Plaintiff didn&#39;t respond to discovery - and later settled - can I get any legal fees back? I was sued in New Jersey on (IMHO) pretty shaky grounds. I hired a pricey lawyer ($495/hr) to try to take care of it quickly. It was clear to me that the other side didn't have any intention to go to trial. Very soon into the case my lawyer wrote up a bunch of discovery requests for them to respond to. There was a deadline. There was also some legalese: "A failure to provide the documents within the time and in the manner a set forth herein may subject the Plaintiff to sanctions pursuant to R. 4:23-1 and/or R 4:23-4" To me this appears to say that if they did not provide the discovery by the deadline, they would be responsible for the attorney fees involved. They completely ignored the deadline, didn't offer a remotely reasonable settlement until after the deadline and didn't finally dismiss the case until months after the deadline. I ended up just giving them what they wanted because I was tired of paying this guy $500 to negotiate. The settlement explicitly involved each party paying their own attorney costs. Now I'm not really excited to talk to my attorney, because I'm guessing that it will just end up as a few more billable hours that I won't get back. So my question is, is there any way at this point I can get this money? I'm also curious to hear what the actual point of writing up discovery to hurry to other side along is, if they can just ignore the deadline. The NJ code is linked below https://www.judiciary.state.nj.us/rules/r4-23.htm
The language that you're referring to, where it states that if they do not provide responses to legitimately served discovery requests in a timely manner, that they would be responsible for attorney fees, this does not refer to your attorneys fees that you incurred in defending the suit. It refers to attorneys fees that would (actually could) arise out of a hearing on a motion to compel, in the event they never answered. If that occurred, the law allows you to ask the court to award you reasonable attorney's fees as well as sanctions, but only those having to do with getting the court to make them answer. Importantly, despite the rule that states this is a potential repercussion for continually failing to answer, they rarely get awarded. This usually only occurs when the court has already warned them, after you (i.e., your attorney) has willingly given them extensions, the court has given them further extensions, and they still failed to produce/respond. Typically an attorney will allow the other side substantial extensions of time, and this is something you may not even know about. When you say they completely ignored the deadline, I'm assuming you mean the deadline on the discovery notice that gets served with the papers. Interrogatories and Requests for production of documents rarely get done anywhere near the deadline in the rules, which is a mere 3 weeks. Many times, it takes much more than this to track down everything that was requested. This is why extensions happen all the time and unless you're asking, this isn't something your lawyer will even discuss with you. When you say they "didn't offer a remotely reasonable settlement until after the deadline and didn't finally dismiss the case until months after the deadline," I'm assuming you mean they didn't make a reasonable demand (it sounds like you were the defendant). This is actually very common, and in fact, it is very early on to make (or reduce the original) demand low enough that the Defendant will accept it prior to the discovery deadline and all the depositions have passed. (When I say deadline, I don't mean the one you're talking about, I mean the actual discovery deadline, which is set forth in the scheduling order; this can easily be 9 months from the time an Answer to the Complaint is filed.) If you're referring to the token deadline put in the first set of interrogatories served, this not a "real" deadline anyone of the attorneys expects to be adhered to. Further, this a very quick settlement and you should be happy your attorney disposed of your case so quickly. As you pointed out, you are paying a lot of money every day the case lives on. In fact, the money you saved by settling early is substantial. If your attorney had gotten the documents and responses and had to wade through all of them, organize them, send follow up requests, take depositions, etc., you would be out easily another $10,000. Your lawyer did you a favor, because a less honest attorney would tell you to wait, to see if there is a defense, just so they could pad their bill. Many times when it is clear that the case is going to settle, the lawyers will serve pro forma discovery, and will say to each other not to bother answering while they attempt to settle. They are timely served if you cannot settle, but it's clear that settlement is the ultimate goal. This is very typical when the defendant almost certainly has exposure, but when the plaintiff's case also has some holes. Because of issues on both sides, they agree a modest settlement to dispose of the matter, quickly, is the best course. When you say the settlement explicitly involved each party paying their own attorney's fees, all settlements contain this clause. I have never seen a settlement agreement where a party agreed