In a civil lawsuit, a defendant who does not respond to the suit papers in a timely manner is considered “in default.”. When the plaintiff makes the required showing of default and offers proof to the court of the amount of money owed, the court will issue a default judgment in the plaintiff's favor. (Learn more about Parties in a Civil ...
· The rule of "mitigation of damages" denies a personal injury plaintiff the right to recover that part of his or her damages which the court or a jury finds could reasonably have been avoided. A personal injury plaintiff's obligation is to act in a way that an ordinary, reasonable person would have in a similar situation.
· The parties to the suit are the “plaintiff” and the “defendant.”. The injured claimant is the plaintiff.The individuals or entities who are being sued are the defendants. Filing a lawsuit does not guarantee that there will be a trial. The plaintiff always has the option of negotiating a reasonable settlement during the course of litigation.
Impleader: Impleader is a process by which a third party is brought into a lawsuit by a defendant. The third party becomes a participant in the lawsuit and is known as a third party defendant.
A. 1. The Kovel doctrine, set forth in United States v. Kovel, 296 F. 2d 918 (2d Cir. 1961), describes the parameters for the extension of the attorney-client privilege to non-attorney third parties.
Basically, it means that the court will be unable to control any of the proposed defendants that you are trying to bring into your lawsuit. That is why most lawyers rely on someone known as a “process server” in order to deliver the lawsuit papers.
The common interest doctrine is an exception to the general rule that disclosure of a communication to a third party destroys any attendant privilege. In other words, the doctrine permits attorneys representing different parties with similar legal interests to share information without having to share it with others.
The term Kovel accountant is based upon the case of United States v. Kovel, 296 F. 2d 918 (2d Cir. 1961). Kovel accountants are hired when a tax attorney is concerned that conduct by his client, or in some cases lack of conduct, could result in criminal tax charges being brought.
the cause of action occurred in the state where the case is being filed; the defendant was personally served with the court papers in the state; or. the defendant has a substantial connection with the state (often called “minimum contacts”).
Personal Jurisdiction: How to Determine Where a Person Can Be Sued. Courts in the United States must have two kinds of jurisdiction to hear a case, personal jurisdiction and subject matter jurisdiction.
The 5 Types of Jurisdiction That May Apply to Your Criminal CaseSubject-Matter Jurisdiction.Territorial Jurisdiction.Personal Jurisdiction.General and Limited Jurisdiction.Exclusive / Concurrent Jurisdiction.
The “joint defense” privilege allows one group of clients and their counsel to communicate with another group of clients and their separate counsel—all without allowing their common adversary (the plaintiff) to discover those communications.
Key points. “Common interest privilege” is not a true privilege at all, but an exception to the waiver rule. Privilege will survive if the communication is disclosed to a third party who shares a sufficient “common interest” with the privilege holder.
It is not necessary for parties to share a common solicitor in order to claim common interest privilege so long as the communications are made to further the parties' shared interests. A common interest in the outcome of the litigation will generally be sufficient to allow a party to invoke common interest privilege.
A personal injury plaintiff's obligation is to act in a way that an ordinary, reasonable person would have in a similar situation. Further, an injured person must act in good faith and with due diligence in the exercise of ordinary care and reasonable judgment when selecting a doctor or treatment for his or her injuries and in seeking alternative employment.
This obligation includes seeking other employment and/or retraining if the person's usual line of work is no longer feasible. A defendant in a personal injury case will often try to reduce the amount of damages the plaintiff may recover by showing that the plaintiff failed to take reasonable steps to reduce his or her loss following the injury.
Further, an injured person must act in good faith and with due diligence in the exercise of ordinary care and reasonable judgment when selecting a doctor or treatment for his or her injuries and in seeking alternative employment.
Finally, a person whose injuries keep him from following his or her usual line of work or trade, but who can work in other areas and types of jobs, cannot sit idly by, doing nothing, and watch his or her losses grow in anticipation of recovering enhanced damages. An injured person's damages will be reduced ...
