Any Litigation lawyers out here?

Factual Questions
21

Heh. I wondered where you and your client-dar were.

CrazyFoo, permit me to summarize:[ul]
[li]You have spoken with attorneys licensed in your jurisdiction;[/li][li]You did not like their response, based on their knowledge of the facts and the law, that you do not have a case;[/li][li]You decided to take it to non-lawyers, on the internet, for the equivalent of a survey, to see if these non-law-trained people agree with you;[/li][li]You are shocked, shocked, to learn that they do not;[/li][li]You are further shocked, shocked, to learn that other lawyers also do not agree with you;[/li][li]The reason all these lawyers disagree with you is that they are corrupt;[/li][li]Your damages, if any, would be less then $10,000, which would permit you to file in small claims court; [/li][li]Your claim would be based on the definition of “newer,” which you contend has a particularized meaning that everyone in your community knows;[/li][li]The lawyers you consulted, who are all members of your community and therefore presumably know the particularized meaning of “newer” for which you are arguing all said you don’t have a case;[/li][li]The only ones who didn’t tell you that you have no case are the handful of lawyers who had the audacity to ask that you pay them to do research to find out whether or not your claims hold water.[/ul][/li]

This is a common complaint by people who do not understand the judicial system. Incidentally, law school is three years, not seven, and you couldn’t afford me anyway, so there’s no chance you’d mistakenly retain me. Also, as Random pointed out, there’s a pretty good chance I wouldn’t accept a job representing you.

But if you decide to pursue this, may I suggest that you find your county’s law library and spend some time researching the law governing your claim, including whether there already is a judicial gloss on the word “newer.” You know, do the work you refused to pay a lawyer to do. As Dewey Finn points out, if you want to argue for your definition of “newer,” you’ll have to prove it. That could be quite easy, if there’s already law out there that defines “newer,” or it could be impossible, for the same reason. Or you can hire an expert to opine regarding “newer.” Personally, I think that’s a pretty dumb approach. If it were me, and I were being paid, I’d research the law, and then make the very simple argument that “newer” means “newer than the rest of the building,” and since these windows were original, they were not “newer.”

Do I think you got screwed? Yeah. Do I think you should have looked more carefully at the inspection report and/or asked the inspector to check the windows? Yeah. Do I think you have been wronged? Yeah. Do I think it’s worth your time to pursue this? Nope, but then, what do I know? I’m just a fancy lawyer.

22

I love it when you say that!

CrazyFoo, I’m the last person to play devil’s advocate with people who feel they’ve been wronged and who want redress, especially when they must represent themselves. Three years of my life were spent fighting for my reputation and my career after I was sacked. Fortunately, I had a PhD to do for light relief.

One thing you wrote resonates strongly, when you write about a “reasonable judge”. Now the inference, intended, I’m sure, is that some judges are not reasonable, and that, most definitely, is the case.

I wrote a book about my experience (the other side, i.e. the university, settled on the seventh day of a defamation trial set for 14 days - with 7 more in reserve, having refused to call any one of their 15 witnesses, including the defendant, who’d written lengthy witness statements against me).

If I were to write another book about the lego-judicial industry, which I will probably not do, though I have a rather natty title Law Unto Themselves: Three Types of Lawyers - Solicitors, Barristers and Judges (okay, by natty I was referring to the first three words!), it would focus on the close connections, at least in the English system (I believe the American too - not done much research yet), between lawyers and judges. Essentially, one becomes the other - with virtually no training, and no evaluation. Getting fired for incompetence or bias? Forget it! Though I represented myself in person in my action, the lawyer who helped me “out of court” told me to accept the other side’s offer when they lit the old peace pipes on the sixth day. I said, “No way - the fact that they want to settle having employed one of HK’s 10 ‘superbarristers’ (on US$15,000 a day + US$65,000 just to take the case) means they think they’ll lose. I’ve waited 2 and a half years for this day. We fight on. We win.”

He replied simply, “The judge (a Chinese woman, as my ex-boss, the defendant, was) hates you, and will find for the defendant on qualified privilege” (basically a dustbin category resorted to by the defence when they admit that their client didn’t tell the truth - as they did in my case when the settlement was actually made by withdrawing in writing the defence of justification, i.e. admitting what the defendant and the witnesses wrote was not true).

So, there’s a fight to be fought, but who will fight it? Certainly not a successful, practising lawyer, and who would listen to a word a disgraced lawyer had to say?

