Legal Lesson #2: Getting Served
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    Default Legal Lesson #2: Getting Served

    In my previous post I discussed Phil Kerner's product liability lawsuit and described how he mishandled it in certain respects and made it much easier for the enemy lawyers than it should have been.

    That post only tangentially mentioned the process of being summoned to court, but it was clear from some of the replies to the thread that people have mistaken notions about a summons and the process of service. So, I am writing this next "legal lesson" on how service of process works and how to deal with it when somebody is trying to bring you into court. Once again, I am not an attorney, but I have been very successful in court.

    If someone is determined to sue you, or bring you to court, they will succeed eventually. It is a mistake to make this easy for them. If your psychological attitude is "I am a bad person and I deserve to be sued and I should give my money to lawyers", then cooperate with them and you WILL be screwed by the legal process. If you want to succeed in court, you need to have the attitude: "I am innocent, this lawsuit is unjust and improper, the lawyers and courts have no right to my money." That is a winning attitude.

    In any legal proceeding, whether it involves process or not, you should be extremely suspicious of any advice from a lawyer that either (1) cooperates with the enemy, or (2) provides them with information. Remember, the lawyer's primary goal is to make money, not protect you. In many cases a lawyer will advise their clients to do something tactically foolish because it will generate more billable hours for themselves.

    1. What the enemy will try first: get your willful cooperation

    When somebody wants to sue you, the first thing they will do is try to get you to cooperate with them. This is because if you cooperate it is MUCH cheaper for them. So, they will send you a nice letter, "Dear Mr. Turnsalot, we would like to talk to you about you taking off your trowsers and bending over a log we have in our office. Kindest regards, Attorney Reginald Butthurt." This letter may or may not be sent certified. Often it is not, because that is more "friendly". The purpose of this letter is to get you to give them information, like your current place of residence, for example.

    Obviously, you should refuse any such letters. Never sign a certified letter from someone you don't know. You may be curious what they want. That is a mistake. A better strategy is to simply note the return address and refuse the letter. If the return address is Corboy & Demetrio, 33 N. Dearborn Street, 21st Floor, Chicago, IL 60602: then you know what they want: to get money from you. Your goal is now simple: prevent Corboy & Demetrio from collecting information about you. Being curious about the claim is a huge mistake. You will eventually find out what it is anyway. Patience is key. Remember: no information to the enemy.

    If they get no response, Corboy & Demetrio are in a quandary. Is this the right guy? Are we barking up the wrong tree?

    1a. Alternative Attack: the Bully


    Sometimes instead of nice demand letters, you will get the mean demand letters, threats. "Dear Mr. Turnsalot, show up at our office to be deposed and be given a proctology exam, or else. Sincerely, Bullhorn Blufferston, Esq." The dumber lawyers send these.

    Obviously, since you are not opening the letter, you have no way of knowing whether it is a nice letter or a mean one. It doesn't matter. What does matter is that the hostile is sending letters into a void, so he has no idea if he is making a mistake or not.

    2. The Pleading

    The enemy lawyer now has a problem. He has a dead or injured client and a causative widget and he thinks you may have made the widget, but since you are not communicating with him, he is not sure. His only way to get that information is to depose you, but to depose you, he needs to summon you, and to summon you, he needs a court case. Therefore, he will have to blindly sue something without really knowing who it is. Sometimes they will sue the widget itself: "Injurling vs Evil Widget". That way if they get the wrong guy, they can drop him from the lawsuit and add in the right guy later. Once they enter the lawsuit (very time consuming for lawyers), they go to the judge. "Your honor, we would like depose Mr. Turnsalot because our costly private investigator tells us he may have made this Evil Widget." It may seem crazy that lawyers can sue inanimate objects, but they can.

    3. The Initial Attempt at Service (In State)

    To depose you the lawyer will first try mailing you the summons. In some states it has a form in it for you to fill out as proof of service. Obviously, since you refuse such letters, you will never see that form.

    Next the lawyer will hire a sheriff. The sheriff then takes the summons to your place of business. Obviously your staff has been instructed to admit no such type of person onto the premises of your business, because it is an "insurance violation" or whatever.

