Tag: litigation

A Short Introduction to Discovery

Posted by Nicholas Mosser on

Discovery is why your civil lawsuit takes so long. It’s the cooperative process of exchanging information between parties in a lawsuit, which can take months or sometimes years. The purpose of discovery is so that a case can be judged fairly on the facts and not due to a “surprise” document that the opposing party withheld until the last minute.

Basically, discovery makes things fair.

Your attorney will request discovery from the opposing party. The opposing party will request discovery from your attorney. Legal rules called the Rules of Civil Procedure govern the timing and delivery of responses. As a client, you might be asked to help answer discovery questions from the other party or to give your attorney some documents to allow the other party to examine.

There are three main types of discovery requests that might require client input: requests for admission, requests for production, and interrogatories.

Requests for Admission. This type of discovery request comes in the form of statements that you must admit or deny. You can also say that you don’t know or don’t have enough information to answer the question. Here are examples:

  1. Admit or deny that you are the managing partner of Local Business.
  2. Admit or deny that Local Business signed a contract with Widget Corporation LLC on May 12, 2008.

Requests for Production. This type of discovery request is primarily for documents. You have probably given your attorney most of the documents related to your case, but the opposing party might ask for more.

  1. Produce all originals of and all copies of all contracts signed by you and Widget Corporation LLC since 2006.
  2. Produce all communication (including letters, emails, texts, and other electronic documents) between you and Widget Corporation LLC concerning contracts since 2006.

Interrogatories. This type of discovery request usually comes in the form of an open-ended request for information, requiring a response beyond a simple yes or no. You might initially be asked to answer these questions and then to approve the final answers your attorney has written.

  1. Describe the safety, storage, and maintenance methods and practices regarding Widgets that you maintained in your regular course of business.
  2. Identify all persons formerly or currently employed by you who have or might have knowledge of Widget safety procedures.

As you can see from these basic examples, discovery can become very involved. Your part is to be as forthright with your attorney as possible and to disclose all relevant information promptly to your attorney. He or she will very likely have additional instructions or requests for you to supplement discovery responses as your lawsuit progresses. If you ever have questions about your lawsuit, ask them!

Remember, folks, at the end of the day there’s no substitute for having a lawyer of your own.

As always, our blog posts are not legal advice and do not constitute an attorney-client relationship!

Helping Clients Help Themselves

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While attorneys will write almost all documents related to a client’s case, a client may be asked to take an active role in helping to draft an affidavit.

An affidavit is a written, factual statement signed by the person making it (the “affiant”) and sworn to be true before a notary. Affidavits have a number of purposes in litigation; they may be used to provide testimony when a live witness is not needed, they can demonstrate that a document is a true and correct copy of an original, and they can provide a lawyer with narrative about the facts of the case and the reason for the suit–the story of what happened. An affidavit can be attached to other documents filed with the court as evidence to strengthen your case, or it can become a helpful reference in your attorney’s files.

When utilizing an affidavit as the narrative for the case, the attorney might ask the client to use his or her own written words to describe who, what, when, where, how, and why–any information about the case. Remember that a specific, detailed piece of writing is typically more informative and persuasive than a vague one, so be sure to include dates, names, facts, and details.

Vague: And then the van rear-ended me and pushed me forward into the other car.

Specific: Even though I pulled my car as far onto the right-hand shoulder as possible, the dark blue minivan still clipped my back left wheel and bumper with enough force to propel my vehicle forward ten feet into the rear bumper of the red sedan in front of me.

Vague: He told me he didn’t get the check and I had to move out by the end of the month.

Specific: On May 3, 2012, Mr. Landlord told me in a telephone call that he had not received Check #1001 in the amount of $900.00 for my May rent and that therefore I had to move out of 202 North Street before May 31.

The attorney will then render the client’s testimony into the form and format of an affidavit, including an introductory paragraph declaring that the affiant is competent to testify, has personal knowledge of the facts, and swears that the facts are true. It is important never to invent or exaggerate information in an affidavit, yet it is equally important to include all the relevant information. The final document must be as factually accurate as possible.  Here is a sample affidavit, incorporating this advice.

After the client reviews the draft of the affidavit, perhaps contributing more knowledge, he or she will sign the document in person in front of a notary, who will notarize the document, making it a valid affidavit. It is critical that if the attorney has misquoted the client, or summarized something incorrectly, that the client speak up and correct the affidavit.

What does this mean for you?

