Speaking of Lawsuits…

One point of confusion and frustration people experience in dealing with the legal system arises from a fundamental misunderstanding, best illustated by the following exchange:

Client: “Can I sue my neighbor for the tree that fell on my fence?”

Lawyer:  “Can you sue him?  Sure.  The question is will you win?”

Client promptly plows through this brief but critical exchange, and launches into his explanation into all the facts that convince him why his case is right and his neighbor is an irrational, unreasonable bully with no more respect for law than the average Cincinnati Bengal. 

That’s a shame.  There’s a teaching moment there that might help bridge the gap between lawyers and mankind.  To a non-lawyer, suing someone means successfully suing someone.  To a lawyer, suing someone generally means putting the word “Defendant” under the person’s name, paying a filing fee, and sending them some paperwork that says, in essence, “You’ve been sued.”  In other words, lawyers view lawsuits as a process. 

Don’t believe me?  Do a Google news search to see how many headlines contain the phrase “can’t sue for” as in “Idiot Can’t Sue Mailman for Making his Dog Bark.”  Read the article. The meat of the decision is that an appellate court upholds a lower court’s decision throwing the case out. (Often at the summary judgment stage.)  The headline is, therefore, misleading.  Idiot did sue.  Then Idiot lost.  The fact that Idiot lost at the early stages of the case doesn’t change the fact that he filed suit.

To lawyers, filing suit is like putting an address and a stamp on a postcard.  Putting it in the mailbox means it’s been mailed.  But suppose the recepient didn’t get it.  Was it still mailed?  Does mailing something mean it was put into the mailbox with postage or that it was received? Lawyers might answer that question a bit differently than everybody else. Symmantics perhaps, but bridging the gap between lawyer and client lingo can serve a purpose. As frustrating as a legal dispute can be, it can always get worse.  Underestimating the time, stress, or cost of a lawsuit will make a client wish he had ignored the neighbor’s tree on his fence.

Brave New World: Cameras and the Local Courts

Futurists generally approach technology in one of two camps: Complete fear, certain that all new innovations are harbingers of doom; and child-like glee, with little thought of the long-term impact.  For those of us who have daily responsibilities that don’t generally include naval-gazing, technological advances must undergo a pragmatic approach: they either help us do our work or they do not.

The “Cameras in the Courtroom” debate has been around since at least the 80’s, but it is the affordability of the Internet, as opposed to complicated and more costly public access programming, that now makes broadcasts a reality.  Even Indiana’s own Court of Appeals and Supreme Court have been broadcasting oral arguments for several years.

Initial hearings in criminal cases are likely the fastest-growing segment of court-employed video conference in Indiana. As more rural counties build larger jail facilities, financial pressure often prevents expanding old jails near the courthouse.  As a consequence, jails are farther outside the county seats and video conferencing has helped many counties cut costs. In Howard County, a judge even recently attended court via video conference. Eventually, I expect Indiana courts will expand use of this technology to most non-trial matters.

I had the experience of trying something similar recently, using Skype. I had a client based out of state who was not able to come to Indiana for what was going to be a fairly simple matter, but one for which his input was important.  Although we resolved the issues without going on the record, I think that the video conferencing technology made this possible.  A video conference is more personal and interactive than a telephone; one gets a sense of the pauses, the facial expressions, and hand gestures we depend on to express ourselves. Those human elements are important in negotiations, particularly when financial issues may be secondary for the participants. 

I do have a few suggestions for participants or fellow attorneys who might use video conferencing in a professional setting.  1. Consider investing in a quality web camera and/or microphone.  Most webcams that are built-in to laptops are mediocre (and microphones are even worse) and HD webcams can be easily purchased for under $100.  I use this Microsoft version that worked quite well.  2. Like any camera that uses no flash,  consider your lighting.  Nothing looks more amateurish than extreme backlighting.  3.  Finally, consider having the remote party use headphones rather than speakers, to minimize feedback.

It’s a Small Claim After All.

If you’ve decided to handle a legal dispute on your own, you might be headed to small claims court.  The Indiana Supreme Court has put together a great resource for small claims disputes that can be found here.  It is a must for those on their first journey through the small claims process.

Here are a few more thoughts based on my own experiences:

1. Put yourself in the judge’s shoes. Imagine that you are the judge.  Two strangers come in and describe two different versions of events. You don’t know them from Adam. What would convince you that your case is right? Most small claims cases are not won or lost on arguments  but on evidence – meaning the documents and witnesses that are most helpful to the court.  

2. Documents, Documents, Documents.  If there’s a receipt, agreement, or repair estimate, or a picture that helps show what the case is about, then bring it.  Make enough copies for the court, your opponent, and you.  

3.  Stay on target.  Stay away from personal attacks on you opponent.  Don’t talk about his multiple DUI convictions or his status as a deadbeat dad if your dispute is about the fishng boat he sold you that won’t run.  It may irritate the  judge, and it detracts from the rest of your evidence. If the judge finds in your favor it won’t be because  your opponent is a bad person.

4. The case is yours to present, not the judge’s.  It’s not the judge’s job to make your case for you or to tell you what evidence to present, or what witnesses should talk next.  It’s not a Q&A session.  Plan ahead and create an outline of what you’ll ask your witnesses.  Start with the basics: who they  are, where they live and how they are related to the case (tenant, friend, witness, customer, plumber, etc.) Stick to what each witness saw or heard.  Avoid asking a witness who she thinks should win the case. If you are the only witness, plan what you will say.  Again, stick to the facts.

5.  Remember your audience.  You are there to convey information to the judge, not to verbally outshine your opponent.  If you are given a chance to cross-examine your opponent or his witnesses, keep it brief.  Only ask questions that help the court understand the testimony already given.  Don’t help your opponent by giving his witnesses or him a chance to further explain their answers.  

6.  Finally, don’t interrupt the judge.  I know this sounds painfully obvious, but speaking in open court is stressful for anyone. Add inexperience to the mix and you have a recipe for forgetting the basics.  If you feel that you absolutely must interrupt the judge, perhaps to correct a misunderstanding the judge has about the facts, try to do it politely, such as “Judge, may I speak?” It’s the equivalent of raising your hand in class.

Even if the claim is a small one and it’s not cost-effective to hire an attorney to represent you in court, you still may find it helpful to simply meet with an attorney about the case before your court date.  It might help you focus your presentation to the judge and understand the law that the judge will be using to help make his decision.