What Happens If I Lose My Lawsuit?

Losing Your LawsuitWhen 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.

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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.

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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.

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28 Responses to What Happens If I Lose My Lawsuit?

  1. CStephenson says:

    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.

    • fl_litig8r says:

      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.

  2. Teresa Cramer says:

    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?

    • fl_litig8r says:

      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.

  3. Mona says:

    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..

    • fl_litig8r says:

      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.

  4. Lois says:

    Hi,

    My lawyer advised me to reject a 6-figure settlement b/c “it would not even meet my [lawyer’s] costs.” This was a few days before trial. I never saw settlement offers. Now I see 3 settlement offers (ours-theirs-ours#2) were sent back and forth before I was told any of the offers. When advising me to not take the settlement, the lawyer did not give me any statement of costs/expenses. I have never received any bill in the 3 years the lawyer had the case—and the case was on contingency. In fact, my lawyer did not have a contingency contract in place until 9 months before the trial, despite having the case for three years. The contract does not spell out her fee splitting with a non-employee lawyer, which I now understand is illegal.

    Since we lost our case about 6 weeks ago, the lawyer has not had a single conversation with me. I stayed in town for a week after trial to do the post-mortem, but the lawyer basically avoided me. I find all this very unprofessional.

    I am now relying on this attorney and the co-attorney from another firm to file the appeal. I am broke. The defendant has made motion’s for me to pay court costs.

    What should I do—and yes, I know you are not my lawyer. But it is difficult to know where to turn.

    I am beginning to think my lawyer committed malpractice, and this is just on the little clues I have, like the dates on the settlement offers. It makes me wonder what other things occurred. The lawyer told me this case was a winner, especially since the defendant “spoliated evidence.”

    • fl_litig8r says:

      Unless you have an extremely complicated case, six figures in costs doesn’t sound right. Are you sure your lawyer wasn’t including any medical or insurance liens, or even her fee percentage in that six figures? In any event, if you agreed not to take the settlement offer, and it was the highest one they made, it doesn’t really matter much if you weren’t kept in the loop on the prior negotiations. While ethically a lawyer can’t reject a settlement offer without your consent (which can be given in advance, for example, by saying that you won’t settle for anything less than “X” dollars), if you rejected their highest offer then no real harm was ultimately done.

      Your lawyer not sending you billing information is normal on a contingency fee case. While most lawyers will give you an update on the costs incurred on the case upon request, most don’t update their clients on these figures until a settlement is being considered — and this is just to let the client know how much she can expect after fees, liens and costs.

      While your lawyer may not have complied with yours state’s ethics rules regarding the timing of the fee contract and the splitting of the fee with a non-lawyer, I can’t see how this would have affected the outcome of your case. I wouldn’t advise filing a bar complaint against her while your appeal is still pending, as it is likely that she would immediately withdraw from representing you and no other lawyer would want to inherit the case for appeal purposes. Plus, I usually only advise clients to file bar complaints when their lawyer’s conduct has negatively affected their cases. In your case, this doesn’t appear to have happened.

      I can’t even speculate as to whether your lawyer committed malpractice. Nothing you’ve written indicates that she did. You may have just pulled a bad jury, or had some rulings go against you which can be overturned on appeal.

      As long as your lawyer is appealing, I wouldn’t do anything rash. As I said, it’s unlikely that any other lawyer would want your case if you do something that causes your current lawyer to withdraw. If your lawyer doesn’t appeal, or changes her mind about appealing (and perhaps suggests trading your appeal rights for a waiver of the defendant’s judgment for costs), then I’d consult with another lawyer about a possible malpractice claim. I wouldn’t get my hopes up too high about that, though, as legal malpractice cases are very difficult to prove when it’s not a cut and dry issue like missing a statute of limitations. If it’s based on criticizing her trial strategy, it’s unlikely that this would be enough to prove malpractice. A thorough review of the file would be needed to make this determination, and few lawyers will be interested in doing this unless your lawyer kind of has a reputation already for committing malpractice.

