When a plaintiff loses his lawsuit, whether by summary judgment, a directed verdict or a jury verdict for the defense, he or she is probably wondering “what happens next”? Can I get a new trial? Can I appeal? Will I have to pay anything? As with most legal issues, the immediate answer is “it depends”. One thing is certain: you have an uphill battle, even if there is a chance of changing the outcome.
If I Lose My Lawsuit, Will I Owe Anyone Money?
This is one of those “good news, bad news” scenarios. The good news is that you probably won’t owe your own lawyer anything. Most personal injury lawyers work on a contingency fee that provides that you owe them nothing if you lose. Be sure to read your fee agreement carefully, though, as some lawyers may still require you to pay their costs.
The bad news is that the defendant is entitled to an award of its taxable costs against you. This doesn’t include every expense the law firm incurred, but it can include some very big ticket items, such as depositions and expert witness fees (these are commonly approved for testifying experts in state courts, but not federal courts, which only allow the recovery of a $40/day witness fee for both lay and expert witnesses). In cases that have been litigated for a long time, or that have gone to trial, these costs can easily get into the thousands of dollars.
The judge will enter a judgment against you for the defendant’s costs, meaning that the defendant can use any means available to a judgment creditor to recover this money from you. Often, the defendant will seek a judgment for these costs even if it knows that you have no ability to pay them. It can use this cost judgment as leverage to get you to waive any appeal rights you may have. In other words, “We’ll drop the cost judgment if you don’t appeal.” This obviously creates a dilemma for plaintiffs even if they think they have a decent chance to appeal.
In certain cases, where state laws allow it and the defendant has followed the correct procedure, you can be held liable for the defendant’s attorney’s fees as well. For example, in Florida, if a defendant makes a procedurally correct offer to settle your case under Fla.Stat. 768.79 and Fla.R.Civ.P. 1.442, and you ultimately recover at least 25 percent less than the amount offered, you will owe the defendant the attorney’s fees it incurred from the date of the offer. This type of offer has very strict procedural requirements, so your lawyer will always know when an offer has been made under this statute and can warn you of the consequences should you choose not to accept it.
Clearly, an award of attorney’s fees can easily reach the tens of thousands of dollars (and in some cases over $100,000.00), so if your lawyer ever tells you that a settlement offer has been made that can cause you to owe the defendant’s attorney’s fees, take it seriously and consider it carefully. If your lawyer fails to inform you that such an offer has been made in time for you to accept it, and you wind up owing fees because of it, the odds are good that your lawyer has committed malpractice.
As with costs, attorney fee awards against insolvent losing plaintiffs are often used as leverage to get you to not appeal.
If I Lose at Trial, Can I Get a New Trial?
There is a procedure which allows your lawyer to ask the trial judge for a new trial prior to filing an appeal. Do not get your hopes up for this motion to be granted. Sometimes, your lawyer will need to request a new trial just to preserve some of your appeal rights. Basically, your lawyer needs to give the trial judge every opportunity to correct errors before he can argue those errors on appeal.
You cannot ask for a new trial just because you are unhappy with the jury’s findings. The jury is given broad latitude to weigh the credibility of witnesses and other evidence. Even if you have three doctors saying your injuries are accident-related and the defendant only has one saying they aren’t, the jury can believe the one doctor over the three. There have to be some pretty severe and obvious procedural or evidentiary errors for a new trial to be granted. Most of the time, the trial judge allowed these errors to occur in the first place, and won’t be inclined to grant a new trial because he probably feels that his rulings were correct.
If I Lose My Lawsuit, Can I Appeal?
As with motions for new trials, you can’t just appeal because you are unhappy with the outcome of your case. You need specific grounds to appeal, the possibilities of which are too numerous to mention. In short, the trial court must have committed what’s known as reversible error in order for you to have a chance on appeal. A reversible error is one which likely affected the outcome of the case, such as allowing or excluding key testimony or evidence, or giving a jury instruction which does not accurately reflect the law and misled the jury into finding for the defendant.
Errors which would not reasonably be expected to have affected the outcome of the case are known as harmless error. For example, if the judge excluded certain evidence regarding the amount of your damages, but the jury ruled that the defendant wasn’t negligent, the exclusion of that evidence had no impact on the outcome, as the jury never reached the question of the amount of your damages.
