Civil Litigation: We Can Help

It's an unfortunate reality that things can go wrong, either someone injuries you or your property, or alternatively you are accused of harming someone else or their property. Maser Law PLLC is experienced in every phase of the legal process constituting litigation: drafting or responding to demand letters, implementing or responding to the initiation of a lawsuit, all aspects of discovery preceding trial, settlement or mediation negotiations, summary adjudication, trial, appeals, and ultimately collecting on judgment.

What sets our service apart from other law firms is a high level of client care, sensible strategizing – with a focus on achieving results, and ultimately proven results. Call us for a free consultation if you have been harmed or instead need to respond to a legal problem that has arisen. We are happy to be of assistance.

Basic Concepts & Tips

Negligence Per Se
Judgment Proof
Contingency Fee
Demand Letter
Justice vs. District Court
Summary Judgment
Offer of Judgment
Preponderance of the Evidence
Punitive Damage Cap
Collecting Judgment

Tort: Tort is a civil wrong recognized by law as grounds for a lawsuit. Whatever the wrongful act it must result in an injury or harm that constitutes the basis for a claim by the injured party. Tort law encompasses the entire field of civil litigation whether you harmed someone or were harmed in an auto accident, a trip and fall on someone’s property, or some kind of non-physical injury e.g., breach of a contract resulting in monetary loss.

Negligence: Negligence is at the heart of every tort action. Negligence requires four things: 1) a duty of care to not harm the injured party; 2) a breach of this duty; 3) a causal connection between the injury and breach; and 4) damages as a result. A failure of one of these elements is fatal to a lawsuit. If there was in fact no duty owed e.g., you don’t have a duty to not grow sunflowers in your yard just because your neighbor doesn’t like them, or alternatively the actual cause of injury was too distal from the act alleged to be negligent e.g., your car breaks down on a single lane road causing all traffic to stop for a half hour, a person behind you misses an important meeting, during the meeting this person would have alerted the president of a company they’ll go out of business soon if they don’t make changes, and then the company goes out of business. Obviously you aren’t responsible for the business’ failure .

Negligence Per Se: is negligence where the duty of care is set forth by a statute, code, or some kind of law. For example, if you’re driving your Porsche at 180 miles down the road and hit someone because you lose control, this would be negligence per se. The state law to drive 75 on the freeway (here in Montana) was clearly broken. And, you had a duty to obey this law – which was in fact enacted to prevent the type of accident you just caused. A negligence per se action (for the injured party) makes their case much easier to prove as they need not rely on case law (opinions by courts) that denote a duty of care to the plaintiff.

Plaintiff: The plaintiff is the party who has been injured. They initiate the lawsuit by filing a complaint in court. Thereafter, they serve a copy of this complaint on you. The plaintiff sets forth facts in their complaint that summarize what happened and then cite various legal theories (negligence, negligence per se, etc.) that support why they should be awarded a monetary recovery from you. Sometimes they aren’t seeking monetary compensation. Instead, they may want you to perform a certain act e.g., meet a contractual obligation you’ve failed to complete, or alternatively forbade you from doing something e.g., add another level on your home that will block their view.

Defendant: Defendant is the party who is allegedly responsible for the plaintiff’s injury. Defendants are named in the complaint that a plaintiff drafts and files with the court, then thereafter serves on the defendant. Once served, a civil action is effectively commenced against a defendant. Failure to respond in the time allocated by law can result in a default judgment against the defendant i.e., the court, without hearing your side of the story, deems the plaintiff the prevailing party. A court can order a monetary damage against a defendant or instead order the defendant to perform a specific act or alternatively refrain from an act. Thus, rectifying the wrong the plaintiff seeks redress for.

Judgment Proof: A judgment proof defendant is one from whom a monetary recovery is unlikely, if not impossible. Before suing someone you need to make sure they are not judgment proof. If they lack liability insurance, earn little to nothing, plus have no assets, unfortunately a lawsuit against them will be futile. In contrast, well insured entities or those with deep pockets are ideal defendants. Thus, why one so often reads of lawsuits against corporations or government entities as these defendants are clearly not judgment proof.

