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?
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.
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.”
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.
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.
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.
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?
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.
*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.
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.
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.
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?
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.
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?
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.
