if he was stopped, they couldn’t accuse him of drunk driving. He had not had a drink all night.

John’s buddies were fun drunks though. In their drunken hilarity they thought it amusing to contradict each other’s driving directions. John had pulled over because he was leaving a swath of minor destruction as he attempted to negotiate the contradictory driving directions commanded loudly and laughingly by his passengers.

I agreed to dismissal of the drunk driving charge in trade for a fine for operating without a license.

Later, when I explained, my father chuckled a little and said, “good job”.

For those of you who are social activists, the law has addressed your concerns with the male dominant, oppressive use of pronouns as much as possible without rewriting all legal language. The pronoun “he” is gender-neutral. It means everyone without having to add a public toilet, labeled “Other”.

This is a good place to cover my ass. Do you understand that I use language in jest? Do not for a minute interpret what I say based on the black and white words I use. Understand the spirit of what I say and enjoy the writing. Do not be an idiot. Be respectful in your filings and your interactions with people, and in Court. Do not use profanity unless it is absolutely necessary.