Contingency Fee: Contingency Fee is the arrangement most commonly used to reimburse a plaintiff’s attorney in civil litigation. The plaintiff’s attorney charges nothing up front for bringing the lawsuit on behalf of the plaintiff. All costs as well as time and labor are fronted. But, on the back end if the suit proves successful typically a gross of 40% from the total recovery goes to the attorney. Thereafter, expenses are subtracted from the balance with the remainder to the plaintiff. If the matter can be settled without filing a lawsuit, typically the attorney only takes 33%. These percentages, of course, vary. As a rule the higher the chances of success as well as the likelihood of a large recovery, one can negotiate the contingent percentage down, even demanding that expenses are deducted from the recovery before the attorney’s percentage is calculated. In geneneral contingency percentages may seem high but, keep in mind many of the lawsuits plaintiffs' litigation attorneys bring are lost. And, the attorney loses all the expenses as well as time and labor expended on the suit.

Demand Letter: A letter almost every attorney sends when instigating litigation against a defendant, yet, before filing a suit. Typically such letters lay out the basic facts that support an injured party’s claim, maybe some supporting case law, then propose a settlement amount, and thereafter set a deadline by which the injuring party must respond. Once this time has passed, without hearing from the defendant, the injured party will usually file a lawsuit – albeit they may make another try at attempting pre-litigation settlement.

Justice vs. District Court: depends on the amount of monetary damages in question in a lawsuit. In Montana, Justice Court’s handle all matters where the relief sought is $12,000 or less. Within the Justice Court system there are also small claims courts which handle controversies of $7,000 or less. In contrast, District Courts handle lawsuits where damages are alleged to be greater than $12,000. The advantage of the small claims Justice Court system is one can represent themselves without an attorney, the filing fees costs less, and there are a number of template forms to guide you through the process. But, if you want a jury trial, you will have to proceed in regular Justice Court as there are no juries in small claims court.

Discovery: Discovery is the basic process in litigation whereby parties gather evidence from one another. Rules require the parties to disclose all evidence that could reasonably lead to relevant evidence that could ultimately be used at trial. Each party, the plaintiff and defendant, submit formal written discovery requests seeking a myriad of materials that could help determine the facts of a case: documents, phone records, emails, digital media (recordings, videos, pictures, etc.), and even tangible evidence. Additionally, formal interviews of witnesses, the litigants, and other critical individuals, known as depositions occur during discovery. These are taken under oath with a court reporter present and attorneys for both parties asking questions.

Summary Judgment: Summary Judgment is a legal procedure whereby, following discovery, one of the parties will submit a written brief to the court requesting the case be dismissed without the necessity to go to trial, or, even mediation. The standard to either approve or deny a request for summary judgment is whether there is no genuine issue of material fact as to liability. If the Judge looks at the evidence gathered to date, and referenced by either party in their briefs, and if it is clear no grounds for legitimate liability exists the case will be dismissed.

Offer of Judgment: A legal procedure where a defendant proposes to have judgment entered against them for a certain sum of damages, including whatever costs the plaintiff has incurred to that point in time in the litigation. An offer of judgment must be tendered within 14 days of trial and accepted by the plaintiff in that time frame. If accepted, either party can then file the original offer of judgment document with the court; thus, resulting in a judgment on the record. If instead the plaintiff refuses to accept the offer, proceeds to trial, and fails to obtain a judgment greater than the offer, the plaintiff is then forced to pay the legal fees and costs of the defendant's. Consequently, an offer of judgment is a tactical tool whereby a defendant forces the plaintiff to thoroughly evaluate the merits and strengths of their case before taking the final step to trial.

Mediation:  is a formal process where the parties via a neutral intermediary attempt to resolve the dispute short of taking it to trial.  The parties each submit an extensive mediation statement to a neutral mediator; thereafter meet at the same location – albeit usually in different rooms – while the mediator goes back and forth between the parties.  The mediator communicates the offers and counter offers between the parties, hears each party’s side regarding their rational for the offers, and often reasons with the parties to try to get them to see the case from the other party’s perspective.