If you lost your case prior to trial, such as on a motion for summary judgment or directed verdict, your appeal will usually depend on one of two things: (1) whether the judge decided an issue of disputed fact (which should have been decided by a jury) or (2) whether the judge improperly applied the law to the facts. Obviously, these are things that only a lawyer will be able to evaluate.
One thing common to all appeals is that the appealing party is at a huge disadvantage. The appellate court can uphold the judgment on any grounds, even those not argued by the non-appealing party or relied on by the trial judge. The rationale behind this is that if the judge reached the right decision, but for the wrong reasons, you weren’t harmed and you should lose your appeal.
On the other hand, the appealing party can only raise arguments in the appellate court that it raised in the trial court (sometimes, you are required to make the same argument several times at different points of the proceeding in order to preserve that argument for appeal). If your lawyer failed to make an argument at the trial court level, and jump through the procedural hoops required to preserve that argument, he can’t raise that argument on appeal. The rationale for this is that the appellate court will not assign error to a trial court unless the trial court was given every opportunity to avoid or correct that error.
The bottom line is that the deck is stacked against appealing parties, so don’t get your hopes up unless your lawyer feels very strongly about your chances. Waiving your appeal rights in order to avoid paying the defendant’s attorney’s fees (if applicable) or costs may be the best move you can make, assuming that offer is on the table.
If you Lose Your Lawsuit, It Doesn’t Mean Your Lawyer Screwed Up
Sometimes things just don’t go your way. Jurors latch onto very odd things at times, so don’t assume that losing means that your lawyer didn’t do the best possible job. Before you accuse him of malpractice, remember that he’s lost both time and money (often thousands) on your case as well. This is especially true if you rejected his prior advice to settle your case. Take some time to cool off before conducting your case’s post mortem. Meet with your lawyer to discuss your options after a few days have passed and remember that you may still need him should there be any chance of reversing your fortunes.
I understand you are not liable for any information, so I am seeking advice really.
I live in Florida, and was involved in an an auto accident. I was found at fault, and the other person that I hit was insured. I only had my car for a couple of weeks, and pathetically enough I did not have insurance yet. Needless to say, here it is a year later and I received a letter in the mail. The final judgement basically states that I am being sued for approx $5000+ dollars.
Currently, I am still paying on my home, and it homestead. I do not make alot of money via employment wages, and I do not have any additional assests thus far. However, I did get my tax refund recently.
Questions:
(1) I read the Florida Statutes and if I read it correctly, my wages cannot be garnished. is that correct, considering I am head of house hold and make under a certain amount?
(2) Can my tax return be garnished/
(3) With being sued via auto insurance/ civil does any of these resources have the ability to take money directly from my bank account?
(4) If I buy or finance a car in the future, can that be taken from me as well?
(5) What is the worse that could happen if I do not pay? The letter just stated that for each year I do not pay, I could inquire 4.7% interest.
One of the reasons most of us PI lawyers don’t sue uninsured people is so we don’t have to deal with these issues, so I’m really no expert in collection law with respect to judgments. So, I’m going to have to punt you to other sites which hopefully answer your questions. This site should answer your question about whether they can garnish your wages. This site should answer your question about the tax refund and your bank account. As to the car, technically yes they could seize it. Practically, they will only do so if they can make money from it, so if the car is subject to a purchase lien, they’d have to pay that lender back first before paying themselves from the sale of the seized car. In many cases, it doesn’t make financial sense to do so because the amount they can recover will be outweighed by the cost of seizing and selling the vehicle. It’s more likely to happen if you own the vehicle outright or have a large amount of equity in it.
The worst that could happen is the seizure of your assets and bank accounts, requiring you to constantly hide your money and property for fear that the creditor is coming to take them (all the while, post-judgment interest accrues on the amount). If you have any means to do so, it may be worthwhile to see if the creditor will settle for a lesser amount, such as half of what is owed (you could start by offering less, like $1,000.00, and see where it goes). The creditor (especially if it’s the plaintiff’s UM insurer, which you didn’t make clear) may be willing to take what it can get to avoid the hassle of trying to seize your assets, and you wouldn’t have to constantly worry about them taking your stuff.
