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.
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.
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 March 17, 2010
Wage and Hour lawsuits are rising according to Kiplinger.com. Due to the faltering economy, workers who have been let go are looking to the courts to seek monetary damages. Usually the lawsuits are based upon allegations that hourly workers are not paid overtime. This is a violation of the Federal Labor Standards Act.
According to the article, New York was one of the states that has seen the most significant growth in Wage and Hour lawsuits. Among the reasons why there have been an increase in litigation is because these cases are relatively easy to win. The proof is in the numbers. If you are a worker, you simply have to prove that you worked overtime. This is usually evidenced by a time sheet. Large employers also keep records of employees hours. If the workers paycheck doesn’t match the hours worked, the worker wins. Awards can include two to three years of back pay plus benefits.
The Obama administration is also placing a greater emphasis on regulation and enforcement. As a result, more workers are being notified of Wage and Hour violations.
Here are a few ways that a business can protect itself from Wage and Hour lawsuits:
- All worker classifications should be reviewed. Make sure that you are properly classifying any independent contractors.
- Review all worker wages. Sit down with an attorney to see if you workers are being properly paid. This could save your company millions of dollars. Wal-Mart settled a $65 million dollar claim last year.
- Speak to and train all of your supervisors. Managers often demand workera to work overtime without knowing its implications.
- If there is a problem don’t ignore it. If an employee complains that she has not been paid overtime, take it seriously. Wage lawsuits can be just as costly as sexual harassment litigation.
- Make sure your employee handbook is up to date and addressses wage and hour issues.
- Be aware of the difference between employees who are paid salaries and hourly workers.
Another tip, as Rush Nugut points out is that a business should consider hiring a lawyer during the auditing process as to keep the attorney-client privledge.
I would also like to thank Craig Roberts for his insights regarding this issue while watching our children slide on giant inflatables at a Pump it Up party in Plaiview, Long Island.
If you have any question regarding Wage and Hour Lawsuits, whether you are an employer or employee, contact the Law Office of Frederic R. Abramson 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.
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