      In short, my advice would be to ride out the appeal with her and see where that goes before doing anything that might have her withdraw and leave you with no lawyer at all.

      • Lois says:

        Thanks. Your website so very helpful in my decision making. I wish I had discovered it sooner!

        My case was complicated. I was surprised at trial to find we had 3 expert witnesses who stated they’ll charge about $25K-$30K, but I did not know that until the defense asked this question at trial. This is why I believe I was told to reject the $250K offer. There were no liens.

        My concern was that I was advised to reject the settlement, days after the lawyer already rejected the settlement. We had not previously had a discussion of acceptable settlement amount. We once had a discussion of what she felt the case was worth (~$1.5-3 Million).

        She called on the 4th to tell me that the defense asked her to write the first offer and she stated to me that she would do so for the “case worth.” I expected to receive a copy of the offer but I did not. Nor was I aware of or given a copy of the two offers that followed. (Offers made on the 5th [ours], 6th [theirs $250K], and 8th [ours] of the month.)

        It was on the 11th of the month that my attorney called me and advised to reject the offer, and she wanted me to put it in email writing. I think she strongly urged me to do this because she had apparently already rejected and wrote a counteroffer for it on the 8th.

        I followed her advice and wrote the email. But now I see from your website that I needed more information. It would have been helpful for her to have sent the written offer for me to consider via email, along with with the breakdown of costs and what the actual recovery would be. It is difficult to assess an offer if you do not know what you will ultimately end up receiving. I wish I was aware of your website advice before all this occurred!

        If there were $90K in expert fees, $50K in other costs (20+ depositions), and a $250K offer—I still could have ended up with something reasonable. I am assuming she must have meant that it would not have also met her 40% contingency fee.

        Now I am in a bit of a panic, as I have received notice from my attorneys that the defendants have filed post-trial motions for costs and legal fees, which I have no ability to pay. My attorney, who initially promised me after trial that she “works with a great appellate attorney” has now decided to use her co-counsel to file the appeal, which scares me. I am feeling uninformed, misled, and frankly left without a choice but to let them file the appeal.

        • fl_litig8r says:

          Wow, those were some significant costs. I can see how a $250k settlement would have provided you with practically nothing after her attorney’s fees and costs. You’re right that she shouldn’t have engaged in settlement negotiations without prior approval from you for a settlement amount. However, your post hoc approval of her rejecting the $250k offer (despite you not knowing all the information you should have known) would make a successful malpractice case against her unlikely. The best you could hope for would be that she’d be disciplined by the bar, but that would depend on whether she admitted that she didn’t have prior approval in the negotiations. He said/she said situations might result in bar sanctions, but it is less likely. Of course, her being disciplined by the bar doesn’t really do much for you, anyway. I’d especially advise against it while she’s your only real hope of possibly turning this around on appeal.

          I don’t know that I’d be too concerned about her not hiring an outside “appellate specialist”, as long as she and/or her co-counsel have handled appeals before. I handle my own appeals, and I’ve wiped the floor with more than one so-called “appellate specialist”. I always found it preferable to have the lawyer who tried the case handle the appeal anyway, as she is the one most familiar with it. A new appellate attorney may provide a fresh perspective, but that comes at the cost of having to learn the case from scratch, and purely from the written record — which just isn’t the same as having been there live.

          Your lawyer is out $140,000 out of her own pocket if she can’t win on appeal, so it’s not like she doesn’t have incentive to file the best appeal possible. While she’s been less than up front about the settlement negotiations, I don’t know that this is reason to doubt her abilities as a lawyer. Considering that you ultimately did agree to the rejection of the $250,000 settlement (and it looks like that would have gotten you maybe $10,000), her breach of ethics in not getting prior approval doesn’t seem to have done much real harm.

          It really looks like you’re just going to have to stick it out with her and hope for the best on appeal. At least now you know that if you win on appeal you need to let her know that you want to be informed of all settlement offers before they are rejected, and an after-the-fact request from her will no longer be acceptable.

          • Lois says:

            Thanks again! Your website is truly a great service.

