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NancyPants posted:I negotiated a debt settlement for a student loan that is so old it no longer shows up on my credit report despite my having paid according to the collector's agreement since 2011. I want the settlement agreement to keep the debt off my credit reports. Is this something I can realistically expect from an attorney? A consumer attorney can do this, since a lot of them do fair credit reporting act cases now.
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Jun 15, 2016 22:53
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EwokEntourage posted:A consumer attorney can do this, since a lot of them do fair credit reporting act cases now. Thanks, would this be the same type as one who handles debt negotiation and/or bankruptcy?
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Jun 15, 2016 23:05
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I imagine DisneyWorld will pay whatever the parents of the dead gator-gotten toddler ask and will settle privately to keep this poo poo from being in the news, but if family really wanted to sue them, what grounds would they have? Unsafe environment for children?
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Jun 15, 2016 23:06
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Cowslips Warren posted:I imagine DisneyWorld will pay whatever the parents of the dead gator-gotten toddler ask and will settle privately to keep this poo poo from being in the news, but if family really wanted to sue them, what grounds would they have? Unsafe environment for children? Simple Negligence would probably get them there. Also some states consider amusement parks common carriers, though that might be muddled since it's a resort. There's also specific laws targeting hotels and their duties of care. Basically it will be a negligence theory with the "duties" likely spelled out by statute.
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Jun 15, 2016 23:10
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I'm in Texas and have what is probably a dumb law question (maybe just an ethics question). I am in a suit in small claims court for a car accident. I don't want to get into detail on that other than I am the plaintiff pro se and the defendant has a lawyer from her insurance company. So the lawyer sent me interrogatories and a request for production with a big definitions paragraph at the beginning. Me not being a lawyer sent requests back with pretty much the same stuff, changing plaintiff with defendant type stuff were the only changes I made. I get their response back and in addition to objects on most questions (they answered most to be fair,) there is a paragraph at the beginning saying they don't agree to the definitions and 'Such a use of "definitions" and "instructions" is an abuse of discovery" Since they knowingly sent me documents which they classify as an abuse of the process do I have grounds to file a grievance with the state bar or something? It seems like the attorney is trying to bully me so I will settle and I really don't think I should have to put up with it for a stupid small claims case.
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Jun 15, 2016 23:18
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NancyPants posted:Thanks, would this be the same type as one who handles debt negotiation and/or bankruptcy? Yea should be the same. They should tell you if they do them, they probably also do other related consumer law since they all tend to revolve around debt collection. Just for the love of god don't hire a firm with a url for a name
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Jun 15, 2016 23:21
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Re: Texas small claims. Did the justice of the peace authorize discovery? Cause you don't get discovery in jp court without the court authorizing it. And honestly, maybe you do report that to the bar. I hate that kind of poo poo. Nothing will come of it, but gently caress that kind of lawyer. Using instructions and definitions is also super common in discovery and saying it's an abuse, even if true technically, is so disingenuous.
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Jun 16, 2016 01:20
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Hot Dog Day #91 posted:Re: Texas small claims. Did the justice of the peace authorize discovery? Cause you don't get discovery in jp court without the court authorizing it. Yeah, he requested permission. Would bringing it up to the judge do anything that might help? My case is being heard tomorrow and as I have been preparing it has just bothered me more and more. Also surprisingly asked for a jury trial (well surprising to me). Anything I should know about those?
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Jun 16, 2016 02:17
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Cowslips Warren posted:I imagine DisneyWorld will pay whatever the parents of the dead gator-gotten toddler ask and will settle privately to keep this poo poo from being in the news, but if family really wanted to sue them, what grounds would they have? Unsafe environment for children? Premises liability. The lagoon was an unsafe condition because it had alligators in it, the park knew or should have known there were alligators in its man made lagoon, the Nebraska guests couldn't have reasonably expected gators, and Disney failed to warn of the unsafe condition.
