by Fred Abramson on March 19, 2010
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:
- Informal fact gathering;
- 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
by Fred Abramson on November 3, 2009
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Unhappy customers are a fact of life for small businesses. In the past, if a customer was was not pleased about the Miso Black Cod he would simply kvetch to a hundred of his closest friends and never return (unless he was Larry David).
Web 2.0 has changed the way people complain. Disgruntled customers now spend their time logging on to Yelp, Facebook and “Gripe” sites to express their feelings to the net citizens of the world. A poor review on Yelp could create losses of thousands of dollars. If the review is defamatory, should you sue?
The New York Law Journal (pay wall) reports that the bar is very high for a company to win a defamation lawsuit against an individual. In Intellectual Art Multimedia v. Milewski, New York Supreme Court Justice Hon. Judith Gische recently ruled against the company in its Internet defamation lawsuit against a customer who posted negative comments on the Rippoff Report.
Intellectual Art runs the Swiss Finance Academy which operates a school of business. It sued a customer for defamation due to a negative review. Here is a sample of the alleged defamatory comments:
- “[t]hey tell you where the location is then a week before the program starts they change the location and say no refunds whatsoever.”
- “everything they taught was a “JOKE.”
Judge Gische decided that the “speech [was] merely an alleged statement about [the customer's] personal opinion about the quality of the services of the plaintiff (Intellectual Art).” In addition, the judge ruled that on issues dealing with advocating on part of the consumer, courts are reluctant to stifle criticism of goods or services.
Conclusion
Don’t get me wrong, small businesses can still sue a customer for defamation. If the remarks are more than criticism, contact a lawyer. However, in this era of transparency, it is much cheaper to engage in business practices that foster trust than to start a lawsuit. Use Google Alerts and establish a Twitter account to monitor your brand. If a customer is unhappy, ask him why. Companies such as Zappos built an empire on listening to their customers through social media. So should you.
![Reblog this post [with Zemanta]](http://img.zemanta.com/reblog_e.png?x-id=2ab60070-46d1-4aec-8063-2051ea3b28da "The bar is high for Defamation Lawsuits against reviewers on Yelp and Gripe sites.")
