Do I Need a Lawyer?

One of the questions we are frequently asked is: Do I need a lawyer? An individual is free to represent himself or herself as to any legal matter, whether it is a business transaction, initiating a lawsuit, defending a lawsuit, or what have you.

Business organizations are not nearly as free on that score. As a rule they must, by law, be represented by attorneys. Some exceptions apply in certain small claims cases. Smalls claims court in Illinois is limited to cases that seek money only, and not more than $10,000.00.

Having said that, there are any number of situations in which it makes sense for an individual to be represented by an attorney even though the law does not require it. One sort of situation in which this would be true is the situation which entails an attorney representing the opponent, so that it makes sense to engage legal counsel in order to "level the playing field" and avoid a mis-match. An arrangement of that sort makes more and more sense as the stakes of the case increase.

We were recently informed about a case that arose out of a home remodeling project that went awry. The homeowners had spent lavishly on a purely elective improvement to their house but they saw no value in engaging an attorney to help them at the contract formation phase of the transaction. The problem surfaced when the project was nearly complete. The amount at stake, only a few thousand dollars, was far too small to justify a legal fee. But the contractor had an attorney. The attorney had submitted what was, in fact, a modification of the construction contract, five dense, single-space pages that called for further construction work on the part of the contractor. The homeowner airily misdescribed this document as a mutual release, as if to say that anyone with a license to practice law could tell in two minutes whether the document was sufficient for the task.

The upshot: There was not enough money involved to warrant paying an attorney but there was too much work in prospect on the part of the attorney to justify giving a "freebie" to a stranger who had tens of thousands of dollars available to improve the house but no budget at all for legal work.

Counties with Personalities: It Matters Where You File

by David McCarthy

The conventional wisdom as to personal injury cases in Chicagoland is that plaintiffs want to avoid DuPage and get into Cook County whenever possible and defendants want to avoid Cook County and get into DuPage County.

The conventional wisdom has it that the jury pools in DuPage County are conservative and will demand that a plaintiff prove her case, and particularly establish that the damages she requests of the jury are fully justified. On the other hand, the thinking as to jury pools in Cook County is that they start with the premise, "We've got to give this poor plaintiff something" and the only question is how much?

We speak specifically about DuPage County because it is widely regarded as the most conservative of the 102 counties in the State. Cook County is considered among the most liberal, along with Madison and St. Claire Counties over on the Mississippi River.
 
The above discussion might suggest that a plaintiff can file a lawsuit anywhere she wants to. Not true.

The general rule is that the suit must be filed in the county where the defendant resides or where some part of the transaction took place. A corporation "resides" in any county in which it has an office or regularly transacts business. Out-of-state defendants can be sued in any Illinois county.

HOW DO YOU GET TENURE WHEN YOU HAVE NOT PUBLISHED? YOU SUE, OF COURSE.

by David McCarthy

There was a time when it was widely understood and accepted that tenure was conditioned on being published.

Interestingly, officials of the University of Wisconsin were sued for refusing (by a vote of 7 to 1) to grant tenure to an assistant professor of physical education who had published nothing. The contract of employment did not guarantee tenure, but only that plaintiff would be considered for tenure. The case was dismissed on dispositive pre-trial motions and the Seventh Circuit Court of Appeals affirmed the dismissal.

Plaintiff brought a claim under Title VII of the Civil Rights Act that alleged sexual discrimination in the form of "associational discrimination."

It contended, in gist, that tenure had been denied to plaintiff because of her association with a male employee of the university who had earlier filed a sex discrimination claim (and who also cast the only vote in favor of granting tenure to plaintiff). The Title VI claim was found to be time barred.

A claim predicated on denial of equal protection failed for want of evidence that plaintiff had been treated differently from similarly situated candiates for tenure and for want of evidence that the individual defendants were motivated by an intent to discriminate against persons such as plaintiff.

Plaintiff asserted that she was a class of one, a heterosexual female professor who befriended a heterosexual male professor who filed a sex discrimination complaint. However, she did not carry her burden of establishing that the defendant's justification for discriminating against her was irrational and arbitrary.

Finally, the Court rejected a claim that denial of tenure carried a stigma so great that at two different performance reviews prior to the time when plaintiff came up for tenure, the Dean had told her that publishing would be a "critical factor" in the tenure decision.

After the litigation commenced and after the defendants filed their motion for summary judgment, the response of plaintiff flagrantly disregarded local rules pertaining to statements of fact and citations of law. The trial judge therefore disregarded a large part of plaintiff's opposition. Plaintiff charged the trial judge with abuse of discretion. The Court of Appeals rejected that contention.