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Jun 16, 2016 02:42
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Is it really an unsafe condition when there are gators nearly everywhere? That's like complaining you got sunburn while standing in an un-shaded area. They could put up a "Warning: Alligators" sign, but maintaining a gator-free status would be nearly impossible.
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Jun 16, 2016 03:13
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Why should they have any duty to keep it gator-free? At least they should warn people. How, inside a resort targeted toward families with children, would you expect there to be alligators in a lagoon that Disney's own gator wranglers did not expect to have alligators?
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Jun 16, 2016 03:16
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dalstrs posted:Yeah, he requested permission. Would bringing it up to the judge do anything that might help? My case is being heard tomorrow and as I have been preparing it has just bothered me more and more. Jesus Christ. Yeah, about 3 years of law school and years of practice as a litigator. You may win, but they're just going to appeal to real court, where they'll bounce you by using the rules of civil procedure. Good luck.
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Jun 16, 2016 03:18
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Re: alligators. They admit that they remove anything over 4 feet long, so they already show knowledge of a dangerous condition. And think of how easy putting up a sign that says "warning: alligators. Watch your kids" would have been. Especially since wdw is a worldwide attraction, and not every one realizes how incredibly dangerous a small gator is to a 30lb human.
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Jun 16, 2016 03:20
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Hot Dog Day #91 posted:Jesus Christ. Yeah, about 3 years of law school and years of practice as a litigator. You may win, but they're just going to appeal to real court, where they'll bounce you by using the rules of civil procedure. I hope they don't, I think the amount is small enough they probably wouldn't. If they did appeal I would hire a lawyer and I think my case is good enough they would end up having to pay my attorney fees. I'll post what happens tomorrow afterwards.
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Jun 16, 2016 04:13
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I bet the jury would love hearing about his copy/paste accusation against his own abuse of discovery process.
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Jun 16, 2016 04:57
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You need to research how to get evidence in. If you can't offer your own evidence, you'll be hosed.
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Jun 16, 2016 04:58
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In theory, the jp will not apply the rules and let anything go. In practice, assume you will get hosed.
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Jun 16, 2016 05:05
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Hot Dog Day #91 posted:In theory, the jp will not apply the rules and let anything go. Is it that bad?
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Jun 16, 2016 05:32
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dalstrs posted:I hope they don't, I think the amount is small enough they probably wouldn't. If they did appeal I would hire a lawyer and I think my case is good enough they would end up having to pay my attorney fees. I might be wrong, but if it's a car wreck and its negligence I don't think you can get attorney's fees.
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Jun 16, 2016 05:50
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EwokEntourage posted:I might be wrong, but if it's a car wreck and its negligence I don't think you can get attorney's fees. Even on an appeal if it is in my favor? In this case, they have already admitted partial fault. I just strongly disagree with their percentages and I think I have the evidence to back it up.
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Jun 16, 2016 06:07
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dalstrs posted:Even on an appeal if it is in my favor? In this case, they have already admitted partial fault. I just strongly disagree with their percentages and I think I have the evidence to back it up. Recovering attorney fees depends on what claim you are bringing. So like suing someone else for negligence to get their insurance to payout might not be eligible for attorney's fees. But maybe suing your own insurance company to get them to pay out a claim to you under the insurance code might get attorneys fees. this lists some but not all, if you're curious. If you do hire an attorney, they'll know depending on the claim
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Jun 16, 2016 06:38
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EwokEntourage posted:Recovering attorney fees depends on what claim you are bringing. So like suing someone else for negligence to get their insurance to payout might not be eligible for attorney's fees. But maybe suing your own insurance company to get them to pay out a claim to you under the insurance code might get attorneys fees. If they are appealing and I had to get a lawyer they wouldn't be on the hook then? Assuming my original suit is for negligence?
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Jun 16, 2016 06:41
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dalstrs posted:If they are appealing and I had to get a lawyer they wouldn't be on the hook then? Assuming my original suit is for negligence? By default, attorneys fees aren't available. You only get them in special circumstances. "They are appealing and I had to get a lawyer" is not special.