If you are considering retaining an attorney, write down a narrative of what happened to you. This will not only help you remember and discuss your situation with precision, but it will also help your attorney know what questions to ask to elicit the best details for your affidavit.  When hiring a lawyer, make sure you find someone who is taking the time and effort to understand your story.  After a jury verdict is the wrong time to realize that your lawyer doesn’t understand your case!

Locked out? Late on rent payments? Out of Luck? Maybe not…

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By:  Benjamin M. Tenenholtz

Almost everyone has months where money is tight. And as you may or may not know, if you’re late on rent payments for your rental home or apartment, you may find yourself locked out of your property. While your landlord has a right to lock you out if you don’t pay your rent, he must follow very specific rules in the Texas Property Code in order to lock out a tenant.

1.  Warning of the Lockout

If your landlord locks you out of your residence, he must post a notice on your front door which provides you with a 24-hour on-site location to access your new key, or a 24-hour phone number you can call to have a new key delivered within two hours. The landlord’s notice must also tell you the amount of late rent/charges and he must provide you a new key, at any hour, REGARDLESS of whether or not you pay the delinquent rent. It is important to know that your landlord cannot lock you out on a day on which a designated person is not available, or the on-site management office is not open, for you to pay the delinquent rent.

2.   Notice of Lockout and Legal Niceties

Additionally, your landlord cannot lock you out of your residence at all unless your lease agreement tells you that you can be locked out for failing to pay rent, and you are actually delinquent in paying your rent. In addition to these requirements, the landlord is required to provide a warning notice either: five days before the lockout by local mail, or three days before the lockout by hand-delivery or by posting on your main entry door. This notice should tell you the earliest date you may be locked out, the amount you must pay to prevent the lockout, the contact information for the individual or management office to discuss your rent, and tell you in underlined or bold print that you have a right to get a new key to your residence at any hour, REGARDLESS of whether you pay the delinquent rent.

3.  Remedy for Wrongful Lockout

If your landlord violates any of these laws, you have substantial rights to which you are entitled! You may either regain entry to your residence, or terminate the lease. In addition to these rights, you are entitled to recover a penalty from the landlord of $1,000, one month’s rent, actual damages, court costs, and reasonable attorney’s fees (minus the amount of delinquent rent). Additionally, if your landlord fails to give you a key after you request it, you may be entitled to another month’s rent.

Maybe most important to wrongfully locked out tenants… Your lease cannot waive any of these rights!

So in summary, remember these things:

  1. Warning of Lockout–it should come ahead of time in the mail or on your door or by personal delivery and include delinquent amounts and contact information
  2. Notice of Lockout–Posted on the door to the residence, including the delinquent rent amount but more importantly advising you that a key is available to you at any time, within 2 hours, regardless of your ability to pay the delinquent amounts
  3. Vindicating your Rights–Lockouts not done in strict accordance with the property code are subject to stiff civil penalties.  A lawyer can help you recover the damages and fines your landlord might owe you, but you probably still have to pay your rent.

 

Vindicating the Rights of Texas Homeowners

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The Texas Constitution has some very strict language about protections for homesteads.  Unfortunately, many Texans don’t know about those safeguards, and their homes are foreclosed upon in violation of the Texas Constitution.  Mosser Law is actively working on behalf of homeowners.  With some success in the past, we hope to help more Texans in the future.

This Report and Recommendation from the US Magistrate Judge is the basis of a pending appeal before the 5th Circuit.  In that case two homeowners, unaware of the requirements of the Texas Constitution, were misled by the lender and title company–among others.  The loan was closed improperly, in the homeowners’ living room, without constitutionally mandated notice.  Upon informing the lender of the violations, the lender failed to reform the loan in accordance with the Texas Constitution.  After the appropriate time period had elapsed, the homeowner then filed a declaratory judgment for to have the lien declared void in accordance with the Texas Constitution.  The district court in that case decided that the homeowners had waited too long to pursue their claims.  Although the Texas Constitution has no language regarding a statute of limitations, the district court applied a “residual” statute of limitation of four years.  The homeowners, with the help of Mosser Law, are appealing.  We point out that the language of the Texas Constitution indicates that a lien created in violation of that document is void, and that there is no limit on your ability to have a court adjudicate the void nature of that lien.

Here you can find our clients’ opening brief, the Defendants’ Response, and our Reply.

If you are interested in reading about another of Mosser Law’s cases under the Texas Constitution relating to voiding a homestead lien because of constitutional violations, you should read about the Rays.  The lien on their homestead was declared unconstitutional because of fraud by the bank.  They also won a damage award, and an award of attorneys’ fees with the help of Mosser Law.

