Litigation

Think Settlement of Your Commercial Litigation Case from the Start

by Fred Abramson on July 13, 2011 · 0 comments

New York Supreme Court at 60 Centre Street Think Settlement of Your Commercial Litigation Case from the StartIn New York State, only approximately 3 percent of all cases filed in Supreme Court are disposed of after a trial. If you have a business dispute, your goal is to come to a resolution as quickly and as inexpensively as possible. If you have been involved in a lawsuit before, I am sure you know why this makes sense.

As an attorney, one of my responsibilities is to discuss with you the costs of a lawsuit. The basic costs of a lawsuit may include the following:

  • Court Costs
  • Attorney Fees
  • Expert Witness Fees
  • Court Reporters
There are emotional and economic costs to you and your company as well. You are going to have to come to my office and meet with me.  If you have an employee who has intricate knowledge of the case, they need to be available.  Your time is finite. The meeting that you could have conducted regarding a new marketing initiative is now centered on litigation. Let’s face it, litigation is not kind on your nerves.
After doing a basic cost benefit analysis, eventually you will likely settle. Litigation could take years. Key witnesses may be unavailable. The costs of a lawsuit may simply be too high.
That’s why it is vital to have a discussion with your attorney to discuss strategy. This would include an analysis of what would be best theory of the case so you can position your argument in a way that we can settle your case for the right price.
You should start the process as early as possible.  Here a couple of items to get your thought process flowing:
  • Put pen to paper (if you still use paper) and simply write the facts of the case. Think of all of strengths and weaknesses of your case.
  • Identify anyone who has knowledge of the case. Anyone means anyone. From your secretary to the salesperson who executed the agreement.
  • View your adversary. Does your opponent have deep pockets? If so, it would be wise to settle early.
  • Think about your true intentions of starting a lawsuit. Are you looking for money or is it personal?
  • Estimate the correct amount that you think that you are entitled to.  If you are being sued, think about how large a verdict can you expect.
Be aware that settlement is not a sign that you are caving in. You are doing yourself a disservice by not giving it a thought from the start.
The Law Office of Frederic R. Abramson represents plaintiffs and defendants in commercial litigation in New York. If you have a question, feel free to call me at 212-233-066.
Think Settlement of Your Commercial Litigation Case from the Start

Can you be served in a lawsuit by email?

by Fred Abramson on March 30, 2011 · 0 comments

A young gentleman contacted my office today and informed me that he received some legal documents in his e-mail. Upon reviewing the offending message, I noticed it was a summons and complaint. If you are not in the know, in New York  the first legal papers for instituting a lawsuit is called a summons and complaint.  He wondered if it was necessary to answer the complaint.

The simple answer is no, at least not yet. The rules governing proper service of a lawsuit are embedded in the CPLR. Here are the basic provisions for service of process:

CPLR § 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR § 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

Since he was served by email, service was improper and he does not have to answer. However, Randall Harris, senior deputy counsel for Los Angeles County, says it is time for the law to catch up with technology.

Law Technology Today reports that Harris advocates for a change in court rules, to allow the use of e-mail for notification of hearings in child dependency matters. “The law should be modernized to keep pace with technology and the wireless reality of the 21st century. Having no physical address should no longer be a barrier to receiving due process,” he argues, in “The Case for Providing Electronic Notice in Child Welfare Proceedings.”

What do you think? Should service of process of a lawsuit be permitted by email?

Update: Over on Twitter, Jim Brasher, Esq. has noted that in  SNYDER and Snyder Energy, LLC, v. ALTERNATE ENERGY INC., Corporate Energy Investing Inc., and Peter J. Nelson, 19 Misc.3d 954, 857 N.Y.S.2d 442, 2008 N.Y. Slip Op. 28137 the court allowed for email service under limited circumstances.

The Law Office of Frederic R. Abramson practices civil litigation in the State of New York. You may contact me at 212-233-0666.

Can you be served in a lawsuit by email?

Do you Know When a Motion to Dismiss Should be Made?

by Fred Abramson on May 19, 2010 · 1 comment

2443673181 22b94312fe Do you Know When a Motion to Dismiss Should be Made?

You know that litigation could be expensive.  If your attorney is a Linchpin he will always present an analysis of the costs of defending a lawsuit to you.  Great attorneys are often able to limit the costs of litigation while continuing to defend you aggressively. Bad attorneys make lots of money by drafting unnecessary motions.

Some judges don’t allow for discovery motions, preferring issues such as the re-scheduling of depositions to be resolved at a conference. “Snake” attorneys will make the motion anyway, viewing it as a billing opportunity.

If you are subject to a lawsuit, one of the tools in your lawyers’ toolbox is a motion to dismiss. If you win a motion to dismiss, your case is over in one sweeping step.  However, if you lose and your motion is denied, your litigation costs become more expensive.  The rule outlining a motion to dismiss is CPLR section 3211. Because of its costs, the decision of whether you should make a motion to dismiss should not be taken lightly.

What should you look for when making a motion to dismiss?