Oh wow… let’s say that the defendant files for a motion for summary judgement in a California wrongful death case. where the court found trialable issues and therefore denied the MSJ in favor of the plaintiff. Where the case ends up being dismissed due to abandonment by the plaintiffs attorney. Can the defendant come back and sue for costs and fees? If so, would I have a case against the attorney under a “if not for” claim?
Generally, a defendant can ask for the plaintiff to pay his costs if the resolution of the case is the equivalent of a judgment in favor the defendant. A dismissal, even if it is beyond the statute of limitations for re-filing, may not meet this criteria. As to attorney fees, those are typically not awarded unless the court finds that the original case was frivolous (because yours made it past summary judgment, this would be unlikely) or unless there was a state procedural rule (such as the Florida rule I discuss in this article) that allows fees to be recovered if a certain type of settlement offer is rejected (though again, this would likely depend on whether the dismissal is the equivalent of a judgment against you).
If the case was dismissed for failure to prosecute (this usually requires that there be no activity in the court’s record of the case for a certain period of time, such as 6 months or a year), you may have a claim for legal malpractice against the lawyer. Of course, the viability of the legal malpractice claim would hinge on the value of the underlying claim. If the underlying claim had little chance of prevailing (just getting past summary judgment doesn’t mean you had a good chance of winning at trial), then your legal malpractice claim would be weak, and few lawyers would want to take it. You stated in another comment that your lawyer had moved to withdraw. Was this motion granted prior to the case being dismissed? If so, then that makes a legal malpractice claim even more questionable.
Assuming you had a legal malpractice claim, your damages could include any costs or fees assessed against you in the underlying case. The only way to know if you have a viable legal malpractice claim is to discuss the details of your case with a lawyer who handles legal malpractice cases.
My husband has been waiting on a trial date or a decent settlement offer for 3 years now… involved in car accident not his fault. There was a witness and car damages were paid. He had back and neck pain. Long story short, he went through all of the stages there is in a personal injury claim…Nothing could be done at mediation, trail date has been set off three times. Now the trail date is right around the corner and he gets a call from his lawyer stating that the other party insurance company/lawyer is offering to settle for $7000. In three years the offer is now 7000…His medical bills are at $10,000 and he knows that this is a high amount, but who is looking at prices when you are getting treated for your pain. He knows that this price can be negotiated down…My concern is should one settle for an amount that does not cover the medical bills. His lawyer fee is 33%…and with the medical he is not looking at nothing in his pocket…I don’t understand this…and my husband lawyer said that he just had to let him know this, but not really saying that we are still going to trail to get the offer that he stated at mediation. Then he said that if my husband does go to trail it’s not a guarantee that he will get anything. You wait this long and now it’s possible you will not get anything. I know all that was true what he said, but what do you think? Should he settle or go to trail..
It sounds like your husband may have overtreated for his injuries. Usually, this isn’t the client’s fault, as they are just following their doctor’s (or more often chiropractor’s) instructions. However, it does put the client in a jam when trying to settle the case due to the medical bills exceeding the case’s reasonable value. I would see if your lawyer can find out what your medical providers are willing to take to settle their liens prior to accepting or rejecting the settlement offer. Then have your lawyer spell out for you how the settlement would be apportioned, given your liens, attorney’s fees and costs. Obviously, you don’t want to wind up still owing any money after the settlement — and preferably you’d walk away with something in your pocket.
Having the lawyer break down how the settlement money will be distributed before agreeing to settle will put pressure on the lawyer to negotiate the best deal he can with the medical providers, and potentially give up some of his fee to give you some incentive to settle. I’m sure your lawyer doesn’t want to go to trial over a case that doesn’t appear to be worth the time and cost — and you don’t either, unless you think your lawyer is really undervaluing your case. So, my advice would be to have your lawyer negotiate down the liens and let you know exactly how this settlement would be distributed before you agree to take the $7,000.00. He’ll know that showing you how the settlement will be split up won’t be pretty, so it might give him some incentive to make the deal a little better for you, by either negotiating harder with the lienholders, getting a little more from the defendant, or giving up a part of his fee.
Thanks for your reply..