COMMON LAW, NOT STATUTE, GOVERNS CAT IN THE CONDO

We are in the pre-suit phase of an upstairs-downstairs dispute between neighbors that was touched off by a cat in the upstairs unit raising the lever-action faucet in the kitchen sink when no one was home. Water damage to the unit below was the result.

Getting to yes on a settlement has been a challenge because our opposing counsel and the occupants he represents appear to have an agenda. So when the facts and the law collide with his assumptions, he ignores the facts and the law and clings to assumptions.

His "proofs" of damage appear to have been "manufactured" to serve an agenda that preceded the proofs, and his assumption that the upstairs neighbor was negligent is contrary to law.

His error is obvious. He has forgotten the basic rule on this subject that is drilled into first-year law students: Every dog gets one bite. True, there is no dog in this fight, and no bite, for that matter. But there is a question of notice.

Under the common law, the owner or keeper of a dog was liable if the dog bit someone only if he was on notice that the dog was prone to bite people. So the first bite was "free," if you will. The first bite put the owner on notice of the dog's viciousness. A statute that has since been enacted imposes strict liability: If an unprovoked dog bites someone, the owner is liable, without regard to notice or carefulness.

Common law negligence governs the case at hand. Our opponents seem to know this but to have forgotten the notice element of the negligence case. They must plead and prove that the owner or keeper of the cat was on notice that the cat was capable of turning on the faucet.

DO-IT-YOURSELF IN SMALL CLAIMS COURT

by David McCarthy

Small claims court is a good place to be a plaintiff, if you must be a plaintiff at all.

It is a fast, simple, low-cost way to get a decision on a claim for money only that does not exceed $5,000, exclusive of interest and costs. Simplified pleading is permitted, discovery is prohibited except by court order, and generally there will be a trial on the date due for the defendant to respond to the summons.

The advantages are so great that it is worth considering ways to cope with some of the restrictions and requirements of the procedure.

One, a corporation which is a plaintiff must be represented by an attorney no matter how small its claim my be, but individuals may represent themselves no matter how great their claims may be. So a corporation might consider selling and assigning its claim to an individual, who can elect to proceed with or without counsel. The assignment should be in writing.

Two, when one plaintiff has claims against one defendant that aggregate more than $5,000.00, it is well to consider filing the claims in separate counts or even in separate suits.

Three, for those claims in excess of $5,000.00 that cannot be separated into counts there is no law against praying for the $5,000.00 maximum and waiving the right to the excess.

ANATOMY OF A LAWSUIT

By David McCarthy

All lawsuits have three phases: pleading, discovery and trial. In small claims court pleading is simplified, discovery is available only by permission of the court, and the rules of evidence are applied laxly if at all.

Pleadings. Lawsuits start with a plaintiff's complaint, a brief description of the acts and omissions imputed to the defendant and of the injury or damage allegedly caused thereby (e.g., personal injury, property damage, monetary loss).


The defendant will file an answer that admits and denies the various allegations of the complaint, thereby identifying the "triable issues" of the case, the contested questions of fact whose resolution is the purpose of a trial. Sometimes the answer will be accompanied by affirmative defenses or a counterclaim or both, to which the plaintiff will respond in like fashion, i.e., by admissions and denials. Cases can be dismissed on motion at the pleadings phase but that occurs about as often as the Cubs play in the World Series.


Discovery. In the discovery phase the facts that appear in skeleton form in the pleadings are fleshed out. Of the many tools available for this task, three are standard: requests for documents; interrogatories, written questions answered in writing on oath; and deposition, oral questions answered orally on oath. (President Clinton's impeachment woes started with interrogatories in the sexual discrimination lawsuit of Paula Jones that inquired whether other government employees had been subjected to conduct of the kind Ms. Jones complained of.)

Trial. The facts that emerge from the process above described may be lopsided enough to invite a trial avoidance procedure known as a motion for summary judgment. It proposes that trial is not needed because the important facts are undisputed and the judge need only apply the relevant law to the uncontested facts and enter judgment. This tool is used more often by defendants than by plaintiffs because plaintiffs must prove all elements of their prima facie case whereas defendants will prevail if any one element is obviated.

If summary judgment fails (and it often does because the standard of proof is exacting), and if the lawsuit cannot be settled, and if the plaintiff will not voluntarily withdraw it, then what is left is a trial. The office of a trial is to resolve questions of fact, that are still in dispute by the time the case reaches the trial phase. The facts of a case may be tried to a jury or tried to judge. But the law is always determined by a judge and never by a jury.