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littlebluedog
littlebluedog
Tim
Wednesday, September 14th, 2011 06:30 pm
success index at 100%

At today's hearing, the judge granted my motion to dismiss the complaint.

The plaintiff wan't there. I mean in person--just his attorney was present. The main issue in my motion was that the plaintiff is suing for an amount that was incorrectly calculated. Again, this action was initiated by my landscaping company because I declined to pay two invoices for work that I felt was shoddy, instead opting to try to negotiate a fair fee to reflect the crappy condition of the yard as a result of their service. The attempt was, suffice it to say, unsuccessful; they opted to sue.

So. The amount pleaded in the plaintiff's complaint ignored a partial payment I'd already made, and it also attempted to include attorney fees as part of the claim. Both of these are inappropriate, and moreover, if the partial payment was reflected -OR- if the incorrect attorney fees were removed, the amount of the claim would have been under the jurisdictional threshold amount that would have required it to have been filed in the small claims department.

My motion, therefore, requested dismissal of the case because it should have been filed in small claims. Today's hearing was to decide that motion.

The judge came in. I was ready for anything, from the judge saying "I haven't read any of the briefs you've filed, tell me what's up" to "I'm ready to find against you, Mr. Whalen, tell me why I shouldn't."

But instead she said "Let me tell you where I'm coming from. I don't understand why attorney fees are part of the claim. I don't feel as if they should be, and I think this matter should be in small claims. If either of you have anything to say about that, I'm ready to hear it."

Of course, the plaintiff's attorney stood up. It was just him and me in the room, sitting at the counsel tables. Nic had accompanied me for moral support, and was sitting behind us in the spectator seats. And there was the clerk, and the judge.

I hadn't met opposing counsel before, or seen him, or even had any idea what he looked like. I'd communicated via email with him quite a bunch, in which he was aggressive to the point of being rude. But to some extent in this profession you sometimes play a role, and the role he chose in our communications was that of a vicious, barking dog. I had no clue if that was really him, or just an act. But when he spoke, I got a much better measure of him. He stumbled over words, he peppered his speech with strangely-timed pauses ... but this is never a giveaway. Rather it was what he said. He spoke, and I had the idea that he was driving a car, and knew where he wanted to end up, but just ... didn't ... know ... how to get there. And he had a difficult destination to reach. I mean, I had caselaw saying you can't recover attorney fees in the same case in which the legal services are rendered, and he had the task of explaining how the attorney fees he was trying to recover weren't, well, attorney fees.

One thing he mentioned was "There's actually no American case law on this. There is British law, for what it's worth."

The judge let him talk for a couple more minutes until he kind of stalled to a halt and sat down. She asked if I had anything to add, so I stood up and countered what he'd said, or at least that which was cohesive. I explained there was American case law, and indeed very clear Oregon case law, and described a case. She was nodding at me as if she already knew what I was talking about and agreed with it, so I said "Thank you" and sat down.

He stood up and talked a bit more. He mentioned something about how small claims court wasn't appropriate for this case because I'm an attorney and the plaintiff is not. This went on for a good minute.

I think she cut him off at that point. "The fact that the defendant is an attorney, to me, has absolutely nothing to do with a jurisdictional determination." "Of course," he hastily conceded.

She went on: "OK. So I will grant you that your argument about attorney fees is ... novel."

"However," she continued, "I think this is pretty clear. This case belongs in small claims. Motion granted."

So, yay! Nic took me out for a celebratory drink or two.

Who knows what happens next. She didn't clearly dismiss with prejudice, so he can re-file the case in small claims. At the least, this is a substantial stumbling block for his case. At the most, it's the end of it.

In the meantime, I've got an undefeated record at civil court.

8CommentReplyShare

kaleidoscopeeye
kaleidoscopeeye
Kaleidoscope Eyes
Thursday, September 15th, 2011 03:08 am (UTC)

Way to go!!!!!!!!!!!!!!


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cheekyassmonkey
cheekyassmonkey
tori
Thursday, September 15th, 2011 03:33 pm (UTC)

cause you are a rock star :)


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glowing_fish
glowing_fish
Matthew Harris
Thursday, September 15th, 2011 10:45 pm (UTC)
I've probably watched too much Matlock:

I've probably watched too much Matlock and etc. , and I have actually only been in a courtroom once (as a juror), but I always assumed that most lawyers are pretty sharp. At least, sharp enough to know how not to say non-relevant things in front of the judge.

But of course, reality is reality, and plenty of people aren't very good at their job.


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littlebluedog
littlebluedog
Tim
Thursday, September 15th, 2011 10:59 pm (UTC)
Re: I've probably watched too much Matlock:

It's hard to make a judgment based solely on this. He might have thought he sounded brilliant, I don't know -- some people don't have that kind of objectivity. For all I know I sounded just as clumsy. I don't do litigation precisely because oral argument is not my strong suit -- I'm much more comfortable with written argument.


ReplyThread Parent
glowing_fish
glowing_fish
Matthew Harris
Saturday, September 17th, 2011 03:16 am (UTC)
Re: I've probably watched too much Matlock:

And I assume that just like any other professional, lawyers sometimes "phone it in", or have bad days.

Or, it might be that his client was very problematic, and kept on hitting him with requests about how the case should go, and he was trying to put together something that would please him.


ReplyThread Parent
ellettra
ellettra
Na zdraví
Friday, September 16th, 2011 09:51 pm (UTC)

Huzzah!!


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fitfool
fitfool
fitfool
Tuesday, September 20th, 2011 02:15 am (UTC)

Yay! Must feel good to win that one.


ReplyThread