What To Do If You Think You Have A Legal Claim
If you believe that you have a valid legal claim, you can speak at no charge with one of Buffington Law Firm’s experienced Orange County business and estate litigation attorneys. We always offer a free legal consultation in which we will listen to you, and discuss your case with you. Our Orange County trial attorneys are experienced in handling business disputes, real estate litigation, as well as trust and estate disputes. We will be happy to discuss your case with you and there is no obligation.
If you think that you have a legal claim against someone there are certain things you should do, and certain things that you should avoid doing. For many people, their first instinct is to try to handle their claim alone, without a lawyer. They reason “why pay a lawyer if I do not have to?” While this approach will sometimes work, there are some real pitfalls to this that I see time and again in our legal practice. In this brief article I will discuss some of these pitfalls.
1. Statute of Limitations. Translation: Delay is Death!
In my experience when someone decides to handle a claim without a lawyer, their course of action usually starts with writing a demand letter. Often several demand letters. I have seen situations where this went on literally for years with the two sides engaging in what amounts to a debate by letter. During this time the individual feels that he or she is “handling the case.” This is very dangerous for many reasons, one of which is the Statute of Limitations. Essentially any legal claim, whether it involves a breach of contract, real estate dispute, fraud, or some other type of claim, has a time period within which the claim must be filed in court. Otherwise the claim will be time-barred by the applicable Statute of Limitation. Determining which Statute of Limitation applies to a claim, i.e. the limiting time period, is not always simple. Additionally, determining when it began to run is often complex. But if someone recites their claim in a demand letter it is almost certain that the Statute of Limitation will begin to run no later than the date of that letter, since the letter indicates that the party was aware of their claim and could have brought a lawsuit but did not. Writing letters to a corporation’s “claims” or “legal” department or complaining to a government agency does not constitute filing a claim. (It usually constitutes a waste of time and a mistake.) Only filing in court or sometimes alternative dispute resolution stops the Statute from running.
Corporations and some savvy individuals know all about the Statute of Limitation and they will try to keep claimants writing letters back and forth until the Statute expires. Delay is death. Courts rightly consider themselves to be overburdened and if a court has a valid reason to throw out a case, the Judge will do so. The Statute of Limitation is a common way for an otherwise meritorious lawsuit to fail. It happens often.
Bottom line: see a lawyer if you think you have a claim. Do not wait. Our Firm will give any potential client a free consultation in which we take a look at the case and make a first-pass evaluation as to its strength and merit. There is no charge for this. If you still want to handle your case alone after talking with one of our attorneys there is no obligation. If you think you have a valid legal claim, call us! You have nothing to lose.
2. Do Not Give the OtherSide Free Information! Do Not Plead Your Own Case.
Another pitfall in writing one’s own demand letter when handling a claim involves what the law calls “admissions.” Usually in a demand letter non-attorneys recite lots of facts and make various claims and statements about the case. There is a natural tendency to want to show the other side that you have investigated your case and know what you are talking about. Very often, no always, in these letters the party makes admissions or says things that their attorney would not want said. These letters are evidence. In fact in many cases the letters and emails by the parties prior to a lawyer taking over the case are a primary source of evidence.
In a trial the written word is incredibly powerful. While an attorney may want testimony framed one way, if the client has written a letter that frames it a different way this can present a big problem. Judges and juries find the written word to be very persuasive and after-the-fact testimony that discusses the claim in a different, more lawyerly light, often cannot undo the damage done by a prelitigation letter or email. Most qualified lawyers will write a demand letter at reasonable cost. A good lawyer knows how to frame these letters so that they will not constitute admissible evidence (e.g. Cal. Evidence Code §1152) or, alternatively, in a manner assuring that the text of the letter will not damage the case.
3. Email is Death.
In our Firm we have an adage: “email is death.” Time after time we get cases in which the parties have bickered by way of email and made damaging statements. There is something about email that encourages intemperate and hasty communications. This is usually admissible in court, and rarely (no, never) do emails read the way a lawyer would want the case discussed. Avoid email in disputes.
4. The Internet is Eternal.
Anything that you post on the Internet is effectively eternal and irrevocable. Facebook, Twitter, blogs, and other social media are not the place to discuss legal disputes. More and more statements on the Internet are turning up as evidence in court. By all means enjoy these social media. But do not discuss your legal claim on the Internet. Period.
5. Expert Opinions.
One of the most common mistakes that a layperson makes when he or she decides to handle their own case (before eventually hiring a lawyer) is retaining an expert for an opinion. For example, someone has damaged your property; you go out and get an expert to give you an estimate of the damage. Experts can be all over the place with estimates of this sort. The expert that you retain may (and often will) give you a “lowball” estimate in the hope that you will hire him or her to do the work. Presto! Now this lowball estimate is discoverable by the other side (it absolutely must be disclosed if a lawsuit is eventually filed) and it will work against you for the entire case.
Most lawyers have contacts with experts who will give accurate estimates for given types of issues. Time after time I have had clients proudly show me that they had “done their homework” by getting an expert opinion about the value of their case. Usually they have damaged their case substantially by doing so. I cannot overemphasize what an error it is to do this, and it happens often.
6. A Lawsuit is a Form of Negotiation.
We have all heard stories about lawsuits in which the attorney fees and costs became ruinous. This does happen, but it does not have to be that way. Properly handled, most lawsuits are a form of negotiation. Filing a lawsuit with representation by a qualified lawyer is a way for you to communicate to the other side that you are serious, that you have legal representation, and that a lawyer has evaluated your claim and found it to be sufficiently meritorious for the lawyer to take the case. (It also communicates that the Statute of Limitation has stopped running.)
Most times when a person has a claim against another party that second party simply wants the claimant to go away. They will ignore the claimant if they can or tie him or her up in a letter writing campaign. The act of filing a lawsuit in essence forces the second party to negotiate with you. A lawsuit levels the playing field so that the stronger party is forced to deal with the weaker party. Also, a lawsuit almost always forces a defendant to obtain his or her own legal representation. This can result in the defendant’s lawyer explaining to him or her the validity of your claim. This can lead to a good resolution of your case without a costly trial.
The vast majority of lawsuits settle out of court, before trial. Our Firm has enjoyed great success negotiating settlements in formal mediation as well as by way of informal negotiations. Thus, the negotiations that follow the filing of a lawsuit can be a cost-effective way of pursuing a legal claim, avoiding the cost of a trial. On the other hand, if a trial is necessary, our Firm is always prepared to take the case to verdict.
Conclusion. See a Lawyer
The law is a minefield, and it is easy to make mistakes. Even if you ultimately decide to handle your case without representation by a lawyer, it is prudent to seek advice of counsel at the earliest possible stage of a claim. If you still want to handle your own case after a free consultation, fine. Candidly, few clients do, once they talk to an attorney and gain a greater appreciation for the complexities of the legal process.
Time and again our Firm takes over a case in which the litigants have made serious errors that are obstacles to successful resolution. Often we can overcome these obstacles, but it is always a challenge. Do not let this happen to you. If you believe that you have a claim (or if someone is asserting a claim against you!) give us a call and arrange for a free legal consultation in our office, face to face, with one of our Orange County litigation attorneys. There is no charge for this. You stand only to gain.