Mosser Law Defeats Patent Troll

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Does this mark the end of an era for patent trolls?  For the sake of patent holders everywhere, we sure hope so.

Recently, Mosser Law successfully defeated a patent troll in the Eastern District of Texas.  There is a little known law which prohibits the marking of a good with a patent that has expired.  That is, if your dohickey, patent no. 9,723,333,223, has reached the end of its patentented life, you have to remove the mark.  You cannot keep selling your dohickey with an expired patent number on it. 

If you keep selling your marked dohickey, anyone can sue you in a qui tam suit under 35 U.S.C. § 292.  This is called a “false marking” case.  Until recently, it was enough to meet the requirement of “intent to deceive” if a defendant was alleged to be a sophisticated company, perhaps retaining patent counsel, who was acquainted with the business of acquiring and using patents.  Then the courts would infer that the defendant’s failure to remove a mark was an active attempt to deceive.

However, the Federal Circuit recently clarified the “intent to deceive” requirement, by teaching us that the intent to deceive was held to a heightened pleadings standard, under Fed. R. Civ. P. 9(b).  In the case In re BP Lubricants USA Inc. the Federal Circuit opined that there must be more than just conclusory allegations to infer an intent to deceive.  The Federal Circuit did not specify what would meet that requirement, only noted that the “sophisticated company” argument was not effective. 

We look forward to seeing what sort of cases further develop the law in this area.  In the meantime, you can read more of what we wrote on this topic for the judge by reviewing our reply brief, and the Order Granting Motion to Dismiss is here.

How much will it cost me to hire a lawyer?

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Lawyers generally have three ways of charging for their services, but it can get a little complicated. Read on.

First, a lawyer will frequently bill at an hourly rate for the time she works. Under this model you will only be charged for the time put into your case. Under this fee-structure, as well as the others, you will be charged for incidental costs like court costs, expert witnesses, and any travel costs.

Second, depending on the nature of your case, a lawyer may base their fee on how much you recover. This is called a “contingency fee” and is often used when the case is complicated, and the size of your recovery hinges on a lawyer’s skill. For instance, this is a frequent billing method in a civil rights case.

Third, you could be billed a flat fee, at the outset of your case. This final method is much rarer, and usually only for very simple cases like a standard ticket or an uncontested divorce, with no children or property.

On Long Lost Lawyers

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Being a lawyer at a cocktail party is a little bit like being a doctor at a cocktail party: everyone wants you to diagnose their legal problems. That can be very challenging what with the liability issues involved, and problems with stepping on another lawyer’s toes. But the most disconcerting question lawyers get asked is “Why won’t my lawyer return my calls?”

This is a really great question.  You pay your lawyer a lot of money, shouldn’t you expect him to call you back when you want him to?  As with all questions to lawyers, the answer is invariably “That depends.”

There are two main reasons a good lawyer isn’t calling you back.

1. NOTHING IS HAPPENING Oh, this can be very frustrating, but very true. There’s a lot of waiting in litigation. Waiting for discovery, waiting for a trial setting, waiting until it’s time for a deposition. If your lawyer called you just to let you know that it’s time for more waiting, your legal bills would be astronomical, and you’d be livid!

So how do you know, without calling, if nothing is happening or if your lawyer is slacking off?  Your lawyer ought to be sending you copies of any court filings, notices of court dates, and even some correspondence.  This way you can be “in the loop” without wasting your precious legal fund calling and checking in every other week.  If you’re not getting these documents automatically, call and ask your lawyer’s paralegal or secretary to forward them to you.

2. SOMEONE ELSE IS IN JAIL/BANKRUPTCY/DIRE NEED Believe it or not, this isn’t just a lame excuse. We spend a lot of time putting out our clients’ fires. Whether that’s jail, bankruptcy, injunctions, or just threatening letters, it’s important that we’re available in an emergency. So if your call isn’t returned the same day, it’s not because your litigation isn’t important, it’s just not as immediate.

This goes back to number 1, above. There’s a lot of waiting in litigation, so lawyers will put off till tomorrow returning your call, in favor of bailing someone else out of jail.   Think of this as a good thing.  After all, if you get thrown in jail, you’ll want us to be there as quickly as possible, right?

Other Tips:

You should be getting itemized bills so that you can keep track of the funds you pay to your attorney, and how he’s spending his time.

And any complaints that you make about poor communication, shoddy workmanship, etc. should be in writing.  You always want a record of your interactions, even with “your” lawyer.

Remember folks, at the end of the day there’s no substitute for having a lawyer of your own.

And as always, our blog postings are not legal advice, nor do they constitute an attorney-client relationship!