Trial: as a general rule trials are rare in civil litigation.  By way of example, a robust civil litigation firm with 60-70 cases in progress at various stages at any given time typically tries just one case a year at best.  In large part, this is due to the fact taking a matter to trial is very expensive.  Expert testimony fees are very high; defense counsel’s hourly rates are substantial; and ample logistical and administrative expenses underlie a trial.  And, once at trial, even the strongest case is subject to the whims of a jury.  Then even if one wins the judgment or a procedural matter that occurred during trial can be appealed by the losing party.

Preponderance of the Evidence: is the standard of proof in a civil lawsuit that a plaintiff must achieve in order to prevail.  It is difficult to describe.  Essentially it is enough evidence to make it more likely than not that the fact(s) the plaintiff seeks to prove are true.  Alternatively it can be summarized as a greater than 50 percent chance that the proposition the plaintiff seeks to prove is true.

Damages: Damages are an award, typically of money, to be paid a plaintiff as compensation for loss or injury. Legal damages are categorized into compensatory (or actual) damages, and punitive damages. Compensatory damages are further categorized into special damages, for economic losses such as loss of earnings, property damage and medical expenses, and general damages, which are noneconomic damages such as pain and suffering and emotional distress.  Meanwhile, punitive damages are not awarded in order to compensate the plaintiff, but to reform or deter the defendant and similar persons from pursuing a course of action similar to that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious and are over and above the amount of compensatory damages, such as in the event of malice or intent. 

Punitive Damage Cap: Many states as well as Montana have punitive damage caps imposed by statute.  These are maximum amounts a defendant can be assessed irrespective of what the jury decides is an appropriate punishment for egregious behavior.  In Montana the cap is presently $10 million or 3 percent of a defendant’s net worth, whichever is less.  The legislature set these caps in large part due to the influence of outside lobbyists representing tort reform .

Appeal: If one wins a lawsuit at trial, rest assured it’s not over yet.  You’re still likely a long ways from collecting the monetary damages you have been awarded. During trial the defendant will have made numerous objections for a plethora of reasons: to particular evidence that was considered by the jury (or not considered); to the way evidence was presented; or rulings the Judge may have made outside the presence of the jury.  Additionally, the defendant may simply plane to appeal the jury’s verdict based upon reasonableness i.e., no reasonable jury could have concluded as the jury did.  Of note, though, the defendant will have to post a bond for the judgment amount while seeking an appeal. Given the ongoing prospect of an endless appeals process, parties often renegotiate some post-trial amount that is a reduction of the verdict to fully resolve the case.

Collecting Judgment: Unfortunately it’s not over once one wins a judgment for damages.  The court’s order against a defendant means little if the defendant isn’t insured for the recovery, in which case the insurance company would step forward to pay the judgment (this insurer would have already been involved as they would have hired attorney(s) to defend the case).  Without an insurance source one is forced to identify plaintiff’s assets that could be seized.  A court ordered hearing where the defendant is required to come forward with listings of all their assets can be conducted.  Typically, for a defendant who might even have assets, the assets are subjects to liens: a home mortgage, financed vehicle, or assorted personal property bought on credit.  Seizing these assets entails involved procedures but, if there is still enough equity to pay off the primary creditor with some left over for you it could be worthwhile.  Additionally, one might be able to garnish a defendant’s wages.  This of course requires that they work for someone else, thus receive monthly paychecks the employer can be forced to withhold from.  This will not be an option with a self-employed defendant.

Common Litigation Disputes

Personal Injury
Contract Dispute
Landlord Tenant
Wrongful Termination
Medical Malpractice
Civil Rights Violation

Personal Injury: The most common and broadest category of civil litigation disputes are personal injury cases. The injury can either be physical due to an accident or harm to one’s property. To assess whether such a case has merit one needs to first identify if the harm caused is sufficient enough to even consider bringing a lawsuit. Unless the matter can be handled in small claims court, the litigants representing themselves, litigation is expensive and time consuming once attorneys are involved. After evaluating if damages are sufficient one needs to consider whether their case is even winnable. The elements of negligence (see above) should be clearly met, and relatively easy to prove. Keep in mind; seldom will your case proceed to trial. Usually matters are resolved via mediation. In Justice Court there is a court mandated mediation program. Meanwhile, in District Court parties will typically attempt a formal mediation before trial, as arranged between counsel, to avoid the expense and uncertainty of taking a matter before a jury.