to pay the other's attorneys fees. It's just not done. In the rare case it is, it's part of the structure of the settlement and it flows to the Plaintiff, not the Defendant. This may occur in a civil rights case where there are no real damages, but the statute allows for attorneys fees to be awarded if even one-dollar is awarded. So, in a case like this, sometimes the plaintiff will accept their attorney's fees being satisfied as the settlement, (usually along with some sort of consent decree), so as to curtail the abhorrent behavior. If you want to discuss these issues with your attorney, they are not billable: they are administrative pertaining to your bill; hence, you can do so without fear of being charged. If you're nervous, tell him ahead of time you'd like to discuss your bill. He won't try to bill you for this, as he can't, and furthermore your case is settled so your file is closed. To answer your question explicitly: No - your fees are not recoverable. This is not only because you've already settled, but you were never entitled to them anyway. To answer your question about the point of sending discovery at all if you are not going to expect answers and the goal is to settle, (1) is to preserve the right during the discovery period, in the event settlement negotiations break down; (2) to give the other side a picture of how sharp your attorney is, and that he/she will be asking the right questions and they will be invasive; and (3) this is just how it is done. What you've described is how almost all low level cases proceed. Lastly, just to address what you said about it taking a few months from reaching a verbal or "handshake" agreement and having the settlement actually be recorded by the judge and a dismissal issuing, this is just something that takes a little while. Depending on the type of case it is, the court may need to approve the settlement. Even when it's not necessary for the court to approve the settlement, it takes a while to go back and forth on the language, draft the stipulations of dismissal and so on. A few months is right on target. It sounds to me like you had a pretty effective and honest lawyer who could've dragged this out for much longer. Advice for the future, in case you ever find yourself needing the services of an attorney again: If you have these types of questions, you should ask them as they come up. Again, it's not something that you can be billed for, and your lawyer should be happy to answer. Some lawyers are better than others in remembering to explain what the technical stuff means, and what the game plan is. However, the client has a responsibility too, which is to ask if you don't understand.
Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country.
What remedies are therein the United States? I would imagine that the witness could be prosecuted for perjury. My guess is that the plaintiff could prosecute the witness for the lost damages. Are there any other remedies like reopening the original trial or declaring a mistrial so that the plaintiff could sue the (deep-pocketed) defendant, or would this be double jeopardy? Perjury prosecutions are like unicorns. They are rumored to exist but are almost never seen. A prosecutor would be exceedingly unlikely to bring charges in such a case, but it might not hurt to ask. Even if the criminal prosecution prevailed, however, the defeated plaintiff would be no better off, or might get out of pocket court costs as restitution at most. You could request that the witness be sanctioned for contempt. But, this leaves the loser in the original case no better off unless the judge made the highly unusual decision to award compensatory damages as a contempt sanction. Similarly, if you have reason to believe that the attorney knew that the testimony offered was false, that would be grounds to grieve the lawyer which could result in the lawyer's suspension or disbarment, but that is very difficult to prove and again would not advance the unjustly defeated plaintiff's cause. Assuming that the time to move for a retrial (usually two weeks) expired when the new evidence was discovered, you could move to set aside the verdict (Federal Rule of Civil Procedure 60 or the equivalent state rule). The deadline for such motions based upon fraud by an adverse party is usually six months. Sometimes an independent action to set aside the verdict for fraud on the court could also be brought (sometimes within two or three years), which is an uphill battle, but probably the best option if all other deadlines have expired. The witness probably has absolute immunity from civil liability outside that court case for the testimony offered, so a civil action suing the witness for lost damages would be dismissed. The doctrine of double jeopardy does not apply, but a similar doctrine called "res judicata" (a.k.a. "claim preclusion") prohibits retrying a case that was tried on the merits between the same parties, if it has become a final order. So, filing a new case is ruled out assuming that no appeals were filed within the deadline for doing so. And, even if the deadline for filing an appeal has not lapsed, it probably wouldn't prevail because the key new evidence wouldn't be in the record. It would be better to file to set aside the judgment in a motion and to appeal if that motion was denied.