    Therefore, the sheriff will then go to your house, throw it on your porch, and fill out a form testifying that he made "conspicuous service". In most states the subpoena must be mailed as well. Since you refuse such letters and the Post Office marks the mailed letter as "undeliverable", the service fails. Of course it is not enough to just fail the confirmation letter. Just to be sure, a friend of yours but not a family member, ideally living at your house, but not strictly necessary, takes the subpoena to the court that issued it, presents it to the clerk and says, "Hello, I received this subpoena, but I am not the person named on it." The clerk will then give the friend a receipt or will stamp a receipt the friend provides saying "Joe Schmoe mistakenly received subpoena for Mr. Turnsalot". The clerk of the court will then send a letter to Blufferston saying the subpoena was not served to the right person. Damn $500 and another two weeks wasted.

    If the deputy tries to do conspicuous service at your place of business, for example, he tapes the subpoena to the door of your shop, then do exactly the same thing. Get a trusted employee to take the subpoena to the clerk of the court and tell him that he received the subpoena but he is not the person named. Don't let the clerk trick the friend into becoming a process server. For example, it is unlikely, but possible, the clerk might say something like, "Can you deliver the subpoena to Mr. Turnsalot?" In that case the friend should answer "NO! I have no idea who or where this person is."


    4. Finally Served (In State)

    Blufferston will then hire and send TWO deputies to stake you out. As you are going out to your car, the deputy will touch you with the subpoena and announce "Chips Turnsalot, you are hereby served" and he has a witness, Deputy #2, to testify to it. Blufferston has to pay the two guys $1200 to get that accomplished. You accept the subpoena in hand, finally admitting a temporary defeat... but the battle is not over yet and you have already partially won by costing Corboy & Demetrio $1700 in service fees.

    5. Out of State Service: You are Golden

    If you live in a different state than that in which the lawsuit "Injurling vs Evil Widget" was filed, you are golden because nothing is harder than trying to extract somebody from another state for a deposition. First the lawyer will try steps 1 through 3 above to get you to come to Chicago (first class ticket in envelope). In my previous posting we saw how Phil Kerner made a serious error in letting the enemy lawyer trick him into cooperating in Step 1. You, of course, do not cooperate, so steps 1 through 3 do not work. Now, Corboy & Demetrio will have to hire a New York attorney to get a commission to depose you in New York, since they have no way of forcing you to travel to Chicago. This will cost them at least $5000 including all the legal fees and service fees. Your ace is that you can contest the commission. Basically, you go to the court and explain that the Chicago firm's request for deposition is improper and that you know nothing about the case so you should not be deposed. This will add months to the case and add about $15,000 to Corboy's out of pocket expenses since they have to pay the New York lawyer to appear in court and justify the deposition, and if you are successful in blocking the deposition, you win, Corboy is out $20,000 in cash, untold hours in work and they have NOTHING, no information, no case, NOTHING.

    Even if they succeed, the deposition will be only written questions in front of a notary public, a situation you can completely control and provide absolutely minimal information in answer to the questions, given your extensive problems with memory loss due to playing too much football as a teenager.

    -------------------------------------

    Summing Up

    Don't make it easy for someone to get you into court with their bogus charges. Your first defense against bogus lawsuits is to keep them out of court in the first place by not letting them serve you, and contesting the service if it should occur. A personal injury lawyer wants to question you? Fine, they can start by paying $20,000 in costs to force you to answer a few written questions to which you will have a hard time remembering the answers to.
    Last edited by jscpm; 02-22-2016 at 10:20 AM.

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    How'd you get so smart about getting sued?

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    I might add that this may vary from state to state. I sued Hyundai of America in Lousiana and the judge required personal service even though the law allowed it by mail. Here in Arizona the state had to give up on their speed cameras because personal service was required and everyone just stopped answering the door for 120 days and then you're golden.

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    Been reading these with some curiosity... Then I saw this:

    Basically, you go to the court and explain that the Chicago firm's request for deposition is improper and that you know nothing about the case so you should not be deposed.
    Don't they call that perjury? It's not like the judge is going to ask you once "Is this yours?" and let it drop. "Ah well, he said 'no clue'...End of case." Most people aren't going to get away with the Clinton defense of what the definition of is is... And attorneys and judges will keep poking and poking until it is clear you must be perjuring yourself. Unless they are pretty bad at it, I suppose.

    Just curious how you could possibly get past that without more trouble.

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    That all sounds great but it is rather difficult to avoid service if a process server or a deputy sheriff comes into your building. OK, you're theoretically not there, but it's awfully difficult to operate a business that way. Maybe it's different for an individual or sole proprietor, but a corporation--at least in the two states I've been incorporated in--has a registered agent whose function is to be served and his location is public information. So for my company it'd be unavoidable. We've been served probably thirty times over the years for child support, garnishments, you name it. Try refusing service when somebody has garnisheed one of your employees, it's a court order signed by a judge.

