I’M GETTING SUED! WHAT A NIGHTMARE

The Headache Begins: If you have been sued, or think you might get sued, you know that it’s going to be unpleasant — to say it mildly. What you might not know is that getting sued is sure to make your life a nightmare.

Worry, fear, anxiety, and anger are all common emotions, and you will likely experience an emotional roller coaster over the months, sometimes years, ahead, before it’s all over. The road ahead includes having to answer the plaintiff’s complaint, sifting your records to disclose what evidence you have, and being deposed by the plaintiff’s lawyer, who will ask you lots of brain-frying questions which you are required to answer, while your lawyer sits there silently because they are not allowed to help you answer the questions. Fail to show up for the deposition and you lose. Refuse to answer a question and you can lose your case. You might have your property or your body, subjected to an examination. Your assets can be seized to preserve them in case you lose. Your reputation in the community can be destroyed. Depending upon your line of work, you can lose your job, or have your business dry up. Your short term credit goes through the toilet because banks don’t want to lend to defendants out of the fear that they will go bankrupt. And if the plaintiff wins, then they have a judgment against all your assets. If you don’t pay the judgment right away, it earns 12% interest a year, and the plaintiff can foreclose on your property. This is a recipe for a personal and financial disaster; a real headache. So what do you do? Lawyer up, Right? Yes. But there is a danger if you don’t hire a good lawyer.

The Golden Defense Cow: In the U.S. parties to a civil lawsuit usually pay their own attorney’s fees. Hourly rates, of $200-$300/hr are common. The exception is when they have insurance for the issue the plaintiff is suing them over, say negligence in a car accident, then the insurance company pays for the lawyer; of course this has its own problems (more about that in a minute). So for a defense lawyer, collecting hourly fees is a great revenue source, they know that the longer the issue drags out, the more phone calls, letters, and motions they produce, the more billable hours they rack up and the more money they make; literally "milking" their clients for the money. It’s unethical, but impossible to prove. And if an insurance company is calling the shots, while the defendant doesn’t have to pay for the lawyers, they are stuck getting dragged along while the insurance company, fights like mad to avoid paying out any money, so they have to go through all of the turmoil of the lawsuit, but have less power about ending it.

Counselor-At-Law: But it’s not supposed to be like that. A good lawyer wears two hats, even a lawyer who works for an insurance company, they have the same ethical standards to meet.

1. the attorney-at-law hat, where the lawyer advises about the law and the client’s legal options, and
2. the counselor-at-law hat, where the lawyer advises their client about what is in their client’s best interest based on the law, ethics, the facts, the client’s emotions, and the client’s goals.

In short, as an attorney-at-law they tell you what you can do, but as a counselor at law, the lawyer says what you should do.

Unfortunately, many lawyers just gloss over their responsibilities as a counselor-at-law, or worse, basically don’t advise the client about what is in their best interest at all. Especially when they are milking the golden cow! And they allow their client’s anger to fuel them into making decisions that are good for the lawyer in the short term (more billable hours), but bad for the client in the long term (drags the process out and costs the client more).

So a key question for a defendant to ask their lawyer is, "Now that I know what the law is, what would be my best decision? What’s in my best interest? Based on everything you know about cases like this and my situation." This question forces the lawyer to counsel you about what’s in your best interest rather than what is in theirs. Everyone has an ethical right to a lawyer who communicates with their client, and advises their client on the best course of action, and most importantly, puts their client’s interests ahead of their own interests.

It’s Not About Your Anger: Getting sued makes anyone angry. You’re no exception. It’s okay to be angry; hire a therapist. Maybe you deserve to get sued. Maybe you don’t. Maybe you screwed up. Maybe you didn’t. Maybe the plaintiff really is entitled to compensation. Maybe not. Maybe you did everything right and the plaintiff is one of these people who is never happy. Maybe you did screw up, but so did the plaintiff and you think it balances each other out. Maybe it’s all a big mess that needs a court to sort out. Whatever, your story is, and regardless of how right or wrong you are, it’s not about your anger! It’s about money.

Lawsuits are usually about money. Your anger has nothing to do with whether you will pay out money or not. In fact, your anger probably will only serve to get in your way and cost you more in the long run. Because we lawyers, the people who file the lawsuits, the people who will be advising our clients about a settlement, or preparing for trial, or grilling someone in questioning —the lawyers —we don’t really care how angry you are, because it won’t make any difference in the case.

In fact most of the time, being angry will cause you to make stupid decisions that will cost you money. Because rather than looking at the facts and whatever you did or didn’t do and making a money decision, angry defendants make decisions fueled by their anger not their brain. A good defense lawyer should be able to help you get around that, unless they are milking the golden cow, because then, if you are making stupid angry decisions that’s good for them because that cow (you) keeps filling up their bank account.

Making A Business Decision: So in the end it boils down to this. You got sued. Maybe you deserved it. Maybe you didn’t. Nobody but you cares whether you deserved it or not. What they do care about is figuring out how much money they are entitled to as compensation. What you should care about is how much money is this going to cost you. Both whatever damages the plaintiff is entitled to, and, how much money your lawyer is going to cost you, and, if you could wind up paying the plaintiff’s fees, costs, and attorney’s fees, and, how much time, energy, and money fighting a lawsuit is going to cost you. In short, you should make a business decision, set your emotions aside, and just look at the dollars and cents. For a defense lawyer, it is generally speaking good advice, to advise the client to try to get rid of the case as early and as cheap as possible. Dragging the process out usually only makes everything more expensive, more emotional, and a bigger headache. But settling early, lets the parties put the issue behind them and move on with their lives. But you have to have a defense lawyer who will actually advise you about that and help you make that decision.

Bleeding Money: I don’t take many defense cases, as I’m primarily a plaintiff’s lawyer. Usually I find that when someone gets sued by somebody else, they generally deserve it, and they need to dig deep and try to find a solution, or they get dragged into court so they can lose there. When I do take a defense case, I do so because it looks like the defendant really is being targeted by someone bigger and more powerful who is trying to use their power to manipulate the defendant, or, because the defendant has such strong counter-claims that those counter-claims outweigh the plaintiff’s claims.

When defending a client, and I don’t take any car wreck defense cases, I ensure that I advise my clients to look beyond their rage to find a solution that lets them get out of the case as best they can. When that doesn’t work, then I litigate the case hard so that the other party gets the message that they should end the fight, or we go to court and let a jury sort it out. Even if you don’t hire me, you should take a proactive stance in your defense with your lawyers, ask lots of questions about the why’s behind the tactical decisions your lawyer makes, try to make business decisions as much as possible, and hold your lawyers feet to the fire to make sure that they are acting in your best interest and not just "milking the golden cow". Good luck.

If you need to hire a defense lawyer, unless you are getting sued because of a car wreck, feel free to give me a call.