          • Lois says:

            Hi again,

            Following your advice and sticking with the lawyer I had for the appeal. Communication issues continue to be a paramount problem.

            I was told in August that an $18K judgment was issued against me as the result of this case. The lawyer said the judgment would be stayed during the appeal process. I’ve tried to relax and not interfere with the lawyer’s process. Today, I was notified that the judgment is due in 2 days and that I need to come up with double the amount because of interest, etc. for the bond. Can’t I just pay the judgment—and have them refund it if I win the appeal so there aren’t interest issues, etc.

            I feel like I am slowly building a malpractice case against this attorney. Notifying me 1.5 days before a judgment is due isn’t missing a deadline, but it in practicality does not give me the time to come up with an enormous amount of money to meet a deadline.

            Is this normal?

          • fl_litig8r says:

            A civil judgment is due once it is entered, and the time for rehearing has passed (usually 10 days). An appeal doesn’t automatically stay execution on the judgment. To stay a judgment on appeal a party either files a supersedeas bond to secure the judgment or gets the opposing party to waive the bond requirement. Frequently, parties agree to waive the bond (because the cost of the bond is recoverable if the appealing party wins the appeal and then prevails at trial), so your lawyer may have assumed that the other party was going to waive the bond requirement. The deadline he gave you for filing the bond was probably arbitrarily set by the opposing party, so I don’t know that he got a lot of notice that this was what they wanted. They really could have executed on the judgment for a while now.

            As far as the bond amount, I think you’re mistaken. It shouldn’t be twice the amount of the judgment. Rather, it is usually the amount of the judgment plus 2 years worth of interest at your state’s post-judgment interest rate. This is to ensure that enough money is set aside to pay the judgment, plus interest, after the appeal is resolved. Two years is usually more than enough time to resolve an appeal, so they set the interest at that amount to make sure the appellee is covered. If you lose, you still only have to pay the actual amount of interest incurred during the time of the appeal. So, if the appeal only takes 8 months, you owe 8 months worth of interest.

            While you could pay the judgment now to avoid future interest, I wouldn’t recommend it. While you have to pay a fee for a bond, you do get to recover that cost if you win on appeal and then prevail in the lower court afterward — so the bond may wind up costing you nothing if you win. If you pay the judgment now and then win, the defendant isn’t going to owe you interest on the money you gave them, so you’ll lose the interest on your own money.

            While the short notice on securing the bond sucks, if you meet the deadline it won’t help any malpractice claim you may have. There’s no malpractice if you don’t suffer any damages, and if you pay the bond before they execute on the judgment, you haven’t.