Where a doctor or other medical care provider recommends a course of treatment or gives other advice, an injured person cannot refuse the treatment or disregard the doctor's advice and then claim damages for conditions that resulted or persisted because of the failure to follow the advice. An injured person's damages will be reduced if a reasonably prudent person would have followed the medical advice given and the failure to follow the advice resulted in a lack of improvement or aggravation of the injury.
The degree to which the proposed surgery involves risk of death or further injury is a factor that is considered when determining if a reasonable person would have undergone surgery to reduce his damages. An injured person may have an obligation to lessen his or her damages by undergoing surgery if the recommended surgery is a relatively simple operation, with a good record of success.
A plaintiff cannot claim damages for a permanent injury if the permanency of the injury could have been avoided by submitting to surgery or other treatment, when a reasonable person would have done so under the same circumstances. The degree to which the proposed surgery involves risk of death or further injury is a factor ...
Each defendant, with the assistance of the defense lawyer, must respond to the plaintiff’s questions and requests for documents. Likewise, the defense lawyer will send the plaintiff interrogatories and requests for documents seeking:
The parties to the suit are the “plaintiff” and the “defendant.”. The injured claimant is the plaintiff.The individuals or entities who are being sued are the defendants. Filing a lawsuit does not guarantee that there will be a trial. The plaintiff always has the option of negotiating a reasonable settlement during the course of litigation.
The parties in litigation have a right to take depositions. A deposition is essentially:
The plaintiff typically serves written questions and written requests upon the defendant (s). The written questions are called “interrogatories.”. These questions are designed to “discover” information about the defendant (s), how the defense contends the incident occurred, and any defenses they have asserted.
The sheriff’s office or a private process server obtains the Complaint and service documents from the clerk’s office and serves them on the defendant (s)
The plaintiff always has the option of negotiating a reasonable settlement during the course of litigation. Often, the litigation process will position a case for a better settlement result without the need for trial. Insurance companies may increase the offer to a reasonable amount any time prior to the trial date.
The defendant’s liability insurance company will hire an attorney to respond to the Complaint with a document called an Answer. Sometimes, you might hear people discuss the “parties” to a lawsuit. The parties to the suit are the “plaintiff” and the “defendant.” The injured claimant is the plaintiff.The individuals or entities who are being sued are the defendants.
This duty to defend can sometimes create a conflict because the defense attorney may have two interests to consider. On the one hand, the defense attorney owes a duty to the policyholder. But it's the insurance company that actually pays the attorney, and the attorney probably wants to keep the insurance company happy (so they continue sending more work the attorney's way. And on occasion, what's best for the policyholder is not necessarily best for the insurance company. It's important to keep in mind that in this scenario, the attorney is ethically and professionally obligated to do what's best for the client (the policyholder) and not the insurance company.
Retainer: Before starting work, the client pays the attorney a lump sum payment which is kept in a special bank account separate from the firm's account. As the attorney completes work on the case, the attorney withdraws funds from the retainer.
If no insurance policy covers the underlying accident, the defendant will need to pay out of pocket for an attorney's services.
Contingency hourly: Like the straight contingency fee arrangement, the plaintiff's attorney doesn't get paid unless a recovery is obtained for the client. But unlike a straight contingency fee arrangement, the amount the attorney receives depends on the amount of time the attorney spends working on the case. This type of arrangement is unlikely in ...
For example, if an attorney spends 32.5 hours on a case and charges $250 per hour, the attorney's fee will be $8,125.
Contingency hourly: Like the straight contingency fee arrangement, the plaintiff' s attorney doesn't get paid unless a recovery is obtained for the client. But unlike a straight contingency fee arrangement, the amount the attorney receives depends on the amount of time the attorney spends working on the case. This type of arrangement is unlikely in a personal injury case unless the plaintiff will have the ability to recover attorney's fees from a losing defendant.
On the defendant's side of personal injury litigation, if a liability insurance policy applies to the underlying accident, the policy will not only indemnify the defendant for any judgment or settlement they must pay the plaintiff (up to policy limits, of course), it will also provide a legal defense in case the defendant gets sued.
If the plaintiff won, a defendant's appeal could dramatically extend the time it takes for the plaintiff to receive his or her money. There's also the chance of losing on appeal. This means a plaintiff may be happy to settle for a smaller amount than what the plaintiff won at trial to get paid more quickly and avoid a possible appeal reversal.
