T M M Inc (TMMI)

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Tmmi vs dimension inc

Plaintiffs vs defendants

Law 101

LarryP " lucky for us Nevada has this rule with 5 years, you cannot be sued again.... I am always open to a settlement"
-hmmmm sound familiar anyone

http://www.hg.org/article.asp?id=31638

For young attorneys, those who do not go to court often, or pro se litigatnts (those representing themselves), running up against an experienced litigation and trial attorney can be a stressful experience. Regardless of how much merit your case may have, a good litigator can derail your case, even before trial, using a few procedural tricks. Following are a few of them, how you can use them like an expert litigator, and things you can do to fight back.

Philosophy

The first thing to understand is the philosophy of your side of the case. For the most part, if you are a plaintiff, you want to speed through the case to the end. This is particularly true in personal injury cases (or other actions taken on contingency) by an attorney who is not paid until the end of the case, and even then only gets a percentage of the final recovery. The more he spends, the less he makes on the case. If you are a defendant, on the other hand, you often want to slow a case to a crawl and make it as painful as possible for the plaintiff to continue to fight. The more you can spend the other guy's money, the more likely you are to force him to the table to settle to stop the pain. Of course, these philosophies vary and, in some cases, it makes sense to switch roles between speed and delay, but as a rule of thumb, these are the typical default positions each side takes.

Pleadings

The pleading phase is a good place for attorneys to begin the dirty tricks. The plaintiff will usually be required to plead as many of its claims as it can or it could be barred from bringing them later. This often leads to inadvertently conflicting allegations, omissions, typos, and other errors. So, as a defendant, the first thing to do is try to find any and every basis to move for dismissal or for more definite statement. In some cases, a sufficiently aggressive motion to dismiss may actually cause a party who expected to sue and quickly settle to rethink things and let the case go. But, at the very least, you can start picking away at the plaintiff's claims, which often paints them into a corner they cannot get out of with regard to at least one or two of their claims. If you let those claims go, they may be able to make them stick at trial, but if you can make it painful for them to get past the pleading stage, the plaintiff will often give up on those claims or be unable to amend in order to fix the pleading issue. The greatest thing about challenging pleadings is the plaintiff is usually allowed to amend and the defendant is usually allowed to file another motion to dismiss. Find a stubborn enough plaintiff and you can make them spend thousands before the case has even started in earnest.

If you are the plaintiff, the way to avoid this is, ironically, by pleading the least necessary to state a cause of action. Pull the case law and, in some cases, the forms from the rules of procedure and plead the least possible to meet those requirements. Alleging more than the bare necessities usually just gives the other side more ammunition to use against you, claiming your allegations are contradictory or prove that your case is without merit.

One rookie mistake related to pleadings it to try to avoid service of process. While this is annoying to a plaintiff, there are plenty of ways to perfect service other than through personal service. If you show up later and say you were unaware of the case, you may force a reset and do over, but you are actually much more likely to run into a judge that is annoyed by your antics. Get the wrong judge, and you could find yourself having to explain how you magically found out about the case just before some critical stage in the proceedings and finding yourself on the losing side. That trick has too much risk, not enough reward.

Discovery

The best place for either side to play dirty tricks is in discovery. There are dozens of them. Overly broad requests to produce are a favorite, or, when responding, producing everything in the same way they were kept in the ordinary course of business (that can often mean a room full of files that will take days of sorting by the other side's attorney). Discovering ways to object to every request but then partially responding to make it difficult for the other side to determine if everything has been produced or not is another popular one. In responding to requests for admissions, finding any basis to object can prevent you from having to admit or deny the request. Giving evasive answers to interrogatories can allow you to respond without giving up any real information. Written discovery is an art form, both in preparing it to avoid tricks and in responding to it to keep from giving anything to the other side. And, of course, the philosophies described above can really come through at this stage of the process, as the defendant has many ways to slow things down by delaying responses, partial answers, scheduling and rescheduling inspections and deposition dates, etc.

Speaking of depositions, they also have an entire art attached to them. There are few opportunities more delicious to a skilled litigator than getting a nervous witness into a quiet room with a court reporter and no judge there to protect him from the grilling that attorney is about to deliver. One can aggressively pursue a witness that might crack under the pressure and start saying anything just to make the pain stop. For other witnesses the attorney can play the friend and get the witness comfortable enough to share things they should not. Cagey witnesses can often be outsmarted and allowed to contradict themselves without realizing they are doing it. The list of techniques has literally filled entire books.

If you are an attorney engaging in discovery for your client, but it is not something you have done a lot of, you may want to find another attorney to help and give you pointers. If you are representing yourself, this might be the point at which you decide to hire an attorney. Most cases will stall and end up settling at this point because of the many twists and turns of discovery and the frustrations it brings. Failing to fully appreciate how difficult this process can truly be can cost you the case.

Experts

If you have a case where expert witnesses will be involved, one dirty trick is to find all of the best experts in your area and retain them as consultants. When the other side goes looking for that expert to help with their case, they will find them already retained and unavailable. Some like to announce multiple experts will be testifying, even though only one or two will actually testify. This can create a lot of camouflage, but can also backfire since every expert suddenly becomes subject to deposition and the associated time and expense that goes with that. It is also not uncommon to hold off on announcing an expert until the last possible moment in order to keep the other side from gaining any insights into your case until it is too late to make significant adjustments.

Trial

Of course, the most famous place for pulling dirty tricks is at trial. While you will rarely have the witness in the back jumping up to admit to liability, a skilled trial attorney can paint a very unique picture of the evidence. This is done through the same kinds of techniques used in depositions, through creative visual aids, powerful arguments, and many other techniques. It is also not unheard of for a party to have theories of recovery or defense that never came to light during the pretrial phase. Some will attempt to introduce entirely new claims or defenses that they ask the court to allow despite the usual pleading requirements that these matters be resolved before trial. One must be aggressive to overcome such tricks and some attorneys will take advantage of less confident and less experienced attorneys and those representing themselves with these techniques. So, once again, if you have not been through the process a few times, you should have an attorney assist you to ensure the best possible outcome.

Conclusion

Obviously, these are just a few of the possible tricks and given at a pretty basic level. The real dirty tricks are usually the ones that are so technical and complicated that only the true professional will understand it and be able to account for it. Even though many states have adopted rules and procedures to try to make the litigation and trial process more accessible to the inexperienced, there is no substitute for experience. You will simply not know what you do not know if you have not been through the process a few times. As a result, when in doubt, hire it out! Find an attorney to assist you with your case, whether as a consultant or an advocate. To find an attorney in your area, visit the Law Firms page of our website at HG.org.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.