  5. Veronica says:

    Hello,
    I was rear-ended in Sept. 2007. I had chiropractic treatments that were not helping much, but I had no medical insurance and we use most of my med-pay asap. Approx. 4-5 months after, my med-pay notified me that they were not covering my treatments because my doctor made notes that I slept wrong on the chiropractic pillow he gave me and that was the reason I was still hurting. I confronted the doctor via fax, he retracted his words, but the med-pay still didn’t continue to pay for my treatment. I hired an attorney, and few days after I hired him I was rear-ended again, so the attorney took both cases, but he was so unprofessional, not returning my calls or my doctor’s calls, or returning the lien forms for my treatment, etc. He almost missed the dateline to submit my case to court if it was not because I called so much. I could not replace him, because no other attorney wanted to take my case at that point. I was rear-ended a third time, and he said we’ll still have time to work on that third case, but we needed to focus on the first case, because it was already in court. The lack of communication continued. I went to a training from work, and the attorney left me several messages to tell me I needed to be in court the next day because we had a mediation meeting. I didn’t know anything about that mediation. I did not hear my messages until a day after. When I was on the bus my way to work, I received a call from my attorney asking where I was, I chuckled and said I’m on the bus on my way to work. He said we are all here but you, I left you many messages and you chose to ignore them. I did not know what he was talking about. He said they were rescheduling, but if I miss the next mediation I will be fine $500. The next mediation date, I missed my bus to get to court about an hour drive from my home, so I paid a special trip on a taxi cab, because I wanted to be at court on time, and not be fined. Well, my attorney misinformed me, because I was still fined $500 because I did not show up the previous time. When the judge asked me why I didn’t show up, I told him that my attorney failed to communicate with me. My attorney withdrew from my case because I lack to communicate and cooperate with him. He left me without legal representation facing trial. The attorney didn’t return my file. I emailed and requested my file, and his firm emailed it to me exactly the day of my trial, so I had no info to represent myself. The defense attorney (an attorney representing AAA) didn’t accept my evidence because I didn’t put it together, because it was the “professional” documentation from the doctors, and because I don’t have a medical degree I cannot attest on a diagnosis due to the accident and a prognosis. The jury found the other driver negligent and guilty, and they awarded me $3030 because I was not able to present any evidence. Now I have to pay the defense attorneys fees and the court costs, etc. (The defense offered $5000, but my medical bills and other expenses caused by the accident were more than that. The attorney wanted me to accept it, pay him the 40% and stiff my doctor), because the amount awarded was less than the settlement offer. This is so unjust, I get hit, I am in pain, my life an my family’s life gets disrupted, my own doctor is a moron, my attorney destroys not one, but three of my cases, and I have to pay the defense. What kind of legal system we have here? The defense attorney / AAA attorney lied starting since the opening statement, telling the jury that I was hit in 2007 and I just brought the case to trial couple of months prior; that got encoded in the jurors’ mind, making me look like a crook. That attorney took the case couple of months prior to the trail, because his partner that was handling the case just retired. How can they get away with that? Sorry about my long and confusing story. Is there anything that I can do?

    • fl_litig8r says:

      Appealing or file a motion for a new trial (assuming you’re still less than 30 days out from the date of the judgment) without a lawyer doesn’t seem like it has any potential for success. Even with a lawyer at this point, I’m not sure that the court has done anything which would warrant such relief, and trying to fight this matter further will only result in you owing more attorney’s fees to the defendant if you lose. I really can’t think of a way out of this situation. Sorry.

      If you’re thinking of going after your old lawyer for malpractice, read this article, which describes why you probably won’t be able to find anyone interested in taking that case. Without knowing whether your lawyer was permissibly withholding your file under a retaining lien, I can’t even say if his not giving you your file until the day before trial was unethical, much less malpractice.

      While it sounds like you had a lot of bad things coincide to hurt your case, I don’t see any remedy — at least not from the information provided. I assume that your judgment was eaten up by the defendant’s attorney’s fees and that you will wind up owing the defendant money (meaning that a judgment will be entered against you in favor of the defendant). As I state in this article, sometimes defendants are willing to waive any amount you owe them in exchange for waiving your right to appeal — but that assumes you still have time to file an appeal. I’m not sure that the defendant in this case is afraid of an appeal, knowing you don’t have a lawyer, but it might be worth a shot to try to make that trade to avoid losing (likely a lot of) money on the case. It would help if you’re judgment-proof, so the defendant doesn’t have any reasonable expectation of being paid anyway, and he thinks you’re crazy enough to try to appeal on your own and cost him more money in fees that he won’t be able to collect. You can abandon any hope of them actually agreeing to pay your $3,030.00 judgment — what you’d be looking for now is just a way not to owe them money.

      I wish I had better news for you, but I try not to give people false hope.