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Jun 16, 2016 06:52
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Kalman posted:By default, attorneys fees aren't available. You only get them in special circumstances. "They are appealing and I had to get a lawyer" is not special. Seems like it would be really easy to harass someone with lawsuits if you had the time.
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Jun 16, 2016 06:56
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dalstrs posted:Seems like it would be really easy to harass someone with lawsuits if you had the time. There are mechanisms for dealing with vexatious litigants (basically, if you're enough of an rear end in a top hat and keep filing you can be told you have to ask for permission to file) and the attorneys who enable them (Rule 11 sanctions) but they only really get used in extreme cases. And yeah, it would, for example if your name is Peter Thiel.
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Jun 16, 2016 07:05
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dalstrs posted:Seems like it would be really easy to harass someone with lawsuits if you had the time. In that case, you file for sanctions against the other party and their attorneys. At some point long ago, Americans decided each side should pay their own. So it's called the American rule. There has been a small push in more recent times to increase attorney fees award, more so in federal litigation I would guess. But it's still not close to the majority Also, you will probably only pay the attorney if you win, so it's not like you'll lose money, you'll just recover less (likely)
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Jun 16, 2016 07:07
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I bet the guy didn't even read your instructions and just objected as a matter of course. Same with all the objections in each response. I always object to "instructions and definitions" just because I don't care about three pages of crap people put at the beginning of their discovery, or the dumb obligations people try to foist on me, the law is pretty clear about what I need to disclose. Of course I don't put instructions or definitions in my own discovery, except when there are truly ambiguous terms or terms of art that need to be defined. I don't feel the need to define "you" or "identify." I have had dumbasses object that a general interrogatory asking for someone to give their name, address, DOB, DL number, and marital status was "compound" and should count as 5 separate interrogatories. My response was to amend the interrogatory to ask them to "identify" themselves, with "identify" defined as "provide your name, address, DOB, DL number, and marital status." Feels really meaningful and good having fights like that. loving lawyers. For the guy going to trial, you'll be fine. It's small claims, hopefully the judge will help you out. Just be nice and polite to everyone and don't be afraid to speak up and ask if you aren't sure what is happening. Don't interrupt anyone, especially not the judge. Also be sure that you ask the judge if you can introduce all of your exhibits into evidence and show them to the jury. This is crucial. If the other guy objects to your exhibits, ask why. If it's because of relevance say the documents are relevant because they concern the facts at issue and will help the jury decide the case. If its authenticity, you need to have a witness say what the exhibit is (e.g. a picture of a car or the accident scene, ask the witness if they took the picture or if it's an accurate depiction of whatever; a police report, ask the cop if he prepared it, does he recognize it, etc). If it's hearsay then it's trickier, but usually documents are either (a) business records, (b) admissions of the other party, like a statement they made; (c) statements you made for medical treatment, like your complaints of pain to a doctor (medical records are probably both (a) and (c)); or (d) present sense impression or a recorded recollection, something someone wrote when the information was fresh in their mind but now it's not. If none of those work, say that the evidence isn't hearsay because you aren't offering it to prove the truth of the matter asserted and watch the defense lawyer's head explode (don't do this--though it would be funny--unless it's true and you understand why). If all else fails argue that your evidence should go in so that there's a complete record on appeal. If the judge still says no, say you want to proffer the evidence, which means it goes into the record so a later court can see it but the jury can't consider it. Hopefully even if the jury can't technically see it, after all of this they now know it exists and are wondering why the rear end in a top hat defense lawyer didn't want them to see it. Good luck. Phil Moscowitz fucked around with this message at 08:34 on Jun 16, 2016 |
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Jun 16, 2016 08:24
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Seriously the rules of evidence don't apply in jp court unless the judge decides to apply them. Ask the judge to not apply them. Appeal from jp court is not a true appeal, by the way, it's a trial de novo to the next level of trial court. Yes, you have to try the case all over. The rules always apply there. No, you will definitely not get attorney fees.
