attorneys

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

by Fred Abramson on May 19, 2010 · 1 comment

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.

What Litigation Costs and Expenses are Recoverable in NY? How about Attorney Fees?

by Fred Abramson on March 19, 2010

Nearly every lawsuit asks for recovery of attorney fees, costs and expenses for bringing the action.  When potential clients contact my office for the first time for a civil litigation matter, the most common question asked is whether attorney fees are recoverable.

Attorney fees are generally not recoverable.  There are exceptions to this rule, such as when authorized by statute (ie some employment discrimination cases), court rule, or as agreed to by the parties. The case law is rather exhaustive on this subject. I still recall my contract professor in law school engaging my first year contract class on this issue through the use of the socratic method.

Under the English system, the loser of a lawsuit pays for attorney fee’s. However, this was changed in the United States, and under the the American rule, each party has to pay for their own legal costs.  This law was established to protect people and businesses who have small budgets who would not be able to start a lawsuit against a company or individual who has deep pockets.

Following a judgment, your lawyer can include a bill of costs.  This legal document will list the costs and expenses that you can recover in addition to your judgment.  They include the following:

  • Filing fee for the summons and complaint
  • Jury Fees
  • Depositions used at trial
  • Service of summons by Officer or Process Server
  • Service of subpeona by Officer or Process Server
  • Statuatory Witness Fees
  • Lay Expert Witness Fees and Expenses. But regular expert witness fees, such as for a medical doctor in a personal injury action or a forensic accountant in a trademark claim, are not recoverable.

If you have a question about what fees and expenses are recoverable in New York State, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

The above is for informational purposes and does not constitute legal advice.  This is free. Legal advice is something you pay for.

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