  6. Jamie says:

    I received the summary judgment ruling (which I lost) from the state where the suit was filed (CA). A coordinated case, I, and one other, remained as plaintiffs where the other 40 plus had settled or are involved in another aspect of the case (because their situation was very different though it involved some of the same defendants).
    The judge’s ruling was because, in most of it, he claimed my attorneys had ample time to depose relevant third parties but neglected to do so. He also wrote that the attorney could not use my deposition (of which he used parts, highlighted). My declaration was not the more detailed one my attorney had me edit and add to, but a much briefer statement that provided few details. Because my attorney did not depose the relevant third parties, the judge wrote that my claims were hearsay. My attorney objected to most of the defendants statements because he said the judge denied him the opportunity to depose the 13 individual defendants. So, he wrote objection, not able to depose individual defendants. My attorney said that his objection was that I was denied due process because he was denied the opportunity to depose those 13 defendants. I could appeal but he won’t represent me. He said that I could retain another attorney or pursue it myself. He wants me to propose a “walk away”. If I go forward with the second summary judgment against two other defendants, which was ruled in my favor, he said that the other 13 will likely place a lien on any award. He wants me to accept a very small settlement or “walkaway” from those two defendants, as well. Then, he said he will request that he be withdrawn if I do not “walk away”.
    The case was filed in CA. I am in TX. Evidence was produced that the defendants violated federal law (FDA laws, for one) but my attorneys obtained a pre-emption, I think it was, so they could try the case in the state court (because 40 of the plaintiffs had provided consent to be a part of a study, and they couldn’t file suit if it was in federal court).
    Briefly, it was a medical device/product, that was used in a GRACE study (I found out that it was 100% failure) and also being tested in animals, which had been halted because of pending results from adverse effects, when the board and individuals packaged it, marketed it, and promoted it as an off label product (all the while not notifying the FDA) where it ended up in my Dr.’s office and was presented to me as a sample with the same promotion as presented to the Dr, undergoing FDA approval (just like a certain product on the market, biocompatible and absorbable, etc., developed by the same entity…). I discovered just in the past few months that I received this product before the report was returned regarding the tumor ridden and euthanized lab animal. I just had a small tumor excised, which is en route to pathology. Within the documents I recently received, the manufacturer of the one ingredient of the product had written to the individuals that it was NOT tested and to inject it in anyway was a misuse of the product.
    It’s an absolute mess; health wise, emotionally, logically, legally. I feel abandoned by doctors many I saw wouldn’t touch me because of the “unknown” of the product/injuries, or because they thought attempting any treatment might cause more harm. If I go into more detail about the 3 year long case, it will be a much more lengthy comment.
    The evidence is not only in my body, it is in hundreds of thousands of documents. But, the summary ruling is preventing that to even be tried.

    • fl_litig8r says:

      Without knowing all the facts regarding why your lawyer was unable to depose those witnesses, or why the judge really disregarded your testimony (hearsay is rarely an issue at summary judgment, where even one-sided affidavits are considered), I can’t say what went wrong that led to the summary judgment, or whether it should have been granted. To be clear, I’m not asking for a more detailed explanation — I doubt that you could give me all the information I need, anyway. I’m just saying that there could be a lot of different issues at play that led to the bad ruling, so it’s not clear whether this was a fair ruling, a bad ruling, or an error by your attorney.

      Of course, aside from a possible legal malpractice issue (which as I explain in this article, I wouldn’t pin my hopes on), you seem to be aware of your options at his point. Without having a lawyer willing to appeal the summary judgment, you are stuck with a judgment for the costs of the 13 defendants who prevailed at summary judgement, which could be a significant amount (if other plaintiffs also lost as you did, obviously the pain would be spread among you, which might lessen the impact). Making some kind of deal with these defendants to avoid their cost judgment looming over your remaining claims would not be unreasonable, assuming of course, that an appeal isn’t an option at this point. It’s a bad position to be in, but right now it’s about damage control.

      I can’t say why your lawyer is pushing for you to pursue a “small settlement” with the two remaining defendants, but it sounds like he doesn’t have a lot of confidence in those claims, either. The merits of your case, which sounds incredibly complicated, are just beyond my ability to discuss based on the limited information available (again, this isn’t a request for more info — it would take more than I’m willing to review to give you an informed opinion). I can’t even say whether your lawyer is doing a good job or not. If there are other attorneys representing the other plaintiffs involved, and they are obtaining a different/better outcome than you, it may be worth talking to another lawyer about your remaining claims or a possible malpractice case. If all the plaintiffs’ claims are losing, or if you can’t tell whether your lawyer is dropping the ball because your lawyer is representing everyone, it becomes harder to judge.

