Under which conditions after winning a trial in California you can claim for compensation to cover attorney expenses? I have been menaced to be brought to court in a case where the other part has largely more resources than I do. I am not worried about the veracity of the claims, but I am worried about being dragged to a long litigation I might not be able to afford with my personal funds. Is there a way to know in advance in which circumstances I would be eligible for compensation to cover my defense expenses?
Whether one can recover attorneys fees after litigation in California depends upon the nature of the case. Their amount may be affected by the nature of the judgment. The general rule is each party is responsible for that party's attorney's fees. That means that the trial result is irrelevant - no matter what happens, one pays for one's own attorneys fees. There are, however, some exceptions: First: if the parties are litigating a contract, the contract text itself may provide that the prevailing party can recover attorneys fees from the non-prevailing party. Such &quot;Attorneys' Fees Clauses&quot; are common. The prevailing party may have to file a motion in the trial court for the judge to add attorneys fees to the judgment amount; the judge will also be responsible (in ruling on the motion) to determine the amount of attorneys fees. Second: specific state statutes may allow the prevailing party to recover &quot;Statutory attorneys fees.&quot; This is completely dependent on whether the case at issue fits the various statutory definitions. For example, the Song-Beverly Consumer Warranty Act (the California &quot;Lemon Law&quot;) provides for the recovery of attorneys fees by an aggrieved consumer. There are multiple other examples throughout the California Codes. Third: @ohwilleke (to whom thanks) added a comment below that includes other exceptions to the general rule. The comment text was: There are a few other exceptions, e.g. breaches of fiduciary duties involving trust finds, bad faith breaches of insurance contracts, etc. Also, it is possible for attorneys' fees awards to be made because litigation or some specific conduct in litigation is either groundless and frivolous, or violates a court rule. Further, a prevailing party generally gets court costs (e.g. filing fees, expert witness fees, copying costs, and other out of pocket expenses other than attorneys' fees) even when attorneys' fees are not awarded. Most are modest, but not expert witness fees. If the case at issue does not fall within an exception, the general rule — each party is responsible for their own attorneys fees — applies.
The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges.
We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately.
I intend to close on the house as I've already signed all the loan paper work, but is there anything that can be done about a Realtor that breaks contract? You have probably waived your claim if you proceed with the deal knowing about the Realtor's conduct. What would your damages be? Could you have mitigated them by not agreeing to the deal? Also second question would it be better to seek a personal or Real estate attorney in such situations as this? Lawyers aren't that specialized. I would not recognize a "personal" attorney as something necessarily different from a "Real estate attorney" and the questions involved are not so complex that a general practice attorney couldn't handle them. Familiarity with real estate issues would be desirable (e.g. you wouldn't want to hire someone whose practice was exclusively as a criminal defense attorney or a personal injury lawyer, or a patent lawyer, for this task), but a great many lawyers who describe their practices differently would have the relevant experience and knowledge.
In a civil rights action in which someone prevails (which is by no means certain in this case, but not impossible either), there is at a minimum an award of nominal damages (i.e. $1) and the reasonable attorney fees and litigation costs incurred in the lawsuit. A jury could also award a prevailing party non-economic damages, and/or exemplary damages (a.k.a punitive damages) in connection with a violation of civil rights. There might also be injunctive or declaratory relief stating that this was a violation of civil rights and requiring the government to adopt practices to prevent harm going forward. It is hard to see how there would be any economic damages at issue in this case, but it isn't impossible to imagine some circumstances in which they could be proven, perhaps.
Normally, the prosecution case will not rely upon the testimony of the defendant. Instead, the prosecution will call all of its witnesses until its evidentiary case is complete. Then, the defense case opens and it may call witnesses. The defense is not obligated to call all of the witnesses that it stated that it anticipated that it would call prior to trial and the jury doesn't know which witnesses the parties said that they anticipated that they were going to call and didn't call. Until the defense case is closed, the defendant can call himself or herself as a witness if he or she wishes to do so, but is not obligated to do so. Once a defendant starts testifying (generally in his or her own case) he or she has generally waived the Fifth Amendment right not to testify. So, the prosecution may cross-examine the defendant in this situation. But since the prosecution's case is usually already closed at this point, the prosecution's cross-examination is limited to the scope of the defendant's testimony under questions from his or her own lawyer (there are some nuances of how this is done when the defendant is self-represented and has no lawyer). The prosecution cannot expand the scope of questioning of the defendant to new topic areas. I can imagine deviations from this pattern in odd circumstances, but they would be very rare.
Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim. If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord. I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing. For the purpose of this question assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter sue and that it should not be raised as a defense for non payment / stop the eviction. If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit. But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction.
Can anyone help me understand who's liable for any damages that occur? Yes, a judge. Seriously, in almost all cases in a collision between a turning car and a straight traveling cyclist, the car will be held responsible on the basis that the turn should not be commenced unless and until it can be completed safely. If the car has to stop during the turn, the turn shouldn't have been commenced. The only exception would be if evidence could be provided that the cyclist collided deliberately. Does it matter if it's the car that's damaged or the bicycle that's damaged? No