Probably not until and unless the process server gets the correct address and actually serves you. Then the documents should explain the matter fully. If the person who was attempted to be served took note of the court involved, and told you what court it was, you could call the Clerk of the Court and inquire. Otherwise you would need to ask every possible court, which would take a great deal of time and effort. You have not been lawfully served (at least not in most US jurisdictions) until you have been served in person, or perhaps by mail, or by publication in a newspaper, or in some other way considered lawful in your jurisdiction, but serving a person at your old address is not likely to be valid service. (Valid methods differ from one jurisdiction to another, and in some situations differ by the kind of case involved.) If the person at your old address gave the server your new address, s/he will probably be along shortly. If a process server is given an address by the client (plaintiff), s/he may well go there first, and only do research later in case the first address is wrong. One need not worry about it until the papers are served, but it might be wise to read the legal ads in any nearby large newspapers for a few weeks, in case of service by publication. The papers should give the name of a court, and perhaps the name of a judge. You can call the clerk of the court and find out if the papers are legit. There may well be a docket no or case no or some other identifying umber, as well. This will help in verification. Docketed cases may be listed on a court web site. A comment asks is service by publication is still possible. It can be. According to the Michigan Court Rules Rule 2.106 (D): (D) Publication of Order; Mailing. If the court orders notice by publication, the defendant shall be notified of the action by (1) publishing a copy of the order once each week for 3 consecutive weeks, or for such further time as the court may require, in a newspaper in the county where the defendant resides, if known, and if not, in the county where the action is pending; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the date of the last publication. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. In addition, subrule (E) provides that: If the court orders notice by posting, the defendant shall be notified of the action by (1) posting a copy of the order in the courthouse and 2 or more other public places as the court may direct for 3 continuous weeks or for such further time as the court may require; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the last week of posting. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. The moving party is responsible for arranging for the mailing and proof of mailing. Thus if the plaintiff does not know and cannot determine the defendant's address, or has an incorrect address but thinks that it is correct, a service by publication (or even by posting) may be lawful, if the Judge so orders, without the defendant getting an individual copy of the documents by mail. This requires some unlikely events, but is possible.
The only way in which you could be &quot;incorrectly listed as a defendant&quot; is if somehow your name was typed in as a party (there would be a glaring gap, that no paragraph of the complaint says anything about you as a defendant). Assuming the situation is nothing so bizarre as a typo, you are a defendant. Whether or not you are liable in this case is a matter of fact and law, and the plaintiff's attorney has probably done due diligence in suing everybody imaginable. Perhaps the plaintiff lied to his attorney about material facts (read the complaint); or perhaps there is a credible legal theory under which you would be liable (read the complaint). Your attorney will take care of your problems, to the best of his ability. He may be able to persuade the plaintiff's attorney that they stand no realistic hope of winning and some chance of getting smacked for pointlessly involving you. If the plaintiff's attorney isn't persuaded by the argument, your attorney could submit the legal arguments as a motion to dismiss. If the judge is not persuaded (at this stage), you (your attorney) will have to counter the arguments presented at trial.
You will almost certainly be sued For a small amount like this they would use junior lawyers and while the suit may take a while I’d be surprised if a lawyer spent a week all up on such a simple case. Say 40h at $200 = $8,000 which, when they win, you have to pay. Bargain.
Venue The location where you file the claim is the court that will hear it unless: you both agree the judge orders a different venue based on submissions from the parties (unlikely in a small claim) Costs Costs awards in small claims are rare and generally do not extend to the legal fees and if they do, the amount is capped. Costs for reasonable expenses of witnesses are slightly more common. In general, costs are limited to what is reasonable - to get the costs of travel and accommodation for the Liverpool solicitor, the party would have to argue that there was no available equivalent representation available locally. This might be arguable if you need a QC expert in say, international maritime law, it seems unlikely for a small claims matter. Personal Comment Don't go to court for £100 - settle the damn thing or walk away. In the time and worry you spend on it you could earn that sum five times over.
Are arbitration agreements subject to a 6 year statute of limitations in NJ? Yes. Remember the precedents from NJ that I cited in response to one of your recent posts: a state may not &quot;subject an arbitration agreement to more burdensome requirements than those governing the formation of other contracts&quot; This implies that the statute of limitations for arbitration agreements is the same as for contracts in general. If it were otherwise, that departure would constitute a greater burden on whichever party happens to oppose the enforcement of the arbitration agreement.