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    Another way is to just make shit that works the way it's supposed to, then nobody will sue you, and you won't have to play games to get outta trouble.

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    Other think, at least here in the uk, once you play games and it becomes apparent to the judge you have, your kinda defacto considered to be of less than reliable carector + if the defense wins, all costs are normally awarded, hence you end up owing for any games played. Hence whilst i have no doubt this works for some things, others i see it as just diging a bigger hole.

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    What about service by publication? The attorney goes to court and says "We have tried blah, blah, blah but haven't been able to serve this guy. His residence in in another state. May we accomplish service by publication?" Judge says "OK". Attorney publishes service in newspaper, in the location of the jurisdiction (not your home town). You be served. You don't subscribe to that newspaper and are not aware of the service. In due course, the case comes to court. In my example, there were multiple respondents so the case was disputed and won.

    My guess is, had the case been lost, there would have been a judgment against me (as well as the other respondents). If I was the only respondent, my guess, the opposition would ask the Judge for a summary judgment.

    No doubt, the laws vary from State to State. YMMV

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    Quote Originally Posted by tdmidget View Post
    Here in Arizona the state had to give up on their speed cameras because personal service was required and everyone just stopped answering the door for 120 days and then you're golden.
    Yep. State just mailed out tickets expecting to get a check from the perp in the mail due to fear and intimidation. Once the word got out paying the fine was voluntary because you were never served the ticket by a police officer, things fell apart real quick. Also funny thing it was an Australian company who operated the system and took in a large part of the income.

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    Quote Originally Posted by Spencer in NH View Post
    How'd you get so smart about getting sued?
    JSCPM, I wasn't being snarky. It's an honest question.

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    Quote Originally Posted by Spencer in NH View Post
    JSCPM, I wasn't being snarky. It's an honest question.
    I think its because I'm Irish. An Irishman in a courtroom is like a fish in water.

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    Quote Originally Posted by jscpm View Post
    I think its because I'm Irish. An Irishman in a courtroom is like a fish in water.
    ROFLMAO!

    Didn't see that coming.

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    Quote Originally Posted by jscpm View Post
    I think its because I'm Irish. An Irishman in a courtroom is like a fish in water.
    My wife always tells me an Irishman in a tavern is like a fish in water. Which one is it? Both?

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    Quote Originally Posted by jscpm View Post
    I think its because I'm Irish. An Irishman in a courtroom is like a fish in water.
    So you are officially refusing to provide any legitimate reason whatsoever that we should listen to anything you have to say about legal matters?

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    The don't call it attending the bar for nothing.

    Dennis

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    Quote Originally Posted by tdmidget View Post
    Here in Arizona the state had to give up on their speed cameras because personal service was required and everyone just stopped answering the door for 120 days and then you're golden.
    If they would have charged something reasonable maybe people would have been more willing to pay the fine. Few years ago was out there in a rental vehicle and someone else was driving it and found a red light camera for a right turn on red at 3:30am. Few weeks later I got a letter in the mail from them saying I owed 275$! Not counting the money that Enterprise charged me for forwarding my info on the rental to the Tucson PD.

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    Quote Originally Posted by [email protected] View Post
    So you are officially refusing to provide any legitimate reason whatsoever that we should listen to anything you have to say about legal matters?
    Silence..........

    Douche nozzle.

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    Quote Originally Posted by [email protected] View Post
    Silence..........

    Douche nozzle.
    Lighten up, Matt. I can lecture you all day about patents, but I'm not a patent attorney. He gave of his personal knowledge and opinion. Take it or leave it.

    Otherwise, the nozzle may be your own.

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    Quote Originally Posted by Spencer in NH View Post
    Lighten up, Matt. I can lecture you all day about patents, but I'm not a patent attorney. He gave of his personal knowledge and opinion. Take it or leave it.

    Otherwise, the nozzle may be your own.
    Sure, and I'm not a trained machinist yet I'm expanding my machine shop, but if you were asked why we should listen to you about patents because you were throwing out a bunch of non-standard advise about a potentially very important topic, you would at least be able to let us know that you have this and that experience over this many years with these results. This dude offered no such evidence or reassurance, so I stand by my conclusion.

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