Regardless of who actually engages in settlement talks, the final say in whether to accept or decline a settlement offer comes from the clients (plaintiff and defendant). When a lawyer takes your personal injury case, he or she is ethically obligated to present any settlement offer made by the defendant.
After each side signs the settlement agreement, the defendant or the defendant's insurance company will write a check to the plaintiff's attorney, and the case is complete.
After both sides agree to settle, they will confirm the terms and prepare a settlement agreement. The exact provisions included in the agreement will vary from case to case, but the defendant agrees to pay a certain amount of money in return for the plaintiff agreeing to end the lawsuit and give up the right to sue the defendant again for the same claims.
If the court denies the entire motion, a trial is usually the next step in the civil suit. A motion for summary judgment is often the defendant's last chance to avoid a trial. So this is when a defendant may be most eager to settle should they lose on the motion for summary judgment.
One of the key factors in settling a case is timing . There are several moments during the life of a lawsuit where settlements become more common.
But because an insurance company is often the entity that will write a check if the plaintiff wins or the case settles, the defendant's insurance company often gets involved in negotiations.
When he doesn't file an answer and doesn't show up, you prepare all the documentation, enter his default and to get a default judgment from the court. Don't think it's a done deal, however, because if the defendant does appear at the default hearing, the court usually allows him to proceed.
If you obtain a default judgment from the court and the defendant doesn't move to set it aside, it operates as a judgment against him. You can proceed to collect under a money judgment or enforce whatever rights you have won.
A defendant who missed the deadline to answer a complaint and fails to show up at the entry of default hearing may, in time, decide to act. The defendant can file a Motion to Vacate the judgment. Generally the court grants the motion if the defendant shows he was not served with the complaint or that his failure to appear was based on mistake or excusable neglect. In many states, he'll also have to show that he has a meritorious defense; that is, he'll have to show that if the judgment is vacated, he has a chance at winning if the case goes to trial. Without both the meritorious defense and excusable neglect, the court can't vacate the judgment, even if the defendant very clearly has one of these. For example, if your defendant could have argued that he wasn't responsible for a debt because of the statute of limitations, but he has no excusable neglect for his failure to respond to the lawsuit because his only reason is that he didn't feel like answering it, the judge should not vacate the judgment.
If the judgment is for money, you might file for a writ of execution to attach a bank account. If the judgment is for possession of an apartment, you might call the sheriff's office to organize an eviction. Your rights are the same as if you went to trial and won.
One of the documents the defendant receives is called a "summons," which sets out his time frame for answering the complaint and/or appearing before the court (the time frame depends on the court and state in which you are proceeding). It also lets him know that, if he doesn't take action, the court can enter default and then order ...
An entry of default is the legal equivalent of the "you snooze, you lose" rule. Once a defendant has been given notice of the court case against him, he has a limited amount of time to appear before the court or file an answer to the lawsuit. One of the documents the defendant receives is called a "summons," which sets out his time frame ...
The court isn't count ing down the days, nor will it leap in of its own accord to bar the defendant's way to the courthouse door if he is late. This is your job as the person filing the lawsuit. Once you know that he has been given the legal documents in a way the law requires (e.g. someone handing them to him personally, etc.) calculate and mark on the calendar his final day to answer or appear.
If your case might be damaged by the retaining lien or if the attorney’s claimed fees and costs are unreasonable, you may be able to defeat the lien.
In Florida, the case file your attorney builds as he works on your case – containing your attorney’s notes, investigation reports, expert opinion summaries, and other potential evidence vital to your case – is considered to be your attorney’s property.
You should also be aware that your attorney may be able to retain funds he is holding for you – though there are strict limitations on what sort of funds he may retain. For example, attorneys may rarely retain any portion of funds held for a specific purpose (such as to guarantee a loan), even if the funds exceed the amount needed for the designated purpose. Again, review your contract carefully to see whether it contains language that allows him to retain your funds to pay his fees and costs, and under what circumstances.
