About two and a half years ago there was an incident at a fraternity house that was throwing a party where my brother was attending. I and a few of my friends had gone out to the bar so we were away from the party when the big fight broke out in which two people were stabbed. My brother’s best friend, who was rushing the fraternity at the time, was the attacker and is now serving a prison sentence.
My brother was not involved in the fight nor did he see it happen (he was upstairs and the fight was outside), but he did file a police report when the cops showed up, because his friend admitted the deed to him. Well, apparently the one kid who suffered some permanent nerve damage collected the names of everyone they could find (I guess from the police reports) and is now suing each and every one of those people, my brother included.
Now, my brother is not a member of the fraternity involved, nor was he ever enrolled in the college where the fight took place. All the people we know in the fraternity should be fine because their national organization provides them with some kind of legal insurance I believe, but my brother, not being a member of the fraternity, does not have such a luxury.
There’s no question that my brother should be able to get this lawsuit dropped, with just one problem. It’s apparently going to cost him $5000 just to hire a lawyer to talk to the victim’s lawyer and get his name cleared. Because God forbid my brother be able to plead his case on his own, without blowing a hole in his pocket. This is money my brother doesn’t have, and my family doesn’t have.
Is that really the way this shit works? Can I just go accuse anyone of any random crime and get them to shell out the money to try and defend themselves from a flagrant charge? What bullshit is this?
From what my brother tells me, yes, but apparently my brother actually needs to hire a lawyer to point that out to the plaintiff’s attorney for him?
My brother is, understandably, a wreck right now. He tried calling the plaintiff’s attorney, but luckily only got the answering machine, as someone he’s speaking to now tells him that it could be construed as him trying to harrass the attorney or the victim.
The problem is that if the plaintiff’s attorney doesn’t take a shotgun approach, he runs a risk that the defendants will point the finger at the empty chair. See, people involved in lawsuits regularly do what’s called “lying.”
Do you think that the fraternity (and its insurer) wouldn’t dare to put some blame on your brother if they thought they could get away with it?
Here’s another question for you: How many people do you suppose will claim that they weren’t around when the fight broke out? And do you think they are all telling the truth?
The point isn’t the lawsuit. My brother will probably get cleared on that. The issue is that he’ll have to pay out the ass for a lawyer who will essentially do NOTHING. Then what does my brother do? Counter-sue to recoup the lawyer fees, all the while continuing to pay lawyer fees just so that he can counter-sue? It’s asinine that he can’t at least defend the charge on his own behalf, so long as the evidence (police report) is there.
I find it very hard to believe that your brother can’t find a lawyer to write a letter to opposing counsel with a copy of the police report for less than $5,000. Similarly I find it very hard to believe that your brother can’t find a lawyer to file a motion to dismiss the suit against him for less than $5,000. Even if he goes out and hires an obscenely expensive lawyer who bills at $500 an hour or something, it simply does not take that long to write either a letter to opposing counsel or a motion to dismiss.
It’s not a criminal case, his brother isn’t being prosecuted for a crime. Since he’s not at risk of incarceration the public isn’t going to foot the bill, the only consequences for his brother are financial if the person happens to win the suit against him.
I don’t know. I certainly hope that my brother’s giving me unrealistic estimates. But I find it entirely plausible that a lawyer who charges $120-150 an hour could find a way to stretch his involvement to 20-25 hours.
In my mind, the truly disappointing aspect here is that fear of this kind of incident could prevent someone from filing a police report in the first place. It would be ridiculous for a case to not be prosecuted because a lack of evidence caused by all the witnesses being too scared of being sued to speak up.
If the police report effectively puts your brother out of the action all he needs (at this point) is to hire an attorney to write a letter for a few hundred bucks stating the facts, and telling the other atty to go pound sand. This panicky notion that he needs to get Perry Mason on retainer to defend him against this trawl net approach is foolish and ruinous.
If the other attorney wants to take it to the next level and indicates he has some substantive evidence that the police report is wrong etc., then your brother can decide if he needs to hock his beer stein collection, but at this point a short conversation and letter from with a decent atty should suffice.
Now having said this some criminal defense attys are super busy heavyweights who will demand $ 5000 + as a retainer just to consider representing him. This is not the kind of atty he needs at this stage in the game.
First, IANAlawyer, and this is my uneducated opinion
I don’t know why you all assume that a police report that says his brother wasn’t there will simply solve everything. The police presumably weren’t there during the stabbing – the report probably lists people who were there when the cops arrived, and witness statements from those people. Even if those people stated the brother was not there, that’s hardly an exhaustive investigation and wouldn’t necessarily be accepted at face value by the lawyer filing the suit.
Your brother would be better off collecting witnesses to where he was, rather than to where he wasn’t.
OTOH, the lawyer is looking for deep pockets, ie insurance. If I were the brother, I would go talk to the lawyer, with a copy of the police report of course, but more importantly with information that he ISN’T in the frat, has no insurance, and is essentially judgement proof because he has no assets.
My WAG is that, assuming that the lawyer actually knows who wielded the knife, knowledge of your brother’s poverty and lack of insurance coverage will go farther than anything else in getting him off the hook.
I think the $5000 is because the lawyer who’s been given a brief rundown of the facts by your brother knows this isn’t going to be resolved by him sending a letter.
It’s a popular misconception that you can have a case against you sorted out very quickly if the True Facts are obvious to you and absolve you of liability in your opinion.
“Surely their case is totally bogus and will be thrown out of court” is a comment one regularly hears from laypeople but not from lawyers. Lawyers know that there are two sides to every story, and even if one side is a complete lie, the judge doesn’t know that and won’t be making a snap decision.
That’s probably true. Just the other day, I witnessed the head of HR for an organization get served with legal papers. He looked at the papers for 5 seconds and pronounced the case frivolous. That’s just human nature. Most people, when accused of some kind of wrongdoing, instinctively conclude that the accusation is 100% bogus. And believe it just about down to the core of their soul.
Of course we don’t have enough facts to assess the situtation presented in the OP, but I do know that if I go to a party with my best friend, I’m going to spend just about all of my time near that friend. And it’s very likely I’ll be with him when a fight breaks out.