      • Jamie says:

        Thank you. It is incredibly complicated. I believe I know part of what happened, but following that would require finding an attorney to review and, if they were willing to take a legal malpractice case, it would be incredibly costly, moreso because I am out of state.
        I believe that when the law firm made the decision to sue for fraudulent transfer of assets (which I disagreed with, but was informed that since it was a coordinated case, there was nothing I could do) they addressed the defendants as a company. If they had prevailed on that, they would have potentially reaped a massive award, with 50% plus costs (over 64 plaintiffs). The majority of the plaintiffs were also suing the med product/drug review board (not part of my case) so many of them accepted a small settlement once the fraudulent transfer summary judgment was ruled in the defendants favor. The two of us remaining were waiting for the case against the individuals to get underway. During my deposition, months later (Sept.) I discovered that my attys had told opposing counsel that if plaintiffs had prevailed on the fraudulent transfer, they would release the individuals from liability.
        I think that my lawyers did not want to invest the time and money pursuing the individuals for the two of us. Whether it is true, or not, that the judge prohibited my lawyers from deposing the individuals, they also did not depose any of the relevant third parties. One of the rulings in the recent summary judgment was that plaintiff’s lawyers could not say, in one instance, that the defendants were a company and then in another, say they were individuals. Without additional discovery for the judge (as in depositions from third parties) he ruled against us.
        Anyway, despite all of that, it appears there is little I can do except try and ward off being hit with costs. Even if I go to trial against the other two defendants, it would cost more than any award and it is evident the attorneys want out.
        It will take some time to come to grips with my injuries and no one being held accountable. As my lawyer said, I got railroaded. I just don’t by whom.
        Many thanks for replying. I do appreciate you taking the time to read and respond. Little things do help.

  7. Lisa says:

    I was in a car accident in 2012 in florida and I just went to federal court where I was found 60% at fault do to not wearing my seat belt.To give a bit of information a 18 wheeler pulled out in front of me he was found at fault for causing the accident but when we went to federal court the jury’s found me at 60% and him at 40% I don’t agree with there decision because if he would have not pulled out in front of me the accident would have not of happened.I paid my ticket for my seat belt violation.My medical bills were over 53,000 dollars and was only awarded 25,000 and I still have therapy to go through any information would be greatly appreciated.

    • fl_litig8r says:

      The jury isn’t debating whether the defendant was 100% at fault for the accident. They reduced your damages by 60% because they determined that to be the extent of your injuries/damages attributable to you for not having worn your seat belt. You don’t get to argue that “but for the defendant’s negligence, my failure to wear a seat belt wouldn’t have been an issue”. You are required by law to wear a seat belt because people who don’t wear them tend to be more severely injured in an accident than those who don’t, regardless of who was at fault for the accident. Your legal responsibility to wear a seat belt isn’t waived just because someone else is at fault. You can argue over whether a 60% reduction was excessive, but that really depends on the expert witness testimony regarding the difference in injuries you would have suffered had you worn a seat belt, and is likely not something that can be successfully challenged on appeal. Unless none of the experts said that your injuries were 60% or more attributable to your failure to wear a seat belt, the jury’s apportionment of damages will hold up.