As usual, the lawyers/judges win. A few individuals pissed off about their individual little cases is exactly what the lego-judicial establishment wants in pursuit of their objective–maintaining the status quo. Who would have the ability, the time, the energy, the thick skin and the money to overcome self interest and even more importantly the perception of self interest or obsession (“Oh, yes, Roger, got a bit of a bee in his bonnet about lawyers.” “Yes, jolly sad. Nice chap, you know–but always suffered from mental problems, I believe, and never got over not becoming a professional” - see how easy it is?) to actually, as you Americans like to say, “make a difference”?

And who, in a world where rank and prestige are so important, and where most of us really don’t want to examine our institutions too closely in case the whole edifice collapses, would let them?

23

In-joke has reached target, sir!

[QUOTE=Campion]
CrazyFoo, permit me to summarize:[ul]
[li]You have spoken with attorneys licensed in your jurisdiction;[/li][li]You did not like their response, based on their knowledge of the facts and the law, that you do not have a case;[/li][li]You decided to take it to non-lawyers, on the internet, for the equivalent of a survey, to see if these non-law-trained people agree with you;[/li][li]You are shocked, shocked, to learn that they do not;[/li][li]You are further shocked, shocked, to learn that other lawyers also do not agree with you;[/li][li]The reason all these lawyers disagree with you is that they are corrupt;[/li][li]Your damages, if any, would be less then $10,000, which would permit you to file in small claims court; [/li][li]Your claim would be based on the definition of “newer,” which you contend has a particularized meaning that everyone in your community knows;[/li][li]The lawyers you consulted, who are all members of your community and therefore presumably know the particularized meaning of “newer” for which you are arguing all said you don’t have a case;[/li][li]The only ones who didn’t tell you that you have no case are the handful of lawyers who had the audacity to ask that you pay them to do research to find out whether or not your claims hold water.[/ul].[/li][/quote]

Excellent summary, Counselor.

Do you get the impression (as I do) that the “cocky attorney” who said that

had patiently tried to explain why there was no worthwhile case, realized that he was dealing with a Problem Client, and used this as a last-ditch effort to penetrate the OP’s refusal to accept reality?

Our malpractice carriers will be so proud!

(BTW, beer’s on me if you are ever in Chicago.)

Also, thanks to Operation Ripper, lskinner and the others who restored my faith that logical people understand (a) how lawyers do business – that what we do is sell our time and professional expertise; and (b) that a lawyer who declines a case, telling the client that his case is weak or meritless is (by doing so) demonstrating his honesty. Sadly, this concept seems to escape some.

As I’ve said before on this board, lawyers tend to recognize signs of certain types of problem clients, and firmly held misconceptions about what legal issues apply is one of these signs. If you (the OP) came to me, and told the story as you have here, I’d suspect that I’d have to waste a lot of my time and your money explaining (and probably arguing) about such things as why damages are an essential element of a fraud claim, and why (even if there are damages) some cases just aren’t worth filing. This process would make neither of us happy. Don’t get me wrong - I enjoy explaining/discussing such things with clients and am happy to answer questions, but there’s a certain category of person that’s never, ever happy with explanations that aren’t perfectly congruent with his preconceptions, and the way you’ve presented things here throws of that vibe. (The gratuitous insults against lawyers who’ve tried to give you good advice further support my conclusion.)

If you still think all of us Evil Lawyers are conspiring against you and your Undoubtedly Meritorious Claim for Big Damages, I invite you to file your pro se small claims complaint. Who knows? Odd things sometimes happen in small claims courtrooms.

24

FWIW, my biggest reservation about the claim isn’t damages. I think that could be overcome. It’s whether there was fraud (OP’s recitation suggests mere error), merger (claims under the contract probably didn’t survive closing) (that’s what inspections are for) and reliance (OP would have to prove wouldn’t have bought house if had known windows weren’t original) (does anyone here know anyone who buys a house based on the windows?). Of course, as has been stated several times, only a lawyer in the relevant jurisdiction with an opportunity to review the contract and other facts can render a truly useful opinion on the matter. Lamentably, from the OP’s perspective, he/she would expect to be paid for the review.

25

Disagree about merger (not a defense to fraud, generally, and I don’t think anyone’s suggested a B/K claim), but the rest of this raises some good points.

26

I get it.

Honestly, I don’t think all lawyers are dishonest and out to cheat people.
I only believe a small % to behave this way. (like any profession I suppose)

I did learn something from the posts in this thread, and that is:
Sometimes even if you win, you still lose.