  • You should first review and pick apart the complaint.
  • Does the plaintiff (the person who is suing you) state a cause of action?
  • Are there any legal defects to the complaint?
  • Does the complaint make factual sense?
  • Do you have all the facts? In many cases, you need paperwork from the plaintiff, such as a contract.
  • Does the court have the right to hear the case?
  • Are you or your company subject to the court’s jurisdiction?  For example, if your company is being sued in New York but has never conducted business there, a motion to dismiss could be appropriate.
  • Statute of Limitations. The action may not have been timely filed.

What you need to tell your Attorney

  • If you company has been sued, find out the person who has the most knowledge regarding the lawsuit.
  • Write a detailed summary of the facts
  • Notify him of any witnesses with their address, email address, Twitter account and phone number.
  • Provide all documents related to the lawsuit.

When is winning a motion to dismiss a waste of time and money?

Just because a motion to dismiss can be made, doesn’t mean that it should. There are times when winning a motion to dismiss will not dispose of the case

  • If you were improperly served, but the case is still well within the statute of limitations, the plaintiff can simply re-serve you.  
  • If there is a technical defect which can be easily changed by an amended pleading, such as the misspelling of your name?
  • In some instances, by making a motion to dismiss you may alert the plaintiff of your defenses or missing information.

When should you make a motion to dismiss even if you will probably lose?

  • For tactical reasons, you may decide to show the opposition that you are ready to go to war.
  • You can obtain facts about the case earlier than waiting for formal discovery, which could take years.

As a defendant, you should always look to settle the case before a motion dismiss is made or an answer is filed. The vast majority of cases are settled before trial.  Everyone is aware that the settlement is not a sign of weakness because of the high cost of litigation.

If you or your company has been subject to a lawsuit, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

NY State Court Civil Litigation- Why Case Investigation is Vital

by Fred Abramson on March 19, 2010 · 0 comments

If you are planning to start a lawsuit in New York State Court, one of your first tasks is helping you lawyer investigate the facts of your case.  Believe it or not, case investigation of your civil litigation matter begins before you walk into your lawyers door and may not end until a judgement has been entered and money has been collected.

There are 2 ways of case investigation:

  1. Informal fact gathering;
  2. Formal discovery requests as per the CPLR. These discovery requests are generally made when a lawsuit has been commenced.

Why is fact investation important:

  • It’s the law.  An attorney cannot bring a lawsuit in New York without making a reasonable investigation that your claim has merit. If you decide to bring a lawsuit without merit, you can be subject to civil money penalties by the judge.
  • It helps the lawyer research the proper areas of the law.  You may believe that you have a simple case where the company that you would like to sue owes you money and they have no defense. However, a full investigation of the facts may reveal that they have a defense, such as the good that you sold to them were not delivered timely.

In New York State Court civil litigation, there is usually little argument about the law. Based on my experience, the side that is able to present the most facts, and present the most logical and pursuasive argument usually wins.  Since the vast majority of New York civil litigation cases are settled before trial, it is especially important to convince opposing counsel that the facts of your case are overwealimingly in your favor.

A good lawyer will understand the court’s rules, knows what it takes to uncover evidence helpful to your case without intervention (such as gleaning evidence from social networks) along with the tenacity to press the court to obtain all the evidence to help your obtain your desired outcome.

The Law Office of Frederic R. Abramson represents both plaintiffs and defendants in New York State Court in civil litigation. If you have any questions regarding starting or defending a lawsuit in New York, contact me at 212-233-0666

Construction Litigation: When is it time for the owner to plan on it?

March 10, 2010

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The constuction industry is subject to more than its fair share of litigation. This not because the people who you work with are bad people (even though there a few bad apples). It is because industry itself if very complex.
There are many factors of what makes a project sucessful.  A successful project may not have anything [...]

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Kings County Supreme Civil Court Judges Phone & Room Numbers

February 26, 2010

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The New York Court system does not make it easy to find judges room and phone numbers.  Check out the New York State Uniform Court  System website and you will see what I mean.  The site itself is quite byzantine.

Knowing the judges room number is especially important when you are running to court for a [...]

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When Should You Settle A Case?

September 23, 2009

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Whether you are a plaintiff or defendant in a lawsuit, nearly all cases are settled before trial. The question then becomes, when should you settle a case?
There is no “one size fits all” answer as to when you should start discussing settlement with the other side.   Each case is different and involves using different types [...]

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Breach of Contract Lawsuit in New York: Quick guide to steps

May 18, 2009

The web designer that you hired failed to deliver the new web 2.0 apps on your website as agreed to in your written contract. In the alternative, you have been sued by a customer because they were not happy with the materials that you supplied. Should you call a lawyer and either start or defend a lawsuit? Below, is quick guide that summarizes the basic steps, legal process and expenses to breach of contract lawsuit.

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Tips for collecting money from companies that may no longer exist

March 18, 2009

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Just because you entered into a valid contract with a company does not mean that your contract is secure. According to Crain’s New York Business, more companies are going out of business than ever before. Many are doing so without any notice. Bankruptcy filings alone have tripled in the last year. You contact the [...]

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