  8. Marie says:

    Hi, I was in an auto accident in November 2013. I was going straight on my green light when a car tried making a left turn. I tried to swerve but still hit his end bumper with the front end of my car. He received the ticket and the cop told me the driver was from out of town, driving a rental from Hertz and was self insured. My lawyer told me Hertz wasn’t denying liability. (Great) My back and neck were injured, went to a chiropractor, didn’t do much, then a specialist who recommended neck surgery since that’s where most of my pain was. I had neck surgery earlier this year which fixed me up great. My lawyer sent a demand letter of $400,000 to Hertz and they came back with an offer of $15,000 arguing that property damage was too low and they think my injury was preexisting. I have been in maybe two or three accidents in my life all of which were over ten years ago, NONE in which my neck has ever bothered me. I was FINE before the accident. My cars damage was only the front right side and estimated at $900 but I am confused as to how they can think that matters so much. Anyway, I don’t care much about having money left over for me, it’s my surgery bill (that was well over $100,000) that I am worried about, as I have no health insurance. I spoke to my lawyer and he said that the case will most likely go to mediation, litigation then court? I don’t want to go to court at ALL, but I am wondering will I have to to get Hertz to go up a little more? My lawyer can negotiate my medical bill, I know, but will it be enough if I only settle for around 25,000? Assuming they go up a bit more. It also sounded like my lawyer was determined to go to court because he said something like they are sitting on a million dollar policy. I don’t care, I just want the case over so I guess another question is, should I tell my lawyer (who just sent off the rejection letter for the $15,000) that I am not going to court so take the next offer? Any help would be greatly appreciated. Thanks.

    • fl_litig8r says:

      I’m not sure why you’re already so reluctant to consider a trial (usually it’s the lawyer trying to talk the client into settling), but you’re being way too hasty and premature at this point. You’ve only exchanged initial offers, after all. You definitely should not tell your lawyer just to take their next offer. Let him do his job. Even if you attend a pre-suit mediation and it fails to result in a settlement, filing a lawsuit and litigating the case doesn’t mean you’ll actually go to trial. In fact, it very rarely does. Usually, the worst thing a plaintiff has to do is answer some interrogatories, produce some documents and attend a deposition. While these aren’t fun things to do, they’re nothing to be afraid of, and they won’t be nearly as scary as you likely imagine a trial to be (even trials aren’t as bad as you think). Most cases that don’t settle from pre-suit negotiations settle some time after the plaintiff’s deposition. You can always press your lawyer for settlement at that point, or even drop the suit entirely if you want (not that I’d suggest that).

      I think you’re going to leave a lot of money on the table if you give up now. I don’t think your lawyer meant to give you the impression that he thinks your case will have to go to trial, because, as I said, very few cases ever do. Feel free to tell him your concerns about going to trial, and whatever reasons you have for them, but I think it would be a huge mistake to hit the panic button now and demand that he settle for whatever they come up with next. You’ve got a case with admitted liability and high policy limits. Their defense that “it must be preexisting condition” is pretty easily disproved by your lack of prior medical treatment for your neck. Their defense of “the relatively low damage to the cars means you couldn’t have been hurt that bad” is made all the time, and juries reject it all the time in cases like yours. Hertz knows this, and at this point it sounds like it is merely posturing. If you let things play out and let them know you’re serious about this claim, even if it means litigating for a while, you’re going to get a much better result than what you’re expecting now.

      I’ve written many articles about what you can expect during the litigation process (some I’ve linked to above), so take some time to read them and realize that litigation isn’t as bad as you think. Don’t let your fear force you to make a decision you’ll likely regret for years to come.

  9. v says:

    daughter had accident in aug, she was stopped at a red light , there was a car in front of her, she was rear ended and she hit car in front of her, daughter car totaled, she had a friend in her car who was injured too they both have herniated disk and are going to therapy, my question is the at fault driver had a 50.000 policy for BI, the other girl has an attorney , my daughter choose no to have an attorney until insurance make offer, and if not enough then seek attorney, so how do the insurance divide the 50 k, can the other
    girl claim all 50k because she has an attorney and my daughter get nothing? thank you for your help
    i was told also that driver in front car has an attorney too . so if we get an attorney there will not be much left if they all 3 have to split the 50k we really concerned about getting enough to cove all med bills.

    and also do we have to wait for everyone involved to to finish their treatment before we can settle
    thank you. thank you

    • fl_litig8r says:

      When you say that the at-fault driver has $50k BI limits, that can mean more than one thing. There are two general types of limits that apply to BI insurance, combined single limit (CSL) coverage and split-limit coverage. With combined single limit coverage, the $50k would be the total coverage available to pay all of the claims combined, with the $50k being divided in any possible combination among the claimants. With split limit coverage, the BI is described by two figures: (1) a per person limit and (2) a per accident limit, usually expressed like $25/$50k or $50k/$100k. The second number, the per accident limit, acts kind of like a CSL limit, in that it places a cap on the total amount of coverage all claimants combined can recover. However, the first number, the per person limit, places an additional cap on the amount any single claimant can recover. In your case, if the $50k is the per person limit, no one claimant can recover more than $50k, and all claimants combined can’t recover more than the per accident limit, which is likely $100k. You need to find out if the $50k is a CSL limit or if it is the per person or per accident limit in split limit coverage.