I can tell you this entire process has been extremly frustrating because it’s been a series of “misrepresentations” after another, although several of them are small, after a while you say to yourself
"WTF? Can everyone just lie their faces off and say anything they want, and then at the end of the day, just hide behind the words “Buyer Beware?”

I think I’ve misdirected some of the anger I feel to the lawyers instead of the real estate agents, and for this I apologize.
Perhaps I was in denial about how I thought the system was supposed to work.

In any case, this process has taught me to be the most untrusting sumbich from now on, and not believe anything from anyone until I have it independantly verified by a panel of experts.
This isn’t sarcasm by the way, just a harsh reality that this is the way we have to conduct business to avoid getting screwed.

Thanks again for the replies, especially to you “fancy” lawyers out there for taking the time to contribute to this post and helping me realize how things really are.

Regards

27

Agreed, merger doesn’t apply to a fraud claim. My point is that I think the OP had, at best, a contract claim (which didn’t survive closing).

28

Random, Campion, PBear, color me impressed with you charitable impulse. When the OP starts slinging shit like “play words games, which are purposely meant to deceive and manipulate like some of you seem to” and “This is precisely the reason why some in your profession have a bad reputation for being sneaky, deceitful, and bending the truth,” as every OP in these threads does, that’s when I roll my eyes and stop caring.

–Cliffy

29

CrazyFoo,

Does a lawsuit have to be the route you take? What about contacting the real estate company, outlining your concerns and letting them know how vocal you can be? The real estate agent who sold me my house lives for referrals. I am sure your negativity could hurt their future sales. Just a thought.

30

Well, could you give us a bit more to go on then? Your OP focused solely on quality-manufactured windows that aren’t leaking, and I think our responses were predictable.

However, a bit later you post that the windows are just the tip of the iceberg, and hint at other problems, which pretty much invalidates every observation that has been made about the merit of your case because they weren’t made with the totality of circumstances in mind.

If you could be a bit more detailed in what all you are talking about, then maybe we could give you a more accurate, even positive, response. Until then, I would suggest you ignore everything we’ve said on the matter, other than general observations about lawyering, etc.

31

I stick by those comments Cliffy.

What’s the problem? You don’t like a 2 way street?
It’s acceptable to come up with a ridiculous defense, but when someone challenges it, all of a sudden you feel insulted?

As I stated, I believe I could make a compelling argument for the definition of the word “Newer” and how the implication was made.

All one would have to do is scour the weekly real estate ads in the paper, and circle the listings which use the word “newer” to highlight a selling feature of a home. Every week in my local paper I see the word used dozens of times.

After you bring the 6th real estate agent on the stand to explain how his word “newer” to describe a feature meant "recently installed, I think the judge would get the idea.

Now just maybe if you were the defense lawyer, you could find 6 other real estate agents who could testify that when they used the word “Newer” in their weekly advertisements, they sincerely meant “newer than the earth’s crust”, and then you could disprove my claim, but unless your agents were paid to lie under oath, I suspect you would be hard pressed to find one, let alone six.

IMHO, for someone who holds a law degree to even bring up the argument “Newer than what? Than the earth’s crust?”
This is asinine and serves no other purpose than to play word games, distort the truth, and mislead. Yes, I said it again.

Do you think it reasonable that a real estate agent when preparing a listing sheet would include the words “Newer windows” and that agent would honestly mean “newer than the earth’s crust”?

32

Good christ, and you wonder why an attorney would charge you $500 to do anything?

33

You seem to be progressing on the notion that this was something quite deliberate bordering on a conspiracy. If the windows appeared “newer” and there was a stack of (presumably) replaced older windows in the shed it’s quite conceivable an error was made by the listing agent, or even the the seller if they were not the owners 20-30 years ago and told the agent they thought the windows were newer. The main flavor of your OP and subsequent posts seems to be that “They’re dishonest bastards out to fuck me”. Real estate agents live on referrals and conniving, dishonest agents don’t last long, esp in small ponds like your town.

If your thought is to go after the agent legally you had best read your sales contract carefully before proceeding as I’m pretty sure there will be some sort of language along the lines of “This is what we (as agents) were told and are representing, but verification by the buyer is recommended/necessary/required.”

You have a house full of perfectly good windows that look and act nearly new. In real world terms how much less would you have paid if the word “newer” was not in the multiple list blurb? I’d wager that the price would have been pretty much the same.

