Thursday, April 28, 2011

Legal Warfare

I am engaged in the title’s activity.  We’ll see how this post goes as I can’t really tell you anything about the case.

Let’s say the other side is caught cold doing wrong and judicially admits it in the Answer to the Complaint (I have the distinct feeling I’m writing this for an audience of one, Curmudgeon).  For the other three or four of you, if you say something in something you file with the court, you are stuck with it – true or not – it is true.

Ah, but you get a Counterclaim filed against your client that is, charitably put, not quite based on facts or reality.  To add to the insult, the damages claimed would fund the deficit of some of our smaller distressed cities.

You figure out early on that the lawyer on the other side pretty much doesn’t have a case and wants to scare you so you will convince your client to do a walk away – each side dismisses and calls it even.  And while the lawyer is at it, said lawyer is milking his client for fees.  I really would pay for the pleasure of being in the room when the first bill is opened.

Your client understands all this and instructs you to soldier on, the right thing to do for legal and business reasons.

And I am; but, it is really depressing when I step back from it a bit.  I’m going to make a relatively nice amount of money.  My client may even come out ahead if the other side has some money to grab after a probable judgment.

And the lawyer on the other side is creative, if not quite what I consider professional, requiring me to think, something I don’t have to do very often at this stage in my career – I’m told it will stave off senility in the coming years.

But, it is all kind of distasteful.  The other lawyer is condescending and smarmy which makes me want to engage in some equally unpleasant behavior, which I’m so far resisting. 

I don’t like any of it.


The Curmudgeon said...

Oh, yes, I do understand this one. The 'tactical' counterclaim -- and the proposal to 'wash' your meritorious claim and the specious counterclaim. Always fun.

I always tell clients that principles are great. But they're very expensive.

Unless... you say there's an admission in the Answer. Can you get judgment on the pleadings? Summary judgment? (I have no idea, of course, about Georgia procedure. There are a few judges up here who'd tell you I don't have much of an idea about Illinois procedure.)

Can you get a judgment fairly quickly and then defend the Counterclaim? Even better... and I'm sure you've already thought of this... but can you tender the Counterclaim to your client's liability carrier? Then the other side can be made to suffer on the insurance company's nickel.

As for thinking... well, I've resolved of late to try it more often. Even if I'm rusty at it....

Dave said...

My probable course, after some jurisdictional wrangling and discovery, is to file for summary judgment on the counterclaim (the defense against it is both factual and legal) and using the admission in the answer to get a partial summary judgment on liability with a trial for damages. With a nice twist, using the specious allegations in the answer and counterclaim to file an additional alternative count that will seek most of the damages now claimed based on the admissions.

Alternatively, since the lawyer is milking the case and the adversary doesn't have really deep pockets, there may be an abrupt halt in the festivities after a bill or two.

The nice thing about this client is that they understand business and law and while not thrilled with costs for either, understand that both cost money. They are pissed, understand the cost of that and will remember that when they get the bills.

And now having re-read and proof the comment, I do realize that this absurd stuff really does interest me. Don't hold it against me.

Dave said...

I forgot your tender suggestion. No, business dispute, no negligence involved. Though that is a fun thing - clients love it till they get canceled by the CGL carrier.