      No matter what you find out about the limits, because you have three potential claimants vying for the same pool of coverage, all of whom have potentially serious injuries, it’s likely that some or all of the claimants are going to be shortchanged due to there not being enough coverage available to pay all of the claims. When this happens, the insurer usually settles the claim in the way it sees as providing the most protection to its insured. This is a pretty complicated subject to describe (if I haven’t lost you already), but basically the insurer tries to value each claim and if it can’t settle all of the claims within policy limits, it will settle the one or ones that are worth the most. This may result in one or more claimants getting nothing, and being left with the option of suing a judgment-proof defendant.

      For this reason, it is pretty important in a case like this that your daughter have a lawyer, especially if the other two claimants do. If an insurer is making a call as to which of the three claimants gets shafted by a settlement where all can’t be paid in full, who do you think it will choose when only one claimant doesn’t have a lawyer? While it’s true that a lawyer will take a cut of the settlement, your daughter getting 2/3 of a small amount is still better than her getting 100% of nothing.

      As to your last question, while in most cases I suggest waiting until a claimant is at maximum medical improvement (MMI) before making a settlement demand, the one exception to this rule is when there are inadequate policy limits. I’d really start lobbying the insurer for your daughter’s share of the coverage as soon as possible, because that’s what the other claimants will do. You don’t want the insurer to pay those other two claims before your daughter has even presented her claim to it.

  10. K says:

    I was terminated by an employer for alleged “cause” in a right to work state (sc). The alleged cause was insuboordination and providing false information; and, further, allegedly admitting to lying about the information I provided to the company. Obviously, I appealed to the unemployment tribunal. Unknown to the employer, I recorded the termination, in which I did not admit to lying. Factually in the recording, the employer verbally terminated me for “being a disruption” and “not letting the problem go away”. Further in the tribunal appeal, I was able to cross examine a key witness who admitted on the record that the supervisor had conversations with me giving me the perception that I should forge signatures on documents. The attorney wants to sue based on a common law exception to right to work which disallows retaliation for coming forward with a illegal activity. Here’s the kicker. The supervisor “voluntarily” turned in his resignation on the same day I was fired. The concern I have is if this case is lost by my attorney, will I be potentially responsible for the company legal fees, etc. I have no money. Basically, I refused to forge signatures on documents and was fired. The beautiful thing is I had already seen the employer’s depth of character and recorded the termination and the investigation by the vp/attorney.

    • fl_litig8r says:

      It’s extremely unlikely that you’d be held responsible for your employer’s attorney’s fees if you lose, as long as your action was brought in good faith and is not clearly frivolous. At worst, you’d be liable for their costs if you lose at trial, but that’s a risk in any civil case. Usually there are plenty of opportunities to drop the lawsuit and avoid paying a defendant’s costs even if a case goes horribly awry, as long as it happens before trial — so if you think you have a case and your lawyer is willing to give it a shot, you shouldn’t let the fear of being liable for the defendant’s fees or costs deter you.

      Even in cases where a defendant wins and is awarded fees and/or costs, usually they won’t bother trying to collect them from a plaintiff who can’t afford to pay. The cost of pursuing collections against such a plaintiff outweighs the likelihood of them ever making a decent recovery, so most of the time they won’t bother pursuing it at all or they’ll trade their judgment against you for your rights to appeal the bad outcome.

      I can’t tell you that there is zero risk involved, but I think it’s so small that you’d be foolish to let it scare you off if you have a halfway decent case.

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