Your harm is minor, the additional cost you paid due to the “newer” descriptor is practically (IMO) non-existent. Objectively you may have been screwed relative to your expectations, but it was pretty petty little screwing, and is likely due to simple, fairly understandable error not a conspiracy.

34

Dear heart, the judge emphatically would not get the idea, because (for the reasons stated by Random and PBear42), your case likely would not get to the point where you could put on evidence.

Cliffy, I am not charitable. There is just this delicious irony in the fact that CrazyFoo thinks lawyers are dishonest because they’ve pointed out to him the flaws in his legal theory. It seems so funny to me that the only thing that could convince CrazyFoo that lawyers are decent folk is if we said that we thought he was right. Which, of course, we can’t do if we’re honest, so that makes us dishonest in his book.

35

I told you to stop that kind of talk!

Ouch! Perhaps we just like to displace our guilt and self-loathing onto lawyers because we ‘company men’ have to spend our lives telling our bosses that we think they are right. I’ve never thought of it like this before (chalk another one up to the sdmb), but perhaps the average lawyer is more honest than the average non-lawyer. Mine told me all the witnesses would lie in their witness statements…and he was right.

36

Okay, people, lets try a different approach.

The real estate people have misrepresented the condition and hence the value of the property. The OP feels hard done by, and I can see his point, as far as it goes.

Is there a professional body that oversees real estate agents? One that could investigate the complaint and perhaps take disciplinary action against the agents involved?

37

Two assumptions there. Misrepresent implies the realtor knew the windows weren’t “newer.” Meanwhile, seller (who had to sign-off on the listing) may have thought “newer” meant newer than other houses in town (e.g., double-paned and therefore requiring less heat in winter). Second, you’re assuming the house is worth less with its original windows. Strikes me as unlikely. They’re a very small component of the whole package.

As for whether to feel sorry for the OP, hard to judge without hearing the whole story. But my mother often goes on like this, about how so-and-so has done her wrong (also lives in a small town as it happens). Usually she’s wrong.

38

Well, I don’t know anything about real estate law in America, but just a WAG : doesn’t the agent have a legal responsibility to provide aqccurate descriptions of the properties An inaccurate description is inaccurate description, either through deliberate misrepresentation or because they didn’t bother to check.

Look at it this way. The OP says the windows are “good for 30 years” and are 20 years old. Thus they have 10 years of life left before they require replacement. If the OP thought they were 5 years old, then he could reasonably have expected 25 years use before replacement. How much does it cost to replace windows these days anyway? Figure that he has maybe lost about half that amount.

Also, if this is “the tip of the iceberg” then perhaps it’s one of several misrepresentations that jointly add up to a substantial sum.

Well, maybe so. But to give the OP the best help we can, lets just assume he’s telling the truth and work on the information he gives us. If he’s misrepresenting the information, he’ll just shoot himself in the foot.

39

Er. Not quite. What you are talking about here is negligent or innocent misrepresentation. Each of these legal theories requires a lot more than simply showing that the statements were inaccurate. I’m not discussing the facts of the case here, just the general legal principles that you asked about. Anyway, the elements of negligent misrepresentation are:

http://www.west.net/~smith/deceit.htm;

That’s a lot different from saying an innacurate description is an innacurate description [for which one is liable].

Similarly (can you guess whether it’s harder or easier to prove innocent misrepresntation?), a cause of action for innocent misrepresentation requires:

http://www.expertlaw.com/library/business/fraud.html

But see, http://www.lawskills.com/case/ga/id/68606/ (Georgia law looks different)

I have to agree with the Campion, Random, et al. that the OP sounds like a nightmare client. Under the best of circumstances fraud cases are hard to win and expensive to litigate. The burden of proof is higher, for example. http://www.judiciary.state.nj.us/civil/charges/319.htm. A client who hears what he wants to hear and distrusts ths legal profession makes it not only harder, but positively unpleasant, and liability risk for the lawyer.

CrazyFoo what magic words would it take to convince you that your case is junk?

40

Street/shmeet. You come to us hat in hand, asking us to render professional services at no cost for which we charge most people a lot of dough, and you think the best way to secure our assistance is to insult our profession. The fact that you’ve received the thorough and polite replies you did is a testament to the generosity of the lawyers on this board. And of course our good intentions are greeted once again with calumny and distrust. But take heart, Crazy – you’re not the first person on this board to burn his bridges in this fashion and you won’t be the last.

–Cliffy