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Jun 16, 2016 12:17
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If this judge has allowed discovery and allowed a jury, what are the odds he will apply the rules of evidence? I've never done anything in small claims and definitely not Texas jp so not arguing. Just curious.
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Jun 16, 2016 13:09
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Jury allowed by law. Not an option there. Report back guy!
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Jun 16, 2016 14:07
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Don't you have to pay like $2500 in jury fees though? What's the jurisdictional limit?
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Jun 16, 2016 14:25
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Justice court has jurisdiction up 10k. The jury fee is like $25. Filling fees can be a few hundred depending on what you need. The jury is 6 people, specifically not to be given a jury charge. So you basically give them a piece of paper that says plaintiff or defendant, and the judge then does the rest on the judgment. Appeals are de novo to a higher level trial court, but you must post a bond of 3x the judgment or get a surety. The crazy thing is, until 2013, all the normal rules of evidence and civil procedure applied in justice court. It could be a really fast way to resolve minor monetary disputes between sophisticated parties. But the supreme court changed that. Now, the rules specifically don't apply, and you only get discovery upon motion and order. The judge is directed to help "develop the facts of the case." I've run into some judges who believe that other laws and supreme court rulings don't actually apply in justice court anymore either. It has turned justice court into a parody of courts, more like judge Judy. And it's eliminated any kind of certainty for lawyers. I would never ever file in justice court anymore, except when required to (e.g. Evictions). I occasionally have to defend the state in justice court. It's a struggle to get rural judges, who are almost never lawyers and usually just part of the local political party (elected judges yay), to believe in concepts like sovereign immunity. I literally have to bring in a supreme court case that says "sovereign immunity and supreme court decisions are binding on justice courts" and even then.... That said, I bet it's awesome for pro se versus pro se, and I've taken some sweet defaults in justice court that I've actually collected on. I kind of hope pro se guy wins just because I really hate lawyers objecting to the same thing they sent in discovery. I
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Jun 16, 2016 14:40
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I always thought you couldn't have lawyers in small claims. Period. Or is Texas being special snowflake stupid again?
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Jun 16, 2016 15:04
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Spacewolf posted:I always thought you couldn't have lawyers in small claims. Period. Or is Texas being special snowflake stupid again? I imagine each state is different.
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Jun 16, 2016 15:26
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The "new rules" have done absolutely jack poo poo besides make us lawyers worry about a bunch of specifics and jurisdictional issues that end up not mattering. Right now I'm embroiled in an internal struggle as to whether or not to mandamus this loving JP because he won't grant my default judgment without a hearing, which is against the rules, and won't set a hearing for my default, telling me "we will set your hearing when we have an opening." I filed it 6 months ago. blarzgh fucked around with this message at 15:34 on Jun 16, 2016 |
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Jun 16, 2016 15:31
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JP appeals are 2x the judgment for defendants and $500 for plaintiffs And yea, they're a joke
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Jun 16, 2016 15:45
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EwokEntourage posted:JP appeals are 2x the judgment for defendants and $500 for plaintiffs Thats the amount of the bond that the loser has to post.
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Jun 16, 2016 15:57
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blarzgh posted:Thats the amount of the bond that the loser has to post. That's what the rules say? Am I misunderstanding you? quote:Amount of Bond; Sureties; Terms. A plaintiff must file a $500 bond. A defendant must file a bond in an amount equal to twice the amount of the judgment. The bond must be supported by a surety or sureties approved by the judge. The bond must be payable to the appellee and must be conditioned on the appellant’s prosecution of its appeal to effect and payment of any judgment and all costs rendered against it on appeal.
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Jun 16, 2016 16:29
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It's a bond, not a cost. That's blarzgh's point.
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Jun 16, 2016 16:32
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Hot Dog Day #91 posted:It's a bond, not a cost. That's blarzgh's point. Ok, but I never said anything about costs so that's what I don't get. You said quote:Appeals are de novo to a higher level trial court, but you must post a bond of 3x the judgment or get a surety.
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Jun 16, 2016 16:35
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