If, however, your contract dictates that you are responsible for part of the litigation expenses regardless of how the case ends, your former attorney may be able to retain your file until your portion of the expenses is paid.
If your contingency fee contract dictates that your attorney must pay for the costs and expenses of the litigation unless and until your case returns with a settlement or favorable verdict, he cannot retain your file, since he would have no right to payment until the contingency (the lawsuit’s success) occurred.
In essence, a retaining lien is a way for your former attorney to hold your file hostage until he receives payment or an assurance that he will be paid out of the settlement or award received in your case.
If your first attorney withdraws from your case, your new attorney will normally request a copy of the first attorney’s case file since, without it, she would have to complete all the work already accomplished by the first attorney, causing expensive delays that could potentially damage your case. While your original attorney still has an ethical duty to not damage your case, he has a right to be paid according to the terms of the contract as well.
Attorneys should consider the following claims when filing a breach of fiduciary duty cause of action and determine which, if any, also apply to their clients: 1. Constructive Fraud.
Whenever a court finds a breach of fiduciary duty occurred, the court may also find there was a breach of the implied covenant of good faith and fair dealing. [19] The relationship between these two causes of action is similar to a lesser included offense in criminal law. Thus, it is important to also plead this a breach of the implied covenant of good faith and fair dealing whenever a suit for breach of fiduciary duty is filed.
[14] Professional malpractice claims have four basic requirements: (i) the plaintiff was owed a duty for the professional to act with the reasonable standard of care for that profession; (ii) the professional breached that duty by failing to act as he/she should or committed an act in violation of that duty; (iii) this breach harmed the plaintiff and caused injury; and (iv) the injury sustained is compensable. [15]
The above-mentioned elements for negligence are required in addition to wanton conduct with conscious or reckless disregard for the rights and safety of others. When courts examine whether an action was “wanton,” they look at the mindset of the person committing the action and whether it was done with a wicked purpose or with reckless disregard for the safety and rights of others. [5] If there are aggravating factors surrounding this willful and wanton conduct, North Carolina law allows plaintiffs to recover punitive damages and attorneys’ fees. [6]
Declaratory Judgment. Declaratory judgment actions are frequently brought in conjunction with the above mentioned claims to determine whether the fiduciary’s conduct conforms to the directives of the document in question and to determine whether the document itself is valid.
Conversion resulting from a breach of fiduciary duty typically involves a trustee or personal representative who takes property that rightfully belongs to the beneficiaries or heirs. In some cases, the trustee or personal representative has the right to take possession or control of property. However, if the beneficiaries or heirs demand ...
Negligent misrepresentation occurs when: (i) a party justifiable relies; (ii) to his detriment; (iii) on information prepared without reasonable care; (iv ) by one who owed the relying party a duty of care. [7] The first element, “justifiable reliance,” means the plaintiff actually relied on false information and it was reasonable for him to rely upon such information. [8]
Your lawyer has a responsibility to act in an ethical manner. Beyond that responsibility, they’ve actually taken an oath to uphold certain ethics.
For example, if your lawyer knows when your accident happened and when the statute of limitations runs out, yet still fails to file a claim in the allotted time period, you might no longer be able to file the claim or have legal recourse.
Malpractice could be intentional or by accident. If your lawyer has done anything that has cost you the ability to win or settle your case, or that had a detrimental effect on your proceeding, it could be considered malpractice.
Before you hire an attorney, you’ll sign a contract that sets forth the lawyer’s fees. Most personal injury lawyers work on a contingency basis, which means they get paid a percentage of the damages you receive. However, they’re also going to charge you for additional expenses that come up while the case is in process.
A lawyer is ethically bound to share any settlement offer with you. If the other party makes an offer, even if the lawyer knows it’s too low, they need to tell you that an offer was made.
Your lawyer likely knows the legal system in the community where you live, and they might have valid reasons why they think one approach is better than another, but ultimately it’s still up to you to make a decision — it’s your life, after all.
However, the lawyer should still take your wishes into consideration. The lawyer could be pressuring you to accept a settlement that you think is too low to cover your costs after an accident. Or, maybe you think taking a case to a judge and jury would be a good move but your lawyer is pushing you to settle.