jscpm
Titanium
- Joined
- May 4, 2010
- Location
- Cambridge, MA
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.
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.
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