Conversion is essentially the civil form of the criminal charge of theft. If one takes or has their property taken by another without permission, this constitutes conversion. Often conversion occurs in conjunction with fraud where someone uses deceit to obtain your property. One can seek the return of their property as well as damages (see above) for a multitude of harms you may have incurred due to loss of use, mental anguish, or actual damage to the property while in the defendant’s possession.

Contract Disputes: Contract Disputes arise when a party has failed to perform as agreed. One can either seek a remedy of monetary damages or alternatively obtain an order from the court for “specific performance” i.e., a demand that the party complete their side of an agreement as originally negotiated. It is the policy of the law to limit the kinds of damages that can be awarded when contracts are breached. Why? Becomes sometimes it’s necessary for a party to engage in an “efficient breach.” If the price of eggs has gone up considerably since a negotiation, the seller may want to disregard the contract to sell their eggs to a significantly higher bidder. Yes, they will have to pay the original contracted buyer damages but, they will not be assessed punitive damages or other types of compensatory damages beyond the concrete loss the contracted buyer incurred.

Landlord Tenant relationships can break down resulting in the need to sue either party. Pursuant to Montana’s Residential Landlord Tenant Act both landlords and tenants are entitled to certain rights, must follow specific procedures, and have particular remedies available in the event rights or procedures are violated. It’s important to know what your rights and obligations are if you are either a landlord or tenant. Maser Law has represented numerous landlords as well as tenants with litigation needs related to rental properties.

Wrongful Termination occurs when an employer terminates you without proper cause. Most employers have a six-month initial probationary period during which you can be terminated without any expressed reason. Thereafter, it becomes more difficult to get fired. An employer who is following the book will start maintaining records and communicating to you that there are problems developing with your performance; thus, providing you an opportunity to improve. If they fail to do so, and fire you, you may have grounds for a wrongful termination action. The key upside of a suit for wrongful termination, from an employee’s perspective, is damages for three years’ worth of future wages. Yet, one must mitigate this by seeking and hopefully obtaining a replacement job with new income to offset your old job’s income. Keep in mind, if you don’t make much money, wrongful termination suits are generally not productive. Nonetheless if the situation is clearly egregious since one can get their attorney’s fees as an award, you may be able to convince a lawyer to take your case. Do note, if you are a school teacher or a union worker, these jobs have unique contractual and grievance procedures in place. Also, if you work on a contractual basis i.e., one year terms your rights are limited to whatever is specified in your contract.

Medical Malpractice litigation is complex and very expense to prosecute or defend. It entails a medical professional who has somehow injured a patient with the underlying question being whether this professional violated the accepted standard of care in their particular field of medicine. Due to the amount of discovery involved (voluminous medical records), numerous witnesses to formally interview (depositions), experts to provide opinions as to the accepted standard of care as well as damage experts (economic loss specialists), the costs to maintain a suit are very high – not to mention the level of legal expertise vis-à-vis intricate medical matters. Consequently, the number of law firms that handle medical malpractice are very limited. Maser Law can provide a free initial evaluation of your case as we have prior medical malpractice experience and referral to an appropriate medical malpractice firm.

Civil Rights Violations are a unique area of law where a governmental actor (police department, other city employee, county employee, or state employee such as high way patrol) violate rights given to you under the Montana or United States Constitutions. Classic examples are law enforcement abuse of power or discrimination based on race, gender, ethnicity, etc. Typically these cases are brought in Federal Court as often your attorney will rely on Federal law related to rights set forth in the US Constitution that protect you. Again, it is a good idea to seek out a firm with expertise in civil rights violations as this area of law is unique with complexities. You should be aware if you have cause for a lawsuit against a governmental entity, and not just for a civil rights violation i.e., a normal personal injury suit, a mandatory process called a notice of claim is required to be filed with the governmental entity before you can file a lawsuit in court. Often the notice of claim has a deadline just one year from the time you were injured. If you fail to meet this, then you are barred from proceeding further. Keep this in mind if you believe you have a legitimate civil rights violation.

© 2014 Maser Law PLLC. Information obtained at this site is not, nor is it intended to be, legal advice. Consult an attorney for advice regarding your individual situation. Further, merely contacting Maser Law PLLC does not create an attorney-client relationship.