By HG.org Legal Resources, Law Articles
Even for the most experienced of litigators, litigation can be stressful. This is even more true when there is an imbalance in experience due to an experienced trial lawyer facing off against a young or new lawyer or a pro se litigant. A good litigator can easily derail a case even before a trial starts by using some procedural checks. Here are some of the most common tricks lawyers play in civil litigation and how you can fight back.
The first strong defensive strategy is to be keenly aware of the philosophy of your side of the case. For example, if you are a plaintiff in a personal injury case or a personal injury lawyer, you may want to get to the end of the case in which you discuss damages and how the accident affected the victim. As you know, the more that the personal injury lawyer spends on the case, the less he or she will actually make if there is recovery. If you are the defendant or the defendant’s lawyer, you likely want to slow the case down so that you can gain leverage by making the case drag out. If you slow the case down, the other side may become desperate to settle for less than the case is actually worth. Personal injury lawyers are aware of this tactic and often offer to represent the client on a contingency fee basis so that the client does not have to come up with sizable funds to support the litigation strategy.
Many experienced litigators know that they can play tricks with the pleadings. There are many rules that plaintiffs must follow. They must usually plead as many of the claims as they have and request specific remedies to prevent being barred from making these requests later in the process. Due to the depth of these pleadings, the plaintiff may make conflicting allegations, may omit information or may make typographical mistakes. This leaves the plaintiff open to attack by a defense lawyer who closely looks for these mistakes in order to try to get the case dismissed or to try to lock the plaintiff into a more definite statement. In some cases, this tactic may scare the plaintiff off, causing him or her to drop the case entirely. Even if the plaintiff does not abandon the case, he or she may abandon a particular claim or find it difficult to support that claim moving forward. Some lawyers play a trick on plaintiff’s lawyers by making arguments that require the plaintiff to amend the case so that he or she spends an exorbitant amount in legal fees at the very early stages of the case.
As the plaintiff, a lawyer can help advise you on how to avoid this particular trick. In some cases, it may be preferable to plead less so that you clearly state a cause of action but avoid ambush by defense counsel. This usually requires pleading the case law, rules of procedure and some facts regarding the case.
SERVICE OF PROCESS
Another trick that defendants play is to try to avoid service of process. This can aggravate the plaintiff because he or she will likely have to pay for service to be perfected multiple times or may have to try another form of service of process. If the defendant makes an argument against valid service, the entire case may have to start again, costing the plaintiff more time and money. While there are other ways besides personal service to execute valid service, a judge may side with a defendant if the proper steps were not followed. Therefore, it is important that service is properly executed to avoid this problem.
Discovery is a common area for potential tricks. Overly broad requests may result in more information being provided than necessary. Responding by submitting the request in the same manner as they were kept in the ordinary course of business can also be a trick to bombard the other side with too much information that takes many days to sort through. Making every plausible objection helps to further delay the case. Using semantics as a form to object or respond in a certain manner with admissions is another popular strategy. Providing partial answers or answers that do not directly answer the question are another common trick.
Depositions are another playing field. Skilled litigators can often extract negative information from a witness who is inexperienced, nervous or scared. There are also fewer objections available to the other side’s legal counsel, so he or she may be unable to defend the party.
Another trick that litigators play is to retain all of the potential experts as consultants if the field is very limited. This can help prevent the other side from being able to find a qualified expert to represent their client’s interests.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
SOURCE: “Common Tricks Lawyers Play in Civil Litigation” / By HG.org Legal Resources, Law Articles
When it comes to court reporting, NAEGELI Deposition and Trial provides the highest quality of professional nationwide and Tacoma, Washington court reporters. As one of the only court reporting firms to supply you with an audio transcript free of charge